HKSAR v. Lam Kai Man

HCCC 265/2018

[2019] HKCFI 1727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 265 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant is convicted on his own plea of one count of procurement of unlawful sexual act by threat, contrary to section 119(1) of the Crimes Ordinance, Cap 200.

Victim X arranged to meet the defendant for compensated dating as she wanted to earn money in order to pay for higher diploma course fees. They met at an MTR station and went to a nearby hourly-rate motel. When they checked into the room, the defendant asked her to show him her ID card to make sure she was over 18 which she reluctantly did. And a picture was taken by the defendant of her date of birth with the other particulars obscured by a bank card.

Then, there were some arguments about whether the defendant was to prepay the service fee of $3,500. After they had taken a shower, he placed the $3,500 onto the cabinet and asked her to perform oral sex for him. At that point, he suddenly claimed to be working as an informer or some sort of agent for the police to collect intelligence about compensated dating.

She was told to take out her ID card to provide him with her particulars. He told her that should she provide false information, she would be charged. He then pretended to seize the $3,500.

X was scared by all these threats and she begged the defendant to let go of her. The defendant demanded her cooperation to have sexual intercourse with him, to be recorded on audio. He refused to let her put on her clothes. He ignored the repeated refusal of X and continued to threaten X, and eventually X was intimidated into agreeing to have sex with him. After that, the defendant instructed X to hold his hands as they left as “there were ‘colleagues’ watching”.

He tried to contact her to have sex again on the following days, and tried again to mislead her to go out again by saying that her information would only be deleted when they were face to face.

X was scared and made a complaint to a social worker and then to the police.

The defendant is now aged 33 and single. He is a sex offender and has one previous conviction of rape in 2013 to which he was sentenced to 6 years’ imprisonment. He was last discharged from prison in May 2017. Counsel told me that he was a salesman after his discharge from prison but he committed the present offence shortly thereafter.

Mr Boyton in mitigation submits that the greatest mitigation in the present case is the defendant’s plea of guilty which saves X the ordeal of reliving the unpleasant experiences in court and facing the embarrassment of the nude photographs taken by the defendant to be put to her.

It was also urged on his behalf that I should exercise my discretion to grant him the full one-third discount as he was always prepared to plead to this present charge as early as before the committal, but his offer to plead was turned down by the prosecution.

Victim Impact

Victim X is now 20 years old. According to the clinical psychologist, X experienced various post-traumatic symptoms such as mild symptoms of anxiety and depression, and moderate/severe stress response to the incident.

She has acute emotional reactions when in a crowd in public places. She was worried that the videos and audio recordings taken by the defendant would be leaked out. She chose not to disclose the incident to anyone including her family members.

Clinical psychologist is of the view that her long-term psychological well-being may be affected.

Psychiatric and Psychologist’s Report of the Defendant

The psychiatrist observed no psychotic symptoms whilst the clinical psychologist formed the impression that the defendant is preoccupied with sex and manipulative and deceitful to get what he wanted.

Despite his last prison sentence for a rape offence and verbal determination to change his attitude towards sex indicated in his pre-release psychological assessment, he resumed looking for compensated dating shortly after his release from prison.

His risk of re-offending is assessed to be high.

Sentence

The facts of this case reveal appalling and despicable behaviour on the part of the defendant. He preyed on the immaturity and vulnerability of X, made representations to put her in fear that her identity and engagement in compensated dating would be disclosed to the police. Purpose was to threaten her to succumb to having free sex with him.

He did not use contraceptive during the sexual intercourse. He had taken audio and visual records of her before and during the intercourse. He still contacted her afterwards in further attempt to coerce her into providing him with free sex.

He is not a first offender. The present offence was committed slightly more than three months after his discharge from prison of a rape charge.

His acts were not impromptu but premeditated. The impact of the incident on X remains strong and will no doubt have a long-term effect on her psychologically.

The present case contains more aggravating features than that of 劉嘉誠,HCCC 266/2012. In that case, there was no audio or visual recording of any sort and a condom had been used. And that was the first sexual offence of that defendant.

Bearing in mind the maximum sentence for this offence is 14 years’ imprisonment, with all the aggravating features, it warrants a starting point of 6½ years’ imprisonment.

Counsel urged me to give him the full one-third discount on the basis that he had offered to plead to the present charge through his former lawyers by a letter dated 23 July 2018 before committal, which was rejected by the prosecution.

I have had sight of that letter, and I find that nowhere was it indicated in that letter that his offer to plead guilty for this charge. It was only implored on his behalf that in view of the similarity between this case and that of劉嘉誠 whether the prosecution would lay this charge as an alternative to the rape charge, which was rejected by the prosecution.

I have borne in mind that he had made certain allegations against his first team of legal representatives which nearly caused the trial to be re-fixed. It was under such circumstances that the prosecution, having consulted X, agreed to the defendant’s plea to an alternative charge, the maximum of which is significantly lower than the original rape charge.

In view of all these, I decline to give him the one-third discount. He is only entitled to 20 per cent discount. He is sentenced to 5 years and 2 months’ imprisonment.