COURT: The defendant pleaded guilty to six charges. They are as follows:
(1) Procurement by threats, contrary to section 119 of the Crimes Ordinance. I will refer to that as Count 1.
(2) Criminal intimidation, contrary to section 24(a)(i) and (3) of the Crimes Ordinance. I will refer to that as Count 2.
(3) Possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance. That is Count 3; and
(4) Three counts of voyeurism, contrary to section 159AAB(2) and (3) of the Crimes Ordinance. I will refer to those three counts as Counts 4, 5 and 6.
In about September 2016, X, an adult male who was already a sex worker, became acquainted with the defendant via a gay dating application. They then started a non-transactional and affectionate relationship. However, beginning from the end of 2017, X was struggling financially and the defendant suggested paying $1,500 cash to X every time they had sex at hotels arranged by the defendant. The fee was increased to $2,500 in October 2021.
In August 2021, the defendant proposed a weekly “2+1” sex service plan. That is, X had to provide a few hours of sex service twice per week at $2,500 each time, plus an overnight sex service at $8,000 at hotels arranged by the defendant. I will refer to this arrangement in short as “the weekly plan”.
In addition, the defendant would also give X extra presents of money and goods. It would appear from the Summary of Facts that their relationship started to breakdown when X was not sufficiently available to fulfil the services in accordance with the weekly plan according to the defendant’s requests, and disputes surrounding this issue and other matters eventually led to the breakdown of their relationship, culminating in the defendant’s commission of these offences.
The defendant, through his counsel, Ms Charlotte Draycott, senior counsel’s written submissions, which Mr Phil Chau, senior counsel, adopted orally, informed me of a number of background factual matters in respect of the relationship between the defendant and X prior to the breakdown in their relationship in or around September or October 2021, which do not in any way contradict the Summary of Facts. There is no reason for me not to accept those assertions, the most relevant of which to my consideration of sentence are listed out as follows:
(1) The defendant and X were friends and lovers. The defendant was in love with X and believed that X loved him.
(2) In addition to the financial payment each time they had sex since 2017, the defendant gave X unsolicited and generous amounts of money and gifts.
(3) Both the defendant and X were accustomed to film themselves having sex, for their own mutual enjoyment.
(4) Both the defendant and X were accustomed to unprotected sex and the defendant was anxious that X might pick up an infection through his work as a
sex worker. Despite the defendant’s obvious concerns, X did not tell the defendant that he had already contracted AIDS and was HIV positive.
(5) In the summer of 2021, X confided with the defendant that he would like to go to college to better equip himself to get alternative work so that he would not need to prostitute himself. However, X needed a reliable source of income so that he could study. This was how the weekly plan was hatched, through which X would be paid $13,000 per week if the services had been fulfilled. The weekly plan was agreed on the basis that X would not sleep with other men.
(6) Aside from the non-availability of X to fulfil the weekly plan at the defendant’s requests, there were other factors which contributed to the breakdown in their relationship. This included the defendant finding out that X had HIV medication, which was previously hidden from him, and a suspicion that X had slept with other men.
The factual basis for Count 1
I now go back to the facts more directly relevant to Count 1.
On 25 October 2021, the defendant and X had the same dispute regarding X’s non-availability to the defendant’s requests. In the heat of the moment, the defendant sent eight photos to X via WhatsApp that relate to a purported complaint that the defendant had made to the police that X had forcibly performed sexual acts against him. The defendant then sent messages to X stating that he had made a report of rape against him to the police. The eight WhatsApp photos contained doctored images of correspondence with the police and a doctored police witness statement. The defendant, in fact, had not made any report to the police against X.
X, however, believed that the defendant had made such a report to the police, and understood the defendant’s messages to be requesting him to comply with the weekly plan. X then complied and continued with the weekly plan.
The defendant and X’s complete breakdown in their relationship appeared to have occurred on or around 20 November 2021, when X told the defendant that he wanted to cease the relationship, after which the defendant reacted strongly and kept scolding him.
The factual basis for Count 2
At around 1 am on 22 November 2021, the defendant sent X WhatsApp messages from a different number (the original one having been blocked by X). Although the defendant had pretended to be a different person at the time, there is no dispute that it was the defendant who was using different numbers to contact X, and X knew that at the time.
The messages that the defendant sent to X contained a photo of a leaflet, I will refer to it in short as “the leaflet”, that had on it the following matters:
(1) Two nude photos of X;
(2) One close-up photo of X in clothes;
(3) X’s HKID card;
(4) A photo of a penis;
(5) X’s full Chinese name claiming that he was a liar;
(6) Words to the effect that he did not tell others that he was HIV positive;
(7) The name of X’s school; and
(8) X had been prostituting since 18 years old and had been imprisoned.
X then reported the matter to the police.
At various times during the same day, that is 22 November 2021, the defendant sent messages to X threatening that a new Instagram account had posted about him already, asserting that he was a prostitute and a liar, that he was HIV positive, that he was doomed and more surprises were to come, and that generally threatening to spread similar disparaging assertions about X. The defendant then sent an Instagram post to X, from which X was able to trace it to an Instagram account which contained photos of the leaflet, and three photos of X naked, which apparently originated from consensual filming when D and X previously had sex.
The defendant also sent X a photo capturing pieces of the leaflets on the floor and a video showing someone spreading the leaflet on a podium of a shopping mall in Mong Kok. X therefore rushed to the shopping mall with his friend and retrieved 10 of the leaflets from the floor in the vicinity of the shopping mall. X made another report to the police.
At about 11 pm the same day, X and the defendant had a conversation during which the defendant claimed that he had already deleted X’s photos from the Instagram account. Hoping to prevent the defendant from publishing his nude photos again, X agreed to comply with the weekly plan again.
On 24 November 2021, D wanted to meet X but X initially refused. The defendant then threatened that there would be “shows” in Tsim Sha Tsui, Central, and Wan Chai, and there will be 2,000 leaflets at each of the school campuses where X studied. Hoping to prevent the dissemination of the leaflets, X apologized and they arranged to meet at a hotel in Sheung Wan, which I will simply refer to as “the hotel”. X informed the police of their meeting.
The factual basis for Count 3
At about 10.30 pm on the 24 November 2021, at the hotel, when the defendant came out to greet X, the defendant was apprehended by the police. The defendant had the key card to Room 2103 of the hotel, I will simply refer to that as “the hotel room” for short. Upon a search of that room, the dangerous drugs which formed the basis of Count 3 were found inside the room. The dangerous drugs were:
(1) 6.51 grammes of ‘Ice’;
(2) 0.15 grammes of methamphetamine;
(3) 1.4 grammes of cocaine;
(4) 36.5 grammes of gamma-butyrolactone; and
(5) 0.47 grammes of MDMA.
Inside the hotel room were also various equipment for consuming the said dangerous drugs. When the defendant was arrested, he said under caution that the drugs were for his own consumption, which he had purchased for $3,000.
The factual basis for Court 4
In the hotel room, the police also located a black iPhone, which I will refer to as “the iPhone” in short, with its video recording function switched on, hidden behind a tissue box placed on a table with a camera facing the bed. When the defendant was arrested for voyeurism, the defendant stated under caution that he had put the mobile phone there to record the process of meeting with X so as to prevent X from framing him up and to protect himself.
The factual basis for Counts 5 and 6
Two videos which were recorded on the 12 November 2021, that is Count 5 and 16 November 2021, that is Count 6, were found on the iPhone. Both videos showed the defendant and X both naked and performing sexual acts in a hotel room on the respective dates. The defendant never asked for consent from X and X did not notice the recording on either occasion.
In subsequent video-recorded interviews, the defendant essentially made a full confession to all six charges. Of particular note for the purposes of Count 3, it is his admission that he sometimes shared dangerous drugs with his friends for free.
The defendant’s personal background
The defendant is currently 42 years old, and 39 at the time of the offences. He was born in Hong Kong and moved with his family to Canada when he was 2 years old. His mother, father, and sister still live in Canada, but after graduating from the University of Ontario, the defendant moved back to Hong Kong in 2003 and took up employment in the consumer goods sector. The defendant has been in continuous employment since then, and his income at the time of his arrest was in excess of $100,000 per month.
The defendant had been a speaker in trade seminars for Hong Kong University students and a contributor for trade and promotion and cultural exchange events in Hong Kong, China, and Singapore. Of the most significance is that the defendant had also actively volunteered for Food Angel, a charitable organization which collects surplus food from the catering industry, made into meals by volunteers and distributed to underprivileged communities. The defendant had prepared and distributed food for the elderly consistently and on a weekly basis for a period of around seven years prior to his arrest. I have been informed that the defendant had also made donations to support that charity.
I have read the letters written by Deacon Peter Wong, the defendant’s long-term partner, Mr Mok, the defendant’s sister, and the defendant’s brother-in-law. The letters as a whole speak to the defendant being viewed by them as a person of integrity, who was also kind, selfless, and keen to help others in need. Mr Mok’s letter in particular spoke of an occasion where the defendant helped a distressed stranger, who was sitting next to him in a coffee shop and who was in a difficult situation, locate a job in his company. I have also been informed that even after the defendant had been remanded in custody, his selfless nature is reflected in the regular lessons that he gives to other inmates on English, French and Economics. I have been provided with examples of the detailed worksheets that the defendant provides to his fellow inmates to show his dedication to that cause.
The defendant has no previous convictions in Hong Kong or elsewhere. He had been remanded in custody since 24 November 2021.
Consideration of sentence
I will first consider the appropriate starting points for each count.
Count 1 concerns the use of a purported making of a report of rape to the police against X (which in fact did not occur) to intimidate and/or threaten X to continue with the weekly plan. I accept that the defendant and X had been in a previously intimate relationship and the commission of the offence by the defendant was for the most part driven by his complicated, but genuine, emotional feelings towards X. This is quite different from cases where a defendant is manipulating or preying on victims, which would no doubt have merited a higher starting point.
On the other hand, I consider the use of doctored correspondence with the police and a doctored police witness statement to reinforce the false claim made by the defendant to have aggravated the seriousness of the offending. Firstly, it involved the use of false documents; secondly, the false documents made the defendant’s threats or assertions more credible and believable to X and therefore would have had a greater impact on X. Further, as a result of the false claim made by the defendant, X complied and agreed to carry on having sexual relationships with the defendant.
There are no sentencing tariffs for this type of offending and the factual circumstances of each case will undoubtedly vary greatly. Considering the circumstances in the round, I consider a starting point of 3½ years’ imprisonment for Count 1 to be appropriate.
Count 2 concerns the use of, as well as the threat of using, leaflets and Instagram posts about X’s personal details, disparaging assertions about X, and several naked photos of X, to intimidate X. An Instagram account about X with his naked photos was actually created, and the leaflets were actually distributed on one occasion in Mong Kok. This has the obvious effect of aggravating the seriousness of the offending.
Having regard to the similar factors as stated above in regards to Count 1, and considering the circumstances in the round, I consider that a starting point of 2½ years’ imprisonment for Count 2 to be appropriate.
Count 3 concerns the possession of varying amounts of dangerous drugs, with the 6.51 grammes of ‘Ice’ being the more dominant type of drug. Having regard to HKSAR v Wong Wai Wah [2018] HKCA 671, HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, at paragraphs 27, which concerns daily consumption volumes, and HKSAR v Mok Cho Tik [2001] 1 HKC 261, I consider that the appropriate starting point prior to considerations of latent risk is 12 months’ imprisonment.
As noted previously, the defendant admitted in his video-recorded interviews that he would sometimes share dangerous drugs with his friends. Although X had previously indicated that he would not take drugs with the defendant anymore, that the defendant was prepared to share the drugs is self-evident. I consider that the latent risk is real, but not substantial, given that the quantity of the drugs involved are not high. I would therefore enhance the starting point of Count 3 by 3 months, leading to an enhanced starting point of 15 months for Count 3.
Counts 4, 5, and 6 will be considered as a group since they concern similar acts of recording sexual activity between the defendant and X on three occasions in relatively close proximity in time. I have considered the approach and observations of the Court of Appeal in HKSAR v Tsang Wai Man [2017] 5 HKLRD 887, particularly paragraphs 6 to 8 of that judgment. Having regard to the previous intimate relationship between the defendant and X, that the defendant had stated that his purpose of recording was to protect himself against possible allegations from X, and that the defendant and X had a previous history of consensual recording of their sexual activity, I consider that a starting point of 9 months’ imprisonment for each of Counts 4, 5 and 6 to be appropriate.
The main mitigating factor for the defendant is his guilty plea. Although this case had been adjourned a number of times in the Magistrates’ Court before the defendant tendered his plea, the defendant had pleaded guilty on the first occasion when asked to tender this plea. I, therefore, do not see any basis for departing from the usual one-third discount for a timely plea. The sentences after the one-third discount are as follows:
(i) Count 1 - 2 years and 4 months’ imprisonment;
(ii) Count 2 - 1 year and 8 months’ imprisonment;
(iii) Count 3 - 10 months’ imprisonment;
(iv) Counts 4, 5, and 6 - each 6 months’ imprisonment.
In considering the question of whether the sentences ought to be served concurrently or consecutively, I bear in mind the observations of the Court of Appeal in HKSAR v Ngai Yiu Ching CACC 107/2011, particularly paragraphs 22 and 23, that I have to bear in mind the sentence will fairly reflect the offender’s overall culpability and an assessment of the totality.
In respect of Counts 1 and 2, the repeated threats or acts of intimidation against X, in my judgment increases the defendant’s culpability. I would therefore order that 6 months of the sentence in Count 2 be served consecutively on Count 1.
In respect of Count 3, the culpability for the possession of dangerous drugs is separate from the defendant’s acts against X, and therefore should be partially consecutive to the sentences in Counts 1 and 2. I would therefore order that 3 months of the sentence in Count 3 be served consecutively on the sentences for Counts 1 and 2.
In respect of Counts 4, 5, and 6, having regard to the issue of totality and the circumstances of their offending, I will order that the sentences for Counts 4, 5, and 6 be served concurrently with all other sentences.
Finally, I come to the defendant’s positive good character. The defendant has obviously made consistent, valuable and positive contributions to society, particularly his weekly commitment to assisting in the preparation and distribution of food to the elderly for a number of years. For the defendant’s positive character, I will reduce his overall sentence by 4 months. This will be achieved by further reducing the defendant’s sentence on Count 1 by 4 months.
The final overall sentence is one of 2 years and 9 months’ imprisonment.
I sentence you to 2 years and 9 months’ imprisonment.