HKSAR v. Sy Yik Man

DCCC1325/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1325 OF 2010

--------------------

---------------------

Reasons for Sentence

---------------------

1.Defendant, you have pleaded guilty to six charges of obtaining access to a computer with dishonest intent, contrary to section 161(1)(c) of the Crimes Ordinance, Cap.200.  Those charges were Charges 2, 4, 9, 13, 19, and 21 on the indictment.  The remaining 15 charges were ordered to be left on file and not to be proceeded with without leave of this court or the Court of Appeal.  You admitted the brief facts of those charges to which you pleaded guilty and I convicted you. 

2.The facts were as follows.  Since 1 February 2009 you had been employed by a limited company in Hong Kong which operated 100 coffee shops.  Employees were required to wear a uniform.  You were the branch manager of one of the coffee shops inside of which there was a changing room to change into company uniform.  You were given a desktop computer in your office.  Females A, B, C, D, E were subordinates of you at the shop.  On 8 December 2009, your supervisor found two video clips stored on your desktop computer in a folder entitled “Cashier.” 

3.The video clips recorded Miss A, on Charge 21 and Miss B, Charge 4, changing into uniforms in the change rooms. The underwear of each was clearly visible.  At the beginning of the video clips you were seen adjusting the camera on the hidden recording device an LP Mobile Phone.

4.On 9 December of 2009 you were dismissed by your employer and the matter was reported to the police.  Your employer told you why you had been dismissed and you made no reply.  On the next day, that is, 10 December you were arrested. 

5.Under caution you admitted taking the two video clips on two different occasions using your LP mobile phone with video camera and audio recording functions.  You took them to view.  On two different occasions you copied the two video clips to the desktop computer in your office, Charges 4 and 25.  You used the desktop computer and a laptop at home. Police found 14 video clips on the disk showing Miss B on 14 different days included in Charges 9 and 13.  On your laptop one video clip of Miss D and Miss E, Charge 2 and one video clip of Miss C, Charge 19.

6.All the video clips recorded Miss B, Miss C, Miss D and Miss E changing their clothes into uniform in the change rooms save video clips of Miss B, Charge 9 and 13.  These showed Miss B changing from her uniform to her clothes.  The underwear of each was clearly visible.  The video clips were of the duration shown in the chart in the brief facts. 

7.On 26 April 2010 you were interviewed under caution with your legal representative and refused to answer questions.  At no time did you seek the permission of Miss A to E to take such videos.  None of them knew they were being so videoed. 

8.Defendant, you are a man of hitherto clear record.  In view of your clear record, your relative youth and the nature of the offences, I adjourned sentence for a probation officer’s background report, a report as to suitability for community service and a psychological report. 

9.I made the point that I was unlikely to consider anything other than an immediate prison sentence and reserved that option to the court no matter what was recommended.  Those reports are now before me and I have taken their contents fully into consideration when deciding sentence.  The reports themselves are positive reports and speak well of you.  I also note that the reports do recommend community service. 

10.On your behalf Miss Nam entered a comprehensive and persuasive mitigation.  The thrust of that mitigation was to suggest that you should be dealt with by means other than a custodial sentence.  I am obliged to her and assisted by the written form in which it was presented. Miss Nam emphasised your clear record. 

s

11.She told that you are 26 years of age, unmarried, residing with your mother and you have one sister.  You had a somewhat disruptive childhood caused by the failure of your father’s business and ultimately the break up of the marriage.  Your mother was left in poor financial conditions to try and bring up your sister and yourself. 

12.At the age of 17 you entered the workforce with poor qualifications.  However, you worked hard and through determination and hard work you achieved the position of shop manager at this coffee shop.  However, this led to stress and this, in turn, led to the commission of these offences. 

13.In recent times you have had a heavy financial burden having to assist both your mother and your father.  And I must confess that, having read these reports and heard your mitigation, it remains somewhat unclear to me as to exactly why you committed these offences. 

14.Upon discovery you immediately lost your job and your career.  Thereafter when the police became involved you were entirely cooperative with the police.  Miss Nam articulated your remorse for the commission of these offences.  She referred me to the fact that you, since the commission of these offences, have voluntarily sought psychological assistance and by your own endeavours you have found another job.  That job remains open to you depending on the outcome of these proceedings. 

15.I note the letters of support from your family and also the letters of support from colleagues and friends.  Miss Nam also helpfully referred me to similar cases.  It is abundantly clear to me that the offences you committed are more in character with behaving in a disorderly manner or outraging public decency than with computer fraud.  By that, I level no criticism at the prosecution because of the technical nature of the offences.  Miss Nam asked me to consider the imposition of a non-custodial sentence while facing squarely the serious nature of these offences. 

16.I turn now to the sentence.  With the greatest of respect to Miss Nam, I disagree with that approach.  I disagree for the following reasons.  These offences were well planned and well executed.  To my mind, and that of any right thinking person, they are unsavoury in character and nature.  They represent a fundamental breach of trust and that, as a manager, you have no right to take advantage of your staff in this way.  And, finally there is a level of persistence and number, being six.

17.Having said that, the acts themselves are not of the worst.  They are an affront to the dignity of females and their right to privacy.  It has to be made clear by the courts of Hong Kong that those in senior positions must not take advantage of their subordinates in this way.  There are many points of mitigation in this case and I have taken those into consideration.  The reports are positive. 

18.I turn now to the sentence itself.  As I have said, in my opinion only an immediate custodial sentence is appropriate. In each case I take as a starting point of 6 months’ imprisonment.  For you plea of guilty that will be reduced to 4 months.  You will go to prison for four months on each, concurrent, that is, a total of 4 months’ imprisonment.