HKSAR v. Au Alvin

DCCC962/2010 & 42/2011
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 962 OF 2010 and 42 OF 2011

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to three charges of indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance, Cap.200.

2.You have admitted that on an unknown day in June 2009, on 5 March 2010, and on 13 November 2010, at the Manzusaka Model (HK) Incorporation at Kai Wong Commercial Building, Queen’s Road Central in Hong Kong you indecently assaulted three women known as X, Y and Z respectively in the three charges and on those three dates.

3.At all material times, defendant, you were the owner of the modelling company named Manzusaka Model (HK) Incorporation Limited.  Its offices, or perhaps more accurately put, its studio was located at Kai Wong Commercial Building where these offences took place.

4.As a general background, the victims of the charges were all models of your modelling company.  Although there were no contractual terms between your company and the girls, they had gone there for certain training, including modelling training.  You had trained models and taken photographs of models.

5.In respect of the 1st charge, girl model X, she had joined your company in late 2006.  There were no contractual terms for X and your modelling company requiring X to provide nude photographs to be taken of her.

6.In mid-June 2009, you had asked X, then aged 21, to take some nude pictures for your company website but that you had asked her first to attend a training session one day before the photo shooting.  You then asked her to go to your studio at about 7.00 pm.  She arrived there at 8.00 pm.  However, before training started, you asked her to go out and dine with you.

7.After dinner, you both returned to the studio. No one else was present there.  You then started to take photographs of X.  You commented that X was not natural enough and asked her to take off her shirt.  X felt reluctant to do so but complied after being persuaded by you.  After taking a few pictures, you then requested X to take off her bra as well.  X said she did not want nude photos to be taken of her.  You, however, claimed any photographs would be kept by the modelling agency company for training purpose.  You went further and said many models were willing to have nude photographs taken so that they could get more job opportunities.  You further showed X around 150 nude photographs which you had taken of five to six girls as examples.  X was persuaded to do so and therefore took off her bra eventually.

8.After a while you asked X to take off all her clothes.  She half-heartedly complied and became fully naked.  You then continued to take pictures of her and asked her to hold seductive poses.

9.You then said she failed to hold poses seductively enough to meet your expectations.  You asked her to sit on your lap and hold your neck whilst you took photos of her.  She complied, sat on your lap, and you told her to try to imagine that you were her lover.  You asked her to hold poses and make facial expressions to seduce you.

10.You suddenly grabbed her waist and kissed her on her lips.  She turned her head to dodge your kiss but then you kissed her breast and sucked her nipple.  X then knew she was being indecently assaulted by you instead of being trained.  She tried to push you away but you overpowered her.  At that time you were sitting on the sofa.  You pushed her onto the sofa and used your left hand to press her head whilst you used your right hand to touch her private part and kept kissing her breasts.  You then inserted your finger into her private part.  She put up a fierce struggle and managed to escape from you.  After she put on her clothes, you approached her and tried to grab her hand to touch your private part.  She managed not to touch your private part as she pulled her hand away.  You said to her, “I don’t have any dirty thoughts.  This is only training.  A lot of models have done the same thing.  After that they have received a lot of job offers.”  X did not agree and left the studio between 3.00 am to 3.30 am.  The indecent assault upon her lasted for about half an hour.

11.X did not make a report immediately as she felt ashamed that she had removed her clothes for photo taking.  She eventually reported the matter to the police in March 2010. 

12.In respect of the 2nd charge, it concerned the model Y.  Again, there was no contract between your modelling company and Y requiring nude photographs to be taken of her.  She was a full-time model of your company in January 2010.  She was 18.

13.In the evening of 4 March 2010, you requested her, to stay after work to offer her personal modelling training.  At around 3.30 am on 5 March, all the other staff of the modelling company had left.  You started to train her by showing her some videos of singing contests.

14.At around 5.30 am, you suggested to play a game with Y.  You then suddenly pressed Y’s breast with your hand for two to three seconds and asked Y for her feeling.  She replied she felt shocked.  You then continued touching her breasts two more times, each lasting for about two to three seconds.

15.After that, you suddenly unzipped Y’s jacket, reached your hand underneath and touched her breasts again.  After that you then asked Y to touch your private parts.  Y said she was frightened but reluctantly used her finger to touch your private parts on the outside of your pants.  You then asked Y to kiss you but she refused.  You then asked Y to touch your private parts again, and she reluctantly complied and touched it one or two times outside your pants.

16.Shortly afterwards, you asked her to sit on your lap facing you.  When she sat on your lap, you started shaking your legs.  At that moment she felt offended and cried.  She remained sitting on your lap for 10 to 15 minutes and crying.  She did not leave as she was scared that you might harm her.  She felt that you were not training her. Eventually she left the studio at about 7.30 am.

17.The very next day she made a complaint to PW4 and a report was made to the police. 

18.You were arrested on 13 March 2010 and under caution you remained silent.

19.In respect of the 3rd charge, that concerns girl model Z.  She was aged 18. She had joined your modelling company in October 2010.  She had attended there for a model training course.  You were her trainer.

20.She and another model had attended the studio for the model training course on 12 November 2010 at about 7.00 pm.  At around half past midnight on 13 November, the other female left the studio, leaving Z and you alone.  You then suggested that you would take some photographs of Z.  At around 3.30 am, you requested Z to take off all her clothes and to take some nude photographs of her.  Z was reluctant but she finally complied after being persuaded by you.  However, soon afterwards Z felt upset and cried.  You were sitting on a chair and suddenly held her to sit on your lap.  You then started shaking your legs.  She tried to push you away but you overpowered her. At that time she knew this was not part of her training.

21.You then grabbed Z’s hand to touch your private parts.  She tried to pull her hand away but was scolded by you.  You then squeezed her left breast forcefully with your right hand for about five to six times.  She felt very painful and scared and made an excuse to go to the washroom.  She then immediately rushed to the washroom and put on all her clothes.

22.When she came out of the washroom, you tried to show her some nude photographs of other models but Z said she did not want to see the photographs and said she had to leave the studio.  She then left the studio.

23.She did not report the incident to her friend until one to two weeks later as she felt ashamed however on 4 December 2010, she made a report to the police.

24.You were arrested at your residence on 5 December 2010 and under caution you remained silent.

25.Counsel, Mr Oliver Davies, has made full and detailed mitigation on your behalf and I have taken into account all that he has had to say.

26.You are aged 46 and of clear record.  I am informed that you have been in the entertainment business for some 15 years and have been running this model agency for the past 7½ years.  You have provided models for some of the large companies in Hong Kong and many of those models became successful.  I am informed that you are a hard-working man and Mr. Davies assures me that none of the photographs taken of the nude models have ever been used outside of modelling and have never been found.

27.It is Mr Davies’ submissions that the acts were spur of the moment foolish acts which were not pre-meditated.  He says it was due to a man giving into temptation after a long time.  At the time the models were not your employees; and that once they had wanted to leave, they were permitted to leave.  There was no suggestion of you unlawfully detaining them.

28.Prior to sentencing you, I also called for a psychological report on you.  Mr Davies informs me that the contents of the report are agreed by you, and in the opinion of the clinical psychologist, points out that the risk of your re-offending is assessed to be low to moderate. 

29.The general opinion by the psychologist is that you were a workaholic; you had neglected your wife and had marital problems which you were not fully aware of; psycho-sexually, you seem to have been suppressing or neglecting your sexual needs. Personality-wise, you were assessed to be self-centred and an un-empathetic person, who was only concerned about meeting your psychological needs.  It appears that the psychologist here suggests that you did not have adequate insight into your problems and gave a lot of justifications for your misdeeds.

30.It is clear from the report the psychologist says that although admitting or pleading guilty to the three counts of indecent assault, the facts that you gave were very different to the facts admitted by you in the court in the Summary of Facts.

31.In respect of X, you denied any sexual contact with her and you also denied any sexual contact with Z, and you only admitted putting your hand on Y’s breast outside her clothes.

32.I am informed by Mr Davies that the reason for your complete denial to the psychologist of the facts as admitted in the admitted facts, is because you were upset by the media reports in the newspapers the day after you had pleaded guilty.  You now understand it was a foolish thing to do but you thought you were doing it to protect your family.  You did not want your family, particularly your mother, to receive bad press reports, and did not want to hurt your mother.

33.I am informed today only by Mr Davies, having told him that I had no idea what was in the press reports, presumably they being the Chinese press papers, that your mother and aunt were very well-known singers of a famous group in the 70s.  Perhaps for this reason there had been this wide media interest in this case.

34.In any event, those matters of press reporting or your mother’s success, does not bear upon any matters to which I take into account when sentencing you.

35.I have in mitigation received letters from yourself expressing your deep remorse, acknowledging your wrongdoing and the impact that this offence has had upon yourself and on what was a very successful career.

36.I am informed by Mr Davies that the agency has since closed down and you are no longer engaged in that business.

37.You have learnt a lesson from your incarceration in the last few months and you have earnestly informed me that you will not be committing any similar or further offences. You have asked me to give you leniency and for you to be able to take care of your family and mother.

38.I have received a number of letters here written on your behalf by friends who have known you for many years expressing that you have been a hard-working, dutiful filial son and good friend.  Those letters, as I said, were from friends, relations of your wife, and mother.  I have been informed that your marriage has since broken down as a result of your committing these offences.

39.Mr Davies has said that you had spent hours and hours working with these girls and this was not pre-meditated acts of indecent assault committed by you but were spur of the moment acts and you were just a man giving into temptation after a long time spent with these girls.

40.Defendant, you were in a job with beautiful women.  It was your duty, as you say, spending hours training them, and you knew that these women must have been or were attractive women.  In your position, you should have been aware that you may have been subject to a greater temptation than a man who meets a woman at a social occasion who is a beautiful woman.  Your resistance to temptation should have been much higher than the man who meets a woman on a one-off occasion on a social occasion.  You work with them daily.  This is not the type of case where this was a one-off occasion with a beautiful woman. 

41.Furthermore, you placed yourself in a position where you may have been attracted to these women more so because you had told them to take off all their clothes.  For girl X you asked her to make seductive poses.  Not only were they just seductive poses, but they were seductive poses you instructed to be made to yourself and you placed yourself in a position whereby she was physically in contact with you. 

42.This was, in my view, a step-by-step slow progression of you intending to commit your indecent assault.  I do not accept that this was a spur of the moment act.  You had obviously succumbed to your desires. 

43.I do not accept it was “temptation”, in your words.  After you had indecently assaulted X you said to her, “I don’t have any dirty thoughts.  This is only training.  A lot of models have done the same things.”  How can kissing a girl, touching her breast, sucking her nipples and inserting your finger into their private parts be any sort of training for models, particularly when they have made it clear to you that they are not consenting to your acts?  Your training sessions which led these girls to believe that they were learning were taken over long hours which to me made your move to indecently assault the girls easier.

44.These girls were young 18 and 21, obviously anxious to do well in their career.  They looked upon you as a trainer and as somebody who could assist.  They, therefore, placed themselves in your hands in circumstances of training.  They were entitled to consider that they would be properly and decently dealt with. 

45.Even though Mr Davies says that in a lot of modelling agencies, which may be correct, models are asked to pose nude or naked, that may be so, but not then thereafter to be indecently assaulted.

46.You, in my view, abused their trust they had placed in you to be their trainer. 

47.It was abundantly clear that X and Z did not wish to be photographed naked, but with some coaxing, they complied.  When eventually you did assault them, you had at some stage used some force.  For X, you pushed her onto the sofa and pressed her head down.  For Y, you unzipped her jacket and squeezed her breasts. For Z, you had pulled her hand to try and touch your private parts though she pulled her hand away.  You had also scolded Z.  Notwithstanding the girls making it clear to you that they wished to desist your sexual advances, you persisted in pursuing your sexual advances.

48.The maximum sentence for these offences is one of 10 years’ imprisonment.

49.The prosecution through Mr Boey Chung and your counsel, Mr Oliver Davies, have submitted to me a number of cases involving the offence of indecent assault.  None of those are similar to the present case.

50.In the case of HKSAR v Tsang Ue Sum, CACC32/2010, Lunn J points out that sentencing for offences of this nature is a particularly fact-sensitive exercise and covers a wide range of conduct.  In those circumstances, references to sentences imposed in other cases are usually of very little assistance to courts. 

51.In the case of HKSAR v Chan Ching Ho [2003] HKLRD 476, Stuart-Moore V-P had laid down important sentencing considerations when sentencing in indecent assault cases.  Those factors were to deter others from committing similar offences, to mark public abhorrence of such crimes, to address the grievance suffered by the victim, her relatives and friends.  I fully accept that the above case involves indecent assault of young children.

52.Other factors to be taken into account are of course whether there is any violence used, the defendant’s physical acts of indecency, time factor involved, and whether there is any breach of trust.

53.For the purposes of this sentence, I have taken those factors into account when considering the appropriate sentence. 

54.I have also considered the fact that these offences are not committed in the course of a single transaction.  These offences were entirely separate and distinct.  They were committed on three separate girls at three separate times over a period of a year and a half, from June 2009 to November 2010.

55.I have also taken into account the fact that the 3rd charge was committed by you whilst on bail for the 1st and 2nd charge.  Quite surprisingly, after your arrest for the first two offences, this did not bring to an end your indecent assaults on your models.  You quite unashamedly and blatantly continued in your mistreatment of your models. 

56.The fact that you committed the 3rd charge whilst on bail for the 1st and 2nd offences I take as an aggravating factor.

57.Defendant, taking into account all the factors that I have said and my reasons that I have given, I consider the following to be the appropriate sentences for the offences to which you have committed.

58.On Charge 1, had I convicted you after trial, I would have taken a starting point of 12 months’ imprisonment.  However, I must give you full credit for your plea of guilty and that term shall be reduced to 8 months’ imprisonment.

59.On Charge 2, a sentence after trial I found to be appropriate would have been 6 months’ imprisonment.  However, again giving you full credit for your plea of guilty, that term shall be reduced to one of 4 months’ imprisonment.

60.On Charge 3, again I take a starting point of 9 months’ imprisonment had I convicted you after trial.  Giving you full credit for your plea, that sentence shall be reduced to 6 months’ imprisonment.

61.I have taken into account the principle of totality and, in taking that into consideration, I consider a total overall term of 13 months’ imprisonment to be appropriate, and therefore 2 months of Charge 2 and 3 months of Charge 3 are to run consecutive to Charge 1 and that makes a total term of 13 months’ imprisonment, to which you are so sentenced.  The remainder of the terms are to run concurrent to each other.