HKSAR v. Lam Chi Hong Patrick

[English Translation - 英譯本]
HCMA496/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 496 OF 2011

(ON APPEAL FROM STCC 2952 OF 2011)

__________________

__________________

Before: Hon Barnes J in Court

Date of Hearing: 16 November 2011

Date of Judgment: 16 November 2011

Date of Reasons for Judgment: 21 November 2011

REASONS FOR JUDGMENT

1.The appellant was convicted by the magistrate on his own plea of one count of criminal intimidation, contrary to section 24(a)(ii) of the Crimes Ordinance (Cap. 200), and was sentenced to 10 months’ imprisonment.  The appellant appealed against sentence.

2.At the conclusion of the hearing, I allowed the appeal, set aside the sentence of 10 months’ imprisonment and substituted therefor a sentence of 8 months’ imprisonment.  I now provide the reasons for my judgment.

Admitted facts

3.The magistrate set out the following facts which had been admitted by the appellant:

“(i) In mid-September 2010, Miss X, who was around 24 years old, came to know the defendant online.  The two met once in late September 2010, and the defendant proposed that Miss X do “compensated dating” with him.

(ii) On 2 October 2010, Miss X received a call from the defendant at home.   The defendant asked Miss X to do “compensated dating” with him for HK$4,000 at his home in Tin Shui Wai on 9 October 2010, to which Miss X agreed.  Thereafter, during an online video chat with Miss X, the defendant asked her to remove all her clothes for him to look at, which Miss X did.  

(iii) At around 2230 hours on 9 October 2010, the defendant phoned Miss X, asking her to go to his home for “compensated dating”.  Miss X declined and told the defendant to look for another woman.

(iv) At around 1600 hours on 10 October 2010, Miss X received from the defendant a text message in which the defendant claimed that he had Miss X’s nude photographs.  The defendant asked Miss X to have sex with him for free, or else he would send those photographs to Miss X’s boyfriend.  Miss X felt frightened.

(v) At around 2300 hours on 22 October 2010, Miss X received on her computer an email from the defendant with 10-odd nude photographs of Miss X attached.  Miss X felt frightened.

(vi) On 9 November 2010, Miss X received a call from the defendant, who asked her if she had received the said email.  She immediately ended the call.  After consideration and discussion with her boyfriend, Miss X sought assistance from the police.

(vii) On 27 February 2011, the police arrested the defendant.  He stated under caution that when Miss X removed her clothes during her video chat with him on 2 October 2010, he had captured some nude photographs of Miss X with his computer.  The defendant admitted that at around 1600 hours on 10 October 2010, he sent, on the spur of the moment, a text message to Miss X, threatening to send her nude photographs to her boyfriend unless she had sex with him for free.

(viii) The police found 36 nude photographs of Miss X in the defendant’s computer.”

Ground of appeal

4.The ground of appeal advanced by Mr. Lawrence Lok, SC and Mr. Caesar Lo for the appellant was that the starting point of 18 months’ imprisonment adopted by the magistrate was manifestly excessive.

“Dashed hope”

5.The main argument put forward on behalf of the appellant was that he was a victim of “dashed hope”, which provided a basis on which the court could reduce the sentence (see HKSAR v Lui Kin Hong, Jerry, CACC 378/1998).

6.It was submitted on behalf of the appellant that he had no conviction record prior to the present offence, and that, after arrest, he admitted the offence and also fully cooperated with the police.  The police took statements from the appellant on 28 February 2011 (i.e. the day after his arrest) and 14 May 2011 respectively for the purpose of applying to the court for a Bind Over Order.   The appellant agreed to accept a Bind Over Order and maintained his admission of guilt and remorseful attitude.

7.In the end, even though the police took a statement from Miss X on 22 June 2011 and obtained her consent for the police to conclude the matter by way of a Bind Over Order, the appellant was formally charged on 26 June 2011.  When the case was first brought to court on 30 June 2011, the appellant pleaded guilty at first opportunity and agreed to the facts, which fully reflected his remorse.

8.As to why the defence did not bring to the magistrate’s attention the proposal of the Bind Over Order, I was told by the appellant that the appellant, who had pleaded guilty at his first appearance in court, was then represented by a duty lawyer who was unaware of the relevant information and hence did not mention it to the court.

9.I was indeed surprised by the fact that the police had taken two statements from the appellant.  Mr. Francis Lo, Senior Assistant Director of Public Prosecutions, appearing for the respondent, told me that it was the detective police constable responsible for the investigation of the present case who took the statements from the appellant and the victim.  Subsequently, the officer in charge of the case considered that, in view of the gravity of the matter, a Bind Over Order was inappropriate.  Consequently, the police preferred a charge despite agreement by both the appellant and the victim to have the matter concluded by way of a Bind Over Order.  It was asserted on behalf of the respondent that the detective police constable’s approach in the present case was not the “usual practice”.

10.I emphasize here that it would not have been right, on the facts of the present case, to substitute a Bind Over Order for prosecution.  I am sure that the magistrate would not have allowed any formal application by the police for a Bind Over Order.  I hope that the relevant authority will give proper directions to the police officers concerned in order not to commit the same error of giving hope to an accused which is subsequently dashed. 

Excessive starting point

11.In addition to the “dashed hope” argument above, the appellant contended by written submission that, on the facts of the present case, the starting point of 18 months’ imprisonment adopted by the magistrate was manifestly excessive.  However, Mr. Lok, SC did not place further emphasis on this contention in his oral submission.

12.In sentencing, the magistrate considered the three judicial authorities cited by the prosecution and the defence.  He succinctly summarized and reviewed these authorities and then proceeded to sentence the appellant.  This is what he said:

‘Sentencing authorities

7. In respect of sentencing, Counsel for the defendant submitted the judgments of the following two cases for the court’s consideration:

(i) R v. Wong Chak-man HCMA 824/1984; and

(ii) HKSAR v. CHENG Pui Man, Dicky HCMA 765/2009.

8. The prosecution submitted the Reasons for Judgment in the case of HKSAR v. Chan Ting Yip (transliteration) CACC 201/2009 for the court’s consideration.

9. In R v. Wong Chak-man, the appellant’s lover requested to terminate her relationship with the appellant. In order to make her change her mind, the appellant threatened to publish nude pictures of her, which he had taken over the years.  The appellant was sentenced to 6 months’ imprisonment following his conviction after trial.  On the appellant’s appeal against sentence, Bewley J (as he then was) considered the sentence of 6 months’ imprisonment appropriate, but suspended the sentence for 3 years on the basis that the appellant was suffering Othello Syndrome.

10. In HKSAR v. CHENG Pui Man, Dicky, the appellant was convicted after trial of a single charge of criminal intimidation and sentenced to 18 months’ imprisonment.  The facts were that the victim borrowed a sum of money, and a few months later the appellant and two other men visited the victim, saying that they were worried about her not being able to repay the loan.  She was asked to strip, and the appellant then took two photographs of her in the nude and hinted that he would use those photographs against her if she failed to repay the loan as instructed.  On the appellant’s appeal against sentence, Wright J substituted a sentence of 12 months’ imprisonment.

11. In HKSAR v. Chan Ting Yip (transliteration), the applicant was charged with and pleaded guilty to two counts of unlawful sexual intercourse with a girl under the age of 13 years and one count of criminal intimidation.  He was sentenced by the Deputy District Judge to imprisonment for a total term of 64 months.  On the offence of criminal intimidation, the judge sentenced the applicant to 24 months’ imprisonment, having adopted a starting point of 3 years and then reduced it by one-third on account of the applicant’s guilty plea.  I shall quote the facts of that case as set forth in the Reasons for Judgment:

“5. The prosecution case, as admitted by the applicant, is as follows: the applicant came to know PW1 via the Internet, and they frequently communicated via MSN and phone. On a certain day in 2006 (PW1 was then 10 years old), PW1 met the applicant at her home. The applicant told PW1 that he wanted to make love to her. PW1 said that she did not want to and told the applicant that she was only 10 years old, but the applicant told her not to worry. Eventually, they had sexual intercourse.

6. About one year later, the applicant visited PW1 at her home again with her consent, and they had sexual intercourse again. PW1 was then around 11 years old.

7. On a certain day towards the end of 2008, the applicant sent a message to PW1’s mobile phone, asking to communicate with her via MSN. During their conversation, the applicant requested PW1 to strip so that he could see her naked through the webcam. He kept persuading PW1 to do so and promised that he would not disturb her again if she exposed her body. As a result, PW1 agreed. She stripped herself and lay on the bed as instructed by the applicant, but switched off the webcam after a minute. PW1 heard no further from the applicant thereafter.

8. On 10 January 2009, the applicant, via MSN, requested PW1to make some sound for him as if she were making love. PW1 then downloaded a message and sent it to the applicant. Later on the same day, whilst talking to PW1 via MSN, the applicant threatened her to strip and let him watch her masturbate. She said that her webcam had been broken and the applicant said he would give her a few days to fix it, otherwise he would circulate her nude photographs on the Internet. Meanwhile, the applicant sent her, via MSN,two nude photographs of her.

9. The police arrested the applicant on 14 January 2009. Under caution, the applicant … admitted that he had threatened to circulate PW1’s nude photographs via the Internet unless she obeyed his instructions.

10.       The applicant has a clear record.  He was aged only 19 when he committed the first offence and has reached 21 by the time of sentencing.”

On the applicant’s appeal against sentence,  the Court of Appeal held that, on the facts of the case, the 3-year starting point adopted for the offence of criminal intimidation was not improper.

Analysis

12. R v. Wong Chak-man was decided back in 1984, when the technology for publishing images via the electronic network was not as advanced as that nowadays.  Coupled with the fact that it was because the appellant was suffering Othello Syndrome that Bewley J suspended the sentence, I do not think the sentence imposed in R v. Wong Chak-man is applicable in the present case.

13. In HKSAR v. CHENG Pui Man, Dicky, the appellant made use of the victim’s two nude photographs to force her to repay the loan; whereas in the present case, the defendant threatened the victim with a number of nude photographs of her, the threat being that he would send those photographs to her boyfriend unless she had sex with him for free.  On the facts, what the defendant in the present case threatened the victim to do was to have sex with him for free.  The facts of the present case are, in my view, more serious than those of HKSAR v. CHENG Pui Man, Dicky.

14. I think the facts of HKSAR v. Chan Ting Yip (transliteration) are more analogous to those of the present case.  I do note that in Chan Ting Yip the fact that the victim was a girl of only about 13 years of age made that case more serious than the present one.  On the other hand, the applicant in Chan Ting Yip only threatened the victim to strip on MSN and let him watch her masturbate, whereas the defendant in the present case threatened the victim to have sex with her.  In this regard, the present case is more serious than the case of Chan Ting Yip.

Sentence

15. In considering the starting point for the present case, my main reference point is the sentence imposed in Chan Ting Yip for the offence of criminal intimidation.  The present case is dealt with in the magistracy, and pursuant to section 27 of the Crimes Ordinance, the present offence entails, on summary conviction, a maximum penalty of 2 years’ imprisonment. The circumstances of the present case are in my view serious.  As Bewley J said in his judgment in Wong Chak-man, women are entitled to protection from this sort of behaviour.

16. Having carefully considered the facts of the present case and the relevant authorities, I adopt a starting point of 18 months’ imprisonment and, giving the one-third discount to which the defendant is entitled by reason of his guilty plea, reduce the term to 12 months.  Taking into account the fact that the defendant is a first offender, I further reduce the sentence by 2 months. Accordingly, the defendant is sentenced to 10 months’ imprisonment.”

13.The complaint made on behalf of the appellant against the magistrate’s analysis was that, in adopting the 18-month starting point, the magistrate failed to properly consider the relevant authorities.

14.Referring to the cases of  HKSAR v Tang Siu Cheong (transliteration) HCMA1002/2007 and HKSAR v Tang Wai Hung (transliteration) HCMA757/2009, the appellant submitted that the appropriate starting point should be 6 to 9 months.

15.The magistrate had set out the facts of the three authorities he considered, and I shall not repeat them here.  I respectfully agree with the magistrate’s views.  In Wong Chak-man, the defendant threatened the victim when love had turned into hatred.  Without doubt, the Internet was not popular in those days.  The view expressed by Bewley J (as he then was), that the sentence of 6 months’ imprisonment was appropriate, is beyond reproach.  Further, it was on account of the defendant’s mental condition that Bewley J substituted a probation order for a term of as long as three years.

16.Cheung Pui Man is different in nature from the present case.  In his judgment, Wright J mainly dealt with the appeal against conviction; on the appeal against sentence, Wright J simply said that he considered the sentence of 12 months’ imprisonment appropriate (see paragraph 19 of the judgment), without explaining why the 18-month sentence imposed by the magistrate was manifestly excessive.  With respect, I do not think that an 18-month custodial sentence was manifestly excessive in all the circumstances of that case.

17.As for Chan Ting Yip, the magistrate was well aware that the case, which involved a 13-year-old girl, was more serious than the present case.  On the other hand, the magistrate considered the present case more serious in that the appellant threatened the victim to have sex with him whereas in Chan Ting Yip the defendant merely threatened the victim to strip and masturbate.  With respect, I see nothing wrong with this view.

18.In respect of the two authorities cited by the appellant, I shall adopt the following summary of the facts set out by the appellant:

“…… In HKSAR v Tang Siu Cheong (transliteration) (unreported) HCMA1002/2007, the appellant was convicted after trial on two counts of criminal intimidation. He was sentenced to imprisonment for 6 months on each count, with the sentences to run concurrently, and was ordered to pay $10,000 by way of compensation to the victim. The victim in that case bought a massage chair for the appellant and she had paid for him with her credit card. One day, the appellant had sexual intercourse with the victim whilst she was drunk and secretly recorded the intercourse and nude images. A few days later, the appellant uploaded onto the computer 21 video clips and 31 photographs taken on that day for the victim to watch. Thereafter, the victim sought reimbursement from the appellant in respect of the massage chair, but the appellant spoke harshly to her and threatened to publish the nude photographs of her to her friends via the Internet. He even asked her if she was frightened.

In HKSAR v Tang Wai Hung (transliteration) (unreported) HCMA757/2009, the appellant faced two counts of blackmail, the case against him being that he had made unwarranted demands of HK$13,800 or provision of free sexual services from X with menaces.  The appellant was convicted after trial on both counts and was sentenced to imprisonment for 12 months on each count, such sentences to run concurrently.”

19.In Tang Siu Cheong, the defendant only appealed his conviction, and Nguyen J made no criticism on the 6-month custodial sentence.

20.In Tang Wai Hung, Pang J held that the magistrate could not be faulted for imposing a total sentence of 12 months’ imprisonment.

21.In my judgment, that Pang J took the above view does not mean that, on the facts of the present case, the starting point should be 6 to 9 months.

22.What the appellant did was despicable.  That the victim was, at first, willing to provide “compensated dating” service to the appellant did not mean that she should not be protected.  The reason why the victim stripped herself for the appellant to watch was that she was prepared to do “compensated dating” with the appellant thereafter.   She was not aware that the appellant not only captured nude photographs of her, but also saved 36 nude photographs of her on his computer.

23.The appellant’s subsequent act of threatening the victim showed that he did not act in the heat of the moment because he not only went on to send the nude photographs to the victim by email, but also made a “follow-up” phone call to her.  It was only after she received the phone call that she discussed the matter with her boyfriend and decided to make a report to the police.

24.On the facts of the present case, the starting point of 18 months may appear to be on the high side but is not manifestly excessive.  Furthermore, the magistrate, having given the appellant the one-third discount, reduced the sentence by another two months for the reason that the appellant was a first offender.  This particularly lenient approach taken by the magistrate was in fact unjustified (see Secretary for Justice v Chau Wan Fun [2007] 1 HKC 423).  The one-third discount for guilty plea is normally the full extent of the discount that can be given.  There was nothing in the present case to show that the appellant was of such positive good character that he should be given more than one-third discount.

25.The reduction by the magistrate of the term of imprisonment from 12 months to 10 months suggests, in effect, a starting point of 15 months.  In my view, on the facts of the present case, a starting point of 15 months can be considered appropriate (although 18 months is not manifestly excessive).  Taking into account the fact that the appellant was a victim of dashed hope, I would exercise my discretion to reduce the sentence by another 2 months.

26.For these reasons, I have allowed the appeal, set aside the sentence of 10 months’ imprisonment and substituted therefor a sentence of 8 months’ imprisonment.

Mr. Francis Lo, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent.

Mr. Lawrence Lok, SC, and Mr. Caesar Lo, instructed by Messrs Cheung, Chan & Chung, for the Appellant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.