HKSAR v. LAU TING SING, JEROME

DCCC1072/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1072 OF 2011

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Reasons for Verdict

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1.  In this case the defendant, Lau Ting-sing, Jerome (hereinafter referred to as “D1”) faced two counts of “Indecent Assault”, contrary to section 122(1) of the Crimes Ordinance, Cap. 200 and two counts of “Criminal Intimidation”, contrary to section 24(1)(i) of the same ordinance. He pleaded not guilty to the charges.

2.  At the risk of oversimplifying matters, the prosecution’s contentions in respect of the Indecent Assault charges (charges 1 and 3) can be summarised thus: on two different photo shooting sessions in the years 2003 and 2005 respectively D1 had intentionally touched the genitals of his models without their consent.

3.  In respect of the Criminal Intimidation charges (charges 2 and 6) the prosecution alleged that D1, with intent to alarm the victims, threatened them with injury to their reputations, i.e. to make public the photographs of the victims taken by him in compromising circumstances.

The Law

4.  The law on Indecent Assault and Criminal Intimidation is well settled.  Neither the prosecution nor defence saw fit to make detailed submissions on the area.  In order to prove Criminal Intimidation the prosecution must prove:

5.  

  “The person making the threat intends to cause alarm to the person to whom the threat is made or that the threat itself is of such a kind that a person of ordinary firmness would be affected by it. In deciding these matters the context of the circumstances out of which the threat has arisen are of paramount importance to be considered. The test involves both objective and subjective consideration.”

6.   Furthermore, the court must distinguish between “wild and whirling words” and words uttered “with a genuine intention of causing fear or were, in the circumstances of their utterance, likely to produce that effect” (see the judgment of McMullin J in Lo Tong Kai v The Queen [1977] HKLR 193 at 196).

7.  For the offence of Indecent Assault I can do no better than quote the words Deputy High Court Judge To, as he then was, in the judgment of HKSAR v Yeung Yap Chi HCMA497/2005 at paragraph 5:

“To establish the charge of Indecent Assault against a defendant, the prosecution must prove that (1) the defendant committed the actus reus, i.e. assaulting the victim; (2) the defendant intentionally assaulted the victim; and (3) when the defendant assaulted the victim, he had an indecent intention. This intention must be such that a right-minded person would regard the assault and the overall circumstances as indecent, and the defendant assaulted the victim with such knowledge or was reckless as to whether a right‑minded person would regard the assault as indecent.”

The case

8.   The prosecution called a total of four witnesses to prove the charges. Part of the facts had also been admitted under section 65C of the Criminal Procedure Ordinance (marked “MFI-1”). The most important evidence came from the live testimonies of the three victims who, for the protection of their privacy, will be only identified as “A”, “B” and “D” respectively. Although I have considered all the evidence as a whole, for the sake of clarity I will only summarise the most important parts of the evidence which I think are essential for understanding my reasoning. For the same reason, I would group the evidence under the different charges they were adduced to support.

Charge 1 - Indecent assault

9.  The witness for charges 1 and 2, Mr A, was a student and a part-time model on 24 April 2003.  He was aged 24.  On the day in question at the instructions of his model agency, he went to Olympia Plaza in North Point to meet a client for casting.  D1 turned up, introducing himself as Jackie, the client he was to meet.  D1 then took him to a nearby hotel for casting which, by the parlance of the trade, meant a job interview which usually entailed a photo-taking session.  Neither the model nor the agency will receive any payment for the casting.

10.  In the hotel D1 gave A a pair of swimming trunks and took him to a gymnasium where D1 started taking photos.  Then D1 took A to a hotel room to continue the session.  At the main door of the hotel room D1 requested A to take off his upper garments and have pictures of the latter taken naked from the waist up saying that it was going to be a fashion catalogue and the prospective customer would like to see his upper body.  Then D1 asked A if he was interested in modelling sex products.  A initially said no.  D1 then explained that even foreign models would take up similar jobs and that the sessions would take place in private.  Also, A’s face would not be shown in the pictures.  At the end A consented.  Then D1 took out four to six pairs of skimpy briefs, (described as “T-backs”) and asked A to change into them. When A came out wearing a pair of briefs with a hole in front (thus with his penis exposed), D1 started taking pictures.  At some point D1 approached A saying that he would do some adjustment for a better photo angle and used his fingers to move the latter’s penis without asking for permission.  A was displeased with D1’s behaviour and told D1 that he would do the adjustment himself.

11.  According to A, at that point D1 was smiling in a way that made him feel uncomfortable.  In any event, he did not feel the “adjustment” made any difference.  After a few more photos D1 asked A to change into another pair of briefs.  After A had done so, D1 again approached A, kneeled down and used the fingers of his hands to comb A’s pubic hair, his fingers coming into contact with A’s genital area in the process.  At this point of his testimony in court, A demonstrated by raising both his palms outward extending fingers on both hands like claws moving from up to down.  A immediately backed off again saying that he would do it himself. 

12.  The photo session resumed.  After a while D1 asked A to change into another pair of briefs.  This time A was not sure if D1 approached him for the third time for making “adjustments” nor was he sure that he put on a fourth pair of brief for photo taking.  As the session progressed, at some point D1 asked A to change into a pair of briefs made up of hardly any fabric.  A refused and terminated the session by saying, in effect, that enough pictures had been taken.  He changed back into his own clothes and left.

13.  While on the way out, D1 asked the latter if he was willing to be “chicken”, a word which A understood meant prostitute.  A refused outright.  Before departing, A asked D1 if D1 could return to him the films of the pictures taken of him.  D1 replied that he was busy and he had real business to see to. 

14.  In the course of his testimony A emphasised the following:

(i) In a normal casting or photo session, the photographer should have no physical contact with the model,

(ii) In his previous experience as a model he had never been touched in the way he described,

(iii) He had never given permission to D1 to touch him.

(iv) Every time he had a change of clothing he did so in the privacy of the bathroom,

(v) He was feeling uneasy during the photo session and when he was asked to change into the third pair of briefs he had wanted to stop the casting,

(vi) As a result, he had shown his displeasure during the photo session by frowning, tightening his lips and even trying to hurry D1.

15.  As to why he did not call off the photo session A offered the following rationalisations upon subsequent reflection:

(i) He was then very young, nervous and frightened. He did not know how to say no.

(ii) He thought that D1 was a prospective client of his and that of the agency, he did not want to offend him for his own sake and for the sake of the agency.

(iii) He believed that it was a genuine casting, i.e. there would be offers to follow.

Charge 2 - Criminal Intimidation

16.  About a month later, on a day in May 2003, A received a call from a person claiming to be Andy.  A was surprised as he could recognise by the voice of the caller that it was D1.  Over the phone D1 asked A if he had thought it over and if he would “do it”. Guessing the question was about modelling sex products and skimpy briefs,  A replied that he would not attend another photo session whereupon D1 said, “That was not what I’m talking about.  Would you do it?”  Then A remembered D1’s question on whether A would be a prostitute and repeated what he said to D1 earlier as he was leaving the hotel, “I will not earn money by this means”.  D1 responded thus, “Well, then I can’t guarantee your photographs will not be seen by the public.”  A then begged D1 to let him off and stop harassing him.  D1 eventually hung up.

17.  A did not do anything as he believed that there was nothing he could do.  He did not contemplate reporting the matter to the police as he was scared of irritating D1.  He also doubted if he could prove D1’s impropriety as there was no other witness inside the hotel room. 

18.  Three to four months later D1 called again.  He did not identify himself and but A recognized him by his voice.  He said to A, “Now, you are an actor in the TV show”, then he hung up. 

19.  Three years later D1 called, identifying himself as, “the one who took pictures of you a few years ago”.  D1 said to A that he saw A acting in a TV series and he also saw A’s photographs on a gay website. When A asked D1 for the particulars of the website he was told to look it up himself.

20.  A identified D1 in an identification parade held on 14 September 2011.  He was adamant that D1 was the person who called him on the phone in May 2003 as well as on the two subsequent occasions.  He recognised the voice itself and for the context as  it was the only occasion he had himself photographed in skimpy garments.

Cross-examination of A

21.  A was cross-examined at length on the differences between his oral testimony and his witness statement.  It was pointed out to A that in the police statement he only mentioned having been touched once and did  not relate the second incident in which D1 touched his pubic hair.  A agreed but explained that he was embarrassed in recounting the incident.  He was adamant that inside that hotel room D1 had touched him without his consent at least two times.  He could not say for sure whether D1 did so for the third.

22.  When questioned as to why he did not complain to the agency after he had been indecently assaulted, he explained that he was still new in the profession.  He did not know how to handle the situation and he did not want to offend the client.

23.  A different version of the events had been put to A mainly to the effect that as A was a struggling young model under financial strain, he was desperate to win the favour of a wealthy patron like D1 by flirting and having consensual sex with him, and that A had concocted allegations against D1 by taking advantage of an ongoing police investigation. A stood by his own account in court denying these suggestions.

Charge 3 - Indecent assault

24.  The witness for this charge was one Mr B, an actor and a part-time model.  Some time in the summer of 2005 when he was walking in the Causeway Bay area, he was accosted by a male (identified in an ID parade on 23 September 2010 as D1) who introduced himself as Andy, the proprietor of a fashion brand, asking if the former was interested to be cast as the model of the brand.  B indicated interest and at the end gave D1 his contact number. 

25.  Two to three days later D1 called B and the latter agreed to go to D1’s Happy Valley flat for casting.  Once inside the flat and after furnishing some personal information in a form B proceeded to pose for D1.  At some point during the photo session D1 produced some skimpy briefs (“T-backs”), and asked B to put them on.  B did as told.  Before proceeding D1 approached using his hand to move B’s penis sideways and then resumed taking pictures.  After shooting for a while D1 said to B that the client would like to see more of his body and asked him to wear the “T-bag” the back to front.  After B did as told D1 then said the angle was not right and then extended his hand to adjust B’s penis.  B protested by saying words to the effect that it was not necessary to touch him and that D1 could have just asked B to do the adjustment himself.

26.  As the session continued, D1 asked B to take off his briefs to take his pictures completely in the nude.  He persuaded B by saying that even famous actors had done it.  He showed B photo albums.  He also stated he could introduce B to work for a high‑ranking media personnel friend of his.  B was persuaded, he did as told.  D1 then took pictures of him as well as close‑ups of his genitals.  While taking pictures D1 also asked if B was interested in making money by spending nights with rich women.  He also touched B’s penis by using his hand to adjust it.  At some point B could not take it any more and terminated the session by putting his clothes back on to leave. D1 saw him out. 

27.  B spent about two hours in D1’s flat.  He had never given D1 permission to touch him on the penis.  At first he thought the casting only entailed having his upper garments off.  For him being photographed in skimpy briefs was the limit.  Despite his misgivings and discomfort he allowed the session to continue as “it was not nice to ask him to stop”.  He was gradually persuaded to take off, even his briefs, as he wanted to finish off the session and leave as soon as possible.  He felt uncomfortable and humiliated.

Cross-examination of B

28.  Under cross-examination B admitted that at the time his bid to participate in the Mr Hong Kong Pageant was rejected but denied that he was depressed as a result.  He denied having flirted with D1 or having taken the initiative in adopting provocative postures for the photographs. They were done at the behest of D1.  He admitted to having massaged D1’s hand and feet, again done at the request of D1.  He could not remember if D1 had bought him dinner subsequent to the shooting nor did he remember if D1 had given him transportation money.  He admitted subsequently he had introduced a friend to D1 but insisted he did so in the hope that D1 could return the photographs to him.  B was adamant that D1 had touched his private parts without his consent.

Charge 6 - Criminal Intimidation

29.  Mr D, the witness for the 6th charge, was a personal trainer and part-time model.  Whilst waiting for his girlfriend in Times Square, Causeway Bay, at about 6.30 pm on 11 August 2008, D was approached by a male calling himself Jackie (identified in an ID parade on 14 September 2011 as D1), from an agency of advertisement and models.  D1 said that he recognised D appearing in a commercial before and invited him for a chat in an ice cream parlour nearby.  Then D1 explained the scope of work of his company and invited D to send him his portfolio.  They spent about an hour in the ice cream parlour before parting company.  Later that night through telephone they made an appointment to meet the next day in Happy Valley.

30.  In the evening of 12 August 2008 D and D1 met up in a fast food shop in Happy Valley and eventually D followed D1 to his flat nearby for taking some casting photographs.  Inside the flat, D had his pictures taken by D1, first in a pair of denim shorts.  Then D1 said he was casting for a swimwear advertisement and told D to put on the two pairs of skimpy briefs he produced.  Initially D refused.  D1 convinced him by saying that it was a company policy (to have prospective models filmed in “T-backs”) and it would not be changed on D’s account.  Eventually, D agreed and the session resumed.

31.  While D was posing, D1 suddenly approached and pulled down the skimpy briefs D was wearing (thus exposing his genitals).  D was shocked and tried to pull it back up and at the same time asked why it was necessary. D1 replied that it must be done this way.  Finally, D gave in and allowed himself to be photographed with his genitals exposed.  After the session D1 promised that the photographs would not be shown to others and also showed D similar pictures taken of other people, reassuring D that everyone did the same.  D1 then asked D, in effect, whether the latter would agree to accept jobs of a dubious nature (in his words, “in the grey area”).  The latter said no.

32.  On 14 August D received a call from D1 while he was dining with a friend in China.  At the time, the battery of his cell phone was flat.  He had it diverted to his friend’s phone so it was his friend who first spoke to D1.  D1 then asked D who it was on the phone, and asked to meet D, when the latter came back to Hong Kong about a job.

33.  On 21 August 2008 D received a call from a voice he did not recognise telling him that his pictures would be loaded on to gay websites.  Although D was alarmed, he did not do anything about it.  Apart from those taken by D1, D had not been photographed in the nude. There was no evidence linking the call to D1.

34.  On 22 August 2008 D received a call from D1 angrily asking why D did not keep his promise to contact him after he was back in Hong Kong.  D1 also said words to the effect that D was lucky as on that day all business was interrupted by the typhoon otherwise those photographs would be all over in the internet and gay men would approach him in the street asking him about the price of having sex with him.  D1 also said that he knew where D’s girlfriend worked and that would D believe that D1 would get a handsome man to seduce her, have pictures of her taken in bed and show them to D.  Alarmed by D1’s words, reluctantly D promised he would keep in contact with D1 and work for him, i.e. attend photo sessions and take up jobs from him.  Then D1 told D that there would be a fashion show of a famous brand that evening and asked the latter to pick him up before the show.  After D hung up he went directly to the police station to make a report. 

35.  The telephone conversation took place in the presence of D’s girlfriend.  Although D1 did not disclose his identity D was sure that it was D1 on the other end of the line.  D’s phone record, P2, confirmed the existence of the telephone connections between his cell phone and a landline registered under D1’s name that day.

Cross-examination of D

36.  The thrust of the cross-examination was the length of the meeting in the ice cream parlour and D1’s flat, and the long telephone conversation between the two.  They spent two hours in the ice cream parlour the first day they met on 11 October 2008 and 30 minutes’ telephone contact initiated by D at 1.00 am the next day.  The photo session in D1’s flat in the same afternoon took up to four hours.  It was suggested that the reason for the long hours and the unusual timing was that the two were involved in a homosexual relationship and they were spending the time on lovemaking.  It was D who took an active part if not the initiative.  In short, D was a willing partner.  D denied these suggestions.

37.  D denied flirting with D1 in the ice cream parlour and said he did not remember showing his torso to D1 by pulling up his shirt there.  He denied having phone sex with D1 in the morning of 12 August 2008.  He denied that the photo shooting was his idea.  He also denied initiating intimacy and homosexual contact with D1 during the same day.  He denied having a homosexual relationship with D1.  The long hours in the flat were spent on conversations about D1’s company and photo shooting.  He agreed that D1 offered him a gift of an expensive bag but he did not take it.

38.  On 22 August 2008, D allowed the telephone conversation with D1 to take up to an hour and a half.  At one point the line was disconnected and D1 called back.  D did not hang up because he was in fear and that D1 had “humiliated and threatened” him.  D agreed that he did not contact D1 as promised because he was already in fear that the photographs would be made public. However, he denied being so obsessed with them that he made up a story to the police.

The defence case

39.  After I had ruled that there was a case to answer for all the charges, apart from the fact that D1 has a clear record, no evidence was adduced in the defence case.

Assessment of the evidence

40.  This is a criminal prosecution.  Needless to say, the burden of proving the case falls fairly and squarely on the prosecution.  The defendant has no burden to prove his innocence.  In these proceedings the defendant elected not to give evidence or to call evidence in the defence case.  This is his right and it does not affect the aforesaid burden on the prosecution.  What it means is that the court only has the evidence of the prosecution to consider.

41.  D1 has a clear record.  It is generally accepted by the courts that a person with no previous conviction is less likely to commit a crime and his testimony, if he chooses to give evidence in court, should carry more weight than those who would not or did not put his facts before the court.  In considering whether the prosecution has discharged the burden of proving the charges, I bear this particular point in mind.

42.  The offences took place many years ago.  For reasons unknown to this court the prosecution process only commenced late last year.  By dint of the corrosive power of time, it might adversely affect the recollection of the witnesses and thus the quality of their evidence.  The delay is not ideal for the administration of justice, yet we do not live in a perfect world.  I can only deal with whatever evidence is placed before me and apply the same stringent standard that behoves the prosecution.  No allowance will be made in favour of either side by reasons of the long lapse of time.

43.  While I would make a global consideration of all the evidence before me I will endeavour to identify the elements of each charge, look for evidence supporting the same and decide whether such evidence reaches the requisite standard of proof before making the decision.  The issues to be determined in this case are mainly factual.

44.  The prosecution submitted that D1 employed a similar tactic to lure the victims into submission.  It is also clear that despite the court’s injunction against the disclosure of the victims’ identities, there is still a risk that their identities will be disclosed or be known to the people that know them.  They gave evidence risking their reputations, careers and having to relive the unpleasant experiences.  Yet the credibility of each witness will not be thus assumed and must be assessed on their own merits.  Each witness must satisfy me to the required standard and that his account must be an accurate account of the events before I can accept his evidence.

Evidence of A

45.  A’s oral testimony is not perfect.  He forgot details.  He mixed up the sequence of events.  Some of the details he gave in court were not identical to those in the witness statement.  But all these imperfections do not derogate from his credibility in the substance of his evidence.  Having seen A give his evidence in court and having scrutinised the contents of his testimony, I find A to be an honest and truthful witness who has done his best to give a fair and accurate account of what had transpired in this sordid affair. 

46.  His testimony stood unshaken under cross-examination.  I find his candidness refreshing.  He explained that the reason for his failure to properly react to a disagreeable situation was due to, amongst other factors, his youth and lack of experience.  He admitted that in some instances his memory failed him.  For example, the exact sequence of the photo session, whether there was a third indecent assault, how D1 responded when he begged him to leave him alone, what were the styles of the briefs he was wearing when he was indecently assaulted.  He also explained why he had a particularly vivid recollection of what D1 said before they parted company: as D1 had, according to his understanding, wrongly used the word “chicken” instead of “duck” to describe a male prostitute. 

47.  What is most important is not what he did not remember; it is what he did.  There are two instance of his being touched on the genitals without his consent.  He gave detailed descriptions despite his obvious discomfort in court.  I also noted what he said was indirectly corroborated by the photographs seized in D1’s premises: he had stated he was uneasy while being photographed in what he considered to be degrading circumstances and had shown his displeasure by his facial expressions.  That was indeed the case in the pictures grouped in P10 and P11 where in his almost naked state he appeared to be grim and uncomfortable or even angry. 

48.  Much had been made of the inconsistencies of A’s statement and oral testimony; in particular, the parts in which he said he had been indecently assaulted twice and whether he was wearing swimming trunks or skimpy underwear when he was indecently assaulted.  Having read the statement (MFI-5) and considered his oral testimony, I found the so-called discrepancies were more apparent and real.  That he gave a more detailed account in court does not mean that thee was a contradiction.

49.  The descriptions, “T-back underpants”, and “T-back swimming trunks”, are not precise descriptions of the garment in question and obviously were not meant to be in the statement.  I do not find these factors in any way affect his credibility when it comes to the instances of indecent assault.   I accept his account of the incident. As to the three subsequent phone calls, I accept A’s evidence that they were all from D1.  Not only did A recognise the voice, the context of the conversation could lead to only one conclusion, as there was only one occasion that A had his pictures taken in compromising circumstances and D1 was the photographer. 

50.  The contents of the exchanges, when read in context could only lead to one interpretation: D1 knew that A was worried about the pictures and was anxious that they might be published.  That is why he asked for the films to be given back to him and begged D1 to leave him alone. D1 had tried to make A agree to be a male prostitute by hinting that otherwise the pictures would be published on the internet.  D1’s subsequent phone calls lend weight to the same contention.  As A’s career took off, D1 kept coming back to remind A that he had photographs that might ruin his reputation and career.

Findings of fact in respect of charges 1 and 2

51.  It is clear that the photo session did not necessitate any physical contact.  A did not consent to such contacts.  His reaction after the first touching was an unequivocal indication of his aversion and to the absence of consent.  I found D1 did deliberately use his hands to touch A’s penis and genital area under the pretext of trying to achieve a better photo angle.  In my view, a right-minded person would regard the whole circumstances of the touching as indecent.  I also found D1 had done so with the full knowledge that A would not consent to it.

52.  I also found that it was D1 who called A in May 2003.  D1 knew that A had aspired to be a male model and actor.  The contents of the conversation could only lead to one conclusion.  By suggesting if A did not accede to his demands the photographs would be publicised, he had threatened to destroy A’s reputation as well as his career.  He had done so intending to alarm him.  Furthermore, in my view, such a threat in a relatively conservative society such as Hong Kong would definitely affect a person of ordinary firmness.  I found D1 guilty of charges 1 and 2.

Evidence of B

53.  In-chief B gave a clear account of what happened during the photo sessions.  He was there expecting a normal casting and was ready to bare his torso for the photo sessions.  He did not expect to be putting on skimpy briefs or have himself photographed in the nude but had been persuaded and cajoled into it.  He insisted that he felt humiliated in the process.  I noted that, however, his reservations and displeasure did not reflect in his expressions and the postures he adopted.

54.  Under cross-examination he was shown and confirmed PD1 were the 14 pictures taken of him by D1 during the session.  I found none of these pictures was about clothes, which were absent anyway in all but two frames.  He was either smiling or trying to act seductively, effecting postures that were obviously not intended to show case clothing.  He denied he had adopted the postures on his own initiative and his expressions were made at D1’s directions.  Yet, if he was reluctant, as he tried to tell this court, it would be difficult to explain some of the pornographic postures he adopted and it would also be difficult to explain why he was massaging D1’s feet while lying stark naked on the sofa.  Nor did his facial expression in any of the 14 frames reveal any sign of discomfort or humiliation from which he said he was suffering.

55.  Under cross-examination B said that he did not remember if he allowed D1 to buy him a meal that night after the photo session. In my view it would not have been the kind of detail one would forget given the circumstances.  If he did, bearing in mind that he was disgusted by D1’s behaviour, I found it odd that he consented to be in D1’s further company.  For the same reason, since he, in effect, stated he terminated the photo session and left in a huff, he would have remembered that he did not stay with him for dinner.  B also admitted that subsequently he had introduced a “friend” to D1 in a bid to stay in D1’s good graces so that the latter would return the photographs to him.  Again, such behaviour would be inexplicable if he found the photo session such a disagreeable experience.  For these reasons I found myself unable to accept the veracity of B’s evidence.  I have a lurking doubt that B did not tell this court the whole truth.  The benefit of the doubt must therefore go to D1 and charge 3 is hereby dismissed.

Evidence of D

56.  He gave a clear account of events leading to the conversation on 22 August 2008.  I found his account as a logical reaction consistent with a young man at that stage of his life.  He was aspiring to be a model and obviously was eager when it seemed that an opportunity arose.  His testimony was unshaken under cross-examination.  One might feel that if he did initiate and consent to a homosexual relationship with D1 with a view to career advancement, it would be illogical to shun further contact with D1.  In fact, his behaviour of trying to distance himself from D1 was consistent with his contention of a degrading and unpleasant photo session.

57.  It had also been suggested that the long contacts either in person or via the telephone between D and D1 were indicative of a flirtatious conversation or lovemaking thereby lending support to the contention of a homosexual relationship.  There was no substance to such a theory.  I do not find his evidence of the threatening phone calls from an anonymous man on 21 August 2008 relevant to the case against D1 and I disregard it.  I do not find the absence of photographs found in D1’s room concerning this session relevant to the threat that was uttered by him on 22 August.

58.  The undisputed fact was that D had gone to the police on 22 August 2008 after the telephone conversation.  This is consistent with D’s contention that he had been threatened that day.  It had been suggested by the defence that D’s decision to go to the law was caused by his paranoia over the prospect of his photographs in the nude going public.  In other words, he tried to stop D1 from publishing the pictures and get the pictures back by making up evidence against D1.  It means that he would have to tell more people about the incident of which he obviously was not proud in order to stop it from going to the public domain.  This theory is illogical and inconsistent with the available evidence.

Findings

For the reasons stated above, I accept D’s evidence. I found that after D1 managed to coax D into agreeing to have his pictures taken with genitals exposed he was displeased that D did not contact him as promised. As a result, he called D hinting that he would publish the photographs on the internet so as to destroy D’s reputation. I found D1 utter those words as thinly‑veiled threat in an attempt make D submit to his whims. These words were uttered with intent to intimidate and alarm D. I also found that such words, in their own context, and in the context of Hong Kong society, would affect a person of ordinary firmness. I found the charge proved.

59.   For the reasons stated above, I found D1 guilty of charges 1, 2 and 6. Charge 4 is dismissed on a reasonable doubt.