HKSAR v. FONG HUNG SHUN

DCCC 552/2021

[2021] HKDC 1653

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 552 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 11 charges.

Charges	Date of offence	Offences
1	16th January, 2019	Committing an outrage public decency
2	9th June,2020	Criminal intimidation
3	14th June,2020	Committing an outrage public decency
4	5th August,2020	Falsely pretending to be a public officer
5	18th August,2020	Criminal intimidation
6.	3rd Sept.,2020	Criminal intimidation
7.	3rd Sept., 2020	Attempted fraud
8.	13th Nov., 2020	Falsely pretending to be a public officer
9.	13th Nov., 2020	Procuring another person under the age of 16 for making pornography
10.	18th Nov., 2020	Falsely pretending to be a public officer
11.	18th Nov.,2020	Procuring another person above the age of 16 but under 18 for making pornography

2.  The defendant was employed as an Operation Performance Officer at the MTRC. He had accessed to the internal computer system “Operation Data Management System” ( ODMS )  for compiling incident reports.

Charges 1 and 3 – Committing an outrage public decency

3.  Videos were retrieved from the defendant’s mobile phone that the defendant took video under the skirt of a female in school uniform (Charge 1)  and filmed up the underskirt of a female on an escalator (Charge 3).

Charge 2 – Criminal intimidation

4.  X reported a case of indecent assault while she was on the way to report duty to the MTRC.

5.  The defendant whatsapped X with various indecent messages/pornographic videos and also informed her that he had her personal particulars and information about her family, the defendant threatened to cause her and her family trouble.  The defendant also said that “ he should grab her for company for 48 hours so that they may play together and by thinking about that made his penis hard”.

6.  The defendant told X if she made a 5 minutes’ video by removing her uniform and sent it to him, he would not bother X and her family.

7.  X blocked the defendant’s number.

8.  The defendant used 4 different telephone numbers to message X from 10 to 19 of June 2020.

(a)  10 June 2020

(i)  There was no need to block him as he has got a lot of different numbers.

(ii)  Her indecent assault complaint will be “rewritten” if X sent him the video.

(iii)  Threatened to use X’s information to take out a loan or to enroll in courses and warned X that it was her last chance to send him the video.

(b)  19 June 2020

(i)  By telling X that he wanted to insert his penis, into her vagina.

9.  X was scared and changed her number at the end of June 2020.

Charges 4 – falsely pretending to be a public officer

Charge 5 – criminal intimidation

10.  On 2 August 2020, Y was arrested for stealing a lost mobile phone belonged to a passenger. She was terminated by the MTRC on the following date.

11.  On 5 August 2020, Y received a call from the defendant (5442 4216)  by claiming that he was a police officer of the Central CID and demanded Y to make a nude video and sent it him.  Y ignored him and hung up.

12.  On 18^th August, Y received a WhatsApp message from the defendant (5327 6047)  by saying that:-

“I can deal with your case lightly by cautioning, on the condition that you make a nude video of you removing your uniform and send it to me, you wear your full uniform, tie up your hair, take off your clothes while slowly shaking your waist. You must not cover any part of body nor wear a mask, need to see you naked. I know you are free. I give you 15 minutes. If I do not receive the video, I will inform the press of your case which they must be interest. No one will hire you once everyone knows what you did. Do not forget I have your information and I can conduct a house search of your home. I can give you a chance, only you and me will know, I guarantee confidentiality. I will wait for your video.”

13.  The defendant admitted under caution that: -

i. He obtained and took photo of Y’s information from the ODMS.

ii. He falsely pretended to be a police officer and demanded Y to send him nude videos out of indecent motive.

iii. He called Y once to claim that he was a police officer and to see if Y would take a nude video for him.

Charge 6 Criminal intimidation

14.  On 2 September 2020, Z found a hidden camera in the water tank in the staff toilet in TST E Station.

15.  In the morning of 3 September 2020, Z received whatsapped messages from the defendant (5327 6047)  claiming that: -

i. he had seen the video of her using the toilet by using the hidden camera.

ii. He also had made a copy of the video and

iii. asked Z with obscene languages whether she would mind if he shared the video for others to see.

16.  On 4 September 2020, the defendant told Z that if she made a nude video of herself, he would not bother her anymore and would delete the video taken from the hidden camera.  Z refused his demand.  The defendant continued to demand Z to make the nude video and claimed that he knew her personal particulars including where she lived. 

17.  On 5 September 2020, the defendant continued to harass Z by saying that if he did not receive the nude video by 3 pm that day, he would “share the video of her urinating and other MTR staff would recognize her and she would become famous.”  He also “intended to add her personal particular to the video.”

18.  Such kind of harassment continued until 16 September 2020 when the conversation ended with the defendant telling Z that “he had printed out banners and hung them around TST station”.  He hoped that she liked it.

19.  On 20 November 2020, the defendant admitted under caution in a video recorded interview: -

i. He obtained Z information from the ODMS.

ii. He took the photo of ODMS page and sent messages to Z to pretend that he knew about the case and

iii. To see if she Z would send him nude video.

20.  He did not have any recording taken by the hidden camera.  Neither did he make any banner.  It was only intended to threaten Z.

Charge 7 Attempt Fraud

21.  On 3 September 2020, A received WhatsApp images from the defendant regarding an application of a $600,000 loan with all her personal particulars on the application form and with a 36 months’ instalments for repayment.

22.  When A replied that she would made a report to the police, the defendant told her to go ahead.  He would enjoy himself by spending the money.  A blocked the defendant's telephone number.

23.  Enquiry revealed that the defendant made the application on 1:33 pm that day, but the application could not be proceeded due to incomplete information. Case was reported.

24.  In a video recorded interview, the defendant admitted that: -

i. He knew A previously as they were colleagues. They had a poor working relationship.

ii. He came across A’s identity card number at work and she showed him her home address before.

iii. He used her information and pretended to apply for a loan. He did not actually submit the application. He just took a screenshot of the online application and sent it to A.

Charges 8 - falsely pretending to be a public officer

Charge 9 - Procuring another person under the age of 16 for making

pornography

25.  On 2 November 2020, B made a report to police that someone had taken under skirt photos of her in the MTR.

26.  On 13 November 2020, the defendant called B that: -

(a)  He is a police officer.

(b)  The suspect has been arrested. Since the suspect involved in a dangerous drugs case, all witnesses have to be searched.

(c)  She had 2 options, one was to be searched by a woman police, the other one was to remove all her clothes to make a 3-minute video.

27.  B requested to search by policewomen.  The defendant said that none of them were available.  The defendant asked B to send the video to women police officers within 30 minutes.

28.  B told her mother about the conversation.  Case was reported.

29.  Upon instruction by the police, B sent WhatsApp messages to the defendant to request to meet him in person.  The defendant asked her to send by whatsApp or email only.

30.  The defendant admitted committing the offences in a video-recorded interview on 20^th November.

Charge 10 – falsely pretending to be a police officer

Charge 11 – procuring C (who was of the age 16)  for making pornography

31.  On 16 November, 2020, C was arrested for theft for shoplifting at a convenience store in MTR Ocean Park.

32.  On 18 November 2020, C received a call from the defendant who claimed to be a police officer.  As C was in school, the defendant called her after school.  In that conversation the defendant told C that: -

(a)  He “could cancel her criminal record and stopped further investigation” if C sent him a nude video.

33.  The conversation was recorded by C’s friend as she turned on the phone’s speaker.  C reported the matter to the police.  Upon instruction from the police, C asked the defendant to meet personally.  The defendant agreed to meet up with C for sex and to pay him $50,000 in exchange for his help.

34.  A control meeting was arranged on 19 November 2020.  A policewoman was deployed as a decoy for the meeting.

35.  The defendant was arrested at the meeting for “impersonating a police officer”.  The defendant replied that he only wanted to have sex with her in a hotel.

Mitigation

36.  The defendant has a clear record.

37.  He is 36.  Married in 2019.  His father passed away in 2001.  His mother has retired, but suffered from hypertension.  He has 2 elder sisters.

38.  The defendant started to work in the MTRC since 2008 and he left his post as an operation performance officer.  His duty was to handle the operation data management system of the MTRC.  The system contained information of the incidents took place inside the MTR stations, such as accidents, criminal cases and the like.

39.  The defendant worked in the MTRC for 13 years with satisfactory performance.  However, he has poor working relationship with his colleagues.  Since 2016, he had, on various occasions,  been accused by female colleagues unfairly.  That caused a great deal of emotional disturbances to the defendant.

40.  The defendant said that his supervisor did not handle these accusations properly.

41.  The defendant then started to develop negative emotions and feelings towards female.  Against this background, the defendant committed a number of these offences over a period of time.

42.  The defendant’s character is very much an introvert; he did not know how to seek help when he was stressed.  He did not realize that  he has suffered from psychological problems.

43.  Nonetheless, he is a responsible family man who provides financial support to his mother and his wife.

44.  The defendant finds spiritual enlightenment during his remand.  He is truly remorseful.  He wrote letters to each victim with a hope to express his sincere apology.

45.  There are a number of mitigating letters of which all are noted.  In those letters I come to know that his two sisters who were totally shock to find out that he had committed the present offences.

Psychologist and Psychiatrist reports

46.  I called both psychologist and psychiatrist reports before sentencing.  The contents of which are very much the same as stated in the mitigating bundle that there were numerous anonymous emails complained about him, rumors that he had affairs with female colleagues.  He was promoted to a senior post in December 2019, but his supervisor still continued to ask him questions regarding those anonymous complaints.  The defendant considered that he had been unfairly treated and it caused him anxiety and stress.

47.  His work performance had been affected by these complaints because he was distressed and became vigilant in maintaining distance with female colleagues.

48.  He found the incidents reported by X, Y, Z, B and C to be suspicious.  He believed that they were dishonest and had made wrongful accusations or failed to admit their mistakes, he felt obliged to investigate whether they had lied about the incidents for hidden gain and caused defamation to others.

49.  He took the matters into his own hands by soliciting nude videos from the victims and with a view to use those videos as a means to threaten the victims to confess their wrongdoings in public.

50.  He told the psychologist that he used the pre-paid sim cards to call the victims and to employ the authority of the police force so that the victims would comply with his requests. 

51.  As to the offences in Charges 1 and 3, he regarded “ the material places were conducive to covert filming” , “ he experienced a sense of excitement and achievement during the process.” 

52.  Both the psychiatrist and the psychologist concluded that he did not suffer from any mental illness.  Psychological treatment is suggested.  He is willing to receive psychological treatment.  The psychologist considered that the defendant’s risk of sexual re-offending is at the high end of moderate range.

Sentence

53.  The defendant committed altogether 11 charges.  Charge 1 occurred in January 2019.  Charges 2 to 11 occurred from June 2020 to November 2020, a period of 6 months.  He was arrested on 19 November 2020. 

54.  The 11 charges are 6 different kinds of offences: -

Charges 1 and 3: committing an act outraging public decency

Charges 2,5 and 6: criminal intimidation

Charges 4, 8 and 10: falsely pretending to be a police officer

Charge 7: attempted fraud

Charges 9 and 11: procuring another person of the age of 16 or above, but under 18 for making pornography.

55.  The defendant was an operation performance officer in the MTRC and he had accessed to the data information from the MTRC operation data management system.  The MTRC entrusted him to do the job by allowing him to access to the data information being stored in the system.  But he abused his position to obtain those information from the system to contact the victims to commit various crimes.  In my judgement, it was a breach of trust.  It is an aggravating factor.

56.  He told X and Z that he had got their personal particulars and information, that was frightening to those victims as they did not know/how did the defendant get their information.

57.  He obtained the information of the respective incidents of those victims from the computer system: -

Charge 2: X complained indecent assault on the way to work in the MTRC.

Charge 4/5: Y was arrested for stealing a passenger’s phone, Y was dismissed by the MTRC the next day.

Charge 6: Z found a hidden camera in the staff toilet at the TST East station.

Charge 8/9: B complained that an unknown man had taken underskirt photos.

Charge 10/11: C was arrested for shoplifting in one of the MTR stores.

58.  The purpose of telling those victims of their respective incidents was clearly to made them succumb to the request of the defendant to make nude videos for him.

59.  It was fortunate that none of those victims fell into his tricks and none of them made any nude video as demanded by the defendant.

Charges 2, 5 and 6 criminal intimidation

60.  The defendant threatened these victims to send him nude videos.  In respect of Charges 2 and 6, I have the opportunity to read the witness statements, there is no doubt that the defendant is a pervert.  The defendant used particularly vulgar languages to talk to X and Z, not only it was totally repulsive and disgusting, it was also demeaning to them.  In fact, what he said to other victims was also demeaning.

61.  X was particular scared that she changed her phone number at the end  to avoid the defendant so that the defendant could not contact her.  It is not difficult to imagine that the level of intimidation was so high that X had to change her phone number as the defendant kept sending her messages with various phone numbers between 9^th to 19^th  June 2020.

62.  As to victim Y in charge 4/5, she blocked the defendant’s number.

63.  The defendant sent different messages to Z (Charge 6)  between 3^rd September to 16^th September to demand nude video otherwise he would hang banners outside the TST MTR station and shared the video of her urinating in the toilet.  

64.  What he did must cause those victims with great anxiety and stress as they did not know the identity of the defendant, there was no way to find him as the defendant used pre-paid sim cards to commit those offences.  This was a calculate move on the part of the defendant as the police could not track him down.  The only way to arrest the defendant was through a control meeting as happened in Charge 11.

65.  I find Charges 2 and 6 are more serious than Charge 5.  As to Charges 2 and 6, I adopted a starting point of 3 years and 3 months reduced to 2 years and 2 months imprisonments after 1/3 discount .

66.  I adopted a starting point of 3 years in Charge 5 and reduced to 2 years after 1/3 discount.

Charges 9 and 11

67.  As to procuring another person under the age of 16 for making pornography, as stated previously, it was fortunate that the victims had the wisdom not to fall into his tricks.  Both victim B and C did not make any nude video as suggested by the defendant.

68.  The victims in Charges 8/9 and charges 10/11 were 15 and 16 respectively.  The defence agreed that they were serious offences.  The court has duty to protect the valuable and young victims from being exploited.

69.  Bearing in mind the maximum sentence is one of 10 years, I considered that a starting point of 3 years is appropriate in order to send a strong message to the defendant that the court viewed this type of offence seriously and the defendant cannot be treated leniently. After 1/3 discount, it reduced to 2 years’ imprisonment.

Charges 4 , 8, and 10

70.  These are the charges of pretending to be a police officer.

71.  The defendant in his mitigating letter said that he “利用了警察在市民心目中的威嚴和專業形象” to commit the offences.

72.  In HKSAR v Chan Pak Kit DCCC 11/2021 and HKSAR v Chan Kin Lik DCCC 85/2021, both of the two learned judges adopted a starting point of 6 months for the offence of pretending to be a police officer bearing in mind the maximum sentence is one of 6 months.

73.  In view of the serious nature of the present case, it is necessary to adopt a 6 months starting point for Charges 4, 8 and 10 and reduce to 4 months after 1/3 discount.

74.  As victims in Charges 4, 8 and 10 are also victims in Charges 5, 9 and 11.  I ordered sentences in Charges 4 and 5, Charges 8 and 9, Charge 10 and 11 to run concurrently.

Charge 7

75.  I now come to charge 7, the attempted fraud offence.  The defendant had a poor working relationship with A, the defendant came to obtain her information when they worked together.  He bored grudges against her and sent the screen shots of the application form to her.  He scared her by telling her that he had taken out a loan of $600,000 and reminded her to make repayment on the 5^th day of each month for a period of 36 months.  He told A that he would spend the money to enjoy himself and blocked A’s telephone number.

76.  Anyone to receive this kind of message would be frightened to shoulder such a financial liability especially when A did not apply for such a loan.

77.  The defendant was promoted in December 2019 and his last salary was $28,000.  A must be earning less than the defendant as she was just a senior station control officer.  $600,000 must be a huge sum to A.

78.  The maximum sentence for Charge 7 is 14 years.  The defence referred to HKSAR v Wong Lai Yee DCCC 737/2015 that the learned judge adopted a sentence of 15 months and reduced to 10 months after 1/3 discount.

79.  In the present case neither A nor the finance company suffered any actual loss as the application form was incomplete, the finance company could not process the application. Against this background, I therefore adopted a starting point of 15 months and give credit for his guilty, reduced to 10 months’ imprisonments after 1/3 discount.

Charges 1 and 3

80.  Charges 1 and 3 are offences committing an outraging public decency, the facts showed that the defendant took a video under a skirt of a female in school uniform for a few seconds (Charge 1)  while the other video showed that the defendant took a 12 seconds video on an escalator and filmed up a female’s skirt (Charge 3).

81.  The maximum sentence for Charges 1 and 3 are 7 years and a fine.

82.  The defence submitted that the usual sentence is one of 14 days as cited in HKSAR v Lo Hoi Chi HCMA 524/2007 and HKSAR v Yeung Wing Hong (2013)  3 HKLRD 794.

83.  Charges 1 and 3 were discovered from his phone because the defendant was arrested on 19^th November in a control meeting for Charges 10 and 11.

84.  I notice that charge 1 was committed in January 2019, while charge 3 was committed in June,2020. It was 5 days after he committed charge 2 (criminal intimidation)  which was a serious offence.

85.  When the defendant committed charge 1, that was his first offence, he still had a clear record. I accepted that a starting point of 21 days is appropriate for charge 1, reduce to 14 days after 1/3 discount.

86.  However, 5 days after he committed charge 2, he committed charge 3, I considered that 21 days is not sufficient to reflect the gravity of the offence. Against this background, I considered that the appropriate sentence should be 6 weeks, reduced to 4 weeks after 1/3 discount.

Totality

87.  I now come to deal with the principle of totality and I consider that a heavy sentence is necessary to deter the defendant from re-offending.

	Starting Point	After 1/3 discount
Charge 1	3 weeks	2 weeks	2 weeks consecutive to Charge 2
Charge 2	3 years 3 months	2 years 2 months
Charge 3	6 weeks	4 weeks	2 weeks consecutive to Charge 2
Charge 4	6 months	4 months	Charge 4 and 5 to run concurrently. Total is 2 years. 6 months to run consecutively to charge 2
Charge 5	3 years	2 years
Charge 6	3 years 3 months	2 years 2 months	6 months to run consecutive to Charge 2.
Charge 7	15 months	10 months	3 months consecutive to Charge 2
Charge 8	6 months	4 months	Charge 8 and 9 to run concurrently. Total is 2 years. 6 months to run consecutively to charge 2.
Charge 9	3 years	2 years
Charge 10	6 months	4 months	Charge 10 and 11 to run concurrently. Total is 2 years. 6 months to run consecutively to charge 2.
Charge 11	3 years	2 years

88.  The total sentence is 4 years and 5 months and 4 weeks imprisonments.

89.  The defendant should receive counselling and psychological treatment in prison.