HKSAR v. LUK HO MAN

DCCC 850/2021

[2023] HKDC 111

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 850 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant was convicted on his own plea and agreement to Amended Summary of Facts to:-

(i)  2 charges of procuring another person under the age of 16 for making pornography, contrary to section 138A(1)(a)  of the Crimes Ordinance, Cap 200 (1^st and 3^rd charge);

(ii)  a charge of criminal intimidation, contrary to section 24(a)(ii)  and 27 of the Crimes Ordinance, Cap 200 (2^nd charge);

(iii)  a charge of indecent assault on another person, contrary to section 122(1)  of the Crimes Ordinance, Cap 200 (4^th charge); and

(iv)  a charge of blackmail, contrary to section 23(1)  and (3)  of the Theft Ordinance, Cap 210 (6^th charge).

2.  As for the 5^th charge and 7^th charge, the same be left on the court file and not to be proceeded with without leave of the court.

Facts

3.  PW1, aged 15, became acquainted with the defendant in June 2019 via a mobile game.  They started to chat on WhatsApp and subsequently became lovers. PW1 had told the defendant that she was aged 15. 

1^st Charge

4.  On or about 13 June 2019, the defendant asked for photos of PW1’s breasts and genitals.  PW1 thus sent a photo of her breasts and a photo of her genitals to the defendant through WhatsApp.  Later in June 2019, the defendant found PW1 annoying and broke up with PW1. 

5.  According to the guideline set out in Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519, the 2 photos fell within Level 1. 

2^nd Charge

6.  On 20 October 2019, the defendant found PW1 through WhatsApp and requested to have sex with her, but PW1 refused.  The defendant then threatened to upload PW1’s naked photos online if PW1 did not comply.  PW1 was scared and asked the defendant not to do so.  The defendant then requested PW1 to be his sex slave until she turned age 28.  The defendant also asked PW1 to stay overnight at the defendant’s home for two consecutive days between 21 and 24 October 2019.  At first, PW1 refused.  The defendant then told her to just come on two separate days.  Since PW1 did not want her photos being uploaded online, she agreed to go to the defendant’s home on 22 October 2019 and 24 October 2019.  The defendant also requested PW1 to perform oral sex on him and to lick his feet. 

3^rd Charge

7.  Later on 20 October 2019, the defendant asked PW1 to send him 10 naked photos.  PW1 sent him 4 photos of her breasts and 6 photos of her genitals via WhatsApp. 

8.  According to the guideline set out in Man Kwong Choi, the 10 photos fell within Level 1. 

4^th Charge

9.  At around 4:30 pm on 22 October 2019, PW1 met the defendant.  The defendant led PW1 to his home.  He told PW1 to sit on the sofa.  The defendant then took off PW1’s school dress.  The defendant wanted to take off PW1’s underdress, but PW1 refused.  The defendant then took off PW1’s bra.  The defendant subsequently molested PW1’s breasts and requested PW1 to perform oral sex on him.  PW1 was reluctant at first, but the defendant threatened to send out PW1’s photos if PW1 did not comply.  PW1 thus complied and performed oral sex on the defendant for about an hour in a room. 

10.  Later, the defendant spread PW1’s legs and took off PW1’s underpants. The defendant tried to insert his penis into PW1’s vagina.  PW1 refused to have sex with the defendant and tried to squeeze her legs together.  The defendant then stopped.  In the course, the defendant’s penis had touched PW1’s inner thigh, but it did not touch PW1’s genitals.  The defendant then requested PW1 to lick his feet.  PW1 complied and licked his soles and toes.  The defendant also asked PW1 to perform oral sex on him again.  PW1 thus performed oral sex for about an hour.  She left the defendant’s home at around 10 pm. 

6^th Charge

11.  Later in November 2019, the defendant threatened to upload PW1’s photos online.  Being continuously threatened by the defendant, PW1 begged the defendant to delete the photos.  The defendant replied that he would only let her off if PW1 gave him $9,000 and to have sex with him until she had a boyfriend, or if she just gave him $13,000.  PW1 agreed to give the defendant $13,000. 

12.  Subsequently, the defendant further requested PW1 to have sexual activity with him for about 4 times a month (oral sex together with ejaculation counted as one, sexual intercourse also counted as one).  PW1 asked if the number could be reduced to twice a month.  The defendant then demanded $15,000 instead.  PW1 agreed as proposed since she was scared that the defendant would further increase the amount.  The defendant later even increased the number of sexual activities to 6 times a month. 

13.  On 22 November 2019, PW1 felt annoyed by the defendant and told the social worker about this case.  The case was reported to the police and subsequently the defendant was arrested on 14 January 2020. 

Criminal Record

14.  The defendant has a clear record. 

Mitigation

15.  The defendant is now aged 23.  At the time of the offence, he was 20. He lives with his parents and is the only child of the family.  Both parents are working.  The defendant was educated up to Form 6.  He had studied hotel management in a private educational institute for 3 years but he was unable to graduate.  He had also previously worked in the catering and manufacturing industry.  Subsequent to the arrest and since April 2021, the defendant had worked as an assistant IT support officer, earning $12,000 a month.  He quit the job due to the present proceedings. 

16.  Defence counsel submitted that the defendant struggled with obesity all his life.  The same led to his low self-esteem.  He was also diagnosed with diabetes in July 2022.  It was said that he also has asthma which requires regular follow-up and he does not play any sports or do any exercise as a result of the poor health.  It is said also that his main hobby is playing online games at home.  He also plays Chinese musical instrument. 

17.  For the 1^st and 3^rd charge, defence counsel submitted that there are no sentencing guidelines for this offence.

18.  In the case of HKSAR v Wu Chi Yin, DCCC 77/2021, the court took the view that reference could be made to the sentencing guideline regarding possession of child pornography (under section 3(3)  of the Prevention of Child Pornography Ordinance, Cap 579)  as set out by the Court of Appeal in the Man Kwong Choi case. 

19.  The said guidelines are applicable for the first-time offender.  It was said that for level 1, ie images depicting erotic posing with no sexual activity, and if the number of images is small, then a community service order, probation or fine is appropriate.  When the numbers of images are large or the depictions are extremely suggestive, then terms of imprisonment from 1 month to 6 months would be appropriate. 

20.  In the Wu Chi Yin case, the court took the view that procuring child pornography must be, by nature, more serious than possession of the same. 

21.  It is submitted that the subject photos of the present case are at the lower end of level 1 category as there are only 2 photos for the 1^st charge and 10 photos for the 3^rd charge, and the depicted child was aged 15 at the time. 

22.  For the 2^nd charge, defence counsel submitted that there are no sentencing guidelines as each case turns on its own facts.  He referred this court to the cases of HKSAR v Lam Chi Hong Patrick [2012] 2 HKLRD 1273 and HKSAR v Cheng Pui Man Dicky, HCMA 765/2009.  Defence counsel conceded that the young age of the victim in the present case is an aggravating factor. 

23.  For the 4^th charge, again, defence counsel submitted that there are no sentencing guidelines as each case turns on its own facts.  He referred this court to the case of Secretary for Justice v Wong Tsz Kin [1998] 4 HKC 32. 

24.  For the 6^th charge, after referring to the case of HKSAR v Fong King Choi [2020] 2 HKC 219, defence counsel said that in the present case, the demand for money by the defendant was for one-off payment only and he acted alone.  There was no triad connection and it was not part of a sustained campaign of intimidation against other victims.  In the end, the victim did not yield to the demand for extortion of money and no loss was suffered. 

25.  Defence counsel submitted that the most valid mitigating factor is the defendant’s own guilty plea and for which the victim is spared from testifying in court.  It was also said the defendant was aged 20 only when he committed the offences and he used to be a person of clear record. 

26.  It was said that the defendant committed the offence due to his low self-esteem which caused him to be an introvert and his only and first girlfriend was the victim in the case.  It was said that after he started dating the victim, he found it difficult to get along with her and therefore he broke up with her. He is deeply remorseful for his actions and apologised to the victim for his mistakes. 

27.  Defence counsel also urged this court to consider the totality principle and asked this court for leniency for the defendant. 

28.  In support of the mitigation, defence counsel has also submitted mitigation letters as well as reference letters from the defendant’s superior, certificates for the defendant’s participation in voluntary service and in Chinese musical orchestra, together with an appointment slip from Tseung Kwan O Hospital for following-up of the defendant’s medical condition of diabetes. 

29.  The mitigation letters from the defendant’s parents and his friend (a social worker)  as well as his superior at work indicate that the defendant is a filial son who contributed to his family.  It is said also that he is kind and helpful, and is a good listener.  His superior said that he is very dedicated, hardworking, responsible and trustworthy.  They all said that the defendant committed the offence on impulse, and that he is now deeply remorseful and is trying hard to reform himself.  They all asked this court for leniency for the defendant. 

30.  The certificates from his secondary school showed that the defendant used to involve himself in social service group as well as Chinese orchestra in school.

31.  Before sentencing, this court has called for a psychiatric and a psychological report on the defendant as well as the victim impact report. 

Victim Impact Report

32.  According to the victim impact report, luckily, the negative emotions from the incident had turned less intense and disturbing as time went by.  The victim now treated the incident as a past event and was no longer bothered by it in daily life. 

Psychiatric Report of the Defendant

33.  According to the psychiatric report of the defendant, the defendant is not suffering from any mental illness. 

Psychological Report of the Defendant

34.  According to the clinical psychologist, the defendant is normal in cognitive functioning.  He is passive and an introvert.  He has low self-esteem and strong sense of inferiority because of his appearance.  He is lonely and crave for intimacy, and is also inadequate in heterosexual skills.  He presented with strong and unfulfilled sexual needs and was preoccupied with sex.  With repeated rejections from other females and a vain attempt to reunite with the victim, he resorted to making threats to attract attention of the victim.  He perceived victim’s compliance, ie sending him photos, as a sign of affection for him.  The defendant experienced sexual gratification and a sense of conquest from indecently assaulting the victim.  He wished to continue taking sexual advantage of the young-aged victim and thus kept making threats. He thought wrongly that the victim would be reticent about his indecent acts and he undermined the legal consequences of his offending behaviour.  It was said that he displayed some remorse. 

35.  It was also said that in view of the defendant’s relatively young age, psychological profile, victim’s characteristics, sexual preoccupation, distorted sexual beliefs, incapacity for stable relationship as well as the nature of the present offences, his risk of reoffending was assessed to be at the high end of moderate range.  It was said that psychological treatment targeting his low self-esteem, heterosexual skills, regulation of sexual impulse and prevention of future reoffending is suggested. 

Discussion

36.  Whilst this court notes that the defendant is a young man of 20 at the time of offence and of clear record, there is no doubt that the offences are very serious.  The only appropriate sentencing option is one of immediate custodial sentence. 

37.  Clearly, the defendant is not suffering from any psychiatric problem, and the fact that he has low self-esteem or being an introvert or not skillful in handling heterosexual relationship is not an excuse for exploiting and committing these offences against a young girl. 

38.  When considering the sentencing starting point, the court has already considered the fact that he is a young man of clear record. 

1^st and 3^rd Charge

39.  This court agrees with the view taken by the court in the case of Wu Chi Yin that reference could be made to sentencing guideline for a first-time offender regarding possession of child pornography (under section 3(3)  of the Prevention of Child Pornography Ordinance, Cap 579)  as set out by the Court of Appeal in Man Kwong Choi case. 

40.  It is agreed that the 2 subject photos in the 1^st charge and the 10 subject photos in the 3^rd charge all fell under level 1.  In the Man Kwong Choi case, it is said that if the number of level 1 photos is small, a community service order, probation or fine is appropriate.  On the other hand, if the numbers of images are large or depictions are extremely suggestive, the term of imprisonment should range from 1 to 6 months. 

41.  However, procuring child pornography is by nature more serious than possession of the same.  This is evident by the fact that the maximum sentence for the former is a fine of $3 million and imprisonment for 10 years, and for the latter the maximum sentence is a fine of $1 million and imprisonment for 5 years.  In fact, the offence is more serious than the making of child pornography where the maximum sentence is only a fine of $2 million and imprisonment for 8 years. 

42.  The defendant knew the victim was aged 15.  They were still on good terms as far as the 1^st charge is concerned.  The victim voluntarily acceded to the request of the defendant. 

43.  In the circumstances of the case, the appropriate sentencing starting point for the 1^st charge is 4 months’ imprisonment.  By reason of the defendant’s guilty plea, the same is discounted to 2 months and 20 days’ imprisonment. 

44.  As for the 3^rd charge, the number of photos is increased to 10.  The defendant made the request at a time when he threatened the victim, asking the latter to be his sex slave, and threatened to upload the victim’s naked photos online.  Obviously, the victim sent him these photos unwillingly in fear of the threats of the defendant.  This court notes that the victim at the time was nearly aged 16. 

45.  The sentencing starting point for the 3^rd charge is 6 months’ imprisonment.  The defendant is sentenced to 4 months’ imprisonment by reason of his guilty plea. 

2^nd Charge

46.  On conviction upon indictment of this charge, a person is liable to imprisonment for 5 years. 

47.  The defendant threatened the victim, a girl under 16, to upload her nude photos online and asked that she be his sex slave until she turned 28, ie for 13 years.  He also requested her to stay overnight at his home for two consecutive nights in a certain period of time.  In the end, the same was changed to two days.  The victim did succumb to his threat.  As a result, she had to have oral sex and lick his feet.  This is a highly degrading abuse on the victim. 

48.  The sentence of this charge must reflect the abhorrence of society towards this horrendous offence.  Even considering the clear record of the defendant and his relatively young age at the time, this court considers that the appropriate sentencing starting point would be 24 months’ imprisonment.  The defendant is therefore sentenced to 16 months’ imprisonment for this charge by reason of his guilty plea. 

4^th Charge

49.  On conviction upon indictment of this charge, a person is liable to imprisonment for 10 years. 

50.  In the case of HKSAR v Tsang Chiu Tak, CACC 386/2011, Cheung JA (as he then was)  in paragraph 8 of the judgment said that:-

“The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their family.

The Court of Appeal pointed out that when the court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:-

(1)  the age difference between the defendant and the victim;

(2)  the relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in that case;

(3)  whether the defendant had used threats or inducement to make the victim succumb;

(4)  the number of occasions of committing the offences and the duration of the offences;

(5)  whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6)  whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7)  whether the sexual abusers have caused physical or psychological trauma to the victim;

(8)  whether the offences have impact on the family members of the victim;

(9)  whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or taking photos or videos of the offence he committed; and

(10)  whether the defendant is psychologically imbalanced and paedophilic and the likelihood of reoffending.”

51.  In this case, at the time of offence, the defendant was aged 20 and PW1 was aged 15.  From the Agreed Facts, it is clear that the victim went to the defendant’s residence after being threatened by the defendant.  Apart from molesting the victim’s breasts and had the victim perform oral sex on him for about an hour, the defendant further removed the underpants of the victim and attempted to have unprotected sexual intercourse with the victim, in the course of which the defendant’s penis had contacted the inner thigh of the victim. Luckily, the victim resisted and the defendant stopped.  The defendant then made the victim perform oral sex on him again as well as lick his feet.  The degrading ordeal for the victim lasted 5½ hours. 

52.  It was said by the clinical psychologist that the risk of reoffending was at the high end of moderate range. 

53.  Considering the circumstances of the case, the appropriate sentencing starting point is 36 months’ imprisonment.  The defendant is therefore sentenced to 24 months’ imprisonment for this charge by reason of his guilty plea. 

6^th Charge

54.  A person convicted of this offence upon indictment is liable to imprisonment for 14 years. 

55.  In the cited Court of Appeal case of Fong King Choi, Zervos JA in his judgment said that there was no sentencing guideline for the offence of blackmail, but in cases of an extortion of money, the factors bearing on the gravity of the offence included:-

(1)  the nature and amount of the demand; whether the demand was for a one-off payment or regular payments;

(2)  the nature and circumstances in and by which the demand was made; whether the offender acted alone or with others; whether the demand was made on a single occasion or on repeated occasions; whether there was actual or threatened violence to a person or damage to property; whether there was an expressed or implied triad connection; whether it was part of a sustained campaign of intimidation against other victims; and

(3)  the consequences of the demand and the effect on the victim; whether the victim yielded to the demand for extortion money and whether any loss was suffered.

56.  The defendant here threatened the victim to post her nude photos online on the 16^th birthday of the victim.  Later, he made numerous unwarranted demands of money, ranging from $9,000 to $13,000 and then to $15,000, coupled with the condition that the victim shall have sex with him until she has a boyfriend or have sexual activity with him 4 times a month, and even detailing what would be counted as one-time sex.  When the victim agreed, he increased his demand to 6 times a month.  This court considers the same as threats of psychological violence or threats of violence to privacy of the victim.  The defendant escalated his demand when the victim agreed.  The demands for money and sex took place from 14 November 2019 to 22 November 2019, ie over 9 days. 

57.  Bearing in mind the victim is only a schoolgirl at the time, the unwarranted demands for both money and sex made by the defendant is very cynical and harsh on the victim.  Luckily, in the end, the victim did not succumb to these threats. 

58.  Again, considering the circumstances of the case and the factors bearing on the gravity as aforesaid, the appropriate sentencing starting point would be 3 years’ imprisonment.  The defendant is therefore sentenced to 2 years’ imprisonment for this charge by reason of his guilty plea. 

Totality

59.  This offence took place between 13 June 2019 and 22 November 2019, ie over 5 months, against the same victim.  The threats and demands of the defendant against the victim escalated over time.  These offences were not committed on impulse but were calculated to exploit the vulnerable young victim. 

60.  Considering the totality principle, having regard to the overall culpability of the defendant in this case, this court considers that the total sentence of 30 months’ imprisonment after plea is just and proportionate. 

61.  The defendant committed the 2^nd and 3^rd charge offences on the same day and he committed the 4^th charge offence as part of his plan.  In committing the 2^nd charge offence, the defendant had made use of the subject photos in the 1^st charge. Circumstances under which the victim was subjected to the defendant’s abuse was considered in the sentence of the 4^th charge.  Accordingly, the sentence of the 1^st, 2^nd and 3^rd charge are to run totally concurrent with the sentence of the 4^th charge. 

62.  The 6-month sentence in the 6^th charge are to run consecutive to the sentence of the 1^st, 2^nd, 3^rd and 4^th charge; the rest to run concurrently. 

63.  The defendant is therefore sentenced to a total of 30 months’ imprisonment for these offences.