HKSAR v. LUNG YIU FAI

DCCC 654/2023

[2024] HKDC 371

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 654 OF 2023

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REASONS FOR SENTENCE

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1.  Mr Lung pleaded guilty before me to 5 charges of Voyeurism, contrary to section 159AAB(1)(a)(i)  and (3)  of the Crimes Ordinance, Cap 200.

2.  The particulars of offence relating to the 5 charges are almost identical.  They differ in the date on which the offence took place.  The first 4 charges relate to multiple victims whereas the last charge relates to just one single victim.

3.  The particulars are as follows.  Mr Lung, between 30 January 2023 and 3 February 2023, in a female toilet cubicle of the office of [redacted to protect the identity of the victims[1]], Kowloon, in Hong Kong, surreptitiously recorded individual(s)  in a place in which the said individual(s)  could reasonably be expected to reveal an intimate part, or to be doing an intimate act, and the said individual(s)  was/were in circumstances that gave rise to a reasonable expectation of privacy, and Mr Lung disregarded whether the said individual(s)  consented to being recorded.

4.  The date of offence under Charge 1 is 30 January 2023.  The date of offence under Charge 2 is 31 January 2023.  The date of offence under Charge 3 is 1 February 2023.  The date of offence under Charge 4 is 2 February 2023. The date of offence under Charge 5 is 3 February 2023.

Facts admitted by Mr Lung

5.  Mr Lung was the Operations Manager of a charitable entity that occupied an office space in Kowloon.  The entity employed a number of male officers and 11 female officers.  Its office hours were from 9 AM to 6 PM, Mondays to Fridays.  In the office, there was only one washroom with one toilet cubicle for each sex.  The washroom door was not locked.  The washroom was not open to the public but was open for use to staff and volunteers.  The office was fitted with CCTV cameras.  One of these cameras covered the entrance to the washroom.

6.  On 3 February 2023, a janitor of the office PW1, while cleaning the female toilet cubicle discovered therein:-

(a)  A white power bank (E1);

(b)  A 64GB SD card (E2);

(c)  A camera (E3); and

(d)  A computer host and USB charging cable (E4).

all under the toilet brush holder (E5)  next to the toilet bowl.

7.  PW1 relayed the discovery to PW2 the manager.  Suspecting upskirting activities, PW2 placed E1-E4 inside a safe at her desk and locked them up.  PW2 reported the matter to senior management who decided to report the case to the police the next day.  Mr Lung’s identity was revealed as PW1 recalled having previously seen Mr Lung having a white power bank resembling E1.

8.  E2 belonging to Mr Lung was subsequently inspected by the Cyber Security and Technology Crime Bureau (“CSTCB”)  of the police and a total of 646 videos were found.  These videos were all taken within the 5 days between 30 January and 3 February 2023.  The filming mechanism was that after around 5 minutes of filming, a new video file would be automatically created while the filming would continue.

9.  Upon review, 166 of the said 646 videos (named by police as Videos S/N 1 to 646)  in E2 were found to have captured various females using the female toilet with their intimate parts (including their genitals and buttocks)  exposed.  While numerous females were secretly filmed, only 8 female staff members were positively identified.

10.  On 5 February 2023, in the morning, at his residence, Mr Lung was arrested for “voyeurism”.  Under caution, Mr Lung stated that he had installed a hidden camera in the office female toilet cubicle out of curiosity.

11.  In a subsequent cautioned VRI, Mr Lung stated that:-

(a)  He was responsible for the operation and logistics of the entity;

(b)  As the entity went through major personnel and work changes, he was under a lot of pressure and lust had had the better of him; he thus installed a camera to secretly film his female colleagues using the toilet;

(c)  He bought E1 to E4 and another white power bank right before the Lunar New Year from various locations in Hong Kong;

(d)  On 30 January 2023, he used a screwdriver (E6)  and a screw (E7)  to pinch a hole on the toilet brush holder; he then placed the camera along with the power bank and cable under the brush holder; the camera was placed in an angle facing the toilet bowl and capturing the buttocks of those using the female toilet cubicle;

(e)  The two interchangeable power banks supplied electricity to the camera; the camera was connected to a miniature computer host which allowed the SD card to be paired with his mobile phone (E8); he downloaded a mobile app and watched the live feeds via that application; he could not watch the videos once he left the office because the pinhole camera would lose its connection with his phone;

(f)  He would use the same application on his phone to view the live feed videos in real time and he only did so when he was in the office via Wifi;

(g)  The filming took place between 30 January and 3 February 2023; during this period, he returned to the office early and changed the power bank every day before work when no one was around;

(h)  He watched the videos in the office in private; he felt excited and happy when watching the videos of his female colleagues using the toilet; as he had yet to figure out how the videos could be saved or downloaded he only watched the live feed videos at work;

(i)  He did not transfer any of the videos to his personal computer or upload them online; he did not install other cameras or tell others about the filming either;

(j)  After the knew the incident was unearthed on 3 February 2023, he disposed of the other white power bank and deleted the same application on his phone;

(k)  He used E1 to E7 for the filming and he used E8 to view the videos;

(l)  He was the man captured by Video S/N 129; he was there to adjust the camera angle, so that the pinhole camera would be able to face the toilet bowl and capture the users of the washroom; and

(m)  This was his first and only attempt to record such videos of the like.

12.  CCTV of the office showed that on each day between 30 January 2023 and 3 February 2023, Mr Lung arrived at the office before 8 am and then entered the washroom with a white power bank and subsequently left without it.

13.  The internet browsing history of E8 revealed that before the dates of the offences, Mr Lung made searches and browsed about items and tools for use in the commission of the offences such as “operation toilet brushes”, “small power banks” and “mini DIY drills for children”.

Criminal record

14.  Mr Lung has a previous clear record.

Antecedents

15.  Mr Lung is aged 49 (48 at the time of the offences), educated to F5 level, worked as a clerk.  He lives with his wife in private housing in Sai Wan Ho.

Mitigation

16.  Ms Emily Yu of counsel mitigated on behalf of Mr Lung.  The following is a summary of the mitigation submissions.

17.  Mr Lung and his wife have no children, but they have four cats.  Mr Lung was raised by his grandmother, and is the youngest among four siblings.  His parents are in their eighties.

18.  Previously, Mr Lung had been working for the subject entity as a deliveryman since 2014.  In 2016, he was promoted to the position of an Operations Manager.  He has since been laid off because of the offences.

19.  Since December 2023, he has been working as a taxi driver, earning around $15,000 a month.

20.  Mr Lung has a clear record.

21.  The background to the commission of the offences is as follows.  Since November 2022, Mr Lung began experiencing problems at work with associated stress accumulated.  In his personal life,  Mr Lung and his wife were also mentally and physically exhausted from taking care of their four pet cats, which required frequent and urgent veterinary treatments in January 2023.

22.  As a result of stress from work and from personal life, Mr Lung internalized the pressure he faced by indulging in pornographic and voyeuristic fantasies, and committed the offences out of foolishness as a way of relieving internalized stress.  Mr Lung acted out of character.

23.  Mr Lung fully accepts that his actions were despicable and grotesque, and understands that stress is no excuse.  Mr Lung is deeply remorseful and ashamed of his actions, and strongly regrets the pain he has caused his colleagues and family.

24.  Mr Lung pleaded guilty at the very first opportunity.  He cooperated fully with the police.  During the VRI, he disclosed all the details as to how he executed his plan, including which app he used, how he stored the footage, and how he viewed the footage.

25.  Ms Yu submits a psychiatric report dated 25 April 2023 (ie post-offences)  written by Dr Lam Chi Leung.  Dr Lam opined that Mr Lung was suffering from adjustment disorder with disturbance of conduct and voyeuristic disorder, and it is likely that Mr Lung committed the offences under the influence of his mental disorders.  Nevertheless, Dr Lam stresses that Mr Lung is fit to plead.

26.  Mr Lung is recommended by Dr Lam to seek counselling on stress coping skills and cognitive behavioural therapy for sex offence.  In Dr Lam’s updated referral letter dated 8 January 2024, he notes that the result of Mr Lung’s Depression Anxiety and Stress Scale showed mild symptoms, and Mr Lung has a stable mental condition.  Nevertheless, Dr Lam thinks it will be helpful for Mr Lung to receive specialized psychological intervention for sex offender.

27.  Mr Lung has a strong network of family and friends who have been supporting and guiding him throughout this difficult time.  The chances of Mr Lung re-offending is extremely low.  He vows not to disappoint his friends and especially his wife again, who forgave him despite his wrongdoings.

28.  It is fortunate that the offensive footage was never published on any platform, nor was it sent or distributed to any third party via the internet.

29.  There are no sentencing guidelines for the offence of voyeurism, which is a relatively new offence.  It is however accepted that this is a serious offence which is likely to attract a sentence of immediate imprisonment.  The court is invited to consider concurrent sentences on Mr Lung.  The court is further invited to pass a lenient but fair sentence on Mr Lung.

30.  Ms Yu submitted a total of 12 mitigation letters written either in English or otherwise with English translation.  They were written by respectively Mr Lung himself, his second elder sister, his wife, the founder of the subject entity, Mr Lung’s colleague the Financial Manager, a group of other colleagues, a volunteer worker at the entity, victim G, victim E, victim C, victim D, and finally another colleague.  The contents are generally that Mr Lung is deeply regretful and feels shameful for his irresponsible behavior that has caused great pain and serious harm to the victims and disappointment to his family members; he promises not to re-offend; that Mr Lung is a filial son; that Mr Lung was the longest-standing employee and a beloved member of the subject entity; that he was kind and hardworking at work and would always lend a helping hand to those in need; that Mr Lung came to work each day more than one hour in advance and frequently worked overtime in the evening; that Mr Lung contributed much to the subject entity by for instance setting up the logistical computer programme; that Mr Lung is loved and respected by colleagues who regarded him as a role model; that he has previously helped ex-convicts to seek employment; that Mr Lung was the earliest employee to reach office and the latest to knock off work; that he attended office even during COVID 19.  Most if not all of the letter writers asked for leniency on behalf of Mr Lung so that he may start afresh and contribute to society again.

31.  Upon invitation, Ms Yu produced a table showing the earnings of Mr Ng from December 2023 to February 2024.

32.  Upon enquiry by the court, Ms Yu accepts that this is a breach of trust case: Mr Lung was only one of a few employees who had the key to the office gate; that very often it was Mr Lung who came to office early to open that gate; that the washroom was not open to anyone other than employees and registered volunteers.

33.  After the obtaining of the two government expert reports, Ms Yu further submitted that the reports were explained and agreed by Mr Lung.  Ms Yu however clarified that totally in line with para 11 of the psychological report, Mr Lung denied sexual arousal when he watched the live footage captured.

34.  Faced with the somewhat differing opinions of the two government experts, Ms Yu conceded that they superseded their own expert Dr Lam’s reports.

Reports

35.  I ordered a psychiatric report and a psychological report on Mr Lung.

36.  The psychiatric report concluded that Mr Lung has had voyeuristic fantasies and is sometimes excited by them; that he is not otherwise suffering from mental illness, and his current mental condition is stable.

37.  The psychological report concluded that Mr Lung showed some interest in voyeuristic pornography material, but there was insufficient evidence suggesting a diagnosis of Voyeuristic Disorder in the current assessment; that his risk of sexual recidivism was assessed to be low, and no psychological intervention was recommended.

Sentence

38.  I have seen the 30 photographs (showing physical exhibits)  contained in a photo album handed up by the prosecution.  I have seen two other photographs (since returned to the prosecution)  indicating the angle at which the camera was pointed.

39.  The maximum sentence for the subject offence is a term of 5 years’ imprisonment. There are no sentencing guidelines.

40.  The government psychiatrist’s findings do not support the initial defence contention that Mr Lung was suffering from Voyeuristic Disorder, nor do they support the defence’s initial claim that Mr Lung committed the offences under the influence of his mental disorders.

41.  The government psychologist, for her part, did not recommend psychological intervention on Mr Lung, which was said to be helpful by Dr Lam engaged by the defence.

42.  In the premises, I do not find it helpful to rely or act on Dr Lam’s opinion when sentencing Mr Lung.

43.  The offence is serious not least because it is an affront to female dignity.  The circumstances of commission are aggravated by the fact that Mr Lung made use of his position as manager and holder of the office gate key such that he could arrive at office early to set up the clandestine camera at the toilet cubicle.  This is a breach of trust case.

44.  In the premises, I am of the view that an immediate custodial sentence is the only viable sentencing option.

45.  I accept that Mr Lung acted out of character because of sheer pressure from work; that is of course no excuse.  However, I will give him some credit because of his previous good character, especially in light of the many good words put in by his ex-colleagues some of whom were victims in the offences.

46.  The offences lasted 5 consecutive days and involved 8 identified victims and an unknown number of unidentified victims.

47.  I take a global approach and adopt a global starting point of 2 ½ years’ imprisonment.  Mr Lung pleaded guilty in good time thereby earning for himself the customary 1/3 discount.

48.  For his positive good character, I shall knock off a further period of 2 months after the 1/3 discount.  There are no other mitigating factors of weight to justify any other reduction in sentence.

49.  An application of the totality principle does not detract me from passing the resulting sentence on Mr Lung.

50.  I shall impose individual sentences in respect of the 5 charges and make an overall order as to their consecutiveness/concurrency to arrive at the correct overall sentence.

(Mr Lung, please stand)

On Charge 1, Mr Lung shall go to prison for 12 months.

On Charge 2, Mr Lung shall go to prison for 13 months.

On Charge 3, Mr Lung shall go to prison for 14 months.

On Charge 4, Mr Lung shall go to prison for 15 months.

On Charge 5, Mr Lung shall go to prison for 3 months[2].

51.  I order that the sentences on Charges 1, 2, 3 and 5 are to run concurrently among themselves; and 3 months of these concurrent sentences are to run consecutively to the sentence on Charge 4.  The aggregate sentence is therefore 18 months’ imprisonment.