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DCCC 168/2024
[2024] HKDC 1292
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 168 OF 2024
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| Before: |
H.H. Judge G. Lam |
| Present: |
Mr. Brian Cheng, PP, of the Department of Justice, for HKSAR. |
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Mr. Samson Hung instructed by M/s Chow Wong & Lawyers, assigned by the Director of Legal Aid, for the defendant. |
| Offences: |
(1) Threatened publication of intimate images without consent（未經同意下威脅發布私密影像） |
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(2) to (6) Publication of intimate images without consent（未經同意下發布私密影像） |
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REASONS FOR SENTENCE
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The defendant pleaded guilty to a charge of "Threatened publication of intimate images without consent" (Charge 1) and 5 charges of "Publication of intimate images without consent" (Charges 2 to 6). The victim, Miss X, was his ex-girlfriend.
Summary of Facts
2. The defendant and X met in 2019 when they were attending the same secondary school. They began their courtship in early 2021. In early May 2023, X broke up with the defendant; however, they maintained contact as friends.
3. On 3 June 2023, X stopped replying to the defendant's messages which were sent to X's various social media platforms.
Charge 1
4. About midnight on 5 June 2023, X received text messages from the defendant via WhatsApp. He demanded X to reconcile with him; or otherwise her sex video clips would be published on Instagram. The defendant's text messages included "Do you believe I would post your naked photos on Instagram?"; "I would post these 2 video clips first and the 3rd one would show your face"; and "I will send those to your teachers".
Charge 2
5. About 5:50 a.m. on 5 June 2023, X received 7 video clips and 3 photos from the defendant via WhatsApp. Three clips depicted sexual intercourse between X and the defendant; 2 depicted X's private parts; and 2 depicted X and the defendant masturbating. One photo depicted X's private parts; and the other 2 were screen captures of the defendant having sent X's sex video clips to 2 of his contacts on the same day via WhatsApp coupled with text messages "Brother, are these good?" and "Am I large?".
Charge 3
6. About 5:14 a.m. on 5 June 2023, Miss Y, a common friend of X and the defendant, received a video clip via Instagram sent from an account named "ck2.3.j". The clip depicted X and the defendant engaging in sexual intercourse. Y showed X the clip. X confirmed that the clip depicted her and the defendant; and she did not consent to its publication.
Charge 4
7. About 5:41 a.m. on 5 June 2023, Y received 3 video clips and 3 photos via Instagram sent from an account named "ck23chicken". One clip depicted X and the defendant engaging in sexual intercourse; and the other 2 depicted X's private parts. One photo depicted X's private parts; and the other 2 depicted X's feet. Y showed X those clips and photos. X confirmed that the clips depicted her and the defendant; and she did not consent to the publication of those clips and photos.
8. At the same time, Y noticed 2 video clips and 2 photos being posted on an Instagram account named "ck23chicken". One clip depicted X and the defendant engaging in sexual intercourse; and the other depicted X and the defendant masturbating. The 2 photos depicted X's feet. X confirmed that the clips depicted her and the defendant; and she did not consent to the publication of those clips.
Charge 5
9. About 6:33 a.m. on 5 June 2023, Y noticed a photo depicting X's private parts being posted on the defendant's Instagram account named "fcxsbnnmkkkkk". X confirmed that the photo depicted her; and she did not consent to its publication.
Charge 6
10. About 3:46 p.m. on 7 June 2023, Y noticed a video clip having been posted on the defendant's Twitter account named "jlllj_hk" on 5 June 2023. X's full name in Chinese was mentioned in that post. Y showed X the clip. X confirmed that the clip depicted her private parts; and she did not consent to its publication.
Arrest and admissions
11. X reported the matter to the Police on 5 June 2023.
12. PC 25154 arrested the defendant on 1 August 2023.
13. When interviewed under caution on 2 August 2023, the defendant admitted having published all the sex video clips. He did so out of anger since X broke up with him. Regarding Charges 3 to 6, the defendant admitted having set up the respective social media accounts and having posted the respective video clips and photos on those accounts. He also confirmed that those clips and photos depicted him and X.
Mitigation & Sentence
14. The defendant is 20 and has 5 conviction records involving a total of 9 offences (none were similar to Charges 1 to 6 in the present case). Defence counsel Mr. Hung informed me that the defendant is single and resides with his mother (aged 61). After completing F.6, the defendant has taken up different jobs including fruit hawker, construction worker and waiter. He was unemployed at the time of the present offences.
15. In mitigation, Mr. Hung submitted that the defendant began to consume cannabis around 2020. He was diagnosed with mania with psychotic features in May 2022 and was hospitalized for about a month. In February 2023, the defendant, on his own volition, discontinued his psychiatric medication due to their side effects. In April 2023, X broke up with the defendant, which was a strong blow to him. Owing to his unstable emotions, the defendant committed a series of offences in May and June 2023. According to his criminal record, the defendant was dealt with by magistrates sitting at Kwun Tong and Tuen Mun Magistracies on 2 occasions respectively in November and December 2023. He was given a Training Centre Order for a total of 9 offences.
16. In view of the defendant's age and psychiatric history, I decided to call for 2 psychiatric reports and a Training Centre Report before I sentence him for the present offences.
17. Psychiatric reports revealed that the defendant's mental condition is currently stable and out-patient follow-up treatments should be continued. The assessing officer at Pik Uk Correctional Institution considered that the defendant is mentally, psychologically and physically fit for detention in a Training Centre. He commented that the defendant has shown "certain sense of remorse for his misdeeds while he blamed himself for his immaturity and irresponsibility[1]". Regarding his future plans, the defendant wishes to resume his employment as a construction site worker after settling the present case.
18. I accept that the defendant committed the present offences owing to his unstable emotions. On the other hand, he has no one but himself to blame for his psychiatric issues, which resulted from his cannabis abuse and self-discontinuation of psychiatric medication. Furthermore, X breaking up with him is not at all an excuse for doing such nasty things to an ex-girlfriend.
19. Prosecuting counsel Mr. Cheng informed me that X was over 16 when the video clips and photos were taken. I was also informed that the defendant's social media accounts were not restricted to friends only (i.e. the general public could view the materials he posted on his accounts).
20. Though self-inflicted, the defendant had psychiatric issues at the time of the present offences. He has been undergoing training at Pik Uk since November 2023. It appears that the disciplinary training in the past 8 months has been effective and beneficial to him. I am reluctant to pull him out and send him to prison instead. Disrupting his training at Pik Uk may do him more harm than good.
21. I note that the defendant committed his previous 9 offences and the present 6 offences all around the same time[2] (i.e. May and June 2023). Chronologically, he probably had a clear record if the present case was to be dealt with first, which would render a Training Centre Order a highly possible sentence. It is also quite likely that if all his offences were dealt with by the same court at the same time, a Training Centre Order would be made for all 15 offences.
22. Based on the reasons stated above, I make a Training Centre Order each for Charges 1 to 6, which would be the sentence for all 6 charges.
[1] 2nd paragraph on p.6 of the Training Centre Report dated 1 August 2024.
[2] 2nd paragraph on p.5 of the Training Centre Report dated 1 August 2024.
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