HKSAR v. WU CHI YIN

DCCC 77/2021

[2021] HKDC 1307

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 77 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant (“D”)  has pleaded guilty to one count of procuring another person under the age of 16 for making pornography, contrary to section 138A(1)(a)  of the Crimes Ordinance, Cap 200 (“Charge 1”), and one count of blackmail, contrary to section 23(1)  and (3)  of the Theft Ordinance, Cap 210 (“Charge 2”).

The Facts

2.  This case concerns one victim, a girl X, who was 11 years old at the material time. In committing the captioned offences, D used three QQ accounts bearing different user names and identities, namely, “Qian Xiao Xin Rou” (淺笑心柔)  (“QXXR”), “Professional Photographers” (專業攝影團隊)  (“PP”), and “Ming Yue Qing Feng” (明月清風)  (“MYQF”). 

3.  Unbeknown to X, at all material times, the true identity of these QQ accounts users was in fact D. 

Charge 1

4.  In June 2019, X got acquainted with D on Tik Tok, they then exchanged numbers and chatted on multiple messaging apps, in particular, QQ.

5.  On 9 June 2020, X sought assistance from D to unblock her QQ account.  D recommended X to find his friend PP to fix her account.

6.  On 11 June 2020, X logged into D’s QQ account (QXXR)  and received a message from PP who claimed to be D’s friend.  PP asked X to pay her[1] HK$200 for fixing her account, but X replied that she did not have enough money.  PP then requested X to send her nude photos of X herself and promised to delete those photos once X made the payment.  D on the other hand reassured X that PP was a female and PP would honour her promise to delete X’s nude photos after X made the payment.  X did not comply with PP’s request however.

7.  On 14 June 2020, X, using another QQ account of her own, added PP as her friend.  PP sent four photos of naked girls to X and asked X to send two photos of herself imitating those girls and promised to fix X’s account afterwards.  PP also promised X if X comply with such request, she would only be charged HK$400. 

8.  X complied with the request of PP (who was D as explained above)  and sent two nude photos of herself to PP, in which the breasts and genitals of X were visually depicted.  During the conversation, X confirmed with PP that she was a primary school student.

Charge 2

9.  On 18 June 2020, X received a QQ message from MYQF who claimed to be Y, the schoolmate of X and the younger sister of PP. 

10.  MYQF (who was D as explained above)  sent one of X’s nude photos back to X and threatened to send that photo to their “classmate chat group” unless X pay her HK$200.  MYQF warned X not to pay her at school and suggested that X could pay an additional HK$200 to PP (ie a total of HK$600).

11.  At about the same time, PP confirmed with X that she is Y’s older sister.

12.  On 19 June 2020, D sent a WhatsApp message to X and requested X to make the payment to PP as soon as possible in order to retrieve her QQ account and have her nude photos deleted.

13.  On the same day, X’s father discovered the above incident and confirmed with the principal of X’s school that Y did not have any sister and Y had no knowledge of the incident.

14.  On 20 June 2020, PP threatened X on QQ that she would disseminate her nude photos online if she refused to make the payment.

15.  On 25 June 2020, X sent a WhatsApp message to D informing him that she could pay in cash.  D responded that he would collect a total of HK$600 on behalf of PP. The case was reported to the police on the same day.

16.  On 29 June 2020 and 30 June 2020, D warned X on WhatsApp that PP may post her photos on the internet.

17.  On 1 July 2020, PP threatened X on QQ that she would disseminate her nude photos online.  She added that after posting those photos online, X would not be admitted to a secondary school.  She also sent X’s nude photos back to her.  She went on to say that as X did not make the payment within a month, she had to pay “additional fees”.  X could either send her another nude photo of herself or perform oral sex on the person who would later collect the payment from her.  X did not respond to the messages.

18.  On 15 July 2020, police officers took over X’s phone and communicated with D on WhatsApp.  D demanded X to pay PP HK$600.  He claimed that the original price was HK$800 but he made an effort to negotiate with PP and reduce the price to HK$600.

19.  On 17 July 2020, D, using a new WhatsApp number, told X that PP would post her photos on Tik Tok that day if X continued to ignore PP.

20.  On 21 July 2020, D confirmed with X on WhatsApp that he would collect HK$600 for PP in person.  However, D later changed his version and claimed that “his friend” would collect the payment instead.

The Arrest

21.  On 22 July 2020, a controlled meeting was set up for X to hand over the money to “D’s friend” (later known to be D himself).  At 1:15 pm, D showed up at Tin Yat Station of the Light Rail Transit.  X handed over HK$600 marked money to D. After D took the money, DPC 23204 (“PW2”)  intercepted D.  At 1:20 pm, PW2 arrested and cautioned D for the offence of “procuring another person under 16 for making pornography” and “blackmail”. 

Video-recorded interview

22.  On the same day, the police conducted a video-recorded interview with D who was accompanied by his father.  Under caution, D admitted he had committed the captioned offences and stated, inter alia, the following:-

(a)  He got acquainted with X on Tik Tok in June 2019. They exchanged numbers and communicated on WeChat, QQ and WhatsApp;

(b)  He originally used the number “5488-1197” on WhatsApp and subsequently changed to “9654-5416”;

(c)  He had multiple QQ accounts including PP, MYQF and QXXR. He used different QQ accounts to communicate with X and pretended to be different people;

(d)  As X’s QQ account was blocked, he lent one of his QQ accounts (QXXR)  to X so that X could communicate with others on QQ;

(e)  At first, he disguised as PP and asked X to pay him HK$200 for fixing her QQ account. He requested X to send her nude photos as guarantee since he was worried that X may not pay him the money. He later raised the fees to HK$600 due to the complexity involved in fixing X’s account;

(f)  He sent a photo of a naked girl to X and asked X to take photos of herself imitating that girl. He then saved the nude photos that X sent to him in his phone, both in the photo album and on a share drive;

(g)  As X once told him where she was studying, he found the information of Y on the website of X’s school. He disguised as Y and talked to X using the QQ account of MYQF;

(h)  He did threaten X to pay him the money using the QQ accounts of PP and MYQF. He only wanted to scare X and did not intend to disseminate the nude photos online;

(i)  X’s QQ account was not fixed at the moment; and

(j)  He committed the offences for fun.

X’s Victim Impact Report (VIR[2])

23.  I have the benefit of reading the VIR, fortunately, X was able to recover from the distress caused by the said incidents and the incidents have limited adverse effects on X.

The defendant’s background and mitigation

24.  In passing sentence, I have carefully considered the oral and written submissions of Mr Ng, in particular, that D is now aged 17 and he is currently pursuing study at Form 6 level in preparation for HKDSE at YLPMSAA Tang Siu Tong Secondary School.  

25.  I note that D has a clear record.  In D’s mitigation letter, he admitted he had made a big mistake and felt remorseful for his action and apologized in the hope that X can move on with her life.  He also indicated his wish to get back on track and prepare for HKDSE.

26.  There are letters written by D’s parents, his elder brother, relatives, class teacher, principal, and paster of D’s church and these letters show their strong support for D.  In short, they speak highly of D.  This is also borne out by the 2020/2021 Annual Academic Report issued by YLPMSAA Tang Siu Tong Secondary School, which commented D as a student who is eager to seek improvements and willing to offer assistance to teachers.

Sentencing Considerations

Charge 1

27.  There is a similar offence under section 3(1)(a)  of the Prevention of Child Pornography Ordinance, Cap 579 (“PCPO”)  which carries a fine of $2,000,000 and a maximum imprisonment for 8 years for, inter alia, making of child pornography whereas section 3(3)(a)  provides a maximum sentence of 5 years for the offence of possession.

28.  In the present case, the Prosecution had decided to prosecute D with section 138A of Crimes Ordinance, Cap 200, which carries a maximum fine of $3,000,000 and a maximum imprisonment for 10 years.  In other words, this offence could be more serious than the possessing or making of the same.  Of course, each case must depend on the particular facts of its own.

29.  On the other hand, it is common ground that reference could be made to the authority of Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519 in which the Court of Appeal set out the following sentencing guidelines for offences under section 3(3), ie possession of child pornography, which is applicable for a first time offender:-

(a)  Level 1 – Images depicting erotic posing with no sexual activity

This is the least serious level. If the number of images is small (say 20 or less)  then a community service order, probation or fine is appropriate. When the numbers are larger or the depictions are extremely suggestive, terms of imprisonment from 1 month to 6 months will be appropriate.

(b)  Level 2 – Depictions of sexual activity between children, or solo masturbation by a child

Depending on the number of depictions, an immediate custodial sentence of up to 9 months will be appropriate. Even if only a few depictions are involved, the level will generally attract a custodial sentence.

(c)  Level 3 – Depictions of non-penetrative sexual activity between adult and children

Depending on the number of depictions, sentences of between 6 and 12 months will be appropriate.

(d)  Level 4 – Depictions of penetrative sexual activity between children and adults and sadism or bestiality

The range of custodial sentences should generally be from 12 months, even for a few images, to 36 months.

30.  In HKSAR v Ipp Tin Fan [2016] 4 HKLRD 486, the Court of Appeal held that the making of child pornography under section 3(1)  of the PCPO should be treated more seriously than mere possession under section 3(3).  The Court of Appeal was of the view that at least 18 month’s starting point for the offence of making under PCPO in that case should be required.

31.  Counsel for both parties were invited to make further submissions on the following issues, whether (i)  the sentencing guidelines regarding possession of child pornography as set out by the Court of Appeal in Man Kwong Choi is applicable to an offence under s 138A and (ii)  whether the sentencing approach adopted in Ipp Tin Fan has any bearing on the present case.

32.  Ms Chau for the Prosecution submitted that given the two ordinances have a common objective of child protection and the intertwined legislative history, the sentencing judge is at liberty to refer to the sentencing guidelines in Man Kwong Choi in deciding an appropriate sentence for offence under section 138A of Cap 200. 

33.  Ms Chau also referred me to the case of 香港特別行政區 訴 關浩輝 (DCCC 460/2013, 11 September 2013, unreported), which mentioned the approach in Man Kwong Choi when considering the appropriate starting point for the charge of “Procuring another person under the age of 16 for making pornography.

34.  In addition, Mr Ng referred to 香港特別行政區 訴 李明理 DCCC 156/2014, and he submitted that that case and 關浩輝, in which the defendants were sentenced to Detention Center and 9 months respectively, are much more serious than the present case. 

35.  On the case of Ipp Tin Fan, Ms Chau fairly submitted that section 138A offence focuses on the act of procurement of making pornography, thus, the ratio decidendi in Ipp Tin Fan may not be of direct relevance to the present charge, and could hence be of limited reference value.  Mr Ng agrees with Ms Chau’s view.

36.  Having considered these submissions, I am of the view that the sentencing guidelines regarding possession of child pornography as set out by the Court of Appeal in Man Kwong Choi is applicable to the present charge. 

37.  In the present case, it is also common ground that the nude photos fall within Category Level 1 and perhaps for this reason, Mr Ng urged this court a few times to call for Probation Order or Community Service Order Report.  I am of the view that the nature of procuring makes the offence more serious than mere possession and even when the Prosecution had fairly suggested that the case of Ipp Tin Fan is of limited value, the maximum sentence for the respective offences speaks for itself.  I am not persuaded that the number of photos in a case is a decisive factor.  The conduct of D in the present case was ugly and the way he implemented the plan for his own satisfaction was carefully executed and complicated.  The incidents lasted for a significant period as well. 

38.  In all the circumstances, I do not think that a Probation Order or Community Service Order is appropriate and therefore I rejected the request and only called for Rehabilitation Centre, Detention Centre and Training Centre Reports.  

Prevalence

39.  Besides, I have much concern about the prevalence of this sort of offence. 

40.  The Prosecution submitted very fairly that section 138A is not a “specified offence” under Schedule 1 and 2 of Organised and Serious Crimes Ordinance, Cap 455 (OSCO)  and therefore, they were not in a position to make an application of enhancement.

41.  On the question of prevalence, it was submitted that the court is at liberty to impose a more severe sentence in light of prevalence of the offence in order to achieve a deterrent effect.  

42.  Ms Chau for the Prosecution referred me to the case of R v Downie and Dandy (1997)  95 A Crim R 299 (at 303 per Callaway JA):-

“The first relates to the material or sources on the basis of which the judge is entitled to conclude that the offence is prevalent. Is he or she limited to admissible evidence mid matters of which judicial notice may be taken or may regard be had to the wider range of material available on a plea or to an even more generous variety of source? The second relates to the degree of assurante that the judge must have that the Qffence is prevalent. In the language of sentencing facts, the second issue relates to the standard to which prevalence must be established. The third is concerned with natural justice. In what circumstances must the judge make it clear to counsel that prevalence may be taken into account?” (with emphasis added by Ms Chau)

43.  It is not always necessary for a prosecutor to adduce material to demonstrate prevalence, as courts may draw upon their own experience.  (See R v Wong Sui Ming CACC 307/1992, 19 August 1993, unreported). 

44.  Nevertheless, as a matter of procedural fairness, the court should alert counsel if it considers an offence to be prevalent and if this might affect its sentence.  Both the Prosecution and the Defence agreed this view in their further submissions.

45.  On the other hand, Mr Ng remarked that the Prosecution did not make such a request for enhancement of sentence in the first place and more importantly, there is no factual basis to proceed on that basis.

46.  Objectively, there is a growing concern about the misuse of electronic means and the internet in similar context of the present case.  The general public, especially for the young generations, should be made known about the seriousness of the nature of the offence and that an effective deterrence is usually called for in the sentencing of offenders for similar offences. 

47.  On the other hand, it is not unheard of from defence lawyers that their clients have underestimated the impact their clients’ conduct could have brought upon the victims or the society at large because these people are doing it in private. Some might place very heavy reliance on the submission that the accused did not have any intention to really disseminate the photos as though it had become a victimless crime and as a result, as the argument runs, a lesser sentence should be imposed as a matter of course and of law. 

48.  I trust that the Prosecution might review the matter soon enough to address the concern and ascertain whether such a growing concern has reached a level that makes that the offences would and should be properly regarded as prevalent. 

49.  Having said these, I am of the view that it is fair to leave this matter and not to impose an enhancement of sentence on D in the present case when I do not have the benefit of any statistics or indicative information for further consideration regarding the factors or principles as propounded in Downie and Dandy. 

50.  I hasten to add that Charge 1 remains a very serious offence and a deterrent sentence is called for.

Charge 2

51.  Blackmail is also a serious offence.  It carries a maximum sentence of 14 years.

52.  Although there is no sentencing tariff, deterrence looms large, and a substantial period of jail term would frequently fall for consideration.

53.  I would, however, bear in mind the Totality Principle and the factual matrix in the present case.  After all, D committed the offences alone and there is no aggravating feature in it other than that the blackmail was done and followed up for a period of time and that it was done where D had armed with the nude photos of X.  In short, the whole circumstance of the case suggests that Charge 2 is also a serious one within the spectrum of the varieties of blackmail. 

The Sentence

54.  I am satisfied that the pornography at issue which visually depicted the breasts and genitals of X belongs to Category Level 1 in Man Kwong Choi.

55.  Further, I am of the view that procuring child pornography must be, by nature, more serious than the possession of the same.  It speaks loud enough if one notes that section 138A carries a higher maximum sentence than both sections 3(1)  and 3(3)  of PCPO.

56.  I take a very serious view about the present case both because of the nature of the offences and the way they were committed.  I do not consider community service order, probation or fine appropriate at all.

57.  D is a young offender, 16 at the time of the offence and now 17.  Section 109A of the Criminal Procedure Ordinance, Cap 221 provides that no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.

58.  As mentioned, I therefore called for a Rehabilitation Centre, Training Centre, and Detention Centre suitability report before passing sentence.

59.  In order to help D develop more insight into his problems and cultivate his positive moral value as well as strengthen his law-abiding concept, I share the view that D is mentally and physically fit for detention in a Detention Centre, a Rehabilitation Centre or a Training Centre.  The Probation Officer is of the opinion that D is more suitable for detention in a Detention Centre. Unfortunately, the reason he gave was that “after a general assessment of his behaviour and attitude”, hence it was considered that D was more suitable for detention in a Detention Centre.  In fact, I agree entirely with the observations of the him but I wonder if I have a stronger inclination to place more weight to D’s desire and determination to continue with his study.  In other words, whilst I think that both the detention in the Detention Centre and the Rehabilitation Centre are severe enough to reflect the gravity of the offences and could have achieved the deterrent effect in this case, I am prepared to choose between sending D to the Detention Centre or the Rehabilitation Centre on the basis that the preferred option should be the one which would cause the least disturbance or disruption to his study, which, as I expressed in court and counsel for both parties did agree, is an important component for rehabilitation and reintegration of D.

60.  On the other hand, I also agree with the observations of Mr Ng that the report is a favourable one.  I can also see the strong family support that D still enjoys. I am quite impressed by the comments in the report in favour of D.  I accept that D has a deep reflection upon his conduct and he is genuinely remorseful and apologetic towards the incidents, his family and the victim.

61.  Regarding the sentencing options for a young offender, I tend to think that, in terms of length of incarceration, there is not a significant difference between detention in Rehabilitation Centre and the Detention Centre.  Besides, I have to take into account the fact that D was initially remanded in custody for about two and a half months from 22 July 2020 to 5 October 2020 before he was granted bail and the current remand.

62.  In all these circumstances, I therefore called for a further report in order to obtain profession advice from the Probation Officer on what impact the detention would have made to D’s study and invite a review of the recommendation.

63.  The Probation Officer, who was also the previous one, once again recommended the court to send D to the Detention Centre.  His recommendation had taken into account factors such as, D’s behaviour, attitude whilst on remand, his background, the nature and seriousness of the offences, building up a disciplined law-abiding life through strict disciplinary training.  Nevertheless, he highlighted that D is “suitable for detention in a Rehabilitation Centre solely on the consideration of his study”. 

64.  There were two more letters from the Defence.  In gist, D and his family asked this court to sentence D to the Rehabilitation Centre.  They highlighted certain features and relied on the information the Correctional Services Department has published and distinguished the nature of the Detention Centre and that of the Rehabilitation Centre.  This information echoed the comments of the Probation Officer in that it would be more beneficial to D for the purpose of his study if he is sent to the Rehabilitation Centre.  Therefore, this court was urged to sentence D to the Rehabilitation Centre by the Defence. 

65.  Having carefully considered, I am of the view that the appropriate sentence for the offences in this case is the Rehabilitation Centre and D is sentenced for both charges accordingly.  These sentences will be served concurrently to each other.

66.  Lastly, I thank counsel for their valuable assistance in this case at various stages and in particular, their contributions in their legal research, which is very helpful to the sentencing exercise in this case.