HKSAR v. LO YAN KIT

DCCC1072/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1072 OF 2011

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Reasons for Sentence

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1. In these proceedings, the defendant faced one count of criminal intimidation, contrary to sections 24(a)(i) and 27 of the Crimes Ordinance, Cap.200.

2. He is convicted upon his own plea and admission of facts.

3. The case could be simply put thus.

(i) Some time in the evening on the 11th day of August 2008, the victim, a part-time model, was approached by another male and eventually coaxed into attending the other male’s flat in Happy Valley on the 12th day of August, where a photo-shooting session took place.

(ii) Some time during the photo-shooting session, the victim was coaxed into consenting to have pictures taken in compromising postures.

(iii) Some time in the evening on 21 August 2008, the defendant called the victim twice, threatening to place the victim’s pictures on some gay websites.

(iv) When the defendant was arrested on the 1st day of August 2008, upon caution, he told the police that he was made to make the phone calls as a result of being threatened by the other male. Since he had some pictures in the other male’s hand, he dared not disobey.

(v) During the subsequent cautioned interviews, the defendant further admitted that pictures of him had been taken by the same male in the previous occasion, again in compromising situations, and subsequently, that male made him submit to his directions, like having meals and going out with him from time to time.

(vi) It was on the 21st day of August 2008 when the defendant was instructed by the other male to call the victim to make the threats. He made the calls but not before taking steps to conceal his caller’s identity.

(vii) The defendant had acted on the instructions of the other male, according to him, because he himself was under threat.

4. Honestly, I have great reservation on this account.  I do not think he was telling the truth.  The defendant and the other male had a relationship which he had simplified and omitted a lot of the particulars.

5. However, as it is, I have to sentence him on the basis of the facts he admitted.

6. There are no sentencing guidelines for offences of this nature.  Most of the sentences are fact-based.  It has been said by the judges in the High Court that if there had been violence involved, if there was a triad flavour, the court ought to consider a custodial sentence.

7. On the basis of the facts before me, none of these factors were present.

8. The defendant in this case had a clear record. He was born in 1985.  Therefore, at the time of the offence, he was still in his early 20s.  Therefore, the sentencing approach should lean onto more of the rehabilitation side.

9. For this purpose, I have called for a probation officer’s report.  The probation officer has set out in details about the defendant’s background.  I will not repeat them here.

10. Suffice to say that the defendant had apparently some talent in sport and had been a star sportsman at school, but this talent had taken its toll on his academic performances.  After he left school, he aspired to pursue a career in the entertainment business, but had not much success.

11. The defendant had a caring family.  His father indicated that he would take more care of the defendant and maybe take him back to China under his own supervision.

12. From the report, it did not seem that the defendant had a clear sense of direction where he was heading for and had fallen into bad company.

13. The probation officer took into account of the ample support of his family and his positive attitude, considered probation supervision not necessary at the present stage, but instead found him a suitable subject for community service order.

14. In view of the matters said earlier, I did not see that the society could benefit from putting him away nor do I see it beneficial to his own development as a person.

15. In the circumstances, I will adopt the recommendation of the probation officer and put him on community services order for 240 hours.

16. The defendant should be warned that a community service order is equivalent technically to a term of imprisonment.  He has 12 months to fulfil the duty of finishing 240 hours of community services work.  If for any reason he fails to complete these 240 hours or fails to comply with the instructions of the probation officer to carry out the community service work, the court will be notified and he will be brought up again for sentencing anew.

17. I do not need to belabour the point on how serious this offence is.  If such a thing happened that he is brought before me again, I would not exclude a term of imprisonment to be made in lieu of the community services order.

18. I may add that at this point, perhaps this might be a blessing in disguise for the defendant.  It is time for him to do some soul-searching and to re-orientate his life.