HKSAR v. LAI MAN KIT

DCCC 661/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 661 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges of blackmail. Both offences occurred on the same day, 31 August 2015.

2.  The facts are as follows.  The defendant met the victim, a 24-year-old female, via a dating app.  Their first contact was at about 2 am on 26 August 2015.

3.  This app is called “Skout”.  Like Tinder, it is a mobile people discovery app.  One can locate likeminded people you might like to chat with or meet with in your vicinity through this app.  If one likes another’s profile, you can get in touch.

4.  According to the victim, the defendant claimed himself to be a physiotherapist.  She had back problems.  After getting in touch, she sent him, through her mobile phone, some photographs of her bare back.  Then both started a video chat, and on the same occasion, the victim was naked, and both masturbated in full view of each other via the video link.

5.  The same day, they arranged to meet.  The defendant said at this meeting they held hands and took a bus, and on that bus, had oral sex, but it seems that the victim decided after this meeting that they were not compatible and she only wanted to be friends.

6.  The defendant had other ideas.  Several days later, on 29 August, the defendant sent the victim a message, telling her that he had some naked photographs of her.  He told her that he was contemplating posting them on the internet.

7.  On 31 August, at about 1 am, the victim received another message from the defendant, telling her she could buy back her naked photographs by paying him $10,000.  He threatened to post the photographs on the internet if she failed to pay him.  Those are the particulars of Charge 1.

8.  The victim told the defendant she did not have that much money, so later that day, the defendant told the victim that if she could not afford to pay him $10,000, she could buy him an iPhone instead.

9.  The victim, after receiving this message, called the police.  The police set up a sting operation, and the victim arranged to meet the defendant on 3 September at about 10.30 pm.  At this meeting, the defendant was arrested by the police.

10.  Under caution, he admitted to the police that he had made those unwarranted demands of the victim, but he had acted out of impulse because he was keen to continue to see and date the victim, but she was reluctant to meet him again.

11.  The defendant is clearly not a physiotherapist. However, I am sure many on site apps such as “Skout” lie on their profiles. Clearly, during the course of what has been described as “video sex”, the defendant took screen shots or photos of their live streaming.  The police subsequently found more on his phone and on his desktop computer.  There are a total of 38 photographs of the victim on his phones and 4 on his computer.

12.  At that stage, at that first call, there was no question of any relationship between them, yet the defendant took photographs of the victim without permission.  There is certainly no evidence that the defendant coerced or tricked the victim into video sex via a video link.

13.  The defendant is 27 years old, has a clear record, is single, lives with his parents, and, since Form 5, has been in steady employment.  His parents are very supportive despite this offence. Mr Boyton, leading Mr Chui, has said all he can on behalf of the defendant in mitigation.

14.  Despite a suggestion by the defence, it is my view that what is appropriate is a term of imprisonment.  The defendant, as I have said, took photographs of the victim naked without her permission.  He made unwarranted demands, followed up by a threat.  He put the victim in fear of exposure to others on the internet, even though the victim did not think twice about exposing herself to the defendant during their very first video chat. She clearly took his threat seriously, because she called the police.

15.  The defendant fully co‑operated with the police.  He explained why he made those demands.  Mr Boyton has suggested that he is an immature man.  The defendant fell for the victim, but she did not reciprocate.  He thought that these threats would keep them in touch or maybe together, which is absurd; however, it is not unheard of that people would resort to blackmail to try and gain affection.

16.  The defendant told the police he had never intended to publish those photographs.

17.  This offence of blackmail has been described, as Mr Boyton quotes, as one of the most serious offences in the calendar of offences.  How that can be tempered obviously depends on the facts of each individual case.

18.  This is not a triad-related blackmail.  It is not the worst case of its kind.  The victim made herself vulnerable and became vulnerable, but she is not a child.  No tariffs exist for blackmail, except that a term of imprisonment is almost always inevitable, and often, over 3 years’ imprisonment is considered appropriate.

19.  Defendant, please stand up.  The defendant in this case is 27, but with a clear record.  He is not so young as to be considered very immature, but I do take into account what has been said in mitigation, the circumstances of the two offences, and the defendant’s explanation under caution.

20.  Having considered all those relevant factors for both charges I will take a starting point of 21 months.

21.  The defendant has pleaded guilty, and is entitled to a discount of one-third.  That is a discount of 7 months.

22.  After that is applied, the sentence will be one of 14 months.

23.  There are two offences.  I take into account the totality principle.  Both charges were committed on the same day.  They both relate to the same situation and incident.  I order them both to be served concurrently.

24.  Therefore, I sentence the defendant to 14 months for each charge, served concurrently.  That is a total of 14 months’ imprisonment.  Do understand?

DEFENDANT: Understand.