HKSAR v. CHENG HO WING

DCCC 443/2018

[2019] HKDC 1333

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 443 OF 2018

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REASONS FOR VERDICT

1.  The defendant pleads not guilty to two charges of blackmailing X, contrary to section 23(1) and (3) of the Theft Ordinance[1] and one charge of doing a series of acts tending and intended to pervert the course of public justice, contrary to Common Law[2].

Prosecution case

2.  In summary on 30 May 2016 the defendant visited X at her home.  With the consent of X the defendant hugged and touched X and then carried X into the bedroom where he took off her upper clothing including her bra, blindfolded her and intimately touched her.

3.  Unknown to X, the defendant used his mobile phone to film his intimate touching of X. Later the defendant made screen captures from the video and used them to blackmail X.

Charge 1

4.  On 21 September 2016 X received a request to follow her account on Instagram by user ‘youaretooj’. X viewed her account and saw a photograph of herself blindfolded together with the message demanding $800 for four photographs otherwise they would be uploaded to Secrets so she could gain glory for the school.

5.  Believing the photographs had been secretly taken in her bedroom on 30 May 2016 X contacted the defendant on WhatsApp.  The next day the defendant went to look for X at her mother’s shop.  X told the defendant about the message showing a photograph of what happened on 30 May.  The defendant did not admit the Instagram account ‘youaretooj’ belonged to him but did admit taking the photographs.  The defendant told X that all the photographs had been deleted and that he had moved the photographs to a USB which he had lost when going to school.

6.  The prosecution case is that the defendant was the person who sent the message demanding $800 for the return of the photographs.

Charge 2

7.  On 3 October 2016 X received a request to follow her account on Instagram from user ‘sorryfor_poxoh’ together with the message saying sorry and asking her not to report the case to the police.  Between 3 October 2016 and 4 November 2016 X received messages from user ‘sorryfor_poxoh’ including messages sent on 8 October and 11 October demanding $500 for the return of a USB containing the photographs.

8.  The prosecution case is that the defendant was the person who sent the messages demanding $500 for the return of the photographs.

Charge 3

9.  The defendant was arrested on 6 November 2016.  On 16 March 2017, 17 March 2017 and one day in May 2017 X received telephone calls from a person claiming to be an officer from the prosecution.  X was told, inter alia, that the success rate for conviction in blackmail cases was not high; the press would take photographs of her; the defendant had attempted to commit suicide and was asked to inform the police if she did not want to pursue the matter.

10.  Mr Cheung opened the prosecution case on the basis that the defendant was the person making the three telephone calls[3]. In closing submissions Mr Cheung submitted that because X could not identify the voice of the caller the only inference to draw was that the calls were made by the defendant or someone acting on his behalf, which calls were made to dissuade X from continuing her complaint[4].

Defence case

11.  The defence case in summary is that the defendant filmed the encounter on 30 May 2016 with the consent of X.  Later the defendant copied the video and screen captures onto a USB which he lost at school around mid-July 2016.

Charge 1

12.  The defendant did not the use the name ‘youaretooj’ and was not the person who sent the message on 21 September 2016 demanding $800 for return of the photographs.

Charge 2

13.  The defendant did send the Instagram messages between 3 October and 4 November 2016 from user ‘sorryfor_poxoh’ including demanding $500 for return of the photographs but did so for fun and to play X and did not intend to receive any money.

Charge 3

14.  The defendant did not make the calls to the defendant on 16 March, 17 March and on a day in May 2017 or ask anyone to make the calls.

Evidence

15.  The prosecution called two witnesses X (PW1) and PC 8711 (PW2), who gave evidence as an expert witness of the results of his digital forensic examination of the defendant’s mobile phone, SIM card and SD card[5].

16.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[6], including the chain of evidence regarding all exhibits; copies made from digital files and agreed translations where there is no certification[7].   I will refer to the admitted facts as I review the evidence.

17.  Letters written by the defendant and delivered to the police station between November 2016 and April 2017 and records of interview given by the defendant on 6 November 2016 and 25 July 2017 have also been admitted in evidence[8].

18.  In reaching my verdict I have considered the content of the letters and the records of interview in accordance with the decision in R v Sharp[9].

19.  The defendant elected to give evidence.  The statements of two defence witnesses were read pursuant to section 65B of the Criminal Procedure Ordinance[10].

20.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict, each charge being considered separately.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.

21.  I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.

Summary of the evidence

22.  X gave evidence over seven days about the events that occurred in May 2016; the messages sent between 21 September 2016 and 5 November 2016 and the telephone calls made on three days in March and May 2017[11]. PC 8711 gave evidence on two days[12]. The defendant gave evidence over eight days[13].

23.  The documentary evidence includes messages sent on Instagram and WhatsApp, letters written by the defendant and four records of interview.  The trial bundle runs to 317 pages.

24.  A detailed summary of the evidence is therefore necessary.

Summary of the prosecution evidence

Evidence of X

Anonymity Order

25.  At the beginning of the trial an anonymity order was made to protect the identity of X[14].  X gave evidence behind a screen hiding X from the accused and the public.  X was permitted to enter and leave court by a special passageway[15].

26.  The background of X and the defendant has been admitted[16].

27.  X, now aged 21, testified that in May 2016 after finishing her examinations she did not have to attend school while waiting for the results.  In mid-May the defendant called X saying he wanted to give X something.

28.  Afterwards the defendant went to the home of X.  X could not recall how long after the call the defendant went to her home.  The defendant gave X a bag and chatted with her.

29.  After the defendant left X looked in the bag and saw an adult toy, an eye mask and a bottle of liquid.  X was curious and wanted to know more about the contents of the bag because she had never had any contact with those things before.

30.  In cross-examination X agreed that in her witness statement dated 5 October 2016 she said that after the defendant gave her the bag she opened the bag and found some adult sex toys inside and that the defendant then entered her home and they had a chat[17]. X disagreed that there was only a vibrator in the bag.

31.  In re-examination X clarified that she looked in the bag after the defendant left and supposed because she was explaining what was inside the bag the sequence was different.

32.  The defendant visited X’s home several times in May when they chatted.  X also said she supposed that there was slight body contact.  By this X meant that at the beginning they sat close to each other, shoulder to shoulder.  The defendant then put his hand on X’s shoulder and hugged X.

33.  In cross-examination X agreed that in these meetings they became more intimate and that there was a little bit of physical intimacy of a sexual nature.  X agreed that she was a willing participant.

30 May 2016

34.  On 30 May the defendant again visited X at her home.  At first X and the defendant chatted.  After a while there was body contact.  X said perhaps at first they just hugged and later it seemed that she sat on the defendant’s thigh.  In cross-examination X agreed this was not the first time she had sat on the defendant’s thigh.

35.  The defendant started to touch X.  X remembered that it seems later the defendant lifted up her top and touched her breasts and also probably kissed her body.

36.  The defendant then carried X into her bedroom and put X on her bed. The defendant continued to touch X and then took off her upper clothes including her bra.  X remembered that it seems that the defendant asked for the bag he had earlier given to X.  The defendant took out the eye cover from the bag and put the eye cover on X.

37.  In cross-examination X disagreed that the eye mask was hers and that the eye mask had not been given to her by the defendant.  X disagreed that she wore the eye mask so she could not be identified.  

38.  When asked by Mr Raffell why she wore the eye mask X replied that she felt doing these things was very embarrassing and because she was very close to the defendant she did not want to have so direct eye contact with him within such a close distance.  X added that she did not refuse when the defendant asked her to put on the eye mask.

39.  X remembered that the defendant also tried to tie her hands with a rubber string that she used to bind her hair.  While X was still blindfolded there came a time when the defendant stopped touching X.  X took the opportunity to untie the rubber string.  X intended to get up from the bed and take off the eye cover to see what the defendant was doing but the defendant pushed X down and continued touching and kissing X’s body.  In cross-examination X disagreed that the defendant did not tie her hands and did not push her down.

40.  X remembered the defendant taking off his clothes and taking her hand to touch his private part.  Later the defendant also removed X’s trousers and pants and tried to insert into X’s body.  X refused and the defendant resolved his own sexual desire himself.  X said the eye cover was removed before the defendant removed her trousers but she could not remember the exact time.

41.  In cross-examination X agreed that apart from wanting to get into her body she consented to all other intimate acts.

42.  When the defendant went to the toilet X got up from the bed and put on her clothes. X noticed the defendant’s mobile phone was on a board at the end of her bed in an upright position supported by the cover of the phone which could be flipped open.  X suspected the defendant may have secretly taken a video of what happened.  X was not however able to switch on the phone to see if the defendant had actually filmed what had happened.

43.  In cross-examination X said she did not ask the defendant if he had secretly videoed her.  X disagreed she did not ask because she knew the defendant videoed her and that she had agreed to being videoed[18].In re-examination X said that she did not ask the defendant because she did not know if he had really videotaped her secretly and that she was a little bit frightened.

44.  Admitted in evidence is that the defendant took a video with his mobile phone capturing intimate acts with X in X’s room on 30 May 2016[19].

45.  X said she did not consent to the defendant filming her.  In cross-examination X agreed that some of the moaning heard during the video was acting but disagreed that she was sort of playing for the camera.  X disagreed that she watched the video immediately after the encounter on 30 May 2016[20].  X said she had watched the video once after the police told her they were able to find the video[21].

46.  X and the defendant left in the afternoon because they both had their own things to do.  The defendant never went to X’s home again.  X did not remain in contact with the defendant but did see the defendant on the street and at the school graduation dinner at the end of June 2016.

47.  In cross-examination X said there was some communication on WhatsApp in which they were both polite to each other and agreed that she was no longer interested in having an intimate relationship with the defendant.

Blackmail(charge 1)

48.  The particulars of the charge read as follows:

“CHENG Ho-wing, on the 21st day of September 2016, in Hong Kong, with a view to gain for himself or another or with intent to cause loss to another, made an unwarranted demand of $800 Hong Kong currency from X with menaces.”

49.  Admitted in evidence is that on 21 September 2016 X received a request to follow her account on Instagram by user ‘youaretooj’(exhibit P2 (1))[22].

50.  X described the user as a stranger.  X said that the photograph of the account user was a photograph of her in her bedroom on 30 May 2016.  Prior to receiving the request X said that she only suspected the defendant had videotaped her on 30 May 2016.  Asked if she found out afterwards X replied “Yes”.  It was not until the time there was a stranger’s account in IG who wanted to follow me, and the photo of that account or the photo representing that account is the photo in relation to the secret videotaping on that day, and so it was not until that time I know”.

51.  Admitted in evidence is that the defendant made four screen captures from the video taken on 30 May 2016 in X’s room (exhibits P1A (1)-(4))[23].  X said she supposed the photograph was the same as photograph exhibit P1A (1) because the photograph showed the things on the top of the head board of her bed.  X said only part of photograph P1A (1) was shown.

52.  Admitted in evidence is that on 22 September 2016 X made a screen capture with her mobile phone (exhibit P2) of the account page of ‘youaretooj’ (exhibit P2 (1))[24]. The screen capture does not show the photograph of the account user.  In answer to the court X explained that at the beginning she was astonished when she received the request and that when she suddenly remembered to make the screen capture the photograph of the account user had already gone away/been deleted.

53.  The screen capture shows a message in which a demand is made for $800 for four photographs otherwise the photographs would be posted on Secrets.  X explained that Secrets was a page on Facebook and that any member of the public who found the Secrets page on Facebook could view the photographs.

54.  X believed the four photographs showing her were secretly taken in her bedroom on 30 May 2016.  X did not however follow the account ‘youaretooj’ and therefore did not look at the photographs posted on the account.

WhatsApp messages

55.  After receiving the request to follow her account by user ‘youaretooj’ X immediately sent a WhatsApp message to the defendant because she felt that the defendant had opened the Instagram account‘youaretooj’ as she supposed he was the only person who kept the photographs.

56.  Admitted in evidence is that X made screen captures of WhatsApp messages between 21 September 2016 and 2 October 2016 (exhibits P3 (1)–(10))[25].  X explained that the messages in green boxes were sent by her and the messages in white boxes were from the defendant.

57.  The message, a single Chinese character呵, was sent by X at 23:06 on 21 September 2016 (exhibit P3 (1)) [26].  When asked what she intended by sending this message X replied, “It just represented a beginning and a cold laugh”.  After the court explained the question X said that by sending the message she intended to ask the defendant why he made such an Instagram account to threaten her.

58.  Over the next two hours (23:14 – 01:06) there was an exchange of messages between X and the defendant (exhibit P3 (1) – (4)).

59.  In the message sent at 23:20 X says the defendant had done such a cruel thing.  X explained the reference to cruel thing was the defendant secretly taking photographs and then threatening her by saying the photographs would be posted on the Secrets page.

60.  X said it was possible the defendant opened the Instagram account because she had earlier ignored his WhatsApp messages asking to go to her home again.  X was afraid that the things which happened on 30 May would happen again so she ignored the defendant and deleted the earlier messages.

61.  From the defendant’s messages at 23:14 and 23:27 X said the defendant seemed to say he did not know what she was talking about.  X thought the defendant was pretending and therefore replied at 23:30 “Fine, you continue”.

62.  When the defendant at 23:31 asked what does it mean X replied at 23:54 telling the defendant not to threaten her again.  X explained that she regretted what happened in her home on 30 May 2016 and felt what she did was wrong.  X therefore sent the message telling the defendant not to threaten her with the photographs, hoping that the defendant would not mention again what happened on 30 May and would delete the photographs.

22 September 2016

63.  In the following seven messages the defendant was still saying he did not understand what X was saying therefore X replied at 00:19 “You continue pretending, you know it perfectly well”.

64.  X could not remember whether she read the next four messages from the defendant (00:24-01:06) at the time or the next morning.  There was no further contact with the defendant until his messages at 17:12 and 17:26 again asking X what she was talking about (exhibit P3 (4)).

65.  In cross-examination when asked why she did not simply say she knew it was the defendant and ask him to stop threatening her or she would go to the police, X replied that she had no direct evidence it was the defendant but felt that it was and that he should have understood what she was saying.

Meeting with the defendant

66.  Around 6 p.m. that day the defendant went to look for X at her mother’s shop.  The defendant asked X what she was actually saying in the WhatsApp conversation.X told the defendant about the Instagram message(exhibit P2 (1)) showing a photograph of what happened on 30 May.

67.  The defendant did not admit the Instagram account ‘youaretooj’ belonged to him but did admit that he had taken the photographs.  The defendant said he had deleted all the photographs from his mobile phone and moved the photographs to a USB.  The defendant then said he had lost the USB when going to school.  X could not recall if the defendant told her when he lost the USB.

68.  In cross-examination X disagreed that she did not tell the defendant what she was accusing him of and said that she asked the defendant whether he had secretly taken photographs of her.  X agreed that in the meeting her attitude was one of anger towards the defendant.  When asked why she did not use her mobile phone to show the defendant what she was accusing him of, X replied that she felt that the defendant actually knew what was happening and repeated that she did accuse the defendant of secretly taking photographs of her.

69.  X disagreed that since 30 May she knew that there were photographs; disagreed that the defendant never said that he had deleted all the photographs and disagreed that when the defendant said he had lost the USB he said the USB contained both the photographs and the video.  X said that as far as she remembered the defendant only said the USB contained photographs.

23-24 September 2016

70.  The next morning at 09:52 the defendant sent a message to X saying that he had been to the police to report the case and hoped what X had said was not lies.

71.  Admitted in evidence is that on 23 September at Shau Kei Wan Reporting Centre the defendant reported loss of a USB thumb drive somewhere in Hong Kong[27].

72.  The defendant then sent X photographs of the police report (exhibit P3 (4) – (6)).  The photographs were blurred when received by X[28]. X wanting to know what the defendant had said to the police responded by asking “What did you say” (exhibit P3 (6))[29]. The defendant did not reply until the next day at 19:34 saying “Just say it straight, what else can I do?”.

73.  Later in evidence X said that after receiving the WhatsApp messages she also saw a copy of the police report posted on the defendant’s Instagram account ‘ericdaniel.c’ (exhibit P3 (11)).  Admitted in evidence is that on 27 January 2018 X provided the police with the screen capture of the defendant’s Instagram account ‘ericdaniel.c’ (exhibit P3 (11))[30].

74.  X supposed that she saw the post the same day as the WhatsApp messages sending her photographs of the police report.  X said she was not known by the name Christine and was not at that time the defendant’s girlfriend[31].

2 October 2016

75.  There was no further communication of any kind between X and the defendant until 2 October.  The defendant sent two messages at 22:26 and 22:27 informing X that the police had called him saying they would send someone on Friday to collect the video tape (exhibit P3 (9)).

76.  When X did not reply the defendant sent a further message at 23:40 asking X to reply.  In response X sent the messages “So” and “?” at 23:46.

3 October 2016

77.  At 00:03 the defendant sent a message (exhibit P3 (10)) asking X if she understood.  X did not reply.  The next message at 19:26 was also sent by the defendant saying the police could not find anyone involved and that the police asked him if he wanted to close the case.

78.  The screen capture shows that the message was unread. Later in evidence X said she did not receive the message on 3 October and that she should have received the message on the day she made the screen capture[32]. In answer to the court X said it is possible that the message was received on 3 October but she did not read the message until the day she took the screen capture[33].

Blackmail (charge 2)

79.  At the end of the examination-in-chief of X the prosecution applied to amend the date of the offence.  I granted the application.  The particulars of the charge before the amendment read as follows[34]:

“CHENG Ho-wing, on the 3rd day of October 2016, in Hong Kong, with a view to gain for himself or another or with intent to cause loss to another, made an unwarranted demand of $500 Hong Kong currency from X with menaces.”

80.  The particulars of the charge after the amendment read as follows:

“CHENG Ho-wing, between the 3rd day of October, 2016, and the 4th day of November, 2016, both dates inclusive, in Hong Kong, with a view to gain for himself or another or with intent to cause loss to another, made an unwarranted demand of $500 Hong Kong currency from X with menaces.”

3 October 2016

81.  In between the two WhatsApp messages at 00:03 and 19:26 X said she received another request to follow her account on Instagram by user ‘sorryfor_poxoh’ together with the message “Sorry, can (you) not call the police!”

82.  Admitted in evidence is that on 3 October 2016 X received a request to follow her account on Instagram by user ‘sorryfor_poxoh’ [35].  X could not remember if she took a screen capture of the account page.  In court X turned on her phone (exhibit P2) and showed to court the screen capture of the account page. A photograph of the screen capture of the account page was taken in court by the police (exhibit P2B)[36].

83.  X did not approve the user ‘sorryfor_poxoh’ to follow her.  Although X did not give approval X was still able to receive messages and send messages. Admitted in evidence is that after X received the request to follow her account on Instagram by user ‘sorryfor_poxoh’ there was an exchange of messages[37].

84.  X made screen captures of the messages.  Admitted in evidence is part of the screen captures made by X (exhibit P2 (2)-(32))[38]. Later in evidence X said she decided to make screen captures of the messages the night before she went to report the case to the police[39].

85.  X explained that the messages in grey boxes were sent by her and the messages in white boxes were sent by the user ‘sorryfor_poxoh’.  X also explained that “Today” was shown when the screen capture was taken the same day messages were sent or received[40]; “Yesterday” was shown when the screen capture was taken the day after messages were sent or received[41]; the day of the week was shown when the screen capture was taken more than one day after the message was sent or received[42] and the actual date was shown where over a week had elapsed since the message was sent or received[43].

86.  After receiving the request from ‘sorryfor_poxoh’ to follow her X received seven messages from ‘sorryfor_poxoh’ (exhibit P2 (2) & (3))[44].

87.  The screen captures show that the seven messages are accompanied by two photographs.  X said she supposed there were four photographs and not two and that she had made a screen capture of the other two photographs.

88.  X was able to show the court the screen capture of the other two photographs on her mobile phone.  A photograph of the screen capture was taken in court by the police (exhibit P2 (2)B) which shows the time of the screen capture as 20:24, the same time as the screen capture, exhibit P2 (3)[45].

89.  Admitted in evidence is that the photographs accompanying the messages show X wearing an eye mask and were taken during the encounter on 30 May 2016[46].  Later in evidence X said the four photographs were the same four photographs as exhibit P1A (1-4)[47].Admitted in evidence is that the four photographs, exhibit P1A (1-4), were captured by the defendant from a video the defendant took showing intimate acts between X and himself in X’s room on 30 May 2016[48].

90.  X understood from the messages that the user would give her the photographs if she did not report the case to the police.  X believed that she was being asked not to report the loss of the USB containing the photographs.

91.  X explained that when she received these messages she had not reported the matter to the police[49]. X said that she did not tell the defendant when she met him at her mother’s shop on 22 September or at any time thereafter that she would report to the police the loss of a USB containing the photographs.

92.  In cross-examination X said she did not think by using the user name ‘sorryfor_poxoh’ the defendant was trying to be sympathetic towards her[50].

4 October 2016

93.  X replied to the seven messages the next day (exhibit P2 (3) & (4))[51].  Although ‘sorryfor_poxoh’ had said he would give X the photographs, X sent the messages to say if he kept a copy he was not trustworthy.

94.  In the following eighteen messages ‘sorryfor_poxoh’ kept on asking X to cancel the police case (exhibit P2 (4) - (6)).  X said she believed she was being asked to cancel the report of loss of the USB.  When ‘sorryfor_poxoh’ said “both sides suffer” and “do not blame me if I put on the Internet” X understood this to mean that if she did not cancel the report the user would publicise the photographs and both sides will suffer.

95.  In one of the messages ‘sorryfor_poxoh’ refers to X as a senior female schoolmate.  X said she was not a senior female schoolmate to the defendant.

96.   X explained that at first she thought ‘sorryfor_poxoh’ was a stranger because she really believed that the defendant had lost the USB and that someone else had picked up the USB.  Before reporting to the police X analysed the matter more thoroughly and believed the account belonged to the defendant and that the defendant had pretended to pick up the USB.

97.  In answer to the court X said that when she saw the message referring to her as a senior female schoolmate she was sure that ‘sorryfor_poxoh’ was the defendant.  X explained that if a junior schoolmate picked up the photographs he would not know just based on the photographs it was X and would not be able to find out her Instagram account.  X said that classmates and schoolmates in the same form followed her on Instagram and apart from schoolmates of her younger sister who recognised her, junior male schoolmates did not follow her on Instagram.

98.  In his evidence the defendant said he was the user ‘sorryfor_poxoh’.  The defendant also told the police he used the Instagram account ‘sorryfor_poxoh’ [52].  I am satisfied full weight can be placed on these admissions and will hereafter refer to the user ‘sorryfor_poxoh’ as the defendant.

5 October 2016

99.  X replied to the messages the next day (exhibit P2 (7))[53].

100.  Admitted in evidence is that on 5 October 2016 X reported to the police about the demand for $800 on 21 September (exhibit P2 (1)) and the messages received on 3 October and 4 October (exhibit P2 (2)–(6))[54].

101.  X said she did not report the loss of the USB to the police.  Later in evidence X said that after she made the report to the police she did not tell the defendant that she had made a report[55].

102.  In answer to the court X said that she made the report to the police before replying to the messages.

103.  X said that by her replies she was wanting to ask what game the defendant was playing and to ask him to delete everything.  X said that by saying, “I do not report the case” she supposed she wanted to deceive the defendant that she did not go to the police to report the loss.

104.  In answer to the court X explained that although she had in fact not reported loss of the USB she said it in this way to try get back the USB because the defendant had told her the photographs were saved on the USB and the four photographs having been sent to her on Instagram meant that the USB was in the hands of the person who sent the photographs.

105.  In cross-examination X disagreed that she was setting the defendant up by deceiving him into asking her for money.   When asked about the message where she said she did not want to make a big thing out of this as well, X agreed by going to the police and complaining of blackmail she had made a big deal out if it.  X said another meaning of big thing was putting the photographs on the internet therefore she tried to postpone the defendant putting the photographs on the internet.

106.  In the following three messages the defendant asked how to give X the USB and tells X to cancel the case then he will give X the USB.  X explained that because the defendant had not specified the case to be cancelled she replied what cancellation are you talking about to see if the defendant was talking about the loss of the USB (exhibit P2 (7)).

107.  The defendant responded by telling X not to play games and not to pretend (exhibit P2 (8)).  X then sent a message asking the defendant when did she report the case.  In the next four messages the defendant says X was the only one who lost the photographs and again tells X not to pretend.

108.  In the messages the defendant also referred to police officers entering the classroom.  X understood this was referring to the earlier WhatsApp message sent by the defendant on 2 October 2016 (exhibit P3 (9))[56].  In cross-examination X said she did not believe the police had been to the classroom because just reporting loss of a USB would not cause the police to deliberately go search for the USB.

7 October 2016

109.  The next messages were sent by the defendant on 7 October (exhibit P2 (9))[57]. X understood that by saying “Okay I put it on the Internet” and “You continue not to cancel the case” the defendant meant that he would put the four photographs on the internet if she did not cancel the report to the police of the loss of the USB.

8 October 2016

110.  X did not reply to the messages sent to her on 7 October.  The next message was sent by the defendant on 8 October saying “You seem to have a younger sister right?” (exhibit P2 (11))[58].

111.  X explained that the defendant knew full well she had a younger sister and believed that the defendant in asking in this way meant that if she does not reply to his messages perhaps he would do something to her younger sister.   X therefore replied “What do you want again?”

112.  The defendant replies saying cancel the police case and then he will give back the USB.  When X asks the defendant how he will give back the USB he replies X has to cancel the case first and he will then put the USB in a place.

113.  X replies saying she did not report loss of the USB.  The defendant responds by saying things are differently ‘played’ and demands $500 for the return of the USB (exhibit P2 (10)).  X understood this to mean if she did not report the case to the police the defendant did not need to beg her to cancel the case and that he would then change his way by asking her to pay some money to buy back the USB.

114.  This was the first time the defendant asked X to pay $500 for a USB containing the photographs.

115.  In cross-examination when asked if she went to the police and told them about the demand, X replied that she made a screen capture of the message which she sent by WhatsApp straightaway to the police officer responsible for contacting her.

116.  In answer to the court X said that the screen capture was the same as shown to her in court (exhibit P2 (10)) [59]. X also explained that when she reported the case to the police on 5 October the police officer gave her his telephone number so she could send WhatsApp messages to him.

117.  When the defendant asked if it was a “Deal?” (exhibit P2 (10))[60], X replied asking how to make sure there was no other copy (exhibit P2 (12))[61].  X explained that she wanted to know if she paid money whether the defendant really did not have another copy of the photographs.  At the same time X said she was worried if she continued to ignore the defendant he might post the photographs on the internet. On the advice of the police X therefore adopted a postponing strategy in the hope the photographs would not be posted on the internet so soon.

9 October 2016

118.  At 2 a.m. the next morning the defendant replied that there was no copy and that it was up to X to believe (exhibit P2 (12))[62].

10 October 2016

119.  The next messages were sent by the defendant the next day (exhibit P2 (12))[63].  The defendant again referred to X’s younger sister saying “I will just send to your younger sister”.   X believed the four photographs would be sent to her younger sister.  The defendant then called X a “sluttish female senior schoolmate”.  X felt very angry when she received this message because it seemed the defendant was insulting her.

11 October 2016

120.  X did not reply to the messages sent on 9 October and 10 October.  On 11 October the defendant sent the message “It seems you take me as bullshitting” (exhibit P2 (13))[64]. X replied by asking the defendant what he wanted. The defendant responded by again telling X to pay $500 for the USB he picked up.

121.  There then followed an exchange of messages in which X, as part of the postponing strategy, tried to delay the defendant by asking how to pay the money, where to put the money and suggesting a face to face meeting.  The defendant responded saying put the money at a carpark (exhibit P2 (13) - (16))[65]. 

122.  X explained that the police had told her that they had been to the defendant’s home several times but could not find him and therefore suggested that she try arrange a face to face meeting so the police could arrest him.

123.  When the defendant said he did not want to meet X and repeated that he wanted money for the USB otherwise he would let X’s younger sister see and put up to the internet (exhibit P2 (15)), X replied trying to persuade the defendant to have a face to face meeting so that the police could arrest him (exhibit P2 (16)).

124.  In cross-examination X agreed that she tried to trap the defendant and cajole him to meet her so she could get better evidence because she had no real solid evidence it was the defendant[66]. In re-examination X clarified that she tried to trap the defendant to deliver and collect things in person and that by getting better evidence she meant better evidence of what the defendant had already done.

125.  The defendant responded by saying X had two choices.  X understood that if she did not follow the defendant’s instructions to put the money in a carpark he would let her younger sister see the photographs and put them on the internet.

12 October 2016

126.  X did not reply until after the defendant had sent a further five messages the next morning (exhibit P2 (17) & (18))[67]. From the messages X understood that she had an hour to decide whether to follow the defendant’s instructions otherwise he would send the four photographs to her younger sister and put them on the internet.  X also believed that the defendant said X had to exchange nude photographs of her younger sister if she wanted a face to face meeting because he knew X would not do that.

127.  X replied the same day telling the defendant he also had two choices: give her back the USB or go to jail and told the defendant that she would report to the police at once to sort of threaten him to avoid him making things bigger and posting the photographs on the internet (exhibit P2 (18) & (19)).

128.  In cross-examination X disagreed that after she replied to the defendant that he also had two choices she took over the account ‘sorryfor_poxoh’ and sent the messages (exhibits P2 (19)-(24)) to herself to get better evidence against the defendant[68].

129.  X understood from the defendant’s replies that he had just shared the four photographs with his schoolmates and that he wanted to let the whole school and all of Hong Kong know about the four photographs (exhibit P2 (19) & (20))[69].

130.  In the last message sent that day the defendant said he did not steal anything and that he put it on the internet to ask who dropped the USB.  X understood this to be referring to the USB with the four photographs on.

13 October 2016

131.  The next day the defendant sent the message saying “Great” (exhibit P2 (20).  X understood from this message that the defendant felt great having shared the photographs with others[70].

132.  The screen captures, exhibits P2 (20) – (23), show that the defendant sent four more messages.  The screen captures, exhibits P2 (22) and (23), show the actual time of each message.  X explained that by swiping the message to the left the time of each message appears.  In answer to the court X said that when she took screen capture exhibit P2 (21) she swiped the screen and found the time could be shown[71].

133.  X felt very angry when the defendant said at 12:48 “Put on the Internet, do you want the link?”  X understood the message to refer to the four photographs and the link of the website where the defendant had posted the photographs. Similarly, X understood the reference to the link in the message received at 12:25 was the link of the website where the defendant posted the photographs.

18 October 2016

134.  X did not reply to the messages sent by the defendant on 13 October.  X decided that she no longer wanted to respond to the defendant.  X did however read all the messages sent by the defendant after 13 October but did not respond to any.  By the 18 October X said she no longer contacted the defendant but recalled receiving a WhatsApp message from the defendant telling her that the police asked him if he wanted to cancel the case.  X did not reply to the WhatsApp message.

135.  X could not remember the time of the WhatsApp message.  Asked by the court whether this was the message sent at 19:26 on 3 October (exhibit P3 (10)) X replied this was the message but the message was not sent to her on 3 October. X said the message should have been sent to her on the day she made the screen capture.

136.  X said that she recalled that once she received the message she immediately took the screen capture.  The screen capture was taken on 16 October[72].  In answer to the court X said it was possible that the message was received on 3 October but she did not read the message until the day she took the screen capture.

137.  Screen capture exhibit P2 (23) shows the messages sent to X on the afternoon of 18 October[73]. After reading the messages saying that many men asked for X’s name X was very afraid the defendant would disclose her name and Facebook account to some strangers and that she would be harassed in the future.

138.  The next message sent by the defendant was a photograph (exhibit P2 (24)).  X believed this was a photograph of a page from a website.  X did not know what the website was.  X said the photograph shows two of the photographs the defendant had secretly taken on 30 May 2016.  X said the upper photograph was the same as exhibit P1A (3) and the lower photograph was the same as exhibit P1A (4).

139.  The photograph of the webpage makes reference to public video.   This was the first time X realised there was a video of what happened on 30 May.  X said when she met the defendant at her mother’s shop on 22 September he did not mention any video.  In answer to the court X said the lower photograph was a link to a video and that the length of the video was stated under the photograph as 00:17[74].  X understood 24000 hits to mean that the video had been viewed 24,000 times.

140.  X also said that under the upper photograph was the abbreviation of her school and under the lower photograph was the first two characters of her name.  X felt the defendant had gone too far by wanting all the people to know her name and school.

141.  Two further messages were sent the same day asking X if she felt touched it was put on the internet and describing X as a sluttish female senior schoolmate (exhibit P2 (24)).  X understood the defendant was asking her if she felt happy and touched after she saw the video had been put on the internet.

20-23 October 2016

142.  The next messages were received by X on 20 October and 21 October (exhibit P2 (25))[75]by which time the name of the sender had changed from ‘sorryfor_poxoh’ to ‘fuckyoupoxohfakeme’[76].

143.  The top of the screen capture shows part of the message X sent on 12 October(exhibits P2 (18) & P2 (19)) but none of the messages the defendant sent afterwards as seen in exhibits P2 (19) – P2 (24)[77]. X explained this was because the defendant had deleted the messages he had sent.

144.  X understood from the first message sent on 21 October “I send La” followed by the message referring to her younger sister, that the defendant was saying that he had sent the four photographs to her younger sister

145.  The next screen capture was made on 23 October showing messages received by X on “Thursday 10:00 afternoon”; “Yesterday 9:33 afternoon” and at 11:18 and 11:19 (exhibit P2 (26))[78]. Four of the six messages received by X on “Thursday 10:00 afternoon” and “Yesterday 2:32 afternoon” as shown on the previous screen capture (exhibit P2 (25)), including “I send La”, are not captured on screen capture exhibit P2 (26).  X again explained this was because the defendant had deleted the messages[79].

146.  The messages at 11.18 and 11:19 refer to X’s mother.  X understood from the messages that the defendant was going to send the four photographs to her mother.  X said the surname of her mother was correct and that possibly the defendant knew the surname of her mother because he went to her mother’s shop where the surname and telephone number are displayed.

147.  X confirmed the telephone number shown in the next message (exhibit P2 (27) & (28)) was her mother’s telephone number.

24-25 October 2016

148.  X made the next screen capture on 24 October(exhibit P2 (29))[80]which shows two messages sent by X, one on 11 October(exhibits P2 (16)) and one on 12 October (exhibits P2 (18) & P2 (19))[81] and one new message received by X at “7:35 afternoon”.

149.  The screen capture does not show any message sent by the defendant prior to 11 October, only the grey colour of a message sent by X; any message sent by the defendant between 11 and 12 October as seen in exhibits P2 (16) – P2 (18); any message sent by the defendant after 12 October as seen in exhibits P2 (19) – P2 (24) and any message sent by the defendant after 12 October as seen in exhibits P2 (25) – P2 (28).   X said that the defendant had deleted all the messages[82].

150.  X supposed that the message at 7:35 was sent the day she took the screen capture and explained that whenever she noticed a new message she would usually make a screen capture.  In answer to the court X said she started this practice after she stopped responding to the defendant.

151.  X understood from the message at 7:35 that the defendant was going to call her mother.  The next screen capture (exhibit P2 (30)) made by X the next day, 25 October at 0:09:03 does not show this message[83]. X again said that the defendant had deleted the message.

152.  The screen capture shows three new messages received by X at 11:50 and 11:51 which X understood referred to her.

2-4 November 2016

153.  The next messages were received by X on 2 November (exhibit P2 (31) & P2 (32))[84]. The user name had again changed from ‘fuckyoupoxohfakeme’ to ‘fucyyyyyy’[85]. 

154.  X said that the first message sent on 2 November was a photo messageshowing that the defendant had sent one of the four photographs to the Instagram account of her younger sister.  X identified the account name shown on the photo message was that of her younger sister and that the photograph was the same as exhibit P1A (3).

155.  X again felt that the defendant had gone too far and felt very angry because he had harassed her younger sister.  X confirmed with her younger sister that she had received the photograph[86]. Later in evidence X said that her understanding was nobody else received any of the photographs[87].

156.  After the messages received on 2 November there was no further messages sent to X except for a red heart on 4 November at 10:11 in the morning (exhibit P2 (32)).

Amendment of charge 2

157.  The prosecution opened their case on the basis that all the messages and the demand for $500 was made on 3 October 2016[88]. On the 28 January 2019 at the end of the evidence-in-chief of X (the fifth day X gave evidence), the prosecution applied to amend the date of the offence from “on the 3rd day of October, 2016” to “between the 3rd day of October, 2016 and the 4th day of November, 2016”.

158.  The amendment arose from X’s explanation of the days, times and dates on the Instagram messages (exhibit P2); the dates of the screen captures (§17 of the admitted facts, exhibit P23) and that the Instagram messages were not sent on one day but over a period of one month with the demand for $500 made on 8 October (exhibit P2 (10)) and 11 October (exhibit P2 (13)).

159.  Before X resumed her testimony on 24 January (the third day X gave evidence), I raised my concern about the dates of the Instagram messages and the date of charge 2. In response Mr Cheung said that only when X started to explain the meaning of ‘today’ and ‘yesterday’ in the messages (the second day X gave evidence) did he realise the messages were not sent on the same day and that the demand for $500 was not made on 3 October but on 8 October.  Mr Cheung indicated application would be made to amend the charge at the end of the evidence-in-chief of X.

160.  The defence objected to the amendment on the basis this was the first time the issue of dates was raised.  Mr Raffell submitted what was a simple demand for $500 on 3 October had now opened up to a prolonged episode of exchanges. Although the defence had all the evidence of the prolonged episode Mr Raffell submitted it was very difficult for the defendant to explain all the exchanges at this very late stage.

161.  In my view on reading the messages it was obvious, not only to the sender and receiver of the messages but to anybody looking at the messages, that all the messages were not sent on 3 October and the demand for $500 was not made on 3 October. The messages repeatedly show today, yesterday and the days of the week and also actual dates (exhibit P2 (29)).

162.  The fact that both Mr Cheung and Mr Raffell and apparently the defence team did not realise before the trial commenced that the demand for $500 was not made on 3 October but on 8 October and 11 October and therefore did not fully understand the documentation, was not in my view a ground to refuse the amendment.

163.  I granted the application to amend charge 2.  Mr Raffell said the defence did not require any further time to consider the amendment before commencing his cross-examination.

Arrest

164.  Admitted in evidence is that on 6 November 2016 the police attended the defendant’s residence where they seized his mobile phone together with the SIM card and SD card found inside the phone (exhibit P5)[89].

165.  Admitted in evidence is that the defendant was arrested the same day in his residence at 12:21 p.m. for blackmail and was brought back to the Police station[90].

Record of interview (exhibit P15)

166.  Admitted in evidence is that between 12:41 and 2:10 p.m. the same day DPC 13835 interviewed the defendant (exhibit P15)[91]. DPC 13835 first post-recorded the arrest of the defendant for blackmail stating that the police had reason to believe that on 30 May 2016 the defendant clandestinely took nude photographs of X and in September sent an Instagram message to X demanding $800 otherwise he would post the nude photographs on the internet. Under caution the defendant said that he sent the messages via Instagram but did not mean to blackmail X and asked for a chance[92].

167.  DPC 13835 then cautioned the defendant again and asked the defendant questions.  The defendant told the police about his relationship with X (answers 1 & 2).

168.  The defendant said that with the consent of X he went to X’s home on 30 May 2016 (answer 3); where they hugged and kissed after which the defendant carried X into a room and took off all her clothes; helped her wear an eyeshade and continued kissing X with her consent (answer 4).

169.  While X was wearing the eyeshade the defendant took the opportunity to take four nude photographs of X without X’s knowledge (answer 5).

170.  They did not have sexual intercourse (answer 6).

171.  The defendant said that in September he created an Instagram account with his mobile phone and contacted X demanding $800 for two photographs he had taken clandestinely or he would put them on the internet; and that the price of $800 was set on a whim simply to have fun without intending to accept the money (answers 7, 8 & 10).

172.  The defendant called X a slutty female senior fellow student (answer 9).

173.  The defendant said that he had forgotten his Instagram account name and login ID but remembered he had set/change the usernames as ‘sorryfor_poxoh’ and ‘fuckyoupoxohfakeme’ (answer 11).

174.  The defendant said that the four photographs were still in his mobile phone in a photo album ‘Media’; he did not keep the photographs in any other electronic device and he never disseminated the photographs to others (answers 12, 13 & 14).   

Letters written by the defendant

175.  Admitted in evidence is that between 15 November 2016 and 19 April 2017 the defendant handwrote and delivered eight letters to the police station (exhibits P6 - P13)[93].

176.  In summary in the first letter (exhibit P6) the defendant wrote about:

(i)       his family; his upbringing; he did not have many friends; he was made fun of at school; the stress of public examinations;

(ii)       how he actively sought out X who he trusted and felt was someone who was willing to tell the truth and was his new soulmate;

(iii)     he never planned any of the incidents, including taking photographs of X and threatening her;

(iv)     he quarrelled with X; X rejected his request to talk to him probably because she felt something similar to last time would happen again;

(v)        he felt helpless and therefore wanted to play a prank on X in revenge for ignoring him; he created an anonymous IG account and used photographs to threaten X but never thought of taking her money; he wanted X to feel scared so he would appear stronger than X;

(vi)     when he was arrested he realised he had made a grave mistake[94]; he was scared of losing a good classmate, scared of betraying his parents and scared of having a criminal record; and

(vii)      he acted out of impulse; he regretted what he had done and apologised to X and to his parents; he had no intention to hurt or blackmail anyone and asked for forgiveness.

177.  In the second letter (exhibit P7) the defendant said he never had the idea of blackmailing X and again apologised and asked for her forgiveness.  In the third letter (exhibit P8) the defendant writes about the pressure he has been under and apologised to X, asking for her forgiveness and a last chance.

178.  In the following letters (exhibits P9–P13) the defendant again apologises to X and asks X for her forgiveness and a chance to turn a new leaf.

X’s evidence about the letters

179.  Sometime in November 2016 the police gave X a copy of the first letter written by the defendant (exhibit P6).  X did not read the other letters because she felt that the defendant did not make the apology wholeheartedly.  X therefore did not think she needed to read the other letters.

180.  In the letter the defendant wrote that he actively sought out X to talk to because X was trusted by classmates[95]. X guessed that the defendant was referring to the time he called her to say he had something to give to her[96]. In answer to the court X said that prior to that call the defendant had not actively sought her out to talk to.

181.  Referring to a quarrel in paragraph 2 on page 3 of the letter, X said she was not sure if there was a quarrel because when reading the letter she felt the defendant was referring to her ignoring his WhatsApp messages asking to go to her place again[97].

182.  In cross-examination when asked if she still thought the defendant was playing games after reading the first letter, X replied he did not play games.  Asked why she did not regard the first letter as a sincere apology, X replied that the letter was largely describing the defendant’s background, saying sorry to his family and feeling sorry for himself.  X felt the defendant was not apologising for what he had done and only said this because he had been arrested and wanted her not to pursue the case.

183.  X agreed she was still angry with the defendant when she read the letter and was still angry with him now.

184.  X said that she did not know of a system at school whereby if someone did something wrong they had to write a letter of apology[98]. X said that she was aware that the student would need to write out a passage describing what had happened and hand that to the discipline teacher[99].

Records of interview, exhibits P17, P18 & P19

185.  Admitted in evidence is that on 25 July 2017 DPC 13835 conducted three cautioned interviews with the defendant (exhibits P17, P18 & P19)[100].

Exhibit P17

186.  DPC 13835 cautioned the defendant for obtaining access to a computer with dishonest intent by taking nude photographs of X clandestinely and blackmailing X.  Under caution the defendant said that he did not record X clandestinely[101].

187.  The defendant also said that he wished to alter things said in the first record of interview (exhibit P15) because he thought they were inconsistent with the facts[102]. In answer 1 the defendant corrected that he did not carry X into the room; he only took off the upper garments and not the pants and underwear; he did not record X clandestinely; the eyeshade belonged to X; X consented to the recording; X asked him to make sure her face was not shown; X wore the eye shade so her face would not be shown and that in answer 7 (exhibit P15) he answered that the nude photographs were not taken clandestinely.

188.  The defendant repeated that the eyeshade belonged to X (answer 2) and said he only gave X a vibrator (answer 3).

189.  The defendant was then asked if he took video or photographs (question 4).  The defendant said that he only remembered taking photographs; he did not remember taking any video and that he took four photographs (answers 4, 5 and 6).

190.  After being shown a video clip found on his phone the defendant answered that the video was taken by him and that the four photographs were screenshots captured by him (answer 7)[103].

191.  The defendant said that he played the video clip to X before leaving her residence; that after leaving he kept the clip until he deleted the clip; the four screenshots were probably captured before the clip was deleted and that they were captured for no use (answers 8, 9, 10 & 11).

Exhibit P18

192.  DPC 13835 cautioned the defendant for blackmailing X in September 2016 for $800 and in October 2016 for $500.  Under caution the defendant said that he did not intend to blackmail X[104].

193.  During the interview DPC 13835 showed the defendant various screenshots and messages sent by WhatsApp and Instagram[105].

194.  The defendant told the police that he did not have much recollection of creating an Instagram account ‘youaretooj’ and after being shown the screenshot of the account page said he had nothing to say (answers 2 & 3).  At the end of the interview the defendant said it was probably not him (answer 24).

195.  The defendant had no recollection whether X contacted him after she first received the blackmailing words (answer 4).  After being shown the WhatsApp messages the defendant said he had a bit of recollection and agreed he threatened X in the messages because he wanted to mess with her (answers 5, 6, 7 & 8).

196.  The defendant said that he did report the loss of a USB stick and then took a photograph of the loss report for X (answer 9).

197.  The defendant said he did create an Instagram account ‘sorryfor_poxoh’ but did not recall if he asked for money on this account (answers 10 & 11). After being shown the screenshots demanding $500 the defendant said he had nothing to say (answer 12).

198.  The defendant said he took the four photographs and sent them to X and that he merely wanted to play a trick on X and did not intend to take her money (answers 13, 14 & 15).

199.  The defendant had nothing to say when asked if he suggested to X leaving money at a carpark; whether he tried to scare X by saying he would post the photographs on the internet; whether he uploaded the video onto the internet; and whether he changed the user name to ‘fuckyoupoxohfakeme’ and ‘fucyyyyyy’ (see answers 16, 17, 18, 19, 21 & 23).

200.  The defendant said he called X a coquettish senior fellow and a sluttish chick because he wanted to scare her and mess with her (see answers 20 & 22).

Exhibit P19

201.  DPC 13835 cautioned the defendant for perverting the course of public justice on 3 October 2016 by attempting to stop X reporting the case to the police. And asking X to cancel the case.  Under caution the defendant said that he did not know X had reported the case to the police and X did not tell him[106].

202.  DPC 13835 asked the defendant about the Instagram account ‘sorryfor_poxoh’.

203.  The defendant said that he probably started using the account ‘sorryfor_poxoh’ in September or October 2016 but could no longer log into the account (answers 3, 4 & 5).

204.  The defendant was not sure if he added X to the account‘sorryfor_poxoh’ (answer 6).  DPC 13835 then showed the defendant a screen capture of the account page[107].  The defendant said that this was a self-introduction in which he tried to find out whether X had reported the case to the police because he wanted to know the development of the matter (answers 7, 8 & 9).

205.  Before using the account‘sorryfor_poxoh’ the defendant had chatted with X on WhatsApp (answer 10).

206.  The defendant thought X had reported the case to the police because when he met X in late September she said she had been blackmailed (answer 11).

207.  When asked how X received the four photographs if he had not sent them the defendant replied that he had copied the four photographs onto a USB stick however he lost the USB stick and reported the loss to the police (answer 12).

208.  The defendant said he was not the person who originally blackmailed X and that he sent the photographs on the account‘sorryfor_poxoh’ to mess with X (answer 13).

209.  The defendant said that he kept telling X to cancel the case because X did not tell him whether she had made a report (answer 14).

210.  The defendant made up a story that the police had gone to his classroom to sound out whether X had reported the case (answer 15).

211.  The defendant said that he wrote the letters (exhibits P6-P13) because he needed to apologise (answers 16, 17, 18 & 19).

Doing a series of acts tending and intended to pervert the course of public justice (charge 3)

212.  The particulars of the charge read as follows:

“CHENG Ho-wing, between the 16th day of March 2017, and the 11th day of May 2017, both dates inclusive, in Hong Kong, with intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice, in that he asked X not to pursue a complaint she made to the police under police reference number CW/RN 16037628 against him.”

213.  X testified that she received two phone calls from mobile phone number 9449 5501 on 16 March and 17 March 2017.  Admitted in evidence is that mobile phone number 9449 5501, a prepaid SIM card, called X’s mobile phone on 16 and 17 March 2017[108]. X said that the mobile phone number she used to communicate with the defendant on WhatsApp was the same number that 9449 5501 rang[109].  X said that she had not seen the number 9449 5501 before.

16 March 2017

214.  The caller said he was Mr Chan, a policeman from the prosecution section of the police.  The caller told X that her case had entered court proceedings and that after analysis of similar cases the success rate of conviction was not big; that possibly there would be press to take photographs of her and come to know about the matter and that the defendant might ask classmates to write mitigation letters.

215.  The caller then asked X whether she would consider to continue or drop the case.  X asked if she really wanted to withdraw the case should she call him.  The caller told X to call the police officers in North Point police station.

216.  The caller also disclosed that the defendant had quit school and X said that she remembered that the caller seemed to disclose that the defendant said that he would commit suicide.

217.  Admitted in evidence is that the defendant wrote the seventh letter (exhibit P12)on the same day, 16 March 2017[110].

17 March 2017

218.  The same male rang again the next day.  X felt it was the same person because he identified himself as “Chan Sir”.  The caller asked X what evidence she had submitted to the police.  The caller also asked something about the adult toy she had mentioned in her statement.  How it was handled and whether she had submitted it as an exhibit.  X replied that she had only submitted her mobile phone as an exhibit and that she had discarded the adult toy.  When X asked if the toy was needed the caller said no.

219.  X also remembered that the caller seemed to mention in passing that the defendant went to commit suicide, like jumping in the sea.

220.  X described the caller as always pausing and seeming to pretend he was flipping over some documents.  This made X start to feel suspicious about the calls.  X said similar pauses also occurred during the call on 16 March.

221.  Admitted in evidence is that the defendant wrote the eighth letter (exhibit P13) on 14 April 2017[111].

May 2017

222.  In May X received another call on her mobile phone from the male.  The caller again identified himself as “Chan Sir”.  Asked if the voice was the same as the earlier calls X said she could not be sure as it was hard for her to distinguish a voice in a call.

223.  The caller told X that the documents had been returned to the North Point Police Station and said that if she had any problem she should contact the police officers there.  X said she thought the call was strange and therefore just replied she knew.

224.  X could not remember how long the call was but said it was very short.  In cross-examination X estimated the call was less than five minutes.

225.  X said she could not tell the voice of the male who made the three calls. In cross-examination X agreed that in her statement it was clear she did not recognise the voice of the caller and said that at the beginning she thought it was a policeman because he claimed himself to be a policeman; that the voice sounded like somebody aged between 19 and 30 and that she thought it was the same voice every time.  X also agreed that she did not identify the voice as the defendant’s voice and that if she had she would have contacted the police straightaway.

226.  Admitted in evidence is that X reported the phone calls to the police on 17 June 2017[112].  X did not tell the defendant about this report and did not in any way communicate with the defendant after making the report to the police.

Exhibit P19

227.  In the record of interview (exhibit P19) the defendant was asked questions about the phone calls made to X in March 2017.   The defendant said he did not make the calls and that the calls had nothing to do with him (answers 20, 21, 22 & 23).

Expert evidence

PC 8711

228.  PC 8711 gave evidence as an expert witness on digital forensic examination[113].

229.  PC 8711 testified about his qualifications and training, full particulars of which are set out in his witness statements. PC 8711 adopted as part of his evidence three witness statements he made (exhibits P24, P24A and P24B)[114].

230.  There was no objection to PC 8711 giving expert evidence.  I was satisfied PC 8711 was an expert witness and ruled that he could give expert evidence on digital forensic examination.

231.  In summary PC 8711 was requested to retrieve any related photo and video files from a Sony mobile phone (item 1), a SIM card (item 2), an SD card (item 3), a Samsung mobile phone (item 4) and another SD card (item 5)[115].

232.  PC 8711 identified the mobile phone, the SIM card and the SD card seized from the defendant (exhibit P5) as the same mobile phone (item 1), the SIM card (item 2) and the SD card (item 3) that he examined[116].

233.  The Samsung mobile phone (item 4) is the mobile phone of X. Forensic examination of X’s mobile phone by PC 8711 is admitted including the retrieving of thirty-two photo files[117]. PC 8711 found no related matters on the SD card (item 5)[118].

Examination of the defendant’s mobile phone (item 1), the SIM card (item 2) and the SD card (item 3)

234.  On 3 April 2017 PC 8711 examined the mobile phone, the SIM card and the SD card using different forensic software.  PC 8711 used the forensic software to acquire data from the mobile phone, the SIM card and the SD card[119].

235.  PC 8711 found photo files in the mobile phone and video files on the SD card[120].  No related matters were found on the SIM card[121].

236.  The police identified four photo files and one video file which related to the case[122].  PC 8711 retrieved the four photo files and the video file and compiled with Hash Value two excel files (Annex A and Annex B)[123]. PC 8711 then burned the related photo and video files and the excel files onto a DVD-ROM disc[124].

Annex A

237.  Annex A is the excel file of the four photo files found on the mobile phone[125].   Admitted in evidence is that the defendant took four screen captures (exhibits P1A(1)-(4)) which were retrieved from his mobile phone (exhibit P5) after the mobile phone was lawfully seized by DPC 13835 and examined by PC 8711[126].

238.  Two photo files were created on 20 September 2016 and two on 27 September 2016.

239.  In answer to the court PC 8711 said that the four photo files found on the mobile phone were current files and that there was no modified time in Annex A because there was no record of the files being modified[127].

Annex B

240.  Annex B is the video file found on the SD card[128]. Admitted in evidence is that the defendant took a video (exhibit P1) with his mobile phone which was retrieved from the SD card (part of exhibit P5) after the mobile phone together with the SD card were lawfully seized by DPC 13835 and examined by PC 8711[129].

241.  In Annex B the created time of the video file is 10:51 on 27 August 2016 whereas the modified time is earlier at 12:17 on 30 May 2016.  The length of the video is 7 minutes and 48 seconds.

242.  PC 8711 explained that the modified time was earlier than the created time because modified time was the time and date the video recording was completed and the created time was the time when the video file was copied to the SD card.

243.  In answer to the court PC 8711 explained that the created time of a video file is when the video starts recording and the modified time is when the video is completed.  If the video file is then copied to another media the modified time is also copied and the creation time is the time the file is copied onto the new media[130].

244.  PC 8711 said there was insufficient information to confirm where the video file was saved after the video was completed.

245.  PC 8711 also explained that the time shown was the international time and that there is an eight-hour time difference with Hong Kong.  In answer to the court PC 8711 confirmed that the Hong Kong times would therefore be 18:51 for the created time and 20:17 for the modified time and that if the video was taken during the day the file had been further modified[131].

Deletion of the video/files

246.  PC 8711 explained that the forensic software used to examine the mobile phone did not enable him to ascertain whether any files had been deleted from the mobile phone.

247.  Similarly, while the forensic software used to examine the SD card distinguished between files which existed and files which previously existed the software did not tell whether the files which had previously existed had been deleted.

248.  PC 8711 explained that there were many reasons for files previously existing including deletion; damage of the media or damage to the data.

249.  PC 8711 said that the video file found on the SD card was a previously existing filebut could not tell when the video file became a previously existing file.  In re-examination PC 8711 said the video file was not found in the mobile phone.

250.  The length of the video is 7 minutes and 48 seconds however the video could only be played for 6 minutes and 21 seconds because part of the file had been corrupted[132].  PC 8711 said this was consistent with the file having been deleted but there was insufficient information to say the file had in fact been deleted.

251.  In cross-examination when asked whether anyone had told him there was concern about whether the defendant had deleted the video, PC 8711 said when he was asked why the video file could not be executed completely he told the OC case the file had previously existed and that he would indicate this in his supplementary statement[133]. PC 8711 also explained that because he was unable to tell whether the file had been deleted or not he did not mention this in his statement.

252.  In re-examination PC 8711 said the main two reasons for modification of a video clip would be alteration in the length of the video clip or in the quality of the image.

Defence evidence

253.  In summary the defendant testified that he was just an ordinary classmate of X and that he would see her every day he went to school.  The defendant said they were never boyfriend and girlfriend.

30 May 2016

254.  As far as the defendant was aware the incident on 30 May was consensual and as far as he was concerned X knew that he filmed the incident.  The defendant explained this was because he asked X first if he could film and X raised no objection but asked that during the filming her face should not be shown.  X voluntarily wore an eye mask which belonged to her.

255.  In cross-examination the defendant said he never tried to have sexual intercourse with X and that he never thought of having sexual intercourse with X.

256.  After the defendant had finished filming and they had put on their clothes the defendant then played the video to X.  After several seconds X said she did not want to watch because she was embarrassed.  X did not ask the defendant to delete the video.

257.  When asked by Mr Raffell why he made the video the defendant replied “just curious”.  The defendant said he did not make the video with the intention of getting money from X in the future.

258.  The defendant copied the video and the screen captures onto a USB.  The defendant said that the screen captures were made before July.  The defendant did not show the video or screen captures to anybody else and did not tell anyone about them or publicise them.

259.  The defendant said he lost the USB before mid–July.  The defendant believed he may have lost the USB at school because the last time he saw the USB was at school.  The defendant explained that he took the USB to school because the USB also contained other personal things like documents.

260.  In cross-examination the defendant said that the documents included his CV, photographs he took with classmates; some songs and some group projects and assignments.  Also his mobile phone number, home telephone number and address, email address and date of birth.  The defendant was not afraid someone would use his personal data because he was young at the time and did not think about that too much.

261.  The defendant supposed the USB dropped when he took something out of his pocket. The defendant went back to school to see if he had left the USB in the classroom or some other place.  The defendant also asked the female cleaners but the USB could not be found.

Charge 1

262.  The defendant did not send the message exhibit P2(1) on 21 September 2016 demanding $800 from X and did not know who sent the message.  The defendant said that he did not ask X for $800 or threaten X.

263.  The defendant knew Secrets was a page on Facebook and believed the message referred to the Secrets page of his school or famous schools.  The defendant said that he sometimes went on the Secrets page as did his friends.

Meeting with X on 22 September 2016

264.  At about 5-6 p.m. the defendant and a friend walked past X’s mother’s shop and saw X.  The defendant greeted X and chatted with her.  After the friend left the defendant continued to talk with X.  X was very angry.

265.  The defendant did not know what had happened and asked X for details about why she was angry and about the WhatsApp exchanges she had sent the night before in which he had continually asked her what she was talking about (exhibit P3(1) - P3(4)).

266.  X accused the defendant of sending something to her the night before and asking her for money.  The defendant said he did not understand what X was saying and asked her to say more clearly.  X said the night before someone on Instagram had asked her for several hundred dollars.  The defendant did not recall if X mentioned the threat about publicising the intimate photographs.

267.  Initially when Mr Raffell asked the defendant if X ever accused him of demanding $800 from her, the defendant replied she did.  After giving the details of the conversation in the shop in which the defendant said X told her someone asked for several hundred dollars, Mr Raffell asked the defendant if X specified $800.  The defendant replied no.  Later in evidence the defendant said that he only knew the amount was $800 when the police told him[134].

Police report

268.  Admitted in evidence is that the defendant reported loss of a USB thumb drive at Shau Kei Wan Reporting Centre on 23 September 2016[135].  The defendant said that he made the report because he trusted X when she told him somebody had asked her for money because of the photographs and since he had lost the USB containing the photographs this meant that the USB had been picked up by someone who then asked X for money.

Charge 2

269.  The defendant was first referred to the messages on 8 October where he asks X to cancel the police case and asks X to pay $500 for the USB(exhibit P2(10)).  The defendant explained that he asked X to cancel the police case because he wanted to find out if X had already reported the case to the police.

270.  The defendant explained that when he saw X in her mother’s shop he asked X if she had reported to the police about the USB matter but X did not answer him.  Afterwards the defendant opened an account with Instagram and pretended to be the person who found the USB so he could ask X if she had reported the case to the police.  The defendant pretended to be the person who picked up the USB because he knew X would not tell him if she knew he had sent the message.

271.  The defendant said it was important for him to know if X had reported the case to the police because he would feel very embarrassed if she had told the police about the photographs inside the USB.  This was also the reason why he did not tell the police anything about the photographs when he reported loss.

272.  The defendant said he used the user name ‘sorryfor_poxoh’ because he wanted to apologise to X for losing the USB containing the photographs which had been disclosed and created trouble for X.

273.  The defendant said that when he asked X to pay $500 for the USB he did not intend to take $500 from X.  The defendant said he demanded the money because he was angry with X.  The defendant explained he was angry because at the beginning X had said she did not report the case to the police but when X said “If I do not report (the case to the police), you give me back the USB (thumb drive)?” (exhibit P2(7)), the defendant felt that X seemed to be hiding something and was telling lies.

274.  The defendant thought X may have reported the case to the police but he was not sure.  When X said “What cancellation of (police) case are you talking about actually?” (exhibit P2(7)) and that she did not report the case (exhibit P2(10)) the defendant became very confused and started to get angry because he could not get a certain answer at that time.

275.  Similarly, the defendantsent the messages saying “I will just send (it or them) to your younger sister” and calling X a “sluttish female senior schoolmate” (exhibit P2(12)) because he was angry with X because he did not like people who read his messages without replying.  The defendant therefore sent the messages to irritate X.

276.  The defendant said that when he repeated the demand for $500 (exhibit P2(13)) he did not intend to take any money from X and was only pretending to be the person who had picked up the USB and demanded several hundred dollars from X.

277.  When sending the messages “I do not want to see you”, “I want money”, “You want USb (thumb drive)” and “Or let your younger sister see and put it on the Internet” (exhibit P2(15)) in reply to X’s message requesting a face to face meeting, the defendant said he was making a joke with X and did not really think of handing over money and the USB.  The defendant said he did not want money and was playing a trick, a prank on X.

278.  The defendant said he sent further messages to irritate X and play a trick on X, messages in which the defendant made up the content[136].

279.  The defendant sent the image showing two of the four screen captures he had made from the video (exhibit P2 (24)) to trick X by pretending that he had put two of the photographs on the internet.  The defendant said that he did not put the photographs on the internet and that he had created the image by editing.

280.  The next messages were sent by user name ‘fuckyoupoxohfakeme’ (exhibit P2 (25)). The defendant changed the user name from ‘sorryfor_poxoh’ to ‘fuckyoupoxohfakeme’ because he was very angry as he felt that X was playing him by not giving him the answer he wanted.

281.  In cross-examination the defendant disagreed he sent all these messages to threaten X.  The defendant said he wanted to make X angry.  Asked why he wanted to make a friend angry the defendant replied that X made him angry first because he had spent a few days asking her if she had reported the case but she did not reply.

282.  The defendant said that he made up that X’s younger sister had seen the four photographs (exhibit P2 (27)) to trick X so that she would be irritated.

283.  The defendant also said that he sent the image showing one of the four screen captures he had made from the video (exhibit P2 (31)) and explained that the photo was an edited photo which he also sent to irritate X.  The defendant confirmed that when he sent this message he had changed the user name again to ‘fucyyyyyy’(exhibit P2 (31))[137].

284.  The defendant said at that time he could be regarded as a person who quite relied on social media and would exchange messages with ten to twenty people a day, sending several hundred messages each day to personal friends and several messages to ordinary friends.

Records of interview

Exhibit P15

285.  The defendant said that at the time of his arrest he knew a little about what blackmail was, saying that a person blackmailed another for something like money.

286.  The defendant said that when he mentioned the amount of $800 in Answer 8, exhibit P15 he had actually forgotten the amount of money he had mentioned to X and trusted the police when they said it was $800 although he was not sure of the amount.

287.  The defendant said that answers 8, 10 & 14 were the truth[138].

Exhibits P17, P18 & P19

288.  The three interviews were conducted on the same day 25 July 2017.  The defendant explained that after he was arrested he was placed on bail.

Exhibit P17

289.  Mr Raffell read out the reply under caution and Q & A 1, 4, 7 and 11 to the defendant and then asked the defendant about answer 11 “You did not capture those four photographs for the purposes of blackmail is that what you meant?”  The defendant replied “Correct”[139].

Exhibit P18

290.  Mr Raffell read out the reply under caution and Q & A 5, 7, 8, 10, 11, 15, 20, 22 and 24 but did not ask any questions about these answers or about anything else the defendant said in the interview. 

Exhibit P19

291.  The defendant said that when he met X in her mother’s shop X did not say she was ‘blackmailed” and that he used the term ‘blackmail’ in Answer 11, because he later learnt the term ‘blackmail’ and the police had said that X was ‘blackmailed’.

292.  The defendant said that he understood the police case referred to in questions 14 and 15 was the loss of the USB containing the photographs[140].

Charge 3

293.  The defendant confirmed his answers given to the police that he did not make the phone calls and that they had nothing to do with him[141].  The defendant said that he never called X to drop the case and as far as he was aware nobody else called X on his behalf.

294.  The defendant said that he did not know about the phone calls until the police told him.

295.  In cross-examination the defendant said he did not tell anyone else that he was being investigated but his family members knew because they were at home when he was arrested and did not tell anyone about the adult sex toy.

Letters (exhibits P6-P13)

296.  The defendant wrote the letters to make an apology because he had tricked X and said ugly and bad things and to express his ‘regret and sorry’’.  The defendant said that he wrote so many letters because it seemed no one had forgiven him and as X was his classmate and friend he needed to apologise because he did not want to lose a friend.

297.  The defendant said the letters were not sent to influence X not to proceed.  In cross-examination the defendant said that between March and May 2017 he did not know there was a pending police investigation; he thought he was required to go the police station because he was naughty just like when a teacher punishes him at school and that he did not know it was possible he could be prosecuted but he had such a thought[142].

298.  The defendant delivered the letters to the police station because the police told him not to make direct contact with X.

299.  When asked where the idea for writing the letters came from the defendant explained that when he was studying in school he needed to write a self-statement if he did something wrong.  In the statement he needed to describe what he had done wrong and apologise and reflect on what he had done.  The defendant said he would then receive a more lenient punishment and the teacher may forgive him.

Defence witnesses

300.  The statements of two defence witnesses were read pursuant to section 65B of the Criminal Procedure Ordinance[143].

Ms Fung (exhibit D1)

301.  A redacted version of Ms Fung’s statement was read into evidence.

302.  In summary Ms Fung started teaching at the defendant’s school in 2002 and left in 2017.

303.  Ms Fung has known the defendant since 2010 when he was in Form 1 and was his teacher in Form 2, academic year 2011/2012.

304.  Ms Fung described four instances where she remembered the defendant made jokes at school.  One in 2011/2012 school year when he told Ms Fung his English name was Eric but later said it was something else.  This gave Ms Fung the impression the defendant was an individual with a mischievous character and behaviour.

305.  Second was in November 2012 when he participated in the school drama and pretended his gun was stuck in his trousers which caused the audience to laugh hard at his funny behaviour.

306.  Third was in Form 4/Form 5 when Ms Fung heard the teacher of the school’s Table Tennis Club made a public announcement asking for Chan Fu Lai from class 4D. When Ms Fung said there was no such person everyone laughed at her and said that was the name of the defendant.

307.  Fourth was after graduation in August 2016 when the defendant made up he was a bar bender at construction sites.

308.  Ms Fung concluded by saying she regarded the defendant as generally diligent and cared much about his academic results and future career.  The defendant however lacked awareness about what he should do and not do and lacked the ability to fully appreciate the consequences and impact of his acts and how he should conduct himself around other people.

Mr Lee (exhibit D2)

309.  Mr Lee has known the defendant for eight years having studied at the same secondary school.

310.  In summary Mr Lee describes the defendant as a playful person and of a joking character.

311.  Specifically, Mr Lee refers to an occasion in January 2014 when the defendant secretly recorded him talking about being interested in a classmate.

312.  Mr Lee only learnt of this in November 2014 when the defendant knowing Mr Lee did not want this information being disclosed to others asked Mr Lee to borrow his family’s credit card to buy a concert ticket.

313.  When Mr Lee declined to help buy the ticket the defendant told him about the secret recording and said if he did not help him to buy the ticket he would release the recording.

314.  Mr Lee still did not help despite the “threat” because he knew it was only a joke and the defendant would not release the recording.

315.  Mr Lee also speaks of the same incident as Ms Fung when the defendant used the name Chan Fu Lai.

316.  Mr Lee concludes by saying that because of the defendant’s playful character he was never afraid of the defendant’s threats because he knew the defendant would not follow through.  Mr Lee believed this was the viewpoint of others in the class too.  Mr Lee did not recall many specific incidents but said an inference could be drawn from the fact that the defendant spent a lot of his time editing photos to make them “funny”.

Discussion

317.  I have carefully considered all the evidence and the submissions of Mr Cheung and Mr Raffell.

318.  Although each charge is to be considered separately, the evidence on each charge is not to be considered in isolation.

319.  Admitted in evidence is that the defendant has no previous criminal convictions in Hong Kong[144]. The defendant testified that he had never been arrested before.  I direct myself as to good character both as to credibility and propensity in accordance with the decision in HKSAR v Tang Siu Man[145].

320.  In considering the evidence, I take into account that both X and the defendant were 18 at the time and that they testified about events that happened in 2016 and 2017 between two and three years ago.

321.  I have no hesitation in rejecting the defendant’s evidence.  I do not find the defendant’s evidence credible.  I remind myself that the rejection of the defendant’s evidence is not determinative of the issues in the case.  The defendant has to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

322.  I am satisfied so I am sure X is an honest witness who gave credible and reliable evidence of what happened in May, September and October 2016 and in March and May 2017.  I accept the evidence of X.  I also accept the expert evidence of PC 8711.

Charge 1

323.  I accept the evidence of X that when she received a request to follow her account on Instagram on 21 September 2016 from user ‘youaretooj’ the user displayed a photograph of X, which X identified as one of the screen captures made by the defendant from a video taken in X’s bedroom during the encounter on 30 May 2016[146].

Was the encounter videotaped with X’s consent?

324.  X testified that on seeing the photograph she believed the defendant had secretly filmed her on 30 May 2016.  The defendant on the other hand said he filmed the encounter in X’s bedroom on 30 May with X’s consent.

325.  Mr Cheung is in error when he says that under cross-examination the defendant said X never consented but never did not consent to videotaping the encounter[147].  This answer was given when the defendant was asked if X consented to others having access to the video and not whether X consented to the taking of the video.

326.  I have no hesitation in rejecting the defendant’s evidence that he filmed the encounter with the consent of X.  When the defendant was first interviewed by the police (exhibit P15) he told the police that while X was wearing the eyeshade he took the opportunity to take four nude photographs of X without X’s knowledge[148].

327.  In cross-examination the defendant agreed this answer was different to what he told the court.  When asked why was that, the defendant replied[149]:

“Because at that time I remember that when the police asked me this question inside the room there were two police officers, one surnamed Mak[150]. Another one was a big and tall police officer who I didn’t know of. When this question was being recorded/written down the one not surnamed…that is the one I did not know of…that police officer was holding my mobile phone and he pressed on a button and find out the four screen captures and he asked me ‘When you took these she did not know right?’ At that time, I answered correct because the four photos were screen captures. X did not know that I made screen captures from the video clip. So at that time he said ‘That means it was taken secretly’. Because she didn’t know at all, so at that time I did not judge his analysis. So I answered took four nude photos secretly. But in reality the four screen captures were made out of the video so they are part of the video”.

328.  I have no hesitation in rejecting the defendant’s explanation in cross-examination that he was influenced in what to say by a police officer.  Admitted in evidence is that the defendant participated in all the interviews voluntarily; there were no circumstances that were unfair to the defendant and the defendant signed to confirm the contents of the interviews[151].

329.  Questions 3, 4, 5 & 6, exhibit P15, clearly refer to what happened at X’s home on 30 May 2016.  Although the defendant was cautioned for taking nude photographs clandestinely on 30 May 2016 and not taking a video clandestinely, I am satisfied in answer 5 by admitting he took photographs secretly, which admission he repeated in answer 7, the defendant was admitting that he secretly filmed X on 30 May 2016.

330.  I reject the submission of Mr Raffell that in view of the later messages and demands X was not prepared to tell the truth that she knew she had been filmed or had simply forgotten or persuaded herself that she did not know[152].  Mr Raffell specifically refers to the fact that in the messages X never asked the defendant whether he had secretly videoed/photographed her and that X made no mention in her police statement of asking the defendant if he had taken photographs of her.

331.  With respect in paragraph 7 of her statement, which paragraph X was referred to in cross-examination, X does say that she was sure the picture had been taken secretly and that she subsequently asked the defendant about the incident[153].

332.  The fact that when further interviewed on 25 July 2017 (exhibit P17) the defendant sought to correct answer 5 and answer 7 (exhibit P15) by saying he did not record X clandestinely does not cause me to doubt X’s evidence that she did not know the defendant had filmed her[154].

333.  In addition, when asked by the police in July 2017 (exhibit P17) if he had taken a video or photographs the defendant said he only remembered taking photographs.  Only after being shown the video clip did the defendant say the video was taken by him and that the four photographs were screenshots captured by him[155].

334.  I do not find credible that if X had consented to the taking of the video that the defendant would have forgotten he had videoed the encounter and only remembered after the police had shown him the video clip found on his mobile phone that he had videoed the encounter and that the four photographs were screen captures.

335.  Further, during cross-examination when Mr Cheung asked the defendant when was the last time he looked at the video, the defendant replied he could not remember but it was up to two to three years ago[156].

336.  Asked by the court if he had looked at the video in preparation of his defence the defendant replied no[157]. The defendant added that neither the police nor his lawyers showed him the video.  After Mr Cheung drew to the defendant’s attention question 7, exhibit P17 at which time the video was played to the defendant by the police, the defendant accepted that the video was played to him.

337.  When Mr Cheung put to the defendant that his evidence that the police did not show him the video was incorrect the defendant replied:

“Yes, thankyou Mr Cheung. I remember at that time the police showed me for a few seconds about the video and at that time I really don’t want to watch the video again and only a few seconds so I forgot this happened and yes I am saying something incorrect in the last question”[158].

338.  I do not find credible the defendant’s evidence in cross-examination that he only remembered that the police had played him the video after this was drawn to his attention by Mr Cheung.

339.  I agree with Mr Cheung that if X did consent to the defendant videotaping the encounter there was no reason for the defendant not to have referred to the video in any of the eight letters[159].

340.  I do not however agree with Mr Cheung that the video itself conclusively shows that the defendant went to great lengths not to let X know that he was videotaping the encounter[160]. Whilst telling X not to move at a time when the defendant appears to adjust the camera angle of his mobile phone and never mentioning that he was adjusting his mobile phone may be indicative of not wanting to let X know what he was doing I have not taken this into account in finding that X did not consent to the defendant videoing her.

341.  If X had consented to the encounter being videotaped I find inherently improbable that X having been demanded money for the return of the photographs did not at any time in the messages, ask the whereabouts of the video tape.

342.  I accept X’s evidence that she did not know the defendant had secretly videotaped her on 30 May and did not realise there was a video tape until the defendant sent the message showing a page from a website (exhibit P2 (24)) which was sent after the defendant demanded money for return of the photographs[161].

Who was ‘youaretooj’?

343.  X felt that the defendant had opened the Instagram account‘youaretooj’ as she supposed he was the only person who kept the photographs[162].

344.  The defendant testified that he did not show the video or screen captures to anyone else; did not tell anyone about them; that he copied the video and screen captures onto a USB which he lost; that he was not the person who sent the message demanding $800 from X and did not know who sent the message[163].

345.  I do not find credible the defendant’s evidence that he copied the video and screen captures onto a USB which he lost.

346.  In cross-examination the defendant said he could not remember when he copied the video onto the USB; it must have been before mid-July when he lost the USB and that he kept a copy of the video on his phone which he later deleted but could not remember when he deleted the video but it was before he received X’s message on WhatsApp saying that he did cruel things (exhibit P3(1))[164].

347.  Later in cross-examination the defendant disagreed that as at 21 September 2016 he still had a copy of the video in his possession.  The defendant said at that time he only had the screen captures on his phone[165].

348.  The expert evidence shows that when the defendant was arrested not only were the screen captures on his mobile phone but also a copy of the video was found on the SD card[166].

Loss report

349.  In evidence the defendant said that he lost the USB in mid-July and believed that he may have lost the USB at school[167]. X testified that when she met the defendant in her mother’s shop on 22 September 2016, the day after X had received the request from ‘youaretooj’, the defendant only told her that he had lost a USB containing photographs[168]. 

350.  The defendant only reported the loss of the USB after he met X in her mother’s shop on 22 September 2016. Admitted in evidence is that the defendant reported loss of a USB thumb drive on 23 September 2016 stating that he lost the USB somewhere in Hong Kong[169].

351.  In cross-examination the defendant said that after he realised he had lost the USB he did not think of telling X he had lost the USB containing the video and did not think about whether X would be concerned that the video would be accessed by others[170].

352.  It beggars belief that if X had consented to the video being made and that the defendant copied the video onto a USB which he said he lost that he did not think about whether X would be concerned that the video would be accessed by others and therefore did not think of telling X at the time that he had lost the USB.

353.  I do not find credible the defendant’s explanations in cross-examination that he did not tell X because he thought his USB was good looking and that if someone picked up the USB they would prefer to use the USB and would not be interested in the information on the USB which they would delete, the same explanation the defendant gave as to why it did not occur to him that the video and screen captures might fall into the hands of others[171].

Expert evidence

354.  The expert evidence shows that the four screen captures (exhibits P1A(1)-(4)), were found on the defendant’s mobile phone[172].

355.  PC 8711 retrieved four photo files identified as related to the case and compiled with Hash Value an excel file (Annex A) which he then burned onto a DVD-ROM disc[173]. By viewing the excel file on the DVD–ROM disc the four photo files are the same as the four screen captures and are numbered in the same sequence as exhibits P1A(1)-(4)[174].

356.  I accept the evidence of X that the photograph of the account user on the request to follow her account from user ‘youaretooj’ was the same as photograph, exhibit P1A (1) because the photograph showed the things on the top of the head board of her bed[175]. By looking at the video (exhibit P1) the screen capture was taken after about 1 minute and 37 seconds.

357.  By looking at Annex A the photo files/screen captures exhibits P1A (1) and (2) were created on 20 September 2016, the day before X received the request from user ‘youaretooj’ and the photo files/screen captures exhibits P1A (3) and (4) were created on 27 September 2016.  The files were current files with no record of being modified[176].

358.  After the court drew the defendant’s attention to the expert evidence, including that two screen captures were created by the defendant the day before X received the request from user ‘youaretooj’ containing one of the two screen captures, the court asked the defendant if he had anything to say as to why he created two screen captures on 20 September and two on 27 September.  The defendant replied that perhaps he transferred the photos from the SD card to the mobile phone because the size of the photos was comparatively smaller than that of the video and games[177]. I do not find this answer credible.

359.  I am satisfied it is no coincidence that the day before X received the request from user ‘youaretooj’ demanding $800 for four photographs the defendant created the screen capture which was used as the photograph of the account user.

360.  I find inherently improbable that someone picked up a USB containing the video and screen captures; looked at the video and screen captures and realised the girl, who was wearing a mask, was X which realisation would have required knowledge of X’s bedroom; knew X’s Instagram account and then just happened to use the very same screen capture the defendant had created the day before.

361.  I reject the defendant’s evidence that he copied the video and screen captures onto a USB which he lost.  I attach no weight to the defendant’s assertions in the record of interview, exhibit P19 that he had lost a USB stick on which he had copied the video and screen captures (answer 12).

362.  I am satisfied so I am sure on all the evidence that the only inference to draw is that the defendant was the user ‘youaretooj’; that he made the screen captures on 20 September 2016 for the purpose of demanding money from X and that he sent the request to X the next day demanding $800 for four photographs otherwise the photographs would be posted on Secrets.

363.  I attach no weight to the defendant’s assertions in the WhatsApp messages sent on 21 September and 22 September (exhibits P3 (1)-P3 (4)) that he did not know what X was talking about; that on 22 September he told X in her mother’s shop that he had copied the photographs to a USB which he had lost; and his assertions in the record of interview, exhibit P18 that ‘youaretooj’ was probably not him (answers 2 & 24) and in the record of interview, exhibit P19 that he was not the person who originally blackmailed X (answer 13).

364.  In finding that the defendant was the user ‘youaretooj’ and sent the request to X demanding $800 I have not relied on the content of the first record of interview (exhibit P15) in which Mr Cheung submits the defendant admitted demanding $800 from X, the subject matter of charge 1[178].

365.  Although one interpretation of the interview could be the defendant was admitting he made the demand in September the difficulty with this is that notwithstanding X had been demanded money by both user ‘youaretooj’ and user ‘sorryfor_poxoh’ the defendant was only cautioned about one demand and the user name was not mentioned.

366.  Further, in answer 9, exhibit P15, the defendant refers to calling X a “slutty female senior fellow student” and in answer 10 refers to user names ‘sorryfor_poxoh’ and ‘fuckyoupoxohfakeme’.  These answers clearly refer to messages subject of charge 2.  Regrettably the police did not seek to clarify the user names.

367.  In the circumstances notwithstanding the defendant said in answer 7 that he created an Instagram account in September and demanded X for $800 dollars, I am not satisfied that it would be safe to rely on this as an admission that he was the user ‘youaretooj’.

368.  Similarly, in the first letter (exhibit P6) the defendant only states that he created an anonymous IG account but not which account and therefore cannot be relied upon as an admission that he was the user ‘youaretooj’ [179].

Unwarranted demand with menaces

369.  I am satisfied the demand was an unwarranted demand with menaces, the menaces being the threat to post the photographs on Secrets, a page on Facebook which any member of the public could view[180].

With a view to gain

370.  Notwithstanding the defendant has denied being the user ‘youaretooj’ having found that he was, I am satisfied that I must consider whether the defendant made the demand with a view to gain or with intent to cause loss, the defence case being that the defendant was playing a trick, a prank on X and never intended to take any money from X[181].

371.  This is discussed when considering charge 2.

Charge 2

372.  The defendant having admitted in evidence that all the messages sent by users ‘sorryfor_poxoh’, ‘fuckyoupoxohfakeme’ and ‘fucyyyyyy’ were sent by him, the only issue is whether the defendant made the demand for $500 with a view to gain or with intent to cause loss.

373.  In summary the defendant testified that he never intended to collect money from X and that all the messages were sent to play a trick, a prank on X and to irritate X because he was angry with X for not telling him if she had reported the case to the police, which explanation the defendant repeated in cross-examination[182]. I do not find the defendant’s evidence credible.

Screen captures

374.  In evidence the defendant said that he made the screen captures before July[183].  In cross-examination when asked whether there was any reason he chose the four screen captures the defendant replied that he made the four screen captures because he wanted to start to forget what had happened before[184].

375.  Asked by the court to explain what he meant by this answer the defendant explained that:

“Because at that time my idea was something like some people wanted to abstain from smoking. I then made some screen captures and then I would gradually delete the video. Then perhaps I would gradually, one by one, delete the screen capture as well.”

376.  In cross-examination the defendant said that when he copied the video and screen captures onto the USB he still had the thought of gradually deleting the video and screen captures.  Asked by Mr Cheung how by making more copies it was going to help his idea, the defendant replied that the reason he saved the video and the screen captures on the USB was because he had a habit of copying documents as he was afraid of loss and that he would also delete the video on the USB but never thought that the USB would be lost[185].

377.  The expert evidence shows that the video (exhibit P1)) was found on the SD card which was seized together with the defendant’s mobile phone[186].  PC 8711 retrieved the video file and compiled with Hash Value an excel file (Annex B) which he then burned onto a DVD-ROM disc[187].

378.  Annex B shows the video file was created on 27 August 2016 and the modified time was 30 May 2016.  I accept PC 8711’s explanation that the modified time was earlier than the created time because modified time was the time and date the video recording was completed and the created time was the time when the video file was copied to the SD card[188].

379.  After the court drew the defendant’s attention to the expert evidence, the court asked the defendant if there was any reason for copying the video onto the SD card on 27 August instead of deleting the video.  The defendant replied that perhaps he transferred the video from the internal storage memory database of his mobile phone because there was no space in his phone and that he did not delete the video because he still wanted to watch the video[189].

380.  Further, as pointed out earlier the expert evidence shows that the four screen captures were created on 20 September and 27 September about two months after the defendant said he made the screen captures[190].

381.  The expert evidence shows that rather than gradually deleting the video and the screen captures the defendant created a copy of the video in August and the screen captures in September which were still on his mobile phone and SD card when he was arrested in November 2016.

382.  I reject the defendant’s explanation for making the screen captures.  I attach no weight to the defendant’s assertions in the record of interview, exhibit P17 that he captured the screenshots for no use (answer 11).

The Instagram messages

383.  The defendant sent the first Instagram message on 3 October 2016 asking X “Can (you) not report to the police” (exhibit P2(2)).

384.  The day before the defendant had sent WhatsApp messages to X in which he said the police had called and would send someone to school to collect the video tapes (exhibit P3(9)).

385.  In cross-examination the defendant said there was no such call from the police.  The defendant said that when he made his loss report he did not tell the police that the USB contained some photographs and video about X.  X having deliberately refused to tell him whether she had made a report to the police the defendant was worried that X would go report to the police and that he would feel embarrassed if she told the police about the video.  The defendant therefore sent the WhatsApp messages wanting X to believe that the police had called in the hope that X would also tell him whether she had made a report to the police[191].

386.  When asked by Mr Cheung whether he wanted to know if X had reported about the loss of the USB or the Instagram message received from ‘youaretooj’or both, the defendant replied “About the USB”.  Asked if he was interested in knowing whether X had reported about “youaretooj”the defendant replied, “If she said it I would listen”[192].

387.  In summary the defendant testified that he sent the Instagram messages to play a trick, a prank on X and to irritate X because he was angry with X for not telling him if she had reported the case to the police[193].

388.  I do not find this evidence credible.  The explanation given by the defendant for sending the messages, namely to find out if X had reported the case to the police is different to the reason he wrote in the first letter (exhibit P6) which he delivered to the police station on 15 November 2016, nine days after his arrest.

389.  In the letter the defendant said he played a prank on X because X rejected his request to talk to him and therefore in revenge for ignoring him he created an anonymous IG account and used photographs to threaten X[194].

390.  When asked by the court why he did not write in the letter that he was angry because X had not replied whether she had reported the case to the police the defendant answered:

“I think the word revenge here already shows that I was angry”.[195]

391.  I reject that the defendant sent the messages because X did not tell him whether she had reported the loss of the USB to the police; reject that the defendant was worried if X reported to the police he would feel embarrassed if she told the police about the video and reject that the defendant sent the messages only wanting to know if X had reported the loss of the USB and not whether X had reported about the demand made by ‘youaretooj’.

‘sorryfor_poxoh’

392.  I do not find credible the defendant’s evidence that he used the username ‘sorryfor_poxoh’ because he wanted to apologise to X for losing a USB containing the photographs which had been disclosed and created trouble for X[196].

393.  Apart from using “sorry” in the user name nowhere in the messages does the defendant apologise to X.  On the contrary the defendant does not identify himself; pretends to be someone else who picked up the USB and proceeds to threaten and abuse X.

394.  Further, in cross-examination the defendant agreed that he never said sorry to X in the WhatsApp messages[197].

395.  In the letters the defendant delivered to the police (exhibits P6-P13) he also never said sorry for losing a USB.  When asked by the court if he had anything to say why he did not mention in any of the eight letters about losing the USB which created the trouble for X the defendant replied:

“Because X herself knew about it. If I said too much I was afraid she would feel sad”.

396.  I do not find this explanation credible.  I reject the defendant used the user name ‘sorryfor_poxoh’ because he wanted to apologise to X for losing the USB[198].

Deletion of the messages

397.  X testified that the Instagram messages from ‘sorryfor_poxoh’ sent by the defendant were deleted by the defendant[199]. In cross-examination the defendant agreed that he deleted all the messages and said he did this because at the time he felt it was great fun and that X would be very surprised to find all the messages were gone[200].

398.  I do not find this evidence credible.  I reject that the defendant deleted the messages because he thought it was great fun to do so.

Unwarranted demand with menaces

399.  I am satisfied the demand for $500 made on 8 October and repeated on 11 October 2016 was an unwarranted demand with menaces, the menaces being the threat to send the photographs to X’s younger sister and put the photographs on the internet[201].

With a view to gain

400.  I have no hesitation in rejecting the defendant’s evidence that he never intended to collect money from X and that all the messages were sent to play a trick, a prank on X.

401.  I attach no weight to the defendant’s assertions in the letters that he did not plan any of the incidents, including taking photographs of X and threatening her; that he felt helpless and therefore wanted to play a prank on X; that he never thought of taking X’s money; and that he acted out of impulse and regretted what he had done.

402.  I attach no weight to the defendant’s denials in the records of interview that he did not mean to blackmail X[202]; that he was simply having fun without intending to accept money[203]; he wanted to play a trick on X and did not intend to take her money[204]; and that he sent the photographs to mess with X[205].

403.  By the 3 October when X received the request to follow her account on Instagram by user ‘sorryfor_poxoh’ the defendant had already created the four screen captures[206]. In the request the defendant said “Sorry, can (you) not call the police!” The same day the defendant sent seven messages saying to X if she did not report to the police he would give her back the photos and in one message begged X not to report the case.  The four screen captures accompanied the messages[207].

404.  Between 4 October and 8 October the defendant continued to beg X not to report the case and also asked X to cancel the case and told X if she did so he would give her back the photographs and not to blame him if he put the photographs on the internet.  When X said she did not report loss of the USB the defendant said things are differently played and demanded X to pay $500 for the USB[208].

405.  I am satisfied so I am sure on all the evidence the only inference to draw is that by sending the messages the defendant wanted to know if X had made a report to the police which might result in him being investigated about the demand for $800 by user ‘youaretooj’ and that once the defendant believed that no report had been made to the police by X he made a further demand of $500 for the return of the photographs.

406.  In the following messages sent between 8 October and 4 November the defendant, inter alia, repeatedly threatened to send the photographs to X’s younger sister; repeated the demand for $500; repeatedly abused X by calling her a sluttish female senior schoolmate and calling her a prostitute; requested X to provide nude photographs of her younger sister if she wanted a face to face meeting to collect the USB; threatened to put the photographs on the internet and share with others; threatened to let the whole school know; threatened to let all of Hong Kong know; and threatened to send the photographs to X’s mother[209].

407.  Having carefully considered all the messages I am satisfied so I am sure on all the evidence that the only inference to draw is that the sending of the messages was not a joke, a trick or a prank.  I am satisfied so I am sure that when the defendant demanded $500 from X he intended to collect the money or cause loss to X (charge 2).

408.  Having carefully considered all the evidence I am satisfied so I am sure that the only inference to draw is that the request from ‘youaretooj’ demanding $800 was not a joke, a trick or a prank.  I am satisfied so I am sure that when the defendant demanded $800 from X he intended to collect the money or cause loss to X (charge 1).

409.  In reaching these findings I have carefully considered that in cross-examination X also referred to the defendant as a person known to make jokes, for example when asked if she treated the vibrator as a joke, X replied that it was sort of a mischievous game and agreed that this was because she knew the defendant always liked to make jokes and that in school he was often in trouble for making stupid jokes[210].

410.  X also agreed that when the defendant sent the WhatsApp messages (exhibit P3(1)) expressing he did not understand what she was saying she assumed the defendant was playing her[211].

411.  When asked if in the WhatsApp messages she thought the defendant was trying to be friendly, X replied that she felt all along that the defendant was playing games because he actually knew what was happening and kept fabricating things; agreed she thought this because the defendant was always playing games and thought that reporting loss to the police was part of playing games[212].

412.  When cross-examined about the letters X agreed she thought the defendant could not be sincere because he was always playing games, playing tricks and playing jokes[213].

413.  X agreed that as of 3 October she was not prepared to accept that the defendant would return the photographs saying she thought the defendant was playing games and that she would only accept the defendant returning them to her in person[214].

414.  Having carefully considered all the evidence together with the content of the messages I find the evidence of X that she knew the defendant always liked to make jokes and at times described what the defendant did as playing games does not cause me to doubt the only inference to draw is that the sending of the messages was not a joke, a trick or a prank.

415.  Clearly if X had thought this was just another of the defendant’s jokes she would not have reported the case to the police on the morning of 5 October.  As X explained in cross-examination after the first IG account she had already WhatsApped the defendant asking him not do things in such a merciless way but he still opened another IG account and made up stories and played games so she needed to report to the police[215].

416.  Similarly, if X had thought this was a joke she would not have been worried that if she continued to ignore the defendant he might post the photographs on the internet[216] and would not have been very afraid that the defendant would disclose her name and Facebook account to some strangers and that she would be harassed in the future[217].

417.  I also reject the submission that by agreeing that she tried to trap the defendant to get evidence against him and that she cajoled the defendant into providing more evidence against him X knew this was a joke or prank[218].  I accept X’s explanation that as part of a postponing strategy suggested by the police X tried to arrange a face to face meeting so the police could arrest the defendant[219].

Defence witnesses

418.  I have also carefully considered the statements of the two defence witnesses.  The incidents described by the teacher are very different to demands for money for the return of photographs/video secretly taken of an intimate encounter.

419.  Similarly, the incident described by the defendant’s friend, in which the defendant said that if his friend would not help him to buy a concert ticket he would disclose a secret recording he had made of his friend talking about a girl he was interested in, is also very different to demands for money for the return of photographs/video secretly taken of an intimate encounter.  Further, although that incident concerned a secret audio recording the threat to disclose was made in person and not secretly via social media.  The friend was therefore able to tell straight away the “threat” was only meant as a joke.

420.  The incidents described by the teacher and the defendant’s friend to show that the defendant is a person who is playful and likes making jokes do not cause me to doubt the findings I have made[220].

421.  I have also carefully considered the submission of Mr Raffell that the defendant did not behave in any way which is consistent and clearly referable to the way that a blackmailer would behave, for example that there was no follow-up action to the first demand for $800 made on 21 September 2016[221] and that despite the demand for $500 the defendant took no specific steps to actually obtain the money[222]. Mr Raffell also queries whether someone would seriously commit blackmail for such small amounts of money[223].

422.  I have no hesitation in rejecting this submission.  Immediately after the demand was made for $800 X sent messages to the defendant by WhatsApp and saw the defendant the next day.  It is therefore not at all surprising no further messages were sent.

423.  In the messages the defendant sent by user ‘sorryfor_poxoh’ he pretended to be someone else in the hope that his identity would not be discovered.

424.  Prior to the first demand for $500 when X asked how he will give back the USB it was the defendant who suggested that he would put it in a place for X to collect[224].

425.  After the second demand for $500 was made it was the defendant who told X to put the money at a place and then he would put the USB at a place and suggested X put the money at a carpark saying he did not want to see X and only wanted money[225].

426.  When X insisted on a face to face meeting the defendant  threatened X by giving her two choices either follow his instructions otherwise he will let X’s younger sister see the photographs and he would put them on the internet or if X wanted to meet she had to exchange nude photographs of her younger sister[226].

427.  Notwithstanding no demand for money was made until September, almost four months after the encounter in X’s bedroom; the amounts demanded were small and no arrangement to collect the money were ever finalised, I am satisfied the acts of the defendant were consistent with that of a blackmailer who tried to avoid his identification being known and used all kinds of threats to pursue his demand for money[227].

428.  Similarly, by deleting the messages I am satisfied so I am sure the only inference to draw is that the defendant was trying to erase evidence of the messages which, in my view, is an act consistent with that of a blackmailer.

429.  I have carefully considered everything said on behalf of the defendant by Mr Raffell both individually and collectively.  Nothing said by Mr Raffell causes me to doubt the findings I have made.

Verdict

430.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of charges 1 and 2 beyond reasonable doubt, each charge being considered separately.  The defendant is convicted of charges 1 and 2.

Charge 3

What was said in the phone calls?

431.  In his no case submission Mr Raffell submitted that what X remembered might not be accurate as she only reported the calls months later in June 2017. Notwithstanding X did not report the phone calls immediately I accept the evidence of X that in March and May 2017 she received three phone calls from someone claiming to be Mr Chan, a policeman from the prosecution section of the police.

432.  The three phone calls have been summarised earlier[228].  I am satisfied that X tried her best to accurately remember the content of the three phone calls.

Who made the three phone calls

433.  In closing submission Mr Raffell adopted his no case submission that the court cannot rule out the phone calls were made by a police officer, in particular that X was never asked if the caller was either of the police officers who liaised with her and that there was no evidence there might be a police officer surnamed “Chan” who happened to have phoned X[229].  I have no hesitation in rejecting this submission.

434.  X first referred to the name of the police officers who contacted her when Mr Raffell asked X in cross-examination if there was a particular police officer who, as far as she was concerned, was looking after her case.  X replied that there was a particular officer who contacted her for “making statements and something like that”.  X said the officer who contacted her at the beginning was surnamed ‘Mak’ and that later the police officer who was responsible for contacting her was surnamed ‘Kit’[230].

435.  Later when cross-examined about the three phone calls X said that she went to the police station on 17 June because the police said some addition had to be made to her statement and that the police had found the video which they wanted to show her.  X explained that when the police called her to go to the police station she asked whether other police officers were handling the case and would call her by phone.  X was told no and therefore when she went to the police station she just gave the statement about the phone calls in passing[231].

436.  In re-examination X said that the police officer who called her to go to the police station to view the video was surnamed ‘Mak’ (Muk) who also took the witness statement from her on 17 June 2017.

437.  I accept the evidence of X that the first police officer who had contact with her was surnamed ‘Mak’ (Muk) and that he was the police officer who rang her in June 2017 to go to the police station to view the video.  The request to view the video was made after the three phone calls and prior to the police officer responsible for contacting X changing to the police officer surnamed ‘Kit’.

438.  Notwithstanding X was never asked if the caller was either of the police officers surnamed ‘Mak’ (Muk) or ‘Kit’, I reject that either one of them was the caller[232].  I find inherently improbable that the police officers would need to use a false name to call X.

439.  I take judicial notice that the prosecutions division is part of the Department of Justice and not the police force.  I find inherently improbable a police officer would ring up X and ask her over the phone what evidence she had submitted and whether the toy had been submitted as an exhibit (the second call).  Further, if the caller was a police officer from the “prosecution division” he would know what evidence had been submitted and would have no need to call X.  Any clarification in the evidence would be conducted by the investigating team.

440.  I reject the submission that the content of the calls was consistent with X being provided victim support.  Not only did the caller identify himself as being from the prosecution division and not victim support, I find inherently improbable a police officer would ring up X and ask her over the phone if she wanted to continue or drop the case (the first call).  Providing victim support is not seeking to ask a victim if she wants to continue or drop the case.

441.  In the record of interview (exhibit P19) the defendant said he had never tried to commit suicide by jumping in the sea[233]. I find inherently improbable a police officer would mention over the phone that the defendant had quit school and might commit suicide (the first call) and that the defendant had tried to commit suicide by jumping in the sea (the second call), in particular when this was according to the defendant not true.

442.  I also agree with Mr Raffell when in his no case submission he said that as the calls were made with a pre-paid SIM card it may seem unlikely they were made by a genuine police officer called Mr Chan[234].

443.  I reject the phone calls were made by a police officer or anybody from victim support.

Did the defendant make the phone calls or someone on his behalf?

444.  X was unable to tell the voice of the male who made the three calls and that if she had identified the voice as the defendant’s voice she would have contacted the police straightaway[235].

445.  When asked by Mr Cheung whether she could tell whether the voice of the male making the second call was the same as the first call, X replied that she could not be sure because it is hard to distinguish a voice on a call.  Mr Raffell accepts that voices can sound different on the telephone[236].

446.  This is well known to the courts for example cases involving telephone deception where parents cannot recognise whether their own children are actually ringing them asking for money for their release.  I accept however that those calls are often relatively short in duration.

447.  The duration of the first two calls was 14 minutes and 56 seconds and 9 minutes and 1 second respectively[237]. X estimated the third call was less than five minutes.  In the circumstances it is unlikely that if the defendant had made the three calls X would not at some stage have realised it was the defendant.  I therefore proceed on the basis that the calls were not made by the defendant[238].

448.  In his no case submission Mr Raffell accepted that the prosecution does not have to prove the defendant made the phone calls and submitted that there has to be some evidence that the defendant participated in getting someone else to do this or some evidence from which an inference can be drawn[239].

449.  Taking into account the following matters:

(i)       the only person who would benefit from the case being dropped was the defendant;

(ii)       the defendant knew X’s mobile telephone number which he had used to communicate with X on WhatsApp;

(iii)     the adult toy which the defendant gave to X was mentioned in the second phone call;

(iv)     by the time of the first phone call the defendant had already written six letters (exhibits P6-P11) seeking forgiveness which request had not been accepted by X including having a meeting at the police station so he could formally apologise to X;

(v)        that in the sixth letter (exhibit P11) written on 20 February 2017 the defendant mentions that he was considering going to school to ask a favour of classmates to write letters of mitigation which was mentioned in the first call; and

(vi)     that it is no coincidence that on the same day as the first call in which the caller said that the defendant had said that he would commit suicide the defendant wrote the seventh letter (exhibit P12) in which for the first time he mentions “I sometimes think I am very useless, I am just a damn (or dead) criminal. What’s the meaning (or purpose) of being alive?”[240],

          I am satisfied so I am sure the only inference to draw is that the three phone calls were made at the behest of the defendant and that the defendant told the caller what to say[241].  I attach no weight to the defendant’s denials in the record of interview (exhibit P19) that the phone calls had nothing to do with him.

Tendency to pervert the course of public justice

450.  I am satisfied so I am sure that by pretending to be a policeman and informing X in the first phone call about the likelihood of conviction; that the press might take photographs of her and come to know about the matter and that the defendant might ask classmates to write mitigation letters and that both phone calls mentioned about the defendant committing suicide, the caller was trying to persuade X to drop the case.

451.  X having reported the matter to the police and the defendant having been arrested and interviewed after which he was placed on bail I am satisfied so I am sure that the phone calls had the tendency to pervert the course of public justice[242].

Intention to pervert the course of public justice

452.  The prosecution opened the case that the purpose of the three phone calls was consistent with the representations made by the defendant and the result he sought to achieve by the letters (exhibits P6-P13), namely X would no longer pursue her complaint[243]. In the prosecution closing Mr Cheung submits that these letters evinced a clear intention on the part of the defendant to put an end to the criminal investigation[244].

453.  Whilst the defendant may have hoped by writing the letters asking for forgiveness and in the fourth and fifth letters asking to be let off the hook, that X would not pursue the case, I am not satisfied that an intention to pervert the course of public justice can be inferred from the writing of the letters which were delivered by the defendant to the police station.  Furthermore, the date of the charge does not cover the first six letters.

454.  In my view the relevance of the letters to charge 3, as particularised earlier, is that by the time of the first call six letters had been written and X had not forgiven the defendant; that in the sixth letter (exhibit P11) the defendant mentions he was considering going to school to ask a favour of classmates to write letters of mitigation which was mentioned in the first call; and that on the same day as the first call in which the caller said that the defendant had said that he would commit suicide the defendant wrote the seventh letter (exhibit P12) in which for the first time he mentions “I sometimes think I am very useless, I am just a damn (or dead) criminal.  What’s the meaning (or purpose) of being alive?”[245].

455.  I am satisfied so I am sure that pretending to be a police officer in order to persuade a witness to drop the case has a manifest tendency to pervert the course of public justice.  I am satisfied so I am sure by asking someone on his behalf to make the phone calls pretending to be a police officer the defendant intended to pervert the course of public justice.

456.  In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Raffell both individually and collectively; including the character of the defendant[246]. Nothing said by Mr Raffell causes me to doubt the findings I have made.

457.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of each charge beyond reasonable doubt, each charge being considered separately.  The defendant is convicted of charge 3.