HKSAR v. CHOW CHI (aka CHOW CHI-LUN)

DCCC 1054/2021

[2023] HKDC 200

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1054 OF 2021

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REASONS FOR SENTENCE

The defendant faces 5 charges of "Procurement of unlawful sexual act by false pretences" (Charges 1 to 5), a charge of "Possessing a false instrument" (Charge 6)  and a charge of "Improper possession of clothing of police officer" (Charge 7).

2.  He pleaded guilty to Charges 1, 5, 6 and 7.  I granted the prosecution's application to leave Charges 2 to 4 in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

Background

3.  On 24 April 2021, the Police received a complaint about a video clip of 3 males in police uniform engaging in lewd acts (oral sex and buggery), which had been widely circulated in various WhatsApp groups.

4.  Investigation revealed that the said video clip was also published on Telegram, Facebook and LIHKG and that it was uploaded on HKGolden back in December 2019.

5.  Information solicited from the general public revealed that the identity of one of the 3 males depicted in the video was the defendant.

House search

6.  Pursuant to a search warrant, the defendant's residence at Ha Che Tsuen, Pat Heung, Yuen Long was searched on 10 May 2021.  The Police found the following items :-

(i)  a false police warrant card bearing the name of Sergeant 26316 Chow Chi (E1)  (Charge 6);

(ii)  a pair of police trousers with the number "9827" written inside (E2)  (Charge 7);

(iii)  a counterfeit short-sleeved police blue shirt with a pair of shoulder boards signifying "Sgt 26316";

(iv)  2 counterfeit long-sleeved police blue shirts;

(v)  a counterfeit police windbreaker with a pair of shoulder boards signifying "Sgt 26316";

(vi)  3 pairs of counterfeit police blue trousers;

(vii)  a pair of counterfeit traffic police blue trousers;

(viii)  a counterfeit traffic police jacket with a pair of shoulder boards signifying "Sgt 26316";

(ix)  a counterfeit police green shirt and a pair of counterfeit police green trousers;

(x)  a counterfeit police hat with a police badge;

(xi)  a counterfeit police baseball cap;

(xii)  a counterfeit police belt attached with a speed loader pouch containing 1 speed loader; 1 revolver holster; 2 waist pouches (containing a pair of handcuffs, a police notebook cover and 2 notebooks); 1 baton with case; 1 pouch containing a dummy pepper spray container; and 1 radio pouch;

(xiii)  1 "Motorola" beat radio;

(xix)  1 plastic air gun; and

(xv)  a resealable plastic bag containing 1 roll of police cordon tape.

7.  The defendant was arrested. Under caution for Charge 6, he admitted having bought E1 from Taobao for the purpose of video shooting.  He knew it was a fake one.

8.  A total of 5 video recorded interviews were conducted with the defendant on 10 and 11 May 2021. He admitted under caution in his interviews that he had never been a police officer or a member of the Hong Kong Auxiliary Police Force.  The items seized from his home belonged to him.  He bought them from Taobao and various online platforms between 2012 and 2014 for his own collection.  He would wear the counterfeit police uniforms when having sex with others.  The defendant also admitted that he was in police uniform when he had casual sex with a number of males.  He filmed their sexual acts for his own collection.  The defendant had sent photos of E1 or of himself wearing police uniform to his cyber friends with a view to inducing them to believe that he was a genuine police officer, so that he could lure them into carrying out sexual acts with him.  The defendant had used the handcuffs for enhancing sexual pleasure; however, the baton was for decoration and photo-shooting only.

9.  Regarding Charge 6, the defendant bought E1 from Taobao at HK$400 in 2014.  He saw an online shop selling police accessories and ordered a custom-made warrant card from that shop.  He chose the number "26316" at random; he did not know any police officer who had this UI number.  He gave the shop a photo of himself in police uniform and chose the Sergeant rank.  He would wear police uniform with E1 when engaging in sexual acts with others in order to feel more excited.

10.  Regarding Charge 7, the defendant claimed that he bought E2 from Taobao or an online auction website for a few hundred dollars.  He forgot when he purchased it.  He did not know any police officer who had the UI number "9827".  He bought E2 for himself to wear so that he would look like a police officer in order to attract his mates to have sex with him.

Investigation results

11.  E1 was examined by an officer of the Police Identification Bureau and was confirmed to be a forgery.

12.  A senior supplies supervisor of the Police Stores Storehouses Unit confirmed E2 to be a piece of police accoutrements and that all other clothing items found in the defendant's home were counterfeit articles.

13.  A retired police sergeant with UI number 9827 confirmed that E2 was part of his uniform.  He wrote the number "9827" on it.  He confirmed that he had never lost his uniform or accoutrements.  He returned all his uniforms and accoutrements to the Police Stores Storehouses Unit upon retirement and did not know why E2 could be possessed by others.

14.  Examination of the defendant's social media accounts revealed that he had falsely pretended to be a police sergeant in order to induce his cyber friends (including X and Y)  to engage in sexual acts with him.

Charge 1 (Male Y)

15.  In 2017, Y (aged 32 then)  became acquainted with the defendant via a dating app for homosexuals.  They exchanged contact details and started chatting on WeChat.

16.  The defendant told Y that he was a police sergeant attached to Sheung Shui Police Station and asked Y out on a date.  Having chatted for about half a month, they had their first date at the podium of Chung On Shopping Centre, Ma On Shan in one evening around midnight.  The defendant showed up in full police uniform and told Y that he was on duty.  Y believed the defendant being a genuine police officer.  After their first date, they became lovers.

17.  On a day unknown in or around December 2017, Y met up with the defendant for the second time at the defendant's home, which was a village house in Tung Kok Wai, Fanling.  The defendant was in full police uniform and showed Y a police warrant card with his photo on it.  Y confirmed that E1 was the police warrant card shown to him by the defendant.  Y admired the occupation of a police officer rather than someone in police uniform.  Y was willing to have sex with the defendant because he believed that the defendant was a policeman.  They did some role-playing and performed oral sex on each other without condoms until they both ejaculated.

Charge 5 (Male X)

18.  In October 2020, X (aged 44 then)  became acquainted with the defendant via a dating app for homosexuals. They exchanged phone numbers and started chatting on WhatsApp.

19.  On a day unknown in late December 2020, X met the defendant for the first time at the defendant's home in Ha Che Tsuen, Pat Heung, Yuen Long.  During their date, the defendant claimed to be a serving police sergeant.  He showed X a police warrant card bearing his name and photo.  X believed that E1 was the police warrant card shown to him by the defendant.  At the defendant's home, the defendant offered to give legal advice to X and to introduce X to his police colleagues, so that they may have sex together.  The defendant then put on a full police uniform with a baton and a pistol hanging on his waist belt.  The defendant asked X to touch the pistol and baton.  He also asked X to have sex with him.  Believing that the defendant was a genuine police officer, X agreed.  The defendant fondled X's penis and performed oral sex on X without a condom until X ejaculated.  X then did the same for the defendant.

20.  X admired the occupation of a police officer rather than someone in police uniform.  He was eager to have a relationship with a police officer.  He would not have engaged in the sexual acts with the defendant but for the defendant's claim that he was a police sergeant.

Mitigation & Sentence

21.  The defendant is 47 and single.  He has 5 conviction records which included several traffic offences, 2 "Indecent assault" offences and 1 "Homosexual buggery" offence.  His last conviction was dated May 2006.

22.  Defence counsel Mr. Chan informed me that after completing F.5, the defendant started to work in the food and beverage field.  In 2020, he became involved in wine wholesale. Owing to the pandemic, he lost his job in July 2021.  Prior to that, he was earning about $20,000 per month.

23.  In mitigation, Mr. Chan submitted that there are no sentencing tariffs for Charges 1 and 5.  What the defendant did wrong was his false pretences.  He, however, did not use any threat or violence on X or Y; nor did he exert any pressure on them.  No money was involved either.  Mr. Chan stressed that both X and Y are mature adults; they became friends with the defendant first before they agreed to engage in sexual acts with him.  In other words, unlike those who claimed to be "Maoshan" （茅山） masters or film directors in order to obtain sexual advantages from gullible victims, the defendant did not exploit X's or Y's religious fear or their desire to become movie stars.

24.  Mr. Chan has submitted a number of sentencing cases for my reference (mainly first instance District Court decisions).  In her Reasons for Sentence in HKSAR v Man Ka Ying [2020] HKDC 55 (DCCC 1043/2018), the learned judge made reference to a number of decisions at paragraph 25.  I have considered those decisions as well, in particular HKSAR v Au Yeung Kwok Fu CACC 41/2010 and HKSAR v Yuen Yuk Kin CACC 454/2011(both are unreported Chinese judgments).

25.  When determining the proper starting point, I accept that in terms of the level of repulsiveness, the defendant's false pretences in the present case are not the worst of its kind.  X and Y are mature adults using an app to look for partners (sexual or otherwise)  rather than desperate individuals trying to obtain more modelling jobs, salvage a relationship through spiritual forces or get rid of bad fate brought by evil spirits.

26.  I also accept that the defendant's false pretences might well have been intended to enhance the pleasure and excitement of X and Y during their sexual acts rather than luring them into engaging in sexual conduct with the defendant.  As submitted by Mr. Chan, the disturbance and grievances caused to X and Y when they discovered the truth could be of a lesser degree.

27.  For Charges 1 and 5, I adopt a starting point of 12 months' imprisonment each.  With the timely guilty plea, the sentence for each charge is reduced to 8 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  Hence, I sentence the defendant to 8 months' imprisonment each for these 2 charges.

28.  For Charge 6, I accept that the sole purpose of the defendant's possession of a forged police warrant card was to strengthen his appeal to his cyber friends.  There is no evidence showing that the defendant had used and intended to use E1 for other unlawful purposes.  I adopt a starting point of 4.5 months' imprisonment.  With the timely guilty plea, I sentence the defendant to 3 months' imprisonment for this charge.

29.  The maximum penalty for Charge 7 is a fine at level 1 (i.e. $2,000).  I will impose a fine in the sum of $500 for this charge.

30.  Bearing in mind the totality principle, I consider a global starting point of 18 months' imprisonment appropriate for Charges 1, 5 and 6.  With the timely guilty pleas, the overall sentence becomes 12 months.  I order 3 months in Charge 5 to run consecutive to Charge 1; and 1 month in Charge 6 to run consecutive to Charges 1 and 5.  Thus, arriving at a total prison term of 12 months.