HKSAR v. LAM MING TUNG

DCCC 316/2017

[2018] HKDC 66

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 316 OF 2017

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REASONS FOR SENTENCE

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1.  A romantic relationship deteriorates with the boyfriend threatening to share the sexually explicit images or nude photos of his girlfriend online unless she continues the relationship. This is what the instant case is about. The above scenario could best be described as “Revenge Porn”.

2.  At the time of the offence, the defendant was a 20-year-old young man while the victim was a 15-year-old schoolgirl. Their relationship lasted about 9 months. 

3.  The defendant pleaded guilty to 9 counts of offence, namely:

(1)- 3 counts of having sex with an underage girl (X) (Charges 1, 5, 10);

(2)- 1 count of indecent conduct with a minor - X performed oral sex on defendant (Charge 2);

(3)- 2 counts of making child pornography – defendant filmed their sexual activities (Charges 3 & 6);

(4)- 3 counts of criminal intimidation – Defendant threatened to send to others X’s nude pictures or sexually explicit images (Charges 7, 8, 11).

The two alternative charges (Charges 4 & 9) are gone as a result of the defendant’s pleas whilst charge 12 of possession of child pornography is left on court’s file.

4.  X was at the time a secondary school student who also worked as a compensated dating girl on the side. This was not, however, how they encountered and the defendant apparently was unaware of this side of her at least in the beginning; in fact, X first met the defendant on Valentine’s Day 2016 at a social gathering organised by friends, 3 weeks shy of her 15^th birthday and they began dating only three days later.  

5.  During their 9-month relationship, they had sex a couple of times and on some of those occasions the defendant filmed it with his mobile phone with X’s knowledge.

6.  They had sex for the first time on 7 May at a motel in Mong Kok which forms the subject matter of charge 1. And on this occasion the defendant did use a condom.

7.  There came a time when the defendant found out the dark side of X, which resulted in constant quarrels between them – the defendant wanted X to quit the unsavory job. Towards the end of September when X, thinking better of seeing the defendant anymore, told him she wanted a breakup. The defendant took it hard and threatened to post details of her compensated dating activities online, tell her school about it and even harm her family if she were to break up with him.

8.  At first X succumbed to the threats, and even agreed to have sex with the defendant a few more times before finally ending their relationship.   

9.  The couple made use of a disabled toilet in Parkland Square in Tuen Mun for such a purpose. On two separate occasions in October X either performed oral sex on her boyfriend or had unprotected sexual intercourse with him inside the toilet. The defendant filmed it each time with X’s knowledge. (Charges 2, 3, 5 & 6)

10.  Yielding to the defendant’s demands seemed to get X nowhere, their relationship had in fact gone from bad to worse with the defendant started issuing threats to X whenever she did not do what he said.

11.  On 21 October, when X failed to answer his question as to who she was talking to on the phone, she received a photo from the defendant via Whatsapp on her phone of her performing oral sex on him with the threat that images of their sex acts would be sent to her friends. (Charge 7)

12.  Two days later, when X had not responded immediately to a request by the defendant to set him again as a contact person on her phone, X received the same type of photos as she did two days before with the same sort of threats. This time X retorted a little only to find that the threat from the defendant would now cover a wider audience including the school. (Charge 8)

13.  On 6 November, the couple went out of town to have sex in a hotel in Shenzhen. The defendant initially agreed in the admitted facts that he filmed it surreptitiously without her knowledge, but later in the background report he clarified it to say X in fact knew about his recording. (Charge 10)

14.  A few days later (11 November), in trying to hold on to her, the defendant contacted X saying that he could not accept the fact that they would split up on 25 November, X cut short the conversation but subsequently received 2 nude photos of her (showing X’s naked chest in the Shenzhen hotel) accompanying with the threat that the defendant would send these photos to other people. (Charge 11)

15.  The court obtained a victim impact report as well as a background report on the defendant before sentencing. The defendant, now aged 22, has no prior convictions. He was a Form 6 student but his DSE results were rather poor; consequently, he went to a vocational training college to do a one-year course on Hospitality, and had to discontinue after 2 months because he was held in custody as a result of the present case. His hope of becoming a fireman was also dashed because of the convictions.

16.  The defendant was arrested on 21 November 2016 and has been remanded in custody ever since; up to now his time spent in detention is more than a year. The remand period, the court was told, has given him time for reflection on what he did wrong before and now he embraced Buddhism.  With that faith, he pledged that he would not mix with the bad guys in the prison but start a new life after release.

17.  It’s clear from the information before the court the two of them started off as boyfriend and girlfriend, but unbeknown to the defendant, X had a side job working as a compensated dating girl, and he only discovered it half way through their relationship, which became the apple of discord between the couple.

18.  The defendant was really in love with X even in the hope of getting married eventually, counsel said. Initially, he tried to appease X with the money (over $20,000) he earned from a summer job, but with the summer job gone, money was in short supply. On the other hand, it’s only natural that the defendant wanted X to quit the job, but his repeated requests seemed not to be met with positive responses from X who kept breaking her promises and going back to the old trade. As stated in the background report, the lovers had a fierce quarrel causing X to ask for an end to their relationship in September 2016, which the defendant refused. And this is how the threats came about.

19.  Counsel for the defendant reiterated that the threats were not meant to hurt X but to salvage the relationship, albeit not a proper means to an end. Counsel went on to say that there’s evidence in support of that because although the defendant did threaten to post the nude photos of X online he never carried it out.

20.  As can be seen from the various mitigation letters written to court, the defendant, in the eyes of many people, is basically a good-natured person. The age difference between them is not too big, only 5 years, counsel said, the defendant was not playing a predatory role. It is submitted by the defence that the way the defendant handled the whole matter in this case was clumsy, immature and impulsive. Given his relatively young age and lack of life experience, the defence ask the court to be as lenient as possible with the defendant.

21.  The instant case can be likened to “Revenge Porn”, a type of online harassment, which occurs when an ex-partner posts, or threatens to post sexually explicit images of a person online without their permission. In a case like this, it doesn’t take much imagination to guess the effects this will have on the intended victim – it can’t be overestimated – victims can easily have their lives ruined as a result.

22.  The impacts include shame and humiliation, negative mental health effects such as depression, feeling helplessness or despair, just to name a few. It makes no difference whether the threats are made during dating or after break-up. Given the permanence of the internet, this torture may never be going to end. In the worst scenario, the victim may even commit suicide.

23.  Because of the possible devastating effects over the victim, anyone who issues such a threat, in my view, should be severely dealt with by the law in order to protect the victim; thus, a prison sentence is almost inevitable. There are, however, extenuating circumstances, in the present case which allow the court to take a more lenient view of it.

24.  First, the defendant did not set out from the start to exploit the victim’s immaturity or innocence – I believe he was serious about their relationship; secondly, I accept that the threats were not meant to hurt X but rather to salvage their relationship; thirdly, the defendant did not actually carry out the threats by posting those photos online.

25.  The incident did have some impact on X but fortunately she did not seem to suffer any long-term effects. In the concluding paragraph of the victim impact report written by a clinical psychologist, Ms. Janet Tso, she wrote:

“……When the client (X) wanted to end their relationship, the defendant refused. Due to the requests and threatening of the defendant, the client has suffered from emotional distress. She also loses trust on others and is afraid of being hurt again. This may impinge her from enjoying satisfactory relationship with others. Moreover, traumatic stress responses are also indicated. Nevertheless, X can manage her emotions and function adequately in her daily living……”

26.  Insofar as the making of child pornography is concerned, there is no dispute that the videos or pictures in question should be classified as Level 4 – that is penetrative sexual activity between children and adults.

27.  For the reasons given above, I adopt the starting point for the various offences as follows and reduce it by one-third to reflect his pleas:-

(1)- 12 months for each of the sexual offences involving underage girl (charges 1, 2, 5, 10), and is reduced by one-third to 8 months each;

(2)- 24 months for each of the remaining charges (charges 3, 6, 7, 8, 11), and is reduced by one-third to 16 months each.

28.  Taking into account the totality principle, I order that charge 7 be run consecutively to 5 months of charge 1 and concurrently with the rest. The total term is one of 21 months imprisonment.