HKSAR v. LAU TING SING, JEROME AND ANOTHER

DCCC1072/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1072 OF 2011

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Reasons for Sentence

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1.  In these proceedings the defendant, Lau Ting-sing, Jerome, was convicted after trial of one count of “Indecent Assault” and two counts of “Criminal Intimidation”.

Charge 1

2.  On 24 April 2003, by using the pretext that he was casting for a model, Lau Ting-sing (hereinafter referred to as “D1”) contacted the victim A through the latter’s model agency and arranged to meet up with him in a hotel room for a photo session.  A was then a student and an aspiring model in his twenties.  He managed to convince A into agreeing to put on revealing garments and posed for the pictures.  In the course of the session D1 touched A’s genital areas twice without obtaining A’s prior consent, saying that it was for the purpose of a better angle.  Before parting company D1 asked A if the latter was willing to do work as a prostitute.  A refused immediately.  D1 ignored A’s plea for the custody of the photographs taken during the session.

Charge 2

3.  Sometime in May 2003 D1 called A, asking what the latter had thought about the earlier proposal.  A indicated that he would not agree to it, whereupon D1 intimidated A by saying words to the effect that in which case he could not guarantee that A’s pictures would not be seen by the public.  A implored D1 not to do so, but D1 eventually hanged up.

4.  After A’s career had shown signs of taking off (he started working in the television), D1 called A twice.  The first call took place three to four months later during which D1 remarked that A was an actor in a TV show and hanged up.  The second call came three years later, saying that he saw A in a TV show and that he saw A’s pictures in a gay website.

Charge 6

5.  Charge 6 started off with a chance encounter  with the victim D, a young man then working as a personal trainer and a part-time model in the street on 11 August 2008.  D1 introduced himself to D as working in an advertising and modelling agency.  They engaged in a long conversation; mainly about D1 explaining to D about the former’s alleged business.  The next day D went to D1’s Happy Valley flat for a general casting, i.e. a photo session.  Inside the flat D was given some skimpy garments to put on.  D initially refused, but finally agreed when D1 pointed out that it was his company’s policy (to have models filmed in those garments) and it would not be changed on D’s account.  In the course of the session D1 suddenly approached D and pulled down the garment the latter was wearing, thus exposing his genitals.  D resisted by pulling the garment back up but was eventually persuaded to allow himself photographed in this state.  After the session D1 assured D that the pictures would not be shown to others.  D1 also asked if D would accept jobs of a dubious nature.  D said no.

6.  On 14 August 2008 D received a call from D1 while he was in China, saying it was about a job.  The former promised to contact D1 when he came back to Hong Kong but eventually did not do so.  Then, on 21 August, 2008, D received a call from a stranger, telling him that his pictures would be loaded up on gay websites.  It should be noted that in the proceedings against D1 no evidence was adduced connecting the call to D1.

7.  On the 22nd day of August, 2008, D received a call from D1 angrily reproaching him for not contacting him as promised.  D1 said words to the effect that luckily for D on that day there was a typhoon, otherwise D’s photographs would be all over the internet and gay men in the street would be swarming him asking him about the price of having sex with him.  D1 also threatened that he would get men to seduce D’s girlfriend and have her pictures taken in bed.  D was alarmed.  Reluctantly he agreed to keep in touch and work for him.  D1 also demanded D to meet him before a fashion show that night.  D reported to the police soon after the call.

8.  The facts of the case showed that D1, by pretending he was well connected in the advertising and modelling business, had taken advantage of the young, guileless and gullible men.  He took photographs of them in compromising positions and in skimpy garments on the pretence that the photo sessions would help them to obtain jobs and advance their careers. He indecently assaulted A in the course of the session then used the photographs to intimidate them.  I have no doubt at all the purpose of his so doing was to try to bully them into submission to his whims.  My findings led me to the belief that these were not one-off incidents.  D1 had thought of and planned about luring and entrapping these unsuspecting young men into agreeing having their pictures taken in compromising settings.

9.  These young men, lacking in experience and with little sense of self preservation, are vulnerable to D1’s unscrupulous scheming. By dangling opportunities of work and prospect of career advancement D1 made them become easy preys.  D1 also took advantage of the situation to satisfy his desire by touching A.  The subsequent use of the photographs were bordering on blackmail, rendering the case even more serious.  In my view, such predatory conduct is not only illegal, it is inexcusable and morally reprehensible.  This court owes a duty to reflect the society’s revulsion by imposing a severe sentence.

10.  Of the two different charges here, in my view the criminal intimidation charges are the more serious.

Mitigation

11.  D1 is a 62-year-old man with a previous good record.  He is single.  Before sentencing I called for a probation officer’s report and psychological report.

12.  D1 was born to a wealthy family.  He completed tertiary education in Hong Kong.  For the last 30 years he was a titular director/manager to the family company, given a salary, but had otherwise played no role in the management of the business.  He had two long-term intimate relationships in the past.  The last one terminated in 1993.  He is an introvert, spending his time mostly either alone or with his mother.

13.  According to the probation  officer’s report, D1 lives with his 92-year-old mother.  His father passed away in 1973.  There are three other elder siblings, all married and living apart.  He is very attached to his mother.  They, together with two domestic helpers, live in a flat in Happy Valley.  His mother, infirm and suffering from a multitude of ailments, is under special 24 hour medical care provided by two private nurses.  His siblings considered their mother overprotective and indulgent towards D1.  He maintains his innocence.

14.  Apart from exhibiting features of obsessive-compulsive behaviour (i.e. frequent hand washing), the psychologist detected no psychological problem in D1.  Since 1988 he had developed an interest in photographing males from which he obtained sexual gratification. The psychologist, at paragraph 16 of the report, described D1 as “immature, carefree, egocentric, dominant and manipulative”, and concluded thus:

“Mr Lau had chronic feelings of loneliness and emptiness. He had a strong need for company and emotional attachment, yet he felt insecure and vulnerable in genuine intimate relationships. He abused the financial power to induce others to meet his need for intimacy. He was manipulative and exploitative in relationships. When others failed to please him he was prone to feel offended and would often become resentful and hostile.”

15.  The psychologist is also of the view that D1 had poor insight into his problems, but the risk of reoffending was low to moderate.

16.  D1’s mother also submitted a letter pleading for leniency on D1’s behalf.  In her eyes D1 is kind and helpful to others.  He has been a filial son and a great source of comfort, support and joy in her twilight years.  D1’s predicament has brought her much suffering. 

17.  By the standard of most people in this society, D1 had been leading a pampered life.  Protected by his family and wealth he has been living comfortably without really having to work for it.  The fact that he is selfish, callous and wilful is not the fault of anyone but his own.  He would have to be held responsible for his misdeeds.

18.  There is really little mitigating circumstances in his background and his psychological profile.  While my heart goes out for D1’s aged, bedridden mother who would suffer for the consequences of her son’s behaviour, D1 should have thought of her before committing the acts of transgression.

Sentencing authorities

19.  There are no clear sentencing guidelines for both indecent assault and criminal intimidation.  Counsel for both sides have helpfully drawn my attention to some of the Magistrates’ appeal decisions in order to gauge the proper sentence.  Mr Blanchflower SC for the defence has kindly taken me through most of them. 

On criminal intimidation

20.  In Tsang Yuk Kwong, HCMA480/1995, Mr Justice Sears, in considering a Magistrates’ appeal, made the following general remark:

“Generally speaking, in criminal intimidation type of cases an immediate custodial sentence is given.”

21.  On the facts of the case, a 38-year-old man brandished a samurai sword at his ex-lover and business partner and touched her with it, threatening he would burn down the shop and kill her, the learned judge accepted that it was a serious case but considered it a proper case for a suspended sentence as it was but an emotional outburst by a man of previous good character and who was unlikely to offend again when his relationship turned sour.

22.  In Yan Kai Yip [2005] 4 HKLRD, the defendant, a man of good character who had received police recommendations, was unsatisfied with the performance of a management staff of his building in which he lived.  He had made complaints against that from in the past.  On the day in question he brought another male and threatened the victim that that male would beat him up.  After trial he was sentenced to a term of imprisonment for 21 days.  The High Court, sitting in its appellate jurisdiction, expressed the view that if there was a triad flavour in a case of criminal intimidation the court ought to first consider a term of imprisonment.  In the case at hand, for a first offender it was wrong in principle to not to consider other ways of disposal before ordering custodial sentence.

23.  In the case of Lam Chi Hong, Patrick, HCMA496/2011, the defendant, a man of previous good character, managed to convince the victim, an Internet acquaintance whom he had met once in person, to show herself naked during the on-line video chat and had secretly recorded those images.  After the victim refused meeting the defendant again, the defendant showed the victim the photographs and demanded the latter to have sex with him for free or he would send those pictures to her boyfriend.  On a plea to one count of criminal intimidation, the trial magistrate adopted 18 months as a starting point.  After deducting one-third by reason of his guilty plea, a further two months was deducted by reason of the fact that he was a first offender. The final sentence order was 10 months.

24.  On appeal the learned Ms Justice Barnes considered the appropriate starting point on the facts of the case “can be” 15 months, but the one adopted was not manifestly excessive, although it was on the high side.  However, she was of the view that the further deduction of two months as an act of leniency was unjustified by the authorities.

25.  I also noted the learned judge also referred to two other Magistrates’ appeals in the judgments.  They were helpful in the sense that they gave some indication what factors the court ought to consider in arriving at a proper starting point.  They could be summarised thus:

Wong Chak Man, HCMA 824/1984

The defendant’s girlfriend wanted to terminate their relationship. The defendant tried to make her change her mind by threatening to publish naked pictures he took of her over the years of their acquaintance. His sentence of 6 months following conviction after trial was considered appropriate, but the appeal judge decided to suspend it on account of his suffering from Othello Syndrome, (i.e. morbid jealousy).

Cheung Pui Man, Dicky, HCMA765/2009

The defendant, together with two other men, visited the victim, told her to take off her clothes and had pictures of her taken naked, and hinted that he would use the pictures against her if she failed to repay the loan she owed him. On appeal against sentence, the High Court judge substitute a sentence of 12 months’ imprisonment.

26.  In the District Court case of Chan Hoi Tat [2012] 1HKLDRD424, the defendant, aged 24, a man of good character, came to know a 12-year-old girl in the Internet.  After the latter acceded to the defendant’s request and sent pictures of herself to the defendant.  On two occasions the defendant threatened to publish them and show them to her father if the young girl did not agree to meet him in person.  During the two meetings ensued the defendant indecently assaulted the victim and took her pictures in compromising positions. 

27.  Upon conviction after trial, the defendant was sentenced to 1 year respectively for two counts of criminal intimidation.  Together with two counts of indecent assault and one count of procuring the making of child pornography the defendant was sentenced to a total of 5 years' imprisonment.

28.  On appeal the court did not consider the total sentence excessive:

“This is a serious case. From the evidence accepted by the judge, clearly the applicant was grooming a 12-year-old via the Internet. He talked with her about daily matters before progressing to introducing matters of a sexual nature to this young girl. It is far too easy for an older man to prey on the innocence and/or naivety of a youngster and a deterrent sentence must be imposed to protect the young.”

29.  Thus the range of sentences in criminal intimidation cases is diverse, ranging from suspended sentence to a long-term imprisonment.  It would be fair to say that the sentence for such offence is very much dependent on the facts of the case.

30.  The present case does not involve underage persons. It does not have a triad flavour.  No actual violence was used.  However, it does involve an older man who, by false pretences, preying on the young, the gullible and the guileless.  After having the pictures of the victims taken he had used them to threaten not only the young men themselves,  he also, in the case of D, threatened to put a third party ( D’s girlfriend) in harm’s way.

31.  It has been suggested by the learned defence counsel that the fact that A did not take any initiative to make a report to the police and that D chose to keep the conversation going despite the threat were indicative of the mildness of the threats.  I beg to differ.  According to A’s testimony, he owed his inaction to his inexperience and reluctance to offend a prospective client.  D also explained in court that he went along with D1 in a conversation because he did not wish to irritate him.  That was how much in fear he was.

32.  At the time of the offences D1 was an adult.  He knowingly abused his financial power to exploit the young and unsuspecting.  He must be held responsible for such behaviour.

33.  The present case is definitely more serious than those of Wong Chak Man, Dicky.  I agree with the prosecution submission that the culpability of D1 in the present case is akin to the aforementioned case of Lam Chi Hong, Patrick.  I would therefore adopt 15 months’ imprisonment as a starting point for both counts of criminal intimidation.

Indecent assault

34.  Sentencing for indecent assault is again largely fact driven.  The maximum sentence is 10 years’ imprisonment, but in individual cases they may vary from a fine, community service order to terms of imprisonment.  As has been observed by Honourable Lunn J in Tsang Ue Su, CACC32/2011 at paragraph of his judgment:

“Sentencing for offences of this nature is a particularly fact sensitive exercise and covers a wide range of conduct. In those circumstances references to sentences imposed in other cases are usually of little assistance to this court.”

35.  The High Court did on a different occasion, set out the perimeter of the matters to be considered:

“In cases of indecent assault it was important to take into account three sentencing considerations, namely the need to deter others, the need to mark the public abhorrence of offences, and the need to redress the grievances suffered by the victim, her relatives and her friends. That would vary depending upon the nature of indecent assault.”

See the judgment of Gall J, Cheung Kwi Sang, HCMA47/2002, [2002] 3 HKC 589 at paragraph 12.

36.  In the Cheung case the victim, a tourist visiting Hong Kong, went to a health centre run by the defendant to have a foot massage.  She was indecently assaulted on her breast and private parts.  The learned High Court judge dismissed the appeal against the sentence order of 9 months’ imprisonment.

37.  On the false pretence he was from a model agency, D1 had made prior arrangements with A’s agent to meet A, brought A into a hotel room and led A to believe that the latter was being considered for a job and that the photo session was for the purpose of casting.  In the process of the photo taking session, D1 then coaxed A into agreeing, despite his misgivings, to put on skimpy garments.  He then touched A’s genitals twice without A’s consent.  In my view it was a premeditated scheme on the part of D1 designed for his perverse gratification.  By placing himself in the care of D1, A was entitled to expect that he be treated professionally, properly and decently, that D1 chose to do otherwise was, to a limited extent, a breach of trust.  Such behaviour is abhorred by the public and must be discouraged.

38.  I do note, however, that no violence was used. And, to D1’s credit, after A protested he did not persist.  These are the matters to his benefit.  However, the very act of scheming, coaxing and the repeated touching of the genital area render the offence more serious than the common opportunity crimes that take place in public or in public transportation.

39.  In my view, that the victim happened to be male is only of marginal importance.  While it is commonly accepted that the law ought to protect women and of the young, the protection for the trusting and vulnerable should not be gender specific.  Although there might be a difference in degrees, being sexually violated is just as humiliating to a male as well as to a female.

40.  Having considered all the circumstances of the case I consider 6 months' imprisonment a proper starting point.

41.  For the reasons above, D1 is sentenced to 15 months’ imprisonment for Counts 2 and 6, 6 months for Count 2.  These offences are separate and took place on different dates.  Technically they should be consecutive.  However, having considered the totality principle, I order 3 months of Charge 6 and two months of Charge 1 to run consecutive to Charge 2, making a total of 20 months.  Furthermore, I found myself unable to ignore the plea for clemency from D1’s mother.  For this reason I will exercise my discretionary power to deduct 3 months from the total sentence.

42.  In all, D1 is to serve a term of imprisonment for 17 months.