HKSAR v. CHOI DONNY

DCCC410/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 410 OF 2011

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Reasons for Sentence

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The Charges

1. The Defendant pleaded guilty to the following charges :

(1) “obtaining access to a computer with dishonest intent”, contrary to section 161(1)(c) of the Crimes Ordinance, Cap. 200 (the 2^nd and the 5^th charges); and

(2) “indecent assault”, contrary to section 122(1) of the Crimes Ordinance, Cap. 200 (the 4^th charge).

2. He pleaded not guilty to the 1^st, 3^rd, and 6^th charges which are respectively one charge of “use of a person under the age of 18 for making pornography”, and two other charges of “obtaining access to a computer with dishonest intent”.

3. Since the 2^nd charge to which the Defendant has pleaded guilty was laid as an alternative to the 1^st charge and that plea was accepted by the prosecution, I did not need to deal with the 1^st charge. However, upon the application of the prosecution, the 3^rd and the 6^th charges were ordered to be left on the court file and not to be proceeded with without the leave of the court.

The Facts

4. Despite the seemingly rather technical nature of the offence of “obtaining access to a computer with dishonest intent”, what those two charges involved was the use of a camera by the Defendant to video-tape his two former female students while they were inside the toilet of the Defendant’s premises.

5. The Defendant formerly taught in a secondary school in Kwai Chung. After he had moved to teach in another school, his former students, including the two victims X and Y in this case, still kept in close touch with him.

6. In July 2010, X, who was about to reach the age of 17, went jogging with the Defendant. Afterwards, X went to the Defendant’s premises to change her clothes. The Defendant then suggested X to take a shower. X agreed. Unbeknown to X, the Defendant had earlier on hidden a camera inside the toilet and X’s nude figure was captured by it.

7. On 4 September 2010, Y, who was aged 18½, together with the Defendant’s two other former students paid a visit to the Defendant’s home. Shortly after their arrival, the Defendant rushed into the toilet. After the Defendant had come out, Y entered the toilet to urinate. Later that day when the group was about to leave, the Defendant asked if Y would need to go to the toilet again. Y agreed. When Y was urinating inside the toilet, she noticed a camera being hidden in a bucket placed underneath the basin. She checked the camera and found that it was switched on and set to the video-recording mode. On checking the camera, Y saw that there was a footage showing the Defendant holding the camera and then putting it down to adjust it to focus on the toilet bowl. Y was terrified.

8. After coming out from the toilet, Y told her schoolmates to leave. The Defendant, however, told Y to go into his study. Inside the study, the Defendant apologized to Y and tried to embrace her. When Y resisted, the Defendant pulled Y’s head onto his chest and stroked the back of Y’s head and neck for a few times. Y also felt that the Defendant was attempting to kiss her left cheek but she was able to push the Defendant aside. Later, the Defendant hugged Y and Y felt the Defendant touching the straps of her brassiere. Y therefore raised her arms to block the Defendant. The Defendant again attempted to kiss Y but was unsuccessful. The Defendant then let go of Y. This is the subject matter of the indecent assault charge.

9. Now, while they were in the study, Y confronted the Defendant about the video-recording. In reply, the Defendant told Y that he did so because he liked her. However, when Y asked the Defendant to delete the video clip, he did not reply.

10. After Y had left the Defendant’s premises, she feared that the Defendant might upload her video-recording onto the internet. A report was then made to the police on the following day.

11. Upon the arrest of the Defendant, the camera was found but no picture or video clip could be retrieved from it. Instead, the police found stored in the Defendant’s computer 75 deleted photograph files showing X taking a shower with 26 of them showing X’s pubic hair and breasts, as well as 1 deleted video file together with 60 photograph files showing Y’s bare right buttock, right thigh and pubic hair. These are the subject matters of the 2^nd and the 5^th charges.

The Defendant’s Background

12. The Defendant is now aged 29 and is single. He has a clear record. He graduated from the university in 2005 and obtained the degree of Bachelor of Education (Physical Education and Sports Science). After his graduation, he taught in a secondary school in Kwai Chung for two years. He then moved to teach in a primary school from 2007 to October 2010, earning about HK$28,000 per month. It was said that as the Defendant showed some suicidal tendency during the time when he was awaiting his trial, his mother had moved to live with him in a rented flat.

The Reports

13. I have adjourned sentence in order that a background report, a clinical psychologist’s report, two psychiatric reports and the victim impact statements could be obtained. All these I now have.

14. The victim impact statements, however, were obtained by a male police officer instead of a trained social worker or clinical psychologist, or, at the very least, a woman police officer. Such might not be desirable as the victims might feel less ready to freely express themselves to the male police officer when relating incidents of this nature and when recounting the impact the incidents had on them and their true feelings. I have raised this with the prosecution and Mr. Cheng has very responsibly undertaken to look into the matter and to relate the court’s concern to those responsible.

15. Now, both X and Y told the officer that they initially felt very unhappy about what had happened. However, after receiving some counseling, they now have calmed down and have nothing special to report. Nonetheless, both expressed the fear of going near the scene or meeting the Defendant again.

16. Concerning the Defendant, he was described in the background report as a dutiful son who took up part-time jobs in order to make more financial contribution to his family.

17. The Defendant is the only child of the family. Since his parents divorced when he was young, the Defendant was mainly brought up by his maternal grandmother. However, owing to the family’s financial problems, the Defendant had to move from place to place and did not have a stable living environment.

18. At the time when the Defendant committed these offences, he planned to get married with his girl-friend with whom he had been dating for some 6 years. However, the plan was cancelled after his arrest. It was reported that he now has another girl-friend who was his ex-colleague and who is very supportive of him.

19. It is clear that the Defendant did well academically. As regards his teaching performance in the secondary school, he was described as diligent, competent, dedicated and responsible, showing care and concern for his students and getting along well with his colleagues.

20. While both psychiatrists confirmed that the Defendant is not suffering from any psychiatric or mental disorder, the clinical psychologist had this to say in her report,

“14. Appearing before the court is a first-time sex offender who has been working serious as a teacher and trying hard to give his mother a better life. He repeatedly video-taped his two ex-students in the toilets, suggesting the possibility of developing signs of sexual interest in peeping females’ underskirt. Present sexual offending behavior may relate to his unmet sexual needs, longstanding stress, general loneliness and inadequate sexual self-regulation. His risk of sexual re-offending is deemed moderate. He showed good treatment motivation to stop himself from re-offending. His mother and his girlfriend were supportive for him. Psychological intervention is considered beneficial from a risk management perspective.”

Mitigation

21. Mr. Fan for the Defendant urged the court to pass a lenient sentence as the Defendant is a first-time offender and he is truly remorseful. Mr. Fan submitted that although it was reported in the background report that the Defendant denied having any intent for “indecent assault”, that comment should be viewed in context and should not be taken to mean that the Defendant denied committing the offence for he had frankly admitted his guilt in court.

22. In addition, it was said that as the Defendant’s mother is suffering from depression and requires regular psychiatric attention, the Defendant would like to be re-united with his mother and his girl-friend as soon as possible.

23. Also before the court are various letters written by the Defendant himself, his mother, his ex-colleagues, his former teachers, his schoolmates, his pastor and the mother of his ex-tutees. In gist, all of them regarded the Defendant as a conscientious and responsible person who was well-liked by his peers, his students, his colleagues and whoever coming into contact with him. It was said that what the Defendant had done was out of character and came as a complete surprise to all of them.

Sentencing Considerations

24. There is no tariff for the offences to which the Defendant has pleaded guilty but there are the following aggravating factors in this case :

(a) The offences were committed on the Defendant’s ex-students who maintained close contact with him after his departure. Clearly, there was a breach of trust for, no doubt, the victims would have acted more cautiously if not because of the trust they had on the Defendant as their teacher;

(b) There was obvious pre-planning involved on both occasions when the video-recording was done. The Defendant did not only install a camera inside the toilet and adjusted it to focus on what he wanted to capture by testing the position of the camera, he was also the one who suggested X to take the shower and who suggested Y to go to the toilet again before she left;

(c) The video-recording of the victims’ most private moments, to say the least, was a crude invasion into their privacy. More importantly, these video and photographic files pose significant harm to the victims for there would always be the danger that the files, even if not deliberately dissimilated, might be leaked out or misplaced. If the Defendant had not been arrested and the files retrieved, the victims might have to face the embarrassing and shocking moments when these images were to surface. In fact, Y, after leaving the Defendant’s flat, immediately feared that her video clip might be uploaded onto the internet by the Defendant. This is a telling example of the kind of distress and trauma suffered by the victim when such video-recording is taken. No doubt, this is a matter which should be viewed seriously by the court;

(d) In this case, the harm is even more serious for I have viewed the images concerned and, it is clear that apart from the victims’ private parts, the face of each victim was captured in the files.

(e) The indecent assault on Y was committed on the same day after the video-recording of Y had taken place. At the time, Y was about to leave, it was the Defendant who asked to see her in the study. On the facts, the Defendant must have realized that Y might have found out about the hidden camera when he asked Y to go into his study. Yet, against such a background, the Defendant was still bold enough to indecently assault Y while they were inside the study. The hugging, the attempted kissing, and the offering of no reply when asked by Y to delete the file all illustrated that the Defendant was, at the time, still confident that he could manipulate Y and make her succumb.

(f) Finally, the fact that the Defendant had video-taped his two former students on two different occasions within a period of just about 2 months also makes this a more serious case.

25. While it is sad to see a young man falling from grace and it is disheartening to note that this Defendant would probably not be able to engage himself again in his teaching career, a career which he had, by the time of his arrest, been performing well, in view of the matters mentioned above, I am of the view that a deterrent sentence is required. Such is necessary not only to deter this Defendant from re-offending, but also to deter other like-minded people.

The Starting Points

26. Having considered the facts of this case and the aggravating factors identified above, I consider a starting point of 12 months to be appropriate for each of charges 2 and 5, that is, the “access to computer” charges. As for charge 4, the indecent assault charge, I consider a starting point of 9 months to be appropriate.

27. The Defendant is not only a person of clear record, he was described as a responsible and caring teacher who had given his time selflessly to his students and had inspired them to do their best. Therefore, in addition to the one-third reduction for his plea, I am going to give him a reduction of 1 month to take account of all these. In other words, the Defendant is to serve a term of 5 months for charge 4 and 7 months each for charges 2 and 5.

The Totality Principle

28. These offences were committed on different occasions and were separate and distinct acts. In principle, the sentences should be served consecutively. However, applying the totality principle, I consider that an overall term of 14 months is appropriate for these three charges and sufficiently reflects the Defendant’s overall criminality.

29. I therefore make the following orders :

the 7-month term in respect of the 2^nd and the 5^th charges are to be served wholly consecutively to each other whereas the term of 5 months in respect of the 4^th charge is to be served wholly concurrently with the terms for the other charges, making a total of 14 months’ imprisonment.

30. Finally, as the clinical psychologist considered psychological intervention to be beneficial to the Defendant in terms of risk management, I trust that arrangements would be made for the Defendant to receive such treatment while he is remanded in the prison.