HKSAR v. WONG NGAI SANG

DCCC 200/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 200 OF 2017

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REASONS FOR SENTENCE

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1.  This is a case of violating an ex-lover’s privacy by uploading onto the Internet a sex video of the courting couple whose relationship had turned sour. The defendant pleaded guilty before me to one count of obtaining access to a computer with a view to dishonest gain for himself, contrary to section 161(1)(c) of the Crimes Ordinance.

2.  The defendant and the victim, Miss X, first came to know each other in 2014 when they were both working in the same restaurant and later became lovers in August the following year.  Their romance, however, did not last very long.  About a year later, Miss X decided to end the relationship even though the defendant did not want to.  She had refused his request for getting back together.

3.  As it turned out, the defendant had in fact secretly taped with the use of his phone their love-making when they had sex at his place during their courtship.  Miss X only learnt of such video about a month after they broke up.  It was in the afternoon of 12 October 2016 a colleague told her about it at her workplace.  The video, which lasts 17 minutes 27 seconds, showed the explicit sexual acts between Miss X and the defendant, such as oral sex and sexual intercourse with only the face of Miss X seen on the screen.  The caption of the video on the website carries the name of the victim and the housing estate where she lives. Miss X reported the matter to the police.

4.  After his arrest, the defendant told the police that Miss X had refused to let him film their love-making before but intending to watch it afterwards for his own enjoyment, he nevertheless went on to do it without her knowledge.  The breakup made him angry, and so he uploaded the video in revenge for it.

5.  The defendant, aged 23, has no prior convictions.  At the time of the offence, the defendant worked in a sushi restaurant as a manager.  Counsel said the defendant grew up in a single-parent family.  His mother passed away when he was 3, and the father, a gambler, did not spend too much time taking care of him.  The defendant has two sisters who are now in court to show concern and support for him.  Counsel stressed that the defendant was extremely remorseful for what he had done, and in fact soon after he uploaded the video, he felt guilty about it.  So when the police came, he was fully frank with them.  He realised he had done irreparable damage and would take this opportunity to apologise to the victim and would take full responsibility, and he is prepared to do the prison time. 

6.  Counsel submitted four letters to the court: one from the father, the sister and the defendant himself and one from his former employer.  They all pleaded leniency on the defendant’s behalf.  The employer even promised a return to his job upon the defendant’s release from prison.

7.  Defendant violated the victim’s right to privacy by secretly taping their sexual activities without her permission or knowledge.  That is bad enough.  Although he did not threaten Miss X with it in any way, the end result was equally bad, if not worse, because the last thing the victim wanted to see did happen.  The sex video of the defendant himself and the victim is now on the Internet for everyone to watch.  It is not difficult to imagine the kind of distress or embarrassment the victim would find herself in.  The damage has already been done and could not be undone. 

8.  This is an instance of gross violation of the privacy, and the court views such matters very seriously.  In today’s world, it has become a lot easier for anyone to get access onto the computers and the Internet than ever before.  In other words, someone with such sexually explicit videos could easily violate another’s privacy with devastating consequences to the victim.

9.  The final sentence, in my view, should carry sufficient deterrence in order to reflect public’s abhorrence of the defendant’s shameless conduct and to deter others from acting similarly.  The offence to which the defendant pleaded guilty carries a maximum term of 5 years.  Given the facts of the case, I take 30 months as starting point.  The only substantial mitigating factor is his guilty plea.  Giving him one-third discount, the defendant is sentenced to 20 months’ imprisonment.