HKSAR v. LAU TING SING JEROME

CACC 279/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 279 OF 2012

(ON APPEAL FROM DCCC 1072/2011)

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J U D G M E N T

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Hon D Pang J (giving the judgment of the Court):

1.  The Applicant was D1. He and his co-defendant (D2) faced six charges. After trial, D2 was acquitted of the only charge against him (Charge 5, Criminal Intimidation). The Applicant was acquitted of Charges 3 and 4 (Indecent Assault) but convicted of Charge 1 (Indecent Assault), Charge 2 (Criminal Intimidation) and Charge 6 (yet another Criminal Intimidation). He was sentenced to 6 months on Charge 1, 15 months on each Charge 2 and Charge 6. By way of making these sentences partly concurrent and partly consecutive, the composite term was 17 months’ imprisonment. The Applicant applies for leave to appeal against both conviction and sentence.

THE ALLEGATIONS

Charges 1 and 2

2.  Charges 1 and 2 concerned only one complainant, known during the trial as Mr A to preserve his anonymity.  He was the only witness in relation to those charges.  His evidence was fully summarized by Deputy Judge Lin, the trial judge, in his Reasons for Verdict.  Much of what is described below is based on that summary.

3.  Mr A was aged 24, a student and a part-time model.  Through his modelling agency, he obtained and attended a casting with a client which, in laymen’s term, was a job interview where photographs of the model would be taken.

4.  This client was the Applicant.  He called himself Jackie which we now know is not his real name.  He took Mr A to a North Point hotel where photographs of an innocuous nature were taken in the gym.  As the session progressed to one of the rooms, however, Mr A was asked to remove his upper garments, leaving just the pair of swimming trunks that he had been wearing.  He was told that some potential client was putting together a fashion catalogue so it was important for him to show his torso.

5.  Next, Mr A was asked if he would agree to pose for sex products.  He was given to understand what many foreign models would do and was persuaded.  It was also promised that his face would be hidden from the photographs. A number of briefs or T-backs were then provided for him to change into some of which at least had holes in front thus revealing his private parts.

6.  Regarding the actual assault, it took place when the Applicant came forward to first, “adjust” Mr A’s penis, and then later, “comb” his pubic hair.  These actions took place whilst Mr A was donning different briefs. They displeased Mr A who immediately remonstrated with the Applicant.

7.  Mr A could no longer recall the exact number of times that he had changed, or whether there was a third improper act by the Applicant.  He did, however, remember being outraged by a particularly brief pair of T-backs hence making his mind up to terminate the session.  On his way out, he was asked by the Applicant whether he was willing to be a “chicken”, meaning prostitute.  He refused and in return asked for the film of the photographs just taken – to no avail.

8.  Mr A said that he did not call an earlier stop to the session because he was young, nervous and did not know how to say no.  He thought it was a genuine opportunity for a genuine job offer.  He did not want to offend his client.  Nor did he want to disappoint his agency.  To show his discomfort with how things had taken place, all he did was frown, tighten his lips and try to hurry the Applicant.  That was the long and short of the matter in Charge 1.  It took place on 24 April 2003.

9.  About a month later, Mr A received a call from the Applicant, who asked if he had thought things over.  Mr A misunderstood his meaning and said he was not posing for sex products.  This was corrected by the Applicant who said, “That is not what I am talking about.”  Thus prompted, Mr A repeated what he said about being a prostitute.  He said he would not become one, whereupon the Applicant stated, “Then I can’t guarantee your photographs will not be seen by the public”, thus giving rise to Charge 2.

10.  In response, Mr A did nothing.  He did not believe there was anything he could do.  He did not report the matter to the police fearing that it might irritate the Applicant.  There was also no witness to what took place in the hotel room.

11.  The matter did not end there.  In a call three to four months later, the Applicant said to Mr A, “You are now an actor in a TV show.”  Three more years passed and the Applicant was on the phone again.  He identified himself as the one who had taken Mr A’s pictures.  He said he had seen Mr A on TV, and also his pictures on a gay website, but he refused to provide details.

12.  Mr A did not complain to anyone about the alleged offences.  He made a statement to the police in 2010 only after the police contacted him.

Charge 6

13.  Charge 6 concerned another complainant, Mr D.  As in the case of Mr A, he was his own sole witness.  His girlfriend who was by his side during the relevant telephone conversation (see paragraph 17 below) was not called.  His evidence as summarized by the trial judge was largely as follows.

14.  Mr D was a personal trainer and part-time model.  Using the false name of Jackie, the Applicant accosted Mr D in the street, represented himself to be someone in the line of advertising, indicated his recognition of Mr D from a previous commercial, took Mr D to an ice cream parlour and explained to Mr D his business for an hour.

15.  Later that night, a casting was arranged by phone for the following evening, 12 August 2008.  It took place in the Applicant’s flat in Happy Valley.  The costumes included some skimpy briefs which Mr D was reluctant to wear.  When Mr D succumbed, even these were pulled down by the Applicant to expose Mr D’s genitals.  This was said to be in keeping with the policy of the Applicant’s company, and was what all the other models did, so Mr D stopped resisting.  An undertaking was also given to keep his pictures from other people.  When the Applicant asked Mr D if he was prepared to accept jobs “in the grey area”, however, Mr D declined.

16.  Two days later (August 14), whilst spending some time in Zhuhai in the Mainland, Mr D received a call.  It was from the Applicant who wanted to meet.  As Mr D had diverted his line to a friend, the Applicant also inquired who it was that answered the phone.

17.  Mr D did not contact the Applicant after coming back to Hong Kong.  This made the Applicant angry, who called and questioned why Mr D had not kept his promise.  This took place on 22 August 2008, the date of the offence.  For substance, the Applicant had stated how lucky Mr D was for a typhoon to have suspended all business, or Mr D’s photographs would be all over the internet, and gay men everywhere would walk up and ask how much they had to pay him for sex – words to that effect.  Likewise, the Applicant is said to have indicated knowledge of Mr D’s girlfriend’s whereabouts, and that he would send someone handsome to seduce her and take pictures of her in bed.

18.  This alarmed Mr D who promised to stay in contact with the Applicant, and also to take up modelling jobs from him.  He even promised to take the Applicant to a fashion show that night wearing what clothes the Applicant required.  When their conversation came to an end, however, Mr D went to the police and reported the matter.

DEFENCE CASE

19.  The Applicant did not give evidence.  Nor did he call any witnesses.

20.  His stance insofar as it can be gathered from the cross-examination of Mr A was, briefly, as follows.  Right from the start, Mr A knew that the Applicant was gay.  He flirted with him.  He was in need of work and was prepared to give sexual favours in exchange for it.  This suited the Applicant who made it known that some kind of deal was possible.  When the photo-shoot came to an end, Mr A stripped himself completely naked.  He put the Applicant’s hand on his private parts and the Applicant performed fellatio on him. But it did not last long, and the Applicant announced that he had another appointment. He also gave Mr A a few hundred dollars.  This concluded the casting on 24 April 2003.  (Charge 1)  He did not call Mr A in May 2003.  (Charge 2)  That was the time of the SARS epidemic.  He called only a few years later.  But there was never any threat.

21.  Against Mr D, the defence account as suggested by counsel was that the Applicant openly professed to be gay in the ice cream parlour.  He said he wanted to be friends with Mr D.  This did not offend Mr D who pulled up his shirt to show the Applicant his torso.  A rendezvous was later arranged by phone (with some phone sex thrown in) for the following evening, 12 August 2008.  In the flat, there was physical contact short of intercourse. But the nude photographs were just for obtaining advice on body building. Before Mr D left, the Applicant gave him an expensive handbag.  He became upset when Mr D did not call him after returning from Zhuhai.  In any event, the Applicant did not threaten Mr D on August 22.  (Charge 6)  The most he had said was that he had had enough of him.  Mr D went to the police because a day earlier, he was threatened by an unknown caller saying he would upload his photographs on the gay websites.  Somehow he had made a wrong connection between the two phone calls.

THE VERDICT

22.  The judge believed Mr A and Mr D.  He found their evidence to have met the required standard to convict the Applicant of all the charges.  His focus was on their credibility.

THE APPEAL AGAINST CONVICTION

Ground 1 – wrong direction on the approach to delay

23.  This ground relates to Charges 1 and 2.

24.  It is submitted that (as in this case) where there is substantial delay between the date of the offence and the trial (9 years) a trial judge must consider how directions can most appropriately be given on the effect of the delay on the defence.

25.  The emphasis is on the effect on the defence, not on the prosecution, albeit that some comment may also be warranted on the latter.

26.  Rose LJ in giving the judgment of the English Court of Appeal in R v Brian M [2001] 1 Crim App R 49 said at p 57F–G:

“In a case where there have been many years of delay between the alleged offences and trial, a clear warning will usually be desirable as to the impact which this may have had on the memories of witnesses and as to the difficulties which may have resulted for the defence.”

27.  In Hong Kong, the Specimen Directions in Jury Trials exhorts judges to do the same.  The following are some suggestions as to what may be said as regards the defence situation:

“We are now concerned with events which are said to have taken place a long time ago. You must appreciate that because of this there may be a danger of real prejudice to a defendant. This possibility must be in your mind when you decide whether the prosecution has made you sure of the defendant’s guilt.

….

You should also make allowances for the fact that from the defendant’s point of view, the longer the time since an alleged incident, the more difficult it may be for him to address.”

28.  That being the case, the judge in this trial is said to have erred in so directing himself in his Reasons for Verdict:

“42. The offences took place many years ago. For reasons unknown to this court the prosecution process only commenced late last year. By dint of the corrosive power of time, it might adversely affect the recollection of the witnesses and thus the quality of their evidence. The delay is not ideal for the administration of justice, yet we do not live in a perfect world. I can only deal with whatever evidence is placed before me and apply the same stringent standard that behoves the prosecution. No allowance will be made in favour of either side by reasons of the long lapse of time.” (emphasis added)

29.  The clear meaning of this impugned paragraph or sentence is that a delay can be neutralized if it affects both the prosecution and the defence; in other words, cancel each other out.  This is at odds with the above and other authorities one of which in particular is a case in point – R v Percival [1988] EWCA Crim 2012. 

30.  That case involved incidents of indecent assault that occurred many years before the trial, and the judge after warning the jury of the defendant’s difficulty in answering the allegations, went on to say:

“The Crown also say well of course, you must consider it both ways. There would be the same difficulty for the complainant in being able to show, well now I can show you that I was there, and that he has the same difficulties. Those are the two sides of the coin.”

31.  This, the English Court of Appeal held, was a wrong direction:

“…. the judge sought to deal with delay by even handedly drawing attention to its potential impact upon the Crown evidence. We readily accept that there was a place in the summing up for a reminder that it was potentially unfair to the complainants to be censorious about failures to recall minutiae, but not so as to introduce the topic as a factor balancing and thus mitigating potential prejudice to the Appellant: the direction, ‘Those are the two sides of the coin’ wrongly equated the problems confronting both Crown and Defence. Each side did have its problems but they were different in nature and importance.” (perHolland J at p 16)

32.  This sentiment was picked up by Moses LJ in R v Chapman [2006] EWCA Crim 1656, another case of sexual assault with long delay.  Giving the judgment of the Court of Appeal, His Lordship stated at paragraph 6 that:

“…. the customary direction is focused on the difficulties caused by the delay to the defendants. The problems caused by the delay, as R v Percival teaches … are not of equal importance to the prosecution or the defence. The warning, if it is necessary to be given, should be directed to the problems caused to the defence by the delay.”

Discussion

33.  We accept the correctness and force of the above propositions.

34.  Attention must, however, be drawn to what Rose LJ said in Brian M (ibid), in a later passage (pp 57G – 58D of that judgment):

“The precise terms of that warning and its relationship to the burden and standard of proof can be left to the good sense of trial judges …. In some cases …. such a warning may be unnecessary and its absence, where the evidence is cogent, will not necessarily render a conviction unsafe, particularly when counsel’s submissions at trial have not highlighted any specific risk of prejudice – see Henry H [1998] 2 Cr App R 161 ….

This approach is entirely consonant with the unreported observations of Lord Bingham CJ giving judgment of this Court in Lloyd, November 30, 1998 (unreported). At the foot of page 2 of the transcript, having referred to Percival in some detail, the Lord Chief Justice said this:

‘It is our judgment important to bear in mind that every decision is related to its own facts and we would certainly wish to express support for the general proposition advanced by the court in Percival namely that in these very long-delayed cases the need to guard against prejudice is particularly real.  Nonetheless, the trial judge is in the best position to judge what direction to the jury is called for and it would seem to us undesirable to be unduly prescriptive and to encourage convicted defendants to believe that an appeal would succeed if some omission or lack of emphasis could be pin-pointed in the trial judge’s direction.’”  

35.  As it is, we have looked and are unable to find any specific allegations of prejudice by the Applicant at trial.  What meager reference there is in the transcripts to the problem of delay was mild, desultory and tangential to the question of credibility of prosecution witnesses, no doubt the perceived core issue at the time.  The closest that defence counsel came to was when he said the following in his closing submissions, and only in relation to Mr D (pp 147N – 148B of the Appeal Bundle):

“Now, you have no explanation why the defendant was arrested in September 2008 and he only comes to court three years later. So the fact that [Mr D] went to the police that same day, August 22, he doesn’t have the opportunity to give his evidence within a few short months. He comes to court three years later, so the unreliability is a product of the prosecution’s own decision.

….

If there is any unreliability and that unreliability goes to a doubt in the case, that was brought by the prosecution. I am not saying -- this is not a stay application, I think he -- this is only the Magistrates Court, you could have charged him, the defendant in respect of Mr D, and he would have been in court in a few months, rather than leaving it for three years.”

36.  Contrast this now with the detail in which the defence account was run by Mr A in cross-examination.  It extended to both what Mr A and the Applicant had allegedly said and done.  The conversation that led slowly up to the act of fellatio in the photo-shoot, for example, was made up of a dialogue detailed enough for counsel to have to put quote by quote.  This goes on for a few pages in the transcripts (pp 134R – 139A of the Appeal Bundle).  The following is an extract:

37.  The picture thus emerging is clear.  Far from being prejudiced by the passage of time, the Applicant was in a good position to address the allegations against him.  He was capable of giving full instructions to counsel.

38.  That deals with one side of the problem, the Applicant’s side.

39.  The other side of the problem concerns Mr A whose evidence the trial judge acknowledged was “not perfect”.  He was said to have forgotten details, and had the sequence of events mixed up (paragraph 45 of the Reasons for Verdict).  The question therefore arises as to whether the Applicant was nonetheless prejudiced, bearing in mind what Holland J observed in Percival (ibid), in a passage other than the one quoted (see p 9 of that judgment):

“As the judge was later to point out, the complainants were inevitably subject to …. constraints on recollection – meaning from the defence standpoint that there was a potential for prejudice inasmuch as there was a limit to their ability to respond to cross-examination as to detail.”

40.  To illustrate the point, the Applicant has drawn to our attention one example where Mr A’s inability to recall details is said to have impeded his defence.  The argument being, if Mr A had been more helpful, his need for money and/or opportunity would have been established, thus giving substance to the defence version of a deal in exchange for sexual favours .  See p 135K – S in the Appeal Bundle:

“Q. You said, ‘As a freelance model, we do not have guaranteed income and no basic salary.’

A. Regarding that, I am not sure whether I said so or not.

Q. You told the defendant you were frustrated and down.

A. I am not sure I did say so.

Q. ‘Events and fashion shows have been cancelled and I have no work.’ That’s what you said.

A. I didn’t say so.

Q. You said, ‘Money is important to me.’

A. Everyone does. I don’t remember having said these words.

Q. You also said, ‘I need to take care of my family and girlfriends.’

A. I am not sure whether I said so or not.

Q. You said or implied that you were studying at the time and it was a heavy burden on you.

A. I don’t remember either whether I said so or not.

Q. You asked the defendant if you would like to give him a chance.

A. Give me a chance meaning what?

COURT: Did you say those words?

A. I didn’t say so.”

41.  The problem with this approach in this case is that it equates assertions with evidence.  Unless a defendant testifies, his account must, in most instances, amount to nothing more than a background against which the prosecution case is examined for its inherent probability.  A defendant cannot exercise his right to silence, let loose his many and varied assertions through counsel and pray in aid the Percival point on account of a prosecution witness’ inadequacy on the suggested details.  At most, he can only submit that the witness is unreliable; he cannot fairly complain that his defence has been impeded.  That is our first observation.

42.  Second, the example given is, to say the least, atypical of the problems confronting the more difficult cases of long delay. Looking at the matter in the round, we are satisfied that there was enough for the judge to go on to determine Mr A’s credibility.  It cannot truly be said that his evidence lacked substance, or that the photographs did not give rise to pointers.  The conclusion thus drawn will not be swayed by his hypothetical answers to a few more questions.  In fact, if the point must be laboured then money as a motive was explored but denied during cross-examination, at a stage earlier than that which gave rise to the example in paragraph 40.   See p 125H – P of the Appeal Bundle:

“Q. In fact, what happened was this was a time of SARS, wasn’t it, 2003?

A. Yes.

Q. You were just about to finish your degree.

A. Correct.

Q. There was not much work around.

A. To me that was not the case.

Q. No foreign fashion shows coming to Hong Kong.

A. At the time my jobs were mainly clothing catalogue and also advertisement and also that time was the time I was preparing for the examination and the start of my summer vacation, so there was no pressure for me in terms of money and job.

Q. I suggest to you there was.

A. Disagree.

Q. You come from a wealthy family, do you?

A. It cannot be put that way, not wealthy.

Q. So I put it to you that money was tight for you.

A. Not quite agree with you.”

43.  Finally, it is submitted that for Charge 2, the unavailability of phone records constitutes a real prejudice.  The notion being, if they were available, they would prove that there were no phone calls in May 2003.  Given what the judge said about not giving allowances on account of the delay, however, he was – it is said – obviously oblivious to the problem.

44.  The answer to this is that there was never any complaint about the absence of phone records at trial. This is not surprising as phone records were never kept that long, so everyone including the judge did what they could, which was to concentrate on the credibility of Mr A.  A warning, had there been one, would have achieved no better.

45.  To conclude, the validity of what the judge said about not giving allowances for delay is by itself questionable, but for reasons we have provided, the direction was in this case of no material consequence.  This ground fails.

Ground 2 – wrong use of evidence as corroboration

46.  This ground relates to Charge 1 alone.

47.  The judge is criticized for saying (paragraph 47 of his Reasons for Verdict):

“There are two instance of his being touched on the genitals without his consent. He gave detailed descriptions despite his obvious discomfort in court. I also noted what he said was indirectly corroborated by the photographs seized in D1’s premises: he had stated he was uneasy while being photographed in what he considered to be degrading circumstances and had shown his displeasure by his facial expressions. That was indeed the case in the pictures grouped in P10 and P11 where in his almost naked state he appeared to be grim and uncomfortable or even angry.” (emphasis added)

48.  It is submitted that he erred in relying upon Mr A’s facial expression as corroborative evidence of indecent assault.          To qualify for that use, the facial expression must be definable as distress which, according to authority, must be established to have been caused solely by the assault.

Discussion

49.  Chronologically, Mr A “frowned” and “tightened his lips” after the assault.  He came out of the bathroom wearing a third pair of T-backs, put on the above-mentioned expression and hurried the Applicant along with the photo-shoot.  That was his evidence (pp 105R – 108Q of the Appeal Bundle).  It is not self-evident what precisely the cause of that reaction was:

“Q. Okay. So you came out for the third time.

A. Correct.

Q. Right, go on.

A. Likewise, I took the position again for the defendant to start his photo-shooting ….

…..

Q. Right, go on.

A. As a matter of fact I started to express my upset.

COURT: My displeasure.

….

Q. In what way did you express your displeasure?

A. I frowned and also I tightened my lips.

….

Q. Yes, go on. Did you express yourself in any other way?

A. After he took a few photos of me I said to him, ‘Is it about it?’

Q. I see, so you were hurrying him up.

A. Yes.”

50.  That being the case, it is open for counsel to submit (paragraph 29, Applicant’s Written Submissions):

“This was the first time [Mr A] had been photographed in the nude; he agreed to participate, albeit with some reluctance. Consequently, his facial expressions were equally consistent with his hesitancy and discomfort about being photographed in T-backs.”

What we take issue with is the following sentence, in the same paragraph:

“The judge did not consider this competing innocent inference before reaching a speculative conclusion.”

51.  We do not think that is what the judge had done.

52.  In the impugned passage, the first association that the judge made was between being photographed in the nude and showing displeasure on the face.  It is unclear why he was so categorical about this connection.  But as pointed out, this is a probable connection and, so long as it does not go further, the Applicant has no justifiable complaint about it.

53.  As regards the judge’s second association – the remark about indirect corroboration, the underlining principle must be that once admitted, photographic images are there for the tribunal of fact to consider,  there is no question but that the judge was entitled to draw inferences from them.  It could be that he found them undermining in one or more aspects of the prosecution case or, as it transpired, supportive of what Mr A said in evidence.

54.  This support came in the form of a finding that Mr A was “grim, uncomfortable or even angry”.  It contradicts the whole tone and colour in which the defence had painted that evening’s casting.  Their version was that Mr A was plying the Applicant with hints and inducements.  So it is understandable why the judge should say that the photographs were indirectly corroborative of the indecent assault, meaning, if Mr A was lying, and was at the time doing what the defence version suggested, he would not be looking so grim.  It was not a particularly articulate exercise, but we are satisfied that this is what the judge meant by indirect corroboration.

55.  This ground also fails.

Ground 3 – impermissible use of complaint

56.  This ground pertains to Charge 6.

57.  When considering that charge, the trial judge said (paragraph 58 of the Reasons for Verdict):

“58. The undisputed fact was that D had gone to the police on 22 August 2008 after the telephone conversation. This is consistent with D’s contention that he had been threatened that day. It had been suggested by the defence that D’s decision to go to the law was caused by his paranoia over the prospect of his photographs in the nude going public. In other words, he tried to stop D1 from publishing the pictures and get the pictures back by making up evidence against D1. It means that he would have to tell more people about the incident of which he obviously was not proud in order to stop it from going to the public domain. This theory is illogical and inconsistent with the available evidence.” (emphasis added)

58.  The simple point here is that unless it is a sexual case, the post-offence complaint of an alleged victim is but a previous consistent statement of no evidential value.  As the passage shows, the judge erred in using it to show consistency and credit.

Discussion

59.  The defence in Charge 6 was that the Applicant did not threaten Mr D.  Mr D made a report because someone unknown had called and threatened to publish his photographs.  It made him worried or paranoid as to what the Applicant might also do.  The background being there was some tension between the two.  The following is how defence counsel put it all together in his closing submissions (pp 153S – 154B of the Appeal Bundle):

“Mr D said he received a threatening call on 21 August 2008 and there is no evidence this is any way connected to the defendant. There is a possibility that Mr D may have erroneously connected this earlier conversation to one with the defendant on 22 August 2008.

It is submitted that Mr D’s paranoia connected the two conversations as one.  He had already made a deliberate intention on 14 August 2008 to avoid the defendant in future and was expecting this threat to have come before it was made.”

60.  If correct, this theory signifies much ill-judgment on the part of Mr D.  The lack of proof of connection between the two calls has already been mentioned.  A report would also invite unwelcome attention to the incident of August 22.  Most important of all, it would mean lying about the Applicant in a false accusation.  It is not difficult to understand why the judge should criticize it so roundly in his Reasons for Verdict.

61.  With that backdrop, and the fact that it lies in juxtaposition with the criticism just mentioned, thus forming an individual paragraph, it seems to us clear that the impugned remark is not what it first appears to be.  The judge was merely saying – it was most implausible for anyone to have gone to the police in those circumstances; Mr D must have gone because he was threatened by the Applicant.  Circuitous and not very wisely worded perhaps, but it was just a refutation of the “paranoia” theory.  Had the remark been placed at the end and not the top of the paragraph, it would also have given rise to less misunderstanding.

62.  This ground fails.

Ground 4 – lack of analysis of criminal intimidation

63.  This ground applies to both Charges 2 and 6.

64.  It is submitted that to convict the Applicant of criminal intimidation, the context and circumstances of what he said must be closely examined.  Having directed himself on the law on the subject at the beginning of his Reasons for Verdict, however, the judge failed to put the evidence under scrutiny.

Discussion

65.  The Applicant’s argument goes as follows.

66.  As per McMullin J (as he then was) in Lo Tong Kai v The Queen [1977] 193 at 196, the law requires that:

“The person making the threat intends to cause alarm to the person to whom the threat is made or that the threat itself is of such a kind that a person of ordinary firmness would be affected by it. In deciding these matters the context of the circumstances out of which the threat has arisen are of paramount importance to be considered. The test involves both objective and subjective consideration.

….

To my mind therefore it was of the greatest importance that the court should have considered whether the words used were ‘wild and whirling words’ …. Signifying nothing more than an instinctive outburst of spleen, or whether they were uttered with a genuine intention of causing fear or were, in the circumstances of their utterance, likely to produce that effect”.

67.  This passage was substantially reproduced in paragraph 5 of the Reasons for Verdict.  But its content was never again referred to in the 19-page, 59-paragraph document.  All that remains is the judge’s conclusions.  There is nothing in between to show that the judge was bearing in mind the above principles.  If he was, he would have come to different conclusions.

68.  We disagree.

69.  In paragraph 43 of the Reasons for Verdict, under “Assessment of the evidence”, the judge said the following.  It laid down his approach to all the charges:

“43. While I would make a global consideration of all the evidence before me I will endeavour to identify the elements of each charge, look for evidence supporting the same and decide whether such evidence reaches the requisite standard of proof before making the decision. The issues to be determined in this case are mainly factual.”

70.  Paragraphs 49 and 50 see the application of this approach to Charge 2:

“49. …. I accept his account of the incident [Charge 1]. As to the three subsequent phone calls, [the first of which is the subject matter in Charge 2] I accept A’s evidence that they were all from D1. Not only did A recognise the voice, the context of the conversation could lead to only one conclusion, as there was only one occasion that A had his pictures taken in compromising circumstances and D1 was the photographer.

50. The contents of the exchanges, when read in context could only lead to one interpretation: D1 knew that A was worried about the pictures and was anxious that they might be published.  That is why he asked for the films to be given back to him and begged D1 to leave him alone.  D1 had tried to make A agree to be a male prostitute by hinting that otherwise the pictures would be published on the internet.  D1’s subsequent phone calls lend weight to the same contention.  As A’s career took off, D1 kept coming back to remind A that he had photographs that might ruin his reputation and career.”

71.  Then, at paragraph 52, came the judge’s final pronouncement:

“52. I …. found that it was D1 who called A in May 2003. D1 knew that A had aspired to be a male model and actor. The contents of the conversation could only lead to one conclusion. By suggesting if A did not accede to his demands the photographs would be publicised, he had threatened to destroy A’s reputation as well as his career. He had done so intending to alarm him. Furthermore, in my view, such a threat in a relatively conservative society such as Hong Kong would definitely affect a person of ordinary firmness. I found D1 guilty ….”

72.  We are satisfied that that is an adequate analysis for Charge 2.

73.  In retrospect, what can perhaps be made clearer is that Mr A and the Applicant were effectively strangers, which brings home the question why, if it was not a threat, the Applicant should expose himself to misunderstanding by saying something so unbecoming.  But the circumstances of their crossing paths were such a big part of the case that it scarcely needs mentioning.

74.  In all the circumstances, to equate the threat in question with wild and whirling words is unrealistic, likewise the notion that releasing photographs here means showing them to a fitness instructor – albeit that it was one of the many things mentioned during the photo-shoot. 

75.  Turning to Charge 6, the judge’s analysis was longer.  It covers some of the ground covered elsewhere but for the sake of the present exercise, the extent of the relevant part of the Reasons for Verdict is reproduced below:

“56. [ D] gave a clear account of events leading to the conversation on 22 August 2008. I found his account as a logical reaction consistent with a young man at that stage of his life. He was aspiring to be a model and obviously was eager when it seemed that an opportunity arose. His testimony was unshaken under cross-examination. One might feel that if he did initiate and consent to a homosexual relationship with D1 with a view to career advancement, it would be illogical to shun further contact with D1. In fact, his behaviour of trying to distance himself from D1 was consistent with his contention of a degrading and unpleasant photo session.

It had also been suggested that the long contacts either in person or via the telephone between D and D1 were indicative of a flirtatious conversation or lovemaking thereby lending support to the contention of a homosexual relationship. There was no substance to such a theory. I do not find his evidence of the threatening phone calls from an anonymous man on 21 August 2008 relevant to the case against D1 and I disregard it. I do not find the absence of photographs found in D1’s room concerning this session relevant to the threat that was uttered by him on 22 August.

The undisputed fact was that D had gone to the police on 22 August 2008 after the telephone conversation. This is consistent with D’s contention that he had been threatened that day. It had been suggested by the defence that D’s decision to go to the law was caused by his paranoia over the prospect of his photographs in the nude going public. In other words, he tried to stop D1 from publishing the pictures and get the pictures back by making up evidence against D1. It means that he would have to tell more people about the incident of which he obviously was not proud in order to stop it from going to the public domain. This theory is illogical and inconsistent with the available evidence.

Findings

For the reasons stated above, I accept D’s evidence.  I found that after D1 managed to coax D into agreeing to have his pictures taken with genitals exposed he was displeased that D did not contact him as promised.  As a result, he called D hinting that he would publish the photographs on the internet so as to destroy D’s reputation.  I found D1 utter those words as thinly veiled threat in an attempt to make D submit to his whims.  These words were uttered with intent to intimidate and alarm D.  I also found that such words, in their own context, and in the context of Hong Kong society, would affect a person of ordinary firmness.  I found the charge proved.”

76.  Against this lengthy analysis, the Applicant makes the following point.  Consistent with the factual context, there is an inference that the Applicant liked Mr D.  He was angry that Mr D broke his promise and did not call him.  So his threats, nonsensical in referring to the effect of typhoons and the seduction of his girlfriend, were clearly wild and whirling words.

77.  This argument cannot survive scrutiny.   The Applicant’s bona fides were questionable.  There was no evidence that he was genuinely engaged in advertising.  He used a false name to approach Mr D.  His was a trap for Mr D to fall into if Mr D’s evidence was to be believed.  By August 22, the date of the offence, he had only met Mr D twice in a 10-day association with one phone call (August 14) intervening.  In the circumstances, it is highly artificial to speak of feelings. 

78.  In short, the lovers’ tiff theory does not cut ice.  If it appears unusual for the August 22 conversation to have lasted one and a half hours with topics of work interposing, one should again ask what jobs were genuinely on offer.  In our judgment, the judge was right that the offending words were but a “thinly veiled threat”.  The unpredictability of typhoons hence the unpredictability of the Applicant’s action was no doubt the analogy intended to be drawn.  The judge’s reference to “whims” also correctly captured the spirit of the Applicant’s demand for company at the fashion show.  It was nothing short of whimsical.  We are satisfied that the judge understood the issues in Charge 6.  His analysis was sufficient. 

79.  Ground 4 also fails.

Conclusion

80.  There is no reason to disturb the convictions in this case.

THE APPEAL AGAINST SENTENCE

Computation

81.  As pointed out, the judge sentenced the Applicant to a total of 17 months’ imprisonment.  This is how he arrived at this figure (paragraphs 41 and 42 of Reasons for Sentence):

“41. …. D1 is sentenced to 15 months’ imprisonment for Counts 2 and 6, 6 months for Count 1. 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. D1 is to serve a term of imprisonment of 17 months”

82.  We find this approach inappropriate insofar as it left the ultimate length of each of the three sentences unspecified.  If there was to be a deduction, it should have been made from each term.

Applicant’s background

83.  See paragraphs 11 to 16 of the Reasons for Sentence:

“11. D1 is a 62 year-old man with a previous good record. He is single ….

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 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 …. 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 ….

14. Apart from exhibiting features of obsessive-compulsive behaviour (ie 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 …. 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 his 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 problem, but the risk of re0ffending 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.       There is really little mitigating circumstances in his background and his psychological profile ….”

Judge’s overview on criminality

84.  The judge observed (paragraphs 8 and 9, Reasons for Sentence):

“8 The facts of the case showed that D1, by pretending he was well connected in the advertising and modeling 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 doing 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.”

As regards individual charges

85.  On Charge 1, the indecent assault, the judge said (paragraphs 37 and 38):

“37. On the false pretense 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 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 ….

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 transport.”

86.  As regards Charges 2 and 6, criminal intimidation, this is what he said (paragraphs 29 to 33):

“29. …. 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.  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.”

Ground of appeal

87.  The Applicant contends that the total sentence of 17 months’ imprisonment is wrong in principle and manifestly excessive.  His manifold argument is discussed below.

(1)     old age and clear record

88.  Contrary to the judge’s remark that there was little or no mitigating factor in the Applicant’s background (paragraph 17, Reasons for Sentence), it is pointed out that old age and a hitherto clear record do go together to warrant a reduction in sentence.  Support is drawn from the case of Secretary for Justice v Wong Hong Leung [2010] 1 HKLRD 226 where Stock VP said:

“25. We have already referred to the mitigating factors, namely, the fact that prior to this conviction the respondent had reached the age of 71 years with a clear record. That age is not of itself one that in the circumstances attracts a reduction in sentence but the fact that a person has reached that age without previously offending is a material mitigating factor.” (emphasis added)

89.  This argument overlooks the fact that the Applicant was aged 52 when Charges 1 and 2 were committed, 57 at the time of Charge 6.  Even now, he is only aged 63.  If the suggested mitigation is that on account of age itself his sentence should be less than otherwise, then the mitigation is not sound.  His was not such an age that calls upon the mercy of the court.  If, on the other hand, the suggested mitigation is that he had, before committing these offences, led a substantial proportion of his life without committing offences, the weight to be given to that factor is always case specific and in this case, we are satisfied that little weight was properly attributable to it.  These were planned offences. They were committed in respect of two complainants with some years apart.  We are satisfied that in such circumstances the judge did not err.

(2)     low to moderate risk of re-offending

90.  This, the Applicant argues, is a real mitigating factor that the trial judge has neglected.  We do not agree.  It means he is not the worst kind of offenders.  It does not mitigate what he has committed.

(3)     delay

91.  On 1 September 2008, the Applicant was arrested.  He was put on police bail.  On 8 January 2010, he was released pending further investigation.  He was warned that he could be re-arrested.  On 14 September 2011, the police arrested the Applicant a second time.  On 15 September 2011, the Applicant was charged.

92.  The Applicant makes two points.  First, for three years, the Applicant had lived under the threat of a criminal prosecution. Second, the evidence in Charge 6 was the same in 2011 as in 2008, comprising nothing more than the evidence of Mr D and some phone records.  The delay, besides being substantial, was therefore unreasonable.  It had caused much hardship.  It warrants a discount that the judge did not give.

93.  The trial judge did not inquire into the cause of the delay before passing sentence.  By consent, we have been apprised of the chronology of events which was roughly as follows.

94.  Mr D made his report on 22 August 2008.  On September 1, 61,187 photographs and 1,000 negatives were seized from the Applicant’s flat upon the Applicant’s arrest.  From these materials, 53 potential victims were eventually identified.  By May 2009, 38 of these individuals had been located and interviewed.  Mr A was not located and interviewed until June 2010.  In July 2011, the Department of Justice gave the police its final advice.  In September, the Applicant was re-arrested and charged.  From first arrest to the time of the trial, the Applicant had remained silent.

95.  There are different situations in which delay may become a mitigating factor.  A common one would be where a defendant had acknowledged guilt, and the delay had given him the opportunity to rehabilitate; or by reason of prolonged and unjustified delay, an offender had acquired a legitimate expectation that he would not be further pursued.

96.  In its barest form, delay could also be pleaded where it was unjustified and was of the prosecution’s own making.  In such a situation, delay could provide a sound foundation for reducing a sentence.  See Secretary for Justice v Chan Boon Ning CAAR 1/2002 (unreported) where, for two and a half years, the prosecution stood idle with some pre-existing charges hoping that they could be linked to an associated complaint that they failed to substantiate in the end.

97.  In our judgment, the delay in this case was inevitable in view of the size of the investigation that had to be conducted: HKSAR v Law King Yip & Others CACC 369/2003 (unreported).  The time taken to bring the matter to court was long but not inordinate in all the circumstances.  The prosecution was justified to refrain from taking piecemeal action in respect of each individual victim.  They were entitled not to act before gaining sight of the full picture.  The Applicant’s point on delay is not made out.

(4)     the indecent assault was minor

98.  The Applicant points to the following facts – the touching of Mr A was momentary; it was done in private in the context of a photo-shoot; the Applicant did not persist after the second touch.

99.  The Applicant also submits that the judge was wrong in finding that there was a breach of trust (paragraph 37, Reasons for Sentence).  As a model, Mr A had agreed to pose for some “sex products”.  That is the setting against which the offence has to be considered.

100.  In all the circumstances, a non-custodial sentence is said to have been appropriate.

101.  We find no merit in these submissions.  Whatever else he might have consented to, Mr A had not consented to being touched indecently.  The duty is on the photographer or casting agent to not abuse his access and proximity.  On his part, for being tractable, the model is entitled to expect that all the former’s actions are strictly professional.  That being said, it is artificial to speak of a trust relationship in the present case. The Applicant was not what he represented to be.  The casting was just a scheme to, step by step, lure Mr A into acquiescence or submission.  Seen that way, the assault was unquestionably serious.  There can be no complaint on the sentence on Charge 1.

(5)     the judge was wrong in his assessment of Charges 2 and 6

102.  Allegedly, the judge erred in concluding that:

(a) the Applicant had “taken advantage of the young, guileless and gullible men” (paragraph 8, Reasons for Sentence);

(b) the Applicant had “abused his financial power to exploit the young and unsuspecting” (paragraph 32, Reasons for Sentence);

(c) in terms of gravity, the present case was comparable to Lam Chi Hong v HKSAR [2012] 2 HKLRD 1273 (paragraph 33, Reasons for Sentence);

(d) the subsequent use of the photographs concerned “were bordering on blackmail, rendering the case even more serious” (paragraph 9, Reasons for Sentence).

103.  The judge is criticized for not acknowledging the true context of the case – the Applicant was rejected.  It made him angry. Words were said in the heat of the moment with no intention to follow up on the threats.  It is argued that a lengthy suspended sentence would have been appropriate.

104.  We have no difficulty dismissing these criticisms and/or submissions.

105.  Neither Mr A nor Mr D was an established model. The Applicant, on the other hand, had the means and leisure to ensnare them with schemes elaborate enough to involve the renting of a hotel room in at least one case.  The parties were obviously not at arm’s length both in terms of age and standing.  The judge was not wrong in saying that there was exploitation.

106.  It puzzles us as to what the Applicant suggests was the sting of his rejection.  He and the two complainants were practically strangers. His indecent proposal was for one to be a “chicken”, the other to accept jobs “in the grey area”.  It is impossible to think how his feelings might be hurt in meeting their refusals.  If the Applicant was angry, it could only be because he failed to have his own way.  His subsequent calls to Mr A, with strong hints that he was watching the latter’s career and that he still had his photographs, were clear indications that his threat was not uttered in the heat of the moment.  Likewise, his threat to Mr D was for a purpose.  If only to mollify him, it had secured the latter’s promise to work for him and to go to a fashion show with him.  It is not wrong to say that the Applicant’s threats were bordering on blackmail. 

107.  What we have before us were two identical schemes to entrap and then subdue their fallen victims to the Applicant’s disposal.  The deception was sufficiently well thought out to convince two part-time models.  The threats uttered undoubtedly in the attempt to bring the matter to fruition were clearly meant to strike at the core of Mr A and Mr D’s sensitivities as aspiring members of the modeling and advertising trade.  We do not need any comparison with the decided cases to determine how serious they were.  There can be no complaint on the sentence on Charges 2 and 6.

Conclusion

108.  In our judgment, the sentences in this case were neither wrong in principle nor manifestly excessive.  Nor is there any reason to disturb the composite sentence of 17 months’ imprisonment.

JUDGMENT

109.  The Applicant’s application to appeal against conviction and sentence is dismissed.

110.  However, to give effect to our observation in paragraph 82 above, we would streamline the sentences by ordering that the 15-month terms on Charges 2 and 6 to be concurrent; 4 months of that will run concurrently with the 6-month term on Charge 1.  That way, the composite sentence will remain that of 17 months’ imprisonment.