SECRETARY FOR JUSTICE v. CHONG YAO LONG KEVIN

[English Translation – 英譯本]

CAAR 2/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 2 OF 2012

(ON APPEAL FROM KTCC NO. 6293 OF 2011)

________________

J U D G M E N T

Hon Yeung VP (giving the judgment of the Court):

Background facts

1.  The respondent (CHONG Yao-long) was a private tutor.  He provided his service in a tutorial centre in a commercial building in Mongkok, giving private tuition in English on a one-on-one basis.  One of the victims was X, 17 years old.  She was a student of the respondent and had been learning English from him for eight years.

2.  On 12 May 2011, X, attired in her school uniform, which included a skirt, went to the tutorial centre to take lesson as usual.  At about 7 pm, during the lesson the respondent told X to stand up and read something, with her legs apart.  When X was reading, the respondent put a mobile phone on a ruler and moved the ruler forward, with the phone on it, until the phone was underneath X’s skirt, intending to capture the upskirt images of X.  X was afraid and she closed her legs.  The respondent told X to spread out her legs again but X refused.  This incident lasted two to three minutes.

3.  Owing to the respondent’s conduct, X did not want to take lessons at the tutorial centre anymore and because of that, this incident was exposed and the respondent was arrested.  In the tutorial centre, the police found a lot of articles belonging to the respondent, including a telephone, two pen-shaped video cameras and many memory cards.  The police also found in a backpack a pair of lady’s briefs and a ruler.

4.  The Technology Crime Division of the police force examined the respondent’s memory cards and found therein 44 upskirt video clips and one upskirt photograph.  The Division also successfully retrieved 16 upskirt video clips which had been deleted.

5.  When interviewed by police officers, the respondent confessed that he told X to stand up and read with her legs apart because he wanted to video-record the upskirt images of X.  At the material time, he tied a mobile phone to a ruler and moved the ruler until it was underneath X’s skirt and then carried out video-recording, which lasted about two minutes.  The respondent said he did not know whether X was aware of that.  After X left the tutorial centre he watched that video recording.  He said if the images were too blurry, he would delete the recording.

6.  The respondent also confessed that in addition to X, he had video recorded upskirt images of two other girl students, namely Y and Z, and stored the recordings in a memory card.  The recordings were made while Y and Z were taking lessons.  Both Y and Z were over 16.

7.  The respondent said that at the beginning he recorded upskirt images of girl students by using pen-shaped video cameras.  Later, he changed to use the mobile phone.  He stored the captured images in memory cards and watched them while masturbating himself.

8.  The consequence of this incident was that the respondent was charged with four counts of obtaining access to a computer with a view to dishonest gain, and was brought before Deputy Magistrate William Lam (“Magistrate”) at the Kwun Tong Magistracy.  The respondent pleaded guilty to all the four charges.  He submitted to the court a number of mitigation letters written by various persons and asked for leniency.

9.  Those who wrote the mitigation letters included the respondent himself, his wife, his daughter, his son in law, two of his friends and the person in charge of the Buddhist centre at which he participated in providing various services.

10.  All of them described the respondent as a courteous, honest and responsible person.  They explained that the respondent had been suffering from heavy mental stress and in a thoughtless moment he broke the law.  They said that the respondent deeply regretted for what he had done, and that after the incident he immediately sought help from a psychologist, hoping to receive appropriate treatment so that he would never commit the offence again.

11.  The person in charge of the Buddhist centre said the respondent had repented of his sins and had received guidance from the elders of the centre, so that he had returned to the correct path.

12.  Subsequent to the incident, on 14 June 2011 the respondent began to receive treatment from a psychologist.  According to the psychologist report, the respondent claimed that at the time of the commission of the offences, he was under great work pressure and was troubled by anxiety.  He was caught in a stressful situation but did not seek help from experts.  The psychologist opined that the respondent did not know how to express his emotions correctly and that it resulted in his wrongful behaviour.  The psychologist’s understanding was that the respondent felt very remorseful towards the girl victims in this case, their family members and other parties concerned, and that he was determined to correct his mistakes and return to the right track.

13.  The psychologist reported that the respondent had the sincerity and motivation for understanding himself better, and that he was learning the correct way to express his emotions and to communicate with others.  In the psychologist’s view, the respondent was sincere and decent, and was a responsible person in his workplace, his family and towards his friends.  The psychologist considered that after receiving treatment, the respondent was able to put his pernicious sexual habit under control, but that he still needed to continue to receive treatment and counselling to prevent a relapse.  Before the hearing, the psychologist submitted to us the latest report, in which he reiterated that the treatment which the respondent received was effective.  He stated that the respondent engaged himself in religious worship in order to accumulate virtue（積累功德）, and that he also took part in sports activities and did housework.  The psychologist emphasized that the respondent had agreed to continue to receive psychological treatment to secure his psychological well-being.

Sentences passed by the magistrate

14.  The Magistrate pointed out that the maximum sentence which could be imposed by a magistrate was imprisonment for two years, that according to HKSAR v Choy Yau Pun [2002] 4 HKC 309, the usual sentence for the offence of obtaining access to a computer with a view to dishonest gain was imprisonment, but that there were exceptions.  The Magistrate went on to say that since this case was about the criminal act of taking upskirt photos or video recordings, its nature was different from that of an ordinary case of obtaining access to a computer with a view to dishonest gain.

15.  The Magistrate accepted the submission made by the defence that the respondent was receiving psychological treatment, that he would not give lessons to female students any more and that therefore the chance of his committing the offence again was minimal. The Magistrate also gave weight to the fact that from the outset the respondent had fully cooperated with the police, and that by frankly admitting his guilt he not only demonstrated his remorse, but also spared the victims the agony of having to revisit their distressful experiences and the embarrassment of appearing in court.

16.  Finally, the Magistrate fined the respondent $4,000, $2,000, $2,000 and $2,000 respectively for the four charges to which he pleaded guilty, making a total of $10,000.

17.  The Secretary for Justice did not accept the sentences passed by the Magistrate and applied to him to review the sentences.

18.  On 30 March 2012, the Magistrate rejected the basic argument advanced by the Department of Justice that the appropriate sentence for the offence of obtaining access to a computer with a view to dishonest gain should be a custodial sentence. He said that the present case was different from a standard case of obtaining access to a computer with a view to dishonest gain, and that no sentencing guideline had been laid down by the Court of Appeal in respect of this offence.  He further remarked that the practice adopted during a review of sentence was not to pass the sentence that ought to have been passed, but just to make minor upward adjustment to the original sentence.

19.  The Magistrate pointed out that the usual sentence for the criminal act of taking upskirt photos or video recordings was a custodial sentence or a community service order, which were heavier than a fine, but that having taken into account the fact that he was then dealing with a review of sentence, he just doubled the fines of the four charges, so that the total fine became $20,000.

Applicant’s position

20.  The Secretary for Justice (“applicant”) did not accept the Magistrate’s decision and, having been granted leave by the Chief Judge of the High Court, applies to this court for a review of the Magistrate’s decision.

21.  Mr. Alex Lee, Acting Deputy Director of Public Prosecutions, for the applicant, complained that the sentences passed by the Magistrate were manifestly inadequate, and that his view that during a review of sentence the sentence that ought to have been passed would not be passed was plainly wrong.

22.  In his written submission Mr Lee stressed that although there is no sentencing guideline for the offence of obtaining access to a computer with a view to dishonest gain, unless there are unusual circumstances, the penalty should be immediate imprisonment.  Mr. Lee cited HKSAR v Tam Hei Lun & Others [2003] 3 HKC 745 and HKSAR v Choy Yau Pun [2002] 4 HKC 309 to support his view.

23.  Mr. Lee stated that the position taken by the applicant is that the present case is about the criminal act of taking upskirt photos or video recordings, and that if such offence was committed in a public place, the usual sentence was a short term imprisonment.  On a plea of guilty the sentence was usually 14 days’ imprisonment, and if the defendant pleaded not guilty, the sentence could be as long as two months.

24.  Mr. Lee submitted that the Magistrate erred in placing undue weight on the respondent’s pleas of guilty, and that the fines totally failed to reflect the gravity of the offences.

25.  Mr. Lee highlighted the point that the respondent, being a private tutor, had trust reposed on him by the parents of the students, but he betrayed their trust. Over a period of two months he video recorded the upskirt images of at least three girl students, which showed that his criminal activities were premeditated.

26.  Mr. Lee insisted that the court has the duty to protect the rights and interests of women, especially young school girls, to prevent them from the harm of conduct which involves serious violation of privacy, obscenity and the suffering of humiliation.

27.  Mr. Lee emphasized that the video recordings made by the respondent can be kept permanently, exchanged and circulated or even traded as commodities, thereby seriously affecting social morality and causing long-term distress to the victims; and that therefore the respondent’s obscene conduct must be met with a sentence with deterrent effect.

28.  Mr. Lee submitted that the Magistrate should not have the view that he had to treat the respondent with special leniency simply because he was reconsidering the sentence at the review stage.

29.  Mr. Lee concluded that the sentences passed by the Magistrate on the respondent fell outside the range of sentences which a judge, applying his mind to all the relevant factors, could reasonably consider appropriate, and that therefore the Court of Appeal should review the Magistrate’s decision according to section 81A of the Criminal Procedure Ordinance.

Respondent’s position

30.  Mr. Yeung Yeuk-Chuen, for the respondent, expressly stated in his skeleton submission that he agreed that to sentence the respondent by way of the fines was too lenient and inappropriate and that the magistrate should have considered a custodial sentence.

31.  Mr. Yeung explained that all along the defence had adopted the above-stated position, and that they had only asked the Magistrate at the first instance hearing and at the review hearing to call for a community service order report in the hope that they could convince him that the respondent was in such a special situation that it was appropriate to sentence him by way of a community service order instead of immediate imprisonment.  Mr. Yeung was adamant that the respondent had always held a realistic view of his situation and had never fancied he would be treated with exceptional leniency.  The reason was that an excessively lenient sentence might lead to a review by the Court of Appeal, and consequently put the defendant under stress and might even “change a lenient sentence into a heavy sentence”.

32.  Mr. Yeung said emphatically that the original position of the applicant was that the respondent should receive a custodial sentence or be put under a community service order, and that it was only during this application for review that the applicant for the first time proposed that the respondent had to be sentenced to immediate imprisonment.

33.  Mr. Yeung submitted that the applicant should stick to their original position, i.e. a custodial sentence or a community service order, and that this position was thoroughly revealed at the application before the Chief Judge of the High Court for leave to apply for review.  Mr. Yeung said that during that application the applicant repeatedly submitted that a short term custodial sentence and a community service order were both options which the court should consider so as to preserve the consistency in sentencing and to reflect the gravity of the respondent’s conduct.

34.  Mr. Yeung contended that there are cases, including HKSAR v Lo Hoi Chi [2007] HKCLRT 762, HKSAR v Chan Kwai Hung HCMA 1108/2008 and HKSAR v Nagashima Katsuki HCMA 691/2005, which involve similar conduct and in which the original sentence of 14 days’ imprisonment imposed on the defendants were, on appeal, changed to community service orders.

35.  Mr. Yeung said that in this case, for various reasons, the respondent was required to appear in court many times and every time he clearly stated that he would plead guilty.  Mr. Yeung stressed that the charges which the prosecution brought against the respondent were obtaining access to a computer with a view to dishonest gain, which, on the face of it, bore no relation to what the respondent had done, but he still chose to cooperate with the prosecution and pleaded guilty.

36.  The mitigation submission made by Mr. Yeung for the respondent was that he had closed the tutorial centre, had adopted various means to reform himself and had the support of his family members and friends.  Mr. Yeung submitted that the respondent, having received training and treatment, had overcome his “sex addiction”, freed himself from things that were vulgar or in bad taste and was actively doing voluntary work.

37.  Mr. Yeung emphasized that the Magistrate was very experienced.  The sentences he passed were lenient and individualized, and were the result of the exercise of his discretion.

38.  Mr. Yeung averred that there were special circumstances in this case and that a community service order was a suitable substitute for a custodial sentence.  He urged us to consider replacing the fines with a community service order.

Discussion

39.  Looking at it superficially, it appears to be somewhat strange that the wrongful conduct of the respondent was dealt with by the charges of obtaining access to a computer with a view to dishonest gain.  However, this matter had been discussed thoroughly before the Magistrate and both parties had agreed that in the special circumstances of this case it was proper and reasonable to charge the respondent with this offence.  We do not think that we should dwell on this matter anymore, save and except that we would like to point out that the sentencing guideline usually applicable to obtaining access to a computer with a view to dishonest gain (see HKSAR v Tam Hei Lun & Others [2000] 3 HKC 745) is not applicable to the present case. 

40.  We agree with the Magistrate’s view that sentencing should be based on the facts and the defendant’s background, and that consideration should not be restricted to under which ordinance the defendant was charged.

41.  Usually, a person who takes upskirt photos or videos of a female will be charged with behaving in a disorderly manner in a public place, [causing] a breach of the peace (see HKSAR v Yu King Man HCMA 808/2004, HKSAR v Chan Chi-ho HCMA 288/2006, HKSAR v Lau Ah Sing HCMA 1112/2006 and the above-mentioned Chan Kwai Hung and Nagashima Katsuki).

42.  In a number of similar cases, the courts have repeatedly pointed out that taking upskirt photos or videos of a female is a very serious crime. This is because such conduct caused the victim distress and was regarded by the public with disgust.  The courts also strongly commented that the indecent photos taken by the defendant could be kept permanently, exchanged, circulated, sold as commodities, or even used to threaten the victim, and that therefore the victim could be subjected to harassment over a long period of time.  Such conduct is an affront to the dignity of the female victim (see AG v Wai Yan Shun [1991] 2 HKLR 209, page 211A-B).  In order to deter such disgusting conduct, the courts would usually adopt two months’ imprisonment as the starting point, and even a defendant who pleaded guilty could be sentenced to two to four weeks’ imprisonment.

43.  The respondent did not take the upskirt videos in public places, so his conduct would not lead to a breach of the peace, but that does not mean that what he did was less serious than taking upskirt videos in a public place.

44.  The respondent was a private tutor.  He was trusted by the parents of the students and they, over a long period of time, sent their daughters at regular intervals to the tutorial centre to take lessons, in order to enhance their proficiency in the English language.  What the students’ parents thought the respondent would do was that he would work hard to teach their daughters to improve their academic performance, but what the respondent cared about was not how the students were getting on with their studies but what there was under the students’ skirts.  What the respondent did was not only a flagrant affront to the dignity of the girl students, but would also make their parents regret; they would regret that they had sent their daughters to the respondent, that was just like sending lambs to a tiger.  The respondent’s conduct has brought shame on those who work as private tutors, and the distrust aroused in the parents of the students might have a negative impact on their business as a whole.

45.  Mr. Yeung pressed the point that both the defendants in Chan Kwai Hung and Nagashima Katsukiused photographic/video-recording equipment to capture upskirt images of a female in a public place, and that in the end both of them were dealt with by a community service order.

46.  First of all, we point out that in Chan Kwai Hung and Nagashima Katsuki alike, what happened was a one-off incident targeted on one victim.

47.  In Chan Kwai Hung, the prosecution was not able to seize any upskirt photos from the defendant’s mobile phone, and the court might have sentenced the defendant on the basis that he was just attempting to take upskirt photos or videos.  Furthermore, the defendant was an officer of the Correctional Services Department.  He had a clear record and the support of many people.  They all said that he was a man of good character and that his work performance was excellent.  The learned judge remarked that the incident had resulted in the breakup of his marriage and might also jeopardize his entitlement to pension, so he sentenced him by making a community service order.

48.  In Nagashima Katsuki, the defendant put a camera in a carrying bag which he then pushed towards the female victim until it was underneath her skirt. After investigation, it was found that only the images of the outside of the victim’s skirt were captured.  In sentencing the defendant by way of a community service order which prescribed 120 hours of service, the court explained that the defendant had a clear record, good family background and was employed in a responsible position.  Special emphasis was placed on the fact that the images captured were immediately recovered at the scene and caused the victim no embarrassment, and that actually the images only showed the outside of the skirt, so they were innocuous.

49.  The criminal acts of the respondent were far more serious than those of the defendants in Chan Kwai Hung and Nagashima Katsuki.

50.  The gravity of the respondent’s crimes lies in the fact that he breached the trust reposed on him by the parents of the girl students.  The parents entrusted him with the care and tutoring of their daughters, but he turned their trust into opportunities for gratifying his own perverse desires.  The respondent’s conduct would bring shivers to the spines of the parents who trusted him.

51.  Worse still, not only one girl student was the target of the respondent’s wrongful conduct, but there were at least three.  The police retrieved from the respondent’s memory cards 44 upskirt video clips, 16 deleted upskirt video clips and one upskirt photo.  It is evident that he had indulged in such perverse activities on many occasions and over a long period of time.

52.  The respondent made X stand up with her legs apart and read.  When X noticed his wrongful conduct and so closed her legs, he not only did not desist, but even relentlessly told X to open her legs again.  The psychological damage which he inflicted on X is obvious.  The prosecution could not ascertain the identities of Y and Z. It can be expected that if these two girls realized that their tutor secretly took upskirt photos or videos of them while they were taking lessons, they would also be much upset and distressed.

53.  We do not accept Mr. Yeung’s allegation that the applicant had changed their position.  When the case was before the Magistrate, the applicant only submitted that the authorities showed that the sentencing options for the criminal conduct of taking upskirt photos or videos of females in a public place could be a community service order or a custodial sentence.  Never had the applicant indicated that the appropriate sentence in this case was a community service order.

54.  Regardless of the applicant’s position, we are of the view that in the circumstances of the present case a reasonable judge, applying his mind to all the relevant factors, would not reasonably consider that the imposition of a fine is within the appropriate range of sentences.  We find that a fine was inappropriate and overly lenient.  The only appropriate sentence is to impose a term of immediate imprisonment, in order to reflect public abhorrence of the respondent’s shameless conduct and to deter others from acting in a similar way.

55.  In our judgment, the appropriate starting point for each charge is six months’ imprisonment, and that the appropriate starting point for the total sentence is eight months’ imprisonment.  In view of the guilty pleas of the respondent and the fact that this case has been hanging in the air for a long time, thereby causing the respondent some anxiety, and in addition to the fact that these sentences are passed during the application for review, we decide that the sentence of each charge and the total sentence shall be reduced by half to three months and four months respectively.

56.  We hold that the applicant’s application for review is successful.  We set aside the fines and replace them by custodial sentences.  We sentence the respondent to three months’ imprisonment for each of the four charges to which he pleaded guilty.  We order that the sentences for the 2^nd, the 3^rd and 4^th charges be run concurrently, but that one of the three months be run consecutively to the three months of the 1^st charge.  The total sentence which the respondent has to serve is four months.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.