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Hksar v Chan Sek Ming Johnny

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date20 September 2006
CourtDistrict Court (Hong Kong)
Judgement NumberDCCC196/2006
Subject MatterCriminal Case
DCCC000196/2006 HKSAR v. CHAN SEK MING JOHNNY

DCCC 196 of 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 196 OF 2006

____________________

HKSAR

against

CHAN Johnny Sek Ming

___________________

Coram : HH Judge Lok in Court

Date of trial : 12 and 13 September 2006

Date of verdict: 20 September 2006

____________________

VERDICT

____________________

1. The Defendant is charged with 2 counts of committing an act outraging public decency contrary to common law (Charges 1 and 3) and 2 alternative counts of obtaining access to a computer with intent to commit an offence contrary to section 161(1)(a) of the Crimes Ordinance, Cap. 200 (Charges 2 and 4).

2. As it would be quite difficult to have exact translations of the contents of the messages in the internet message board, which are the subject matters of the charges in issue, the Prosecution and the Defence agree that the evidence of the trial would be given in Cantonese. However, as most of the legal authorities concerning the law in this area are English cases, it is also resolved that final submissions of the parties and verdict of the court would both be made and delivered in English.

The Admitted Facts

3. There is no grave dispute between the Prosecution and the Defence about the facts of the present case. In fact, all the prosecution evidence has been agreed by the Defence and this is one of the rare cases that no witness is required to be called for the prosecution case.

4. According to the admitted facts submitted to the court under s. 65C of the Criminal Procedure Ordinance, Cap. 221, at 10:48 a.m. on 13 August 2005, the Defendant calling himself “MasterMind”, using a computer in his home, wrote a message in a message board called “GOSSIP” (“the Message Board”) at an internet website known as “www.she.com” (“the Website”). Each of the topic created by a message would be assigned a thread number in the Message Board, and the contents of the Defendant’s message were as follows:

“正經問：我想搞快閃強姦有冇兄弟想加入？快閃強姦（Jack Rolling）係由一組約五至六人既男仔組成，專阻截單身女子，每次其中一人從後將個女仔強姦，其它人就幫手同睇水，搞完將佢封口綁手然後一齊閃…正啊~這種手法源自南非，現傳到國，我好希望香港都可以搞下！”

thread id: 1461287 posted by MasterMind on 2005-08-13 10:48:32” (“the First Message”)

5. The above message, which is the subject matter of Charges 1 and 3, can be translated to English as follows:

“(I am) serious in asking this: I want to organize ‘flash mob’ rape, would any brothers like to join? Flash Mob Rape [Jack Rolling] is a group formed by 5-6 boys, specifically intercepting single females. On each occasion, one of the guys will rape the female from behind and the others will render assistance and act as lookouts. After that, (we will have) her mouth gagged and hands tied before (we) flash (away) together …… (that’ll be) great! This modus operandi has its origin in South Africa, now (it) has spread to (one character indecipherable), I really hope (it) can be organized in Hong Kong.

thread id: 1461292 posted by MasterMind on 2005-08-13 10:48:32” (“the First Message”)

6. After that, the Defendant added a sentence to his message:

“Ha… 甘多人搞一個女仔重邊有得走！……有興趣email我：gigolo sar@yahoo.com”

which can be translated to English as follows:

“Ha …… the girl is handled by so many people and there’s no way (for her) to escape …… Those interested e-mail me at gigolo sar@yahoo.com ……”

7. The e-mail address “gigolo sar@yahoo.com” belonged to the Defendant.

8. Many people saw the First Message at the Message Board, and there were about 19 messages in response. About half of such responses showed that the respondents were disgusted and were resented by the Defendant’s act. Amongst those, one person with the code-name “vv” suggested to organize a “flash Jur (penis) cutting gang”, and invited “men of justice” to join. After that, some viewers responded expressing their wishes to join this “flash Jur cutting gang”. At 6:34 p.m. on 13 August 2005, the Defendant wrote at the Message Board in reply to these messages:

“上面班人真搞笑

扮晒正義之士

話你地知我一定搞得成!”

which can be translated to English as follows:

“The above persons are really funny, pretending to be men of justice, I tell you I will successfully organize it for sure.”

9. After that, a number of persons posted responses in the Message Board and some scolded the Defendant. Most were disgusted and were resented by the contents of the Defendant’s First Message, and some of the respondents claimed that they had reported the matter to the police. The Defendant then wrote the following in English at 11:40 p.m. on 13 August 2005:

“Hum …… reported to the police huh? CATCH ME …… IF YOU CAN!”

10. At 11:39 a.m. on 13 August 2005 and 4:42 p.m. on 14 August 2005, a person calling himself “William Wong” sent 2 e-mails to the Defendant’s e-mail address. The first e-mail reads: “係咪真先玩老強” (translated as “really going to rape?”), and the second one reads: “有人嗎” (translated as “Anybody here?”). The Defendant did not respond to these e-mails.

11. There were a total of 76 responses to the First Message posted by the Defendant. Amongst those, two persons with the code-names “Visa” and “bbc” expressed interest in joining the gang-rape. One person with the code-name “劉德華” (translated as “Lau Tak Wah”) admired the idea. Another person with the code-name “中學生” (translated as “secondary school student”) wrote that it was a horrible but exciting idea, he wanted to join the rape but did not dare to do so.

12. On 15 August 2005, the Defendant found out that the First Message had been deleted. While at home, the Defendant used his computer to post another message in the Message Board at 6:32 p.m. on the same day:

“潮流興快閃強姦，快閃強姦（Jack Rolling）係由一組約五至六人既男仔組成，專阻截單身女子，每次其中一人從後將個女仔強姦，其它人就幫手同睇水，搞完將佢封口綁手然後一齊閃…正啊~這種手法源自南非，現傳到英國，希望香港都可以搞下！

posted by MasterMind
thread id: 1463548 on 2005-08-15 18:32:35”
(“the Second Message”)

13. The English translation of this second message, which is the subject matter of Charges 2 and 4, is as follows:

“‘Flash mob’ rape is the trend. ‘Flash mob’ rape [Jack Rolling] is formed by 5 – 6 boys, specifically intercepting single females. Each time, one of the gangs will rape the female from behind and others will render assistance and act as lookouts. After that, (we will have) her mouth gagged and hands tied before (we) flash (away) together …… (that’ll be) great. This modus operandi has its origin in South Africa, now (it has) spread to the United Kingdom, (I) really hope (it) can be organized in Hong Kong.

posted by Mastermind
thread id: 1463548 on 2005-08-15 18:32:35”
(“the Second Message”)

14. After that, the Defendant added the following sentence to his message:

“甘多人搞一個女仔重邊有得走！好high啊~”

which can be translated as follows:

“The girl is handled by so many people and there’s no way (for her) to escape! (It feels) so high.”

15. There were 26 responses to the Second Message, with some of the respondents having the same code-names as those who responded to the First Message. Amongst those responses, two respondents with the code-names “Ss” and “Whiteboy” expressed interest to join the gang rape, whilst other respondents with the code-names “旺角豪哥” (translated as “Mongkok Ho Koh”), “阿熙” (translated as “Ah Hey”) and “EEG” admired the idea of the Defendant.

16. The police traced the IP address of the postings to the home address of the Defendant, and the latter was arrested on 24 August 2005. The Defendant’s residence was occupied by the Defendant and his wife only. When the Defendant was arrested, he admitted that he was the one who posted the First and the Second Messages (“the Messages”) and claimed that he was doing it as a joke. He made the same admission in the subsequent video-recorded interview.

17. Any members of the public could look at the messages in the said “GOSSIP” Message Board through the internet. However, if one wished to write a message in the Message Board, he or she had to register, without any fee, as a member of the Website first.

The Defendant’s case

18. The Defendant elects not to testify in the trial. I have reminded myself that it is the right of the Defendant to make such election, and no adverse inference should be made against the Defendant for his right to remain silent.

19. The Defendant is a man of good character, and in considering the verdict, the court needs to take into the two-limbs direction as laid down in the case of R v Vye [1993] 1 WLR 471.

20. The Defendant has called one witness, Madam Wong Wai Chong Joanna, to testify on his behalf. Madam Wong received education up to University level, and she has obtained a master degree in science of electronic commerce. She came to know the Defendant some time in 2003 and 2004 through chatting in the message board of the Website, as they shared a common interest of fetishism in women’s pantyhose. According to Madam Wong, she was a regular visitor of the different message boards at the Website. Although there might be some serious discussions depending on the nature of the topics, some of the other participants of the message boards just posted various topics at the Website as some kind of joke. She mentions about a previous topic about an invitation to participate in a bank robbery, and most of the viewers of the Website did not pay serious attention to such invitation.

21. For this particular case, seeing the First and the Second Messages posted in the Message Board, without knowing the identity of the person who posted them by that time, Madam Wong also regarded the contents of the Messages as a bluff or some kind of joke. Madam Wong, however, admits that gang rape is a horrible crime, and it would be scary and disgusting for someone to invite others to participate in such crime. She also frankly admits that she is not certain whether the person who posted...

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