HKSAR v. Ching Ka Lun

DCCC 603/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 603 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to indecent assault charges involving two young victims, two charges of making child pornography with one of the two victims, and possession of a very large quantity of child pornography.

2.In short, the defendant has pleaded guilty to indecently assaulting Y at her home in January 2011, when she was 7 years old; Charge 1.  He also indecently assaulted Y at her home in October 2014, when she was 10 years old; Charge 4.  He also indecently assaulted Y again at her home in November 2014, when she was 11 years old; Charge 7.  In April 2012, at her home, he made child pornography.  Y was his victim when she was about 8 years old; Charge 2.  In May 2012 he did it again, made child pornography with Y as his victim; Charge 3.

3.Charges 5 and 6 involve the second victim, X. In October 2014 he indecently assaulted X at her home, when she was 6 years old, on two separate occasions.

4.All these indecent assault charges involving X and Y took place when the defendant was tutoring these two young girls.

5.Charge 8 is a possession of child pornography found by the police on the defendant’s tablet computer, two SDHC cards, and his home computer.  He had in his possession 187,663 photographs and 813 video clips containing child pornography.  There were a small amount of the images that were cartoon pornography, about 2 per cent of the total amount.  The majority of the images and films were Level 1 category.  Not including the cartoon pornography, where Level 1 is concerned, there were 173,299 photographs and 220 films.  Level 2, there were 4,697 photographs and 109 films.  Where Level 3 is concerned, there were 4,034 photographs and 354 films.  Where Level 4 is concerned, there were 1,452 photographs and 130 films.

6.The defendant is a university graduate, now 28 years old.  He works as a private tutor.  In 2009 the defendant enrolled in an organisation called the Agency for Volunteer Service, offering free tutoring to needy students.  This was arranged through certain Social Welfare organisations.  It was through this agency the defendant provided tutoring to X and Y in their homes.  Since May or June 2010 he tutored Y several times a week at her home, in her bedroom, alone.  He became so familiar with her family that he took Y out of her home to play, alone, with her mother’s consent and trust.

7.In late September 2014, through this agency, the defendant provided tutoring to X in her home.  They would be left alone in the living room to study and have some privacy.  About one month after the defendant started tutoring X, she told her domestic helper that the defendant had touched her breasts and private parts after tutoring on 26 October.  X told her mother that it had happened during previous tutorials as well.

8.X told the police that on 5 October, the defendant put his hands inside her underpants and touched her vagina.  He touched her for the entire tutorial.  She was scared to say anything in case the defendant scolded her.  This is Charge 5.  On 26 October, the defendant, again during a tutorial, touched her breasts under her shirt and put his hand inside her underpants and touched her vagina.  She once pulled his hand away, but he persisted.  That night she told her helper, who told her mother.  That is Charge 6.

9.Victim Y was located because of what the defendant told the police, and the pornography the defendant made of Y was found in his collection at home.  She was identified and interviewed by the police.

10.The last time the defendant indecently assaulted Y was 2 November 2014 in her bedroom.  She told the police that he touched her breasts under her shirt for about 10 minutes and used his fingers to touch her vagina for about 10 minutes.  His fingers were moving at the time.  That is Charge 7.

11.Y also told the police that some time earlier, in October 2014, he had, in a tutorial session at home, used his hands to touch her buttocks.  That is Charge 4.

12.She also told the police the defendant had opened her clothes and recorded nude images of her in the past; Charges 2 and 3.

13.The defendant was arrested, and in video‑recorded interviews he admitted to the police that he had indecently assaulted X and Y, as well as filmed and photographed Y naked.  He admitted that between January 2011 and 2 November 2014, he had indecently assaulted Y on numerous occasions.  He admitted that he had touched her breasts and touched her vagina with his fingers; Charges 1, 4 and 7.  He admitted he had taken film and photographs of Y naked between April and May 2012.  He kept the images and videos on his notebook computer.  He had used his phone to make pornography.

14.The prosecution has supplied me with a selection of images of the child pornography found at the defendant’s home.  A sample of the four categories, Level 1 to 4 pornography, has been seen by me.  I have also seen images of the pornography involving Y.  It includes him touching, probing and stroking Y’s vagina.  He has made her pose erotically.  He has spread her legs apart while she was nude.  There is one clip which shows him holding her hand to touch her vagina with her own fingers.  She was 8 at the time.

15.The prosecution obtained two victim impact assessment reports for X and Y.  I will not repeat the details, but suffice to say both have suffered as a result of the abuse by the defendant.  The psychologist says that X “struggled with subclinical post-traumatic stress symptoms in the initial few months after the offences”.  She also had to repeat the academic grade that year, and having to repeat, the psychologist says “This may negatively impact on her self esteem in academic achievement.  The defendant abused her trust in their established teacher/student relationship. That may negatively impact on her sense of self and relationship development with authority figures in her developmental journey.”

16.Y is gradually recovering, but “She is still painfully suffering various post trauma symptoms.  The girl sometimes has body trembling and distressing flashbacks relating to the abuse when the abuser was mentioned.  She was under heavy fear the abuser would harm her again.  Feelings of shame, guilt and anger from the abuse were reported.  Her ability to concentrate dropped.  She easily daydreamed, and forgetfulness was reported. Her basic trust towards male adult strangers was compromised”.

17.Both require psychological treatment going forward from this point in time to continue.

18.I had sight of a psychological report for the defendant prepared for the purpose of his plea.  I will not repeat all the details of that report.  The defendant lived at home with his family but was not particularly close to them.  The opinion is he was socially withdrawn.  He was very frank with the psychologist.  He told the psychologist he began to use child pornography from the age of 12 and collected child pornography from the internet since 2008.  He was only sexually attracted to little girls and not adult women.  He confessed to the psychologist that he abused two family members and had touched little girls from when he was about 12 years old.  He admitted feeling attracted to Y when he first met her at the age of 6.  After a while he would go to her home daily.  He gained her trust as well as her family’s.  He treated her like his lover.  He would buy her things to make her like him.  He started to touch her inappropriately in January 2011.  He made 28 videos of her naked.  He began to lose interest in her when she reached puberty.

19.The defendant frankly told the psychologist that he did not think X or Y would report him, nor did he believe they would be treated as credible if he insisted he was innocent.

20.The psychologist is of the opinion the defendant is a paedophile.  He deliberately set out to gain the trust of X and Y. He abused his position as a tutor to gain access to young girls.  The psychologist is of the view that the defendant is dangerous to little girls. He poses serious harm to little girls.  “He showed no insight into his problems and had no empathy for the victims.  Mr Ching revealed plans to continue to work as a private tutor after his discharge into the community in due course. His risk of sexual reoffending was assessed to be very high.”  The psychologist goes on:  “He should be prohibited to do any job in relation to children in the future.  Intensive in‑centre psychological treatment is recommended targeting his deviant sexual interest and prevention of future reoffending.”

21.The defendant’s best mitigation is his plea of guilty and frank admissions to the police and the psychologist.

22.The defendant is a man with a previous clear record.

23.I have heard mitigation in full.  Written submissions have been submitted and marked as MFI-1.  I have had three letters submitted, the first from a previous employer, who praises his work ethic; secondly, a letter from his family, who believe he is now genuinely remorseful and determined to get treatment.  They had no idea as a family he was a sexual deviant.  In the last letter, from the defendant, he describes himself as evil.  He is ashamed, and determined to change.  He is sorry that he abused the trust of the voluntary agency that he used to gain access to X and Y.

24.He fully co‑operated and told the police about Y to show his sincere remorse.  He wants psychological treatment and he appreciates the family support that he is receiving despite all of this.

25.Defence counsel, as I have said, has done his utmost to mitigate on behalf of the defendant, and asks for leniency in light of his plea and genuine remorse.

26.There are no sentencing guidelines for indecently assaulting young children.  However, there are relevant factors to consider.  I refer myself to the authority of HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239, in particular paragraphs 13 and 14.  It is so succinct and important I intend to quote directly from these two paragraphs:

“The applicant is a paedophile. There is no tariff in sentencing sexual offenders involving young children. HKSAR v Chow Yuen Fai [2010] 1 HKC 181 and HKSAR v Lee Hon Wa [2011] 4 HKLRD 319. However, the following factors have been regarded as relevant:

(1) the age difference between the defendant and the victim;

(2) the relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust at the time of the offence;

(3) whether the defendant had used threats or inducements to make the victim succumb, falling prey to his licentious exploitation;

(4) the number of occasions of committing the offences and the duration of the offences;

(5) whether in appropriate and unnecessary violence was involved in committing the offences and whether any harm or discomfort was caused to the victim;

(6) whether any suitable safety measures were taken in committing the offences and whether any hazard to the health and safety of the victim and the public was caused;

(7) whether the offences have caused physical or psychological trauma to the victim;

(8) whether the offences have impact on the family members of the victim;

(9) was the defendant involved in other inappropriate behaviour such as inviting or permitting other people to watch or take photos or videos;

(10) whether the defendant is psychologically imbalanced or paedophiliac, and the likelihood of reoffending.”

27.Overview in sentencing paedophiles, paragraph 14:

“In addition to these factors, the following overview should be considered:

(i) the courts have taken a serious view on paedophiles preying on young children. This is reflected in the heavy sentence imposed in recent judgments. While there is no sentencing tariff in this field, the court is clearly entitled to take into account the level of sentence imposed in similar cases. For example, in Chow Yuen Fai, the defendant pleaded guilty to 10 counts of sexual offences. There were six victims aged between 8 and 13. There were two counts of homosexual buggery, four counts of indecent assault, three counts of making child pornography, and one count of possession of child pornography. The defendant was sentenced to 11 years’ imprisonment. This court, differently constituted, held that the appropriate sentence should have been 12 years and 8 months’ imprisonment, but declined to serve(?) the sentence only because the applicant had succeeded in some argument. While some older cases may indicate the imposition of a lighter sentence, guidance should be based on the more recent judgments of this court.

(ii) The mischief that the deterrent sentences are targeted at is the sexual exploitation and abuse of children. This may take the form of sexual conduct with young children, child prostitution, and depicting children in pornographic materials. The exploitation and abuse are usually the result of inducement or coercion. Inducement often takes the form of rewarding the children with money or gifts before or after the abuse.

(iii) The trauma, distress and psychological harm that are caused to young sexual victims have been recognised and court has indicated that in the vast majority of cases it can make such an assumption even without victim psychological reports. Views to the contrary view have been disapproved by this court. HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690, 43-46.”

28.Almost all the factors I have quoted are present and exist in this case and are to be taken into account.  The age difference between the defendant and X and Y makes it very serious and sordid.  The defendant put himself in a position of trust to abuse young girls.  He bought them gifts to gain their trust and succumb to him.  Where Y is concerned, the offences began when she was 7 years old and continued until she was 11.  The abuse caused psychological trauma to both young victims, and there must be some impact on the families, who let the defendant into their home to help their children with their studies.

29.The defendant has been diagnosed as a paedophile, and the likelihood he will reoffend is very high.

30.I repeat there are no guidelines for sentencing indecent assaults.  I have been referred to a number of authorities by defence counsel in MFI-1.  I also considered several other authorities, in particular HKSAR v Kam Wing Yin CACC 515/2005.  In that authority, a piano teacher abused two students, a 5 and a 9 year old.  He did insert something into their vaginas.  The Court of Appeal believed that 5 years after trial was appropriate.  I also considered HKSAR v Kong Yin Chiu [2007] 4 HKC 391. There, an uncle abused his 8-year-old niece.  In that case, the facts are that he masturbated and ejaculated on her.  There, the Court of Appeal believed a 5‑year starting point was appropriate.  I also considered the authority of HKSAR v Wong Ying Ho CACC 165/1999.  There, the victim was 8 years old and the defendant a doctor.  He put his penis in her mouth.  A 4‑year starting point was taken by the sentencing court, but the Court of Appeal said it was not high enough.

31.These acts of abuse I have just referred to are worse than the facts here, but these cases do demonstrate sentences considered appropriate for serious abuse.  Clearly, the courts should consider “a sentence severe enough to deter others from acting like the defendant and also to show the abhorrence of members of the public to crimes of this nature and also to address the grievance suffered by the victim, her friends and relatives”.  I quote the Court of Appeal in the Kong Yin Chiu authority.

32.I turn to making child pornography and possession of child pornography.  Obviously, making child pornography is treated more seriously than mere possession of child pornography.  The maximum sentence is higher.  There are few cases in Hong Kong courts of making child pornography, and I have already highlighted what the images of Y contained.

33.There is guidance for possession of child pornography in HKSAR v Man Kwong Choi [2008] 5 HKLRD 519.

34.The four levels of child pornography have been identified by the Court of Appeal in that case.  The Court of Appeal suggests custodial sentences between 12 to 36 months subject to mitigating and aggravating factors, 36 months being appropriate for Level 4 child pornography.

35.Aggravating factors would include the age of the children in the pornography and number of images.  That authority reviewed two cases in which, amongst the images seized, 187 images and 69 films and 200 images and 48 films were categorised as Level 4 respectively.

36.Here I repeat 1,452 images, not including cartoons, and 130 films of Level 4 pornography were seized; many more than those considered by the court in Man Kwong Choi. 

37.I find I can look beyond the 36 months suggested by the Court of Appeal because of the aggravating factors.

38.I have had sight of samples of each level of pornography seized, and as far as Level 3 is concerned, there are images of children described as 4 and 7 years old with adults who put their penises in their mouths and ejaculated.  These children most certainly looked that young. There is video footage of a toddler being abused in the same way.  In the Level 4 category there are images of very young girls tied up, with one tied so her arms and legs are drawn up behind her.  There is an image of a naked young girl with a large knife held to her vagina.  There are images of anal sex with young girls and boys; even a child that can only be described as a toddler.  There is an image of bestiality with a dog.

39.The images I have seen are very disturbing. They are vile, repulsive and disgusting.  Those involved in the making of such images are the scourge of this earth.

40.The defendant told the psychologist that he masturbates regularly to these images he has collected.

41.The defendant has expressed to the psychologist a view that he will tutor again after this sentence is served.  Defence counsel has said he now says otherwise.  Nonetheless, if he did, there is nothing to prevent it.  More importantly, there is nothing parents can do to ensure that tutors they invite in their homes are not sexual offenders.  There is no sexual offenders register in Hong Kong.

42.The Court of Appeal and other levels of court have expressed concern in the past and called for such a register to be established, but no action has been taken so far.  Stock JA, as he then was, in Chow Shiu Ho CACC 228/2007, commented on this, as he did again several years later in HKSAR v Kam Wing Yin CACC 515/2008.  He said in Chow Shiu Ho:

“Given the private tuition role that the applicant has taken up in the past, we express the hope that he will not assume such a role in the future. In the absence of any register with legislative force, hope is all there is.”

43.I hope there is something in place to protect children in the form of such a register in the very near future.

44.After careful consideration of the facts of this case, the actual acts of indecent assault committed, many factors relevant to the indecent assaults, the amount of child pornography, the amount of Level 4 child pornography, the mitigation put forward on behalf of the defendant, as well as his previous clear record, I find for Charge 1, indecent assault of Y at the age of 7, an appropriate starting point of 3 years’ imprisonment.  I find for Charge 2, making child pornography involving Y at the age of 8, I find appropriate a starting point of 4 years’ imprisonment.  I find for Charge 3, making child pornography involving Y at the age of 8, I find an appropriate starting point of 4 years’ imprisonment.  I find for Charge 4, indecent assault of Y at the age of 10, an appropriate starting point of 3 years and 6 months.  I find for Charge 5, indecent assault of X at the age of 6, I find the appropriate starting point one of 3 years and 6 months’ imprisonment.  I find for Charge 6, the indecent assault of X at the age of 6, I find the appropriate starting point is 3 years and 6 months.  I find for Charge 7, indecent assault of Y at the age of 11, an appropriate starting point of 3 years and 6 months’ imprisonment.  I find for Charge 8, possession of child pornography, an appropriate starting point of 3 years and 9 months.

45.The defendant has pleaded guilty.  He is entitled to a discount of one-third for all the charges.

46.After that discount is applied, he is sentenced to the following sentences:

Charge 1, 2 years’ imprisonment;

Charge 2, 2 years and 8 months’ imprisonment;

Charge 3, 2 years and 8 months’ imprisonment;

Charge 4, 2 years and 4 months’ imprisonment;

Charge 5, 2 years and 4 months’ imprisonment;

Charge 6, 2 years and 4 months’ imprisonment;

Charge 7, 2 years and 4 months’ imprisonment;

Charge 8, 2 years and 6 months’ imprisonment.

47.I consider the types of offences, the number of victims, and the totality principle.

48.I intend to group the offences as follows;

There is the indecent assault of Y. There is Charge 1, where the defendant is sentenced to 2 years, and Charges 4 and 7, where the defendant is sentenced to 2 years and 4 months.

Then there is the indecent assault of X. For Charges 5 and 6, the defendant is sentenced to 2 years and 4 months’ imprisonment for each charge.

Then there is making child pornography. There, the defendant, for Charges 2 and 3, is sentenced to 2 years and 8 months for each charge.

Lastly, there is possession of child pornography as a fourth group, and that involves one charge, Charge 8, where the sentence is 2 years and 6 months.

49.As groups of offences, the offences in each group should be concurrent.  However, I will make each group partly consecutive to the other groups.  This is how I intend to do it.

I order 1 year of Charge 7, which is indecent assault of Y, to be served consecutively to Charge 2.

I order that 1 year of Charge 6, indecent assault of X, to be served consecutively to Charge 2.

I order 6 months of Charge 8, the possession of child pornography, to be served consecutively to Charge 2.

Everything else is concurrent to Charge 2.

Therefore, the total sentence is 5 years and 2 months.

COURT: Do you understand, defendant?

DEFENDANT: Yes, I understand.