HKSAR v. Cheung Yu Kit

DCCC 671/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 671 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has pleaded guilty to three counts of indecent assault involving the same young victim, contrary to Section 122(1) of the Crimes Ordinance, Cap. 200, one count of criminal intimidation of the same young victim, contrary to Section 24(a)(i) of the Crimes Ordinance, Cap. 200 and one count of possession of child pornography contrary to Section 3(3) of the Prevention of Child Pornography Ordinance, Cap. 579.

2.In short, the Defendant has pleaded guilty to indecently assaulting X on 3 occasions, on a day in or about February, 2011, when X would have been aged 13 years and the Defendant aged 16 years, on a day in or about December, 2011, when X would have been aged 13 years and the Defendant aged 17 years, and on 19 January, 2013, when X would have been aged 15 years and the Defendant aged 18 years. These indecent assaults took place on each occasion at the Defendant’s home. Count 4, the criminal intimidation charge, took place on or about 11 April, 2014,  Count 5 is possession of child pornography, that on 25 April, 2014, at his home, the Defendant had in his possession child pornography, namely 17 photos and 18 video clips containing child pornography stored in his desktop computer, mobile phone and SD card.   These were all of the boy X.  2 photo albums of samples of images of the child pornography found at the Defendant’s home was produced by agreement and admitted by the Defendant and viewed by the Court.

Facts

3.X was born on 23 May, 1997. In October 2009 X became acquainted with the Defendant on social media. Both of them shared an interest in spotting buses. They became close friends.

4.On a day in late February, 2011, when X was aged 13 years and the Defendant aged 16 years, X went to the Defendant’s home in Tsim Sha Tsui for the first time. The Defendant asked to touch X’s penis. X removed his trousers and allowed the Defendant to touch his penis. The Defendant caressed X’s penis until he was told to stop. The touching lasted for about 20 seconds.  The Defendant for the first time also took photographs of X’s genitals with his mobile phone (Count 1).

5.On a day in or about December, 2011, when X was aged 13 years and the Defendant 17 years, at the Defendant’s home in Tsim Sha Tsui, the Defendant caressed X’s penis and took photographs of X’s penis (Count 2).

6.On 19 January, 2013, when X was aged 15 years and the Defendant aged 18 years, X went to the Defendant’s home in Tsim Sha Tsui and his penis was touched again (Count 3).

7.Since then, there were many occasions when the Defendant took photographs of X’s genitals/naked body.

8.On 10 or 11 April, 2014, the Defendant sent X via what’s app 5 or 6 photographs depicting X’s face and his genitals, and demanded to see X. X did not respond. The Defendant then called X threatening to publish the photographs. He also sent more photographs. X was frightened by the threats. In order to prevent the Defendant from publishing these photographs, he decided to console the Defendant for the moment, and also considered terminating their friendship (Count 4).

9.X was worried that the Defendant would publish the photographs. He sought help from an organization called “End Child Sexual Abuse Foundation”.  The Defendant was subsequently arrested on 25 April, 2014. Under caution, the Defendant said that he was curious.

10.Upon a house search of the Defendant’s home, an initial inspection of a desktop computer in the living room disclosed a folder bearing X’s name which contained photographs depicting child pornography. Under caution, the Defendant said he took the photographs out of curiosity (Count 5). 3 mobile phones of the Defendant and the desktop computer were seized by the police and sent for examination and found to contain 17 photographs and 18 video clips stored in the Defendant’s desktop computer, mobile phone and the SD card in the mobile phone.  They were all classified to be Level 1 child pornography (i.e. images depicting erotic posing with no sexual activity).

11.In a subsequent video record of interview under caution, the Defendant said, inter alia,   that he had known X since 2009 when X was 12 years old and studying in Form 1. They were both bus spotters. They became close friends, and X would go to his home.   He admitted to have caressed X’s private parts out of curiosity at his home with X’s consent as X had removed his trousers himself. With X’s consent, he had taken photographs of X’s genitals, and saved these on his mobile phones.  He had also saved the photographs on his desktop computer, and had never sent these to others.  All were close-ups of X’s genitals. He had sent some of the photographs to X via what’s app threatening to publish the photographs to force X to answer his phone calls and he only intended to frighten X. 

12.I was satisfied that the facts admitted by the Defendant supported the charges and accordingly I convicted the Defendant of all the charges that he faced.

Previous Convictions

13.The Defendant has a clear record.

Mitigation

14.The Antecedent Statement of the Defendant was read into the record. No issue was taken on the contents.  The Antecedent Statement disclosed that the Defendant was born in Hong Kong on 28/7/1994 and he is now aged 22 years. He has attained an associate degree in Hong Kong.  At the time of his arrest he was unemployed, but now works for the Kowloon Motor Bus and earns $13,000 a month. His health condition is fair. He lives with his parents, his father aged 58 years and an air-condition mechanic and his mother aged 51 years, a cleaner. 

15.Defence Counsel submitted that the charges were serious charges.  But he submitted that Counts 1 to 3 and Count 5 were essentially about 2 teenage boys curious about sex. Both were sexually confused and exploring sex and their own sexual orientation.  The photographs and video clips were all classified to be level 1 child pornography and most were taken when X was having a shower or about to take a shower.  The Defendant was immature and did not consider the legal consequences. He did not realize that what he did was wrong until he was told by X to stop. Although the Defendant was 3 years older than X, he was still quite young.   He submitted that the Defendant had apologized to X more than once, and X had forgiven the Defendant – they were still friends and still saw each other regularly.  Defence Counsel submitted in mitigation a letter from X wherein X stated that he had forgiven the Defendant and sought leniency on behalf of the Defendant.

16.Defence Counsel also submitted that the Defendant had been arrested in April, 2014 but was not charged until June, 2016.   Although he does not seek to say there has been undue delay or attach blame to the Prosecution for the time taken to charge the Defendant, he asks that I take this delay into account in considering and passing sentence.  Although he accepted that time was required to examine the desktop computer and mobile phones seized and consider the case, he submitted that the charges had been hanging over the Defendant since the last two years, causing him great pressure.  He was now aged 22 years and about to start a new life and career.  He lived with his parents, both of whom were employed. He had completed Upper 6, and signed up for an associate degree, although he did not complete it. He had worked as a regulator for a bus company since January 2015. Counsel also submitted relevant sentencing authorities.

17.After hearing Counsel in mitigation, I adjourned sentence until today, calling for Background and Detention Centre Reports, as well as psychiatric and psychologist reports and a victim impact assessment report. Counsel did ask that I consider community service but I did not think this was appropriate.  The reports that I have called for are now before me. 

18.In determining sentence, I have borne in mind all that has been submitted on behalf of the Defendant, on the previous occasion and today, as well as the contents of the letter in mitigation from X, the authorities submitted by Counsel, and the contents of the various reports I have called for. I have been informed by Defence Counsel that he has explained the contents of the reports to the Defendant and he agrees with the contents. Today Counsel has submitted letters in mitigation from the Defendant, his parents and some of the Defendant’s colleagues and friends.  I have considered their contents.  I am told that the Defendant’s parents are in Court today to show their support of the Defendant.

Sentencing Considerations

19.A person who indecently assaults another person shall be liable on conviction on indictment to imprisonment for 10 years.

20.Any person who commits an offence against section 24 or 25 of the Crimes Ordinance, Cap. 200, the offence of criminal intimidation, shall be liable on conviction upon indictment to imprisonment for 5 years.

21.Any person who has in his possession any child pornographyis liable on conviction on indictment to a fine of $1,000,000 and to imprisonment for 5 years.

22.In HKSAR v. Lee Kwok Wai, CACC 199/2011, an authority referred to by Counsel, the Court of Appeal reiterated the principles in sentencing for sexual offences involving young children:-

“13. ….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 Wah [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 inappropriate 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 behaviours such as inviting/permitting other people to watch or take photos/videos?

(10) Whether the defendant is psychologically imbalanced or pedophilic and the likelihood of re-offending?

Overview in sentencing paedophiles

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

1) The courts have taken a serious view on pedophiles 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 be 12 years and 8 months’ imprisonment, but declined to disturb the sentence only because the applicant had succeeded in some arguments. While some older cases may indicate the imposition of a lighter sentence, guidance should be based on the more recent judgments of this court.

2) The mischief that the deterrent sentences are targeted at is the sexual exploitation and abuse of children. This may take the form of sexual conducts 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.

3) The trauma, distress and psychological harm that are caused to young sexual victims have been recognized and the 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, at paragraphs 43-46).”

23.I have considered the contents of the victim impact assessment report for X. I will not repeat the details, but suffice to say that he has suffered as a result of the sexual abuse by the Defendant. Where the clinical psychologist has referred to X by name, I have substituted ‘X’ in his concluding paragraphs. The clinical psychologist concluded in his report that:

“13. The offender has taken advantage of X’s trust in him and limited parental support by exploiting him sexually and psychologically. The offence took place with the offender being in a position of power given his role as a private tutor and elder age. At the developmental stage of transiting to puberty, X was largely unfamiliar with normative sexual boundaries, and thereby trapped in the confused, conflictual and abusive relationship for years.

14. Two years after the abuse had been disclosed, X still reported trauma-like symptoms despite the grossly normal overall functioning. He reported of feeling a sense of powerlessness, shame, self-blame and worry. There were occasional intrusive images of the trauma and he largely coped with avoidance. Since the abuse took place during his adolescent stage, his normal development in social relationship, academic achievement and extra-curricular activities was indirectly affected. The abuse also casted damaging impacts on his self-concept and precipitated his negative views over sex and intimate relationship. His intense worry that the offender might hurt others and his case might be identified by his friends still persisted.

15. Luckily, X took the courageous step to report the abuse and regain his emotional and physical safety. The sequelae of the trauma might be mitigated by a number of factors including his available social support and opportunity to develop corrective interpersonal experience. Currently he has considerable resources as he has widened his social circle and enjoyed the care of his mother. He has also been striving hard to maintain normal daily functioning despite the reported trauma-like responses. It is postulated that as he finally reaches out to engage in intimate relationship, the deleterious outcome of the abuse might further unfold.”

24.X is not recommended for psychotherapy for the time being as he has expressed reluctance for psychological services. But the clinical psychologist indicated that these psychological services would be available when X perceives the need and is ready to face and process the trauma.

25.The Background Report on the Defendant says that he is the only child of working class parents.  As the parents were preoccupied with work, the Defendant had been under the care of his maternal grandparents at their home when he was in primary school. It was only when he commenced secondary school that he moved to live with his parents. The school social worker in his secondary school found symptoms of Asperger Syndrome in the Defendant throughout his secondary schooldays including impaired non-verbal behavior of eye contact and facial expression, social interaction difficulties, physical clumsiness to shy away from any sports and preoccupation with his interest in buses. As he was overweight and clumsy, he was an easy target of teasing by his classmates. He showed strong interest in the same sex. But she considered his condition to be mild and did not recommend any immediate therapy at that time.   The interviewing officer for the Background Report said it was the victim who recruited the Defendant into his bus spotter group via Facebook in 2009. Another bus spotter in the group told the interviewing officer that X had been their leader and he had always had a wide social circle to organize outing activities for his bus interest group. According to him, the Defendant and X continued to participate in their group activities together even after the Defendant’s arrest for the present offences in April, 2014.  The Defendant’s mother had also overhead the occasional heated argument between the Defendant and X over the phone after midnight. The Defendant has been working as an assistant bus stop regulator for the New Bus Company since January, 2015 and his supervisor has described him as a responsible and keen worker. They are prepared to continue to employ him. The Defendant when interviewed said that his intimate relationship with X had been consensual. He regretted having sent the photos to X, and they had since made up, and continued in their bus interest group, and had even gone on holiday to Japan together in July 2015 and May 2016.  The interviewing officer opined that the Defendant and X had developed a crush on each other and started their relationship. Because the Defendant had ‘the short fused character’ of Asperger Syndrome sufferer, he had acted out his impatience and anger when X failed to answer his calls by sending X the photos and threatening him. X approached ‘End Child Abuse’, a non-governmental organization advocating child protection for advice and without investigating they referred the matter to the Family & Children Protective Services Unit and Clinical Psychologist Unit of the Social Welfare Department and they referred the matter to the police. The interviewing officer clearly felt that the professionals only considered the victim, without considering the Defendant. That may well be, but in my view that does not reduce the Defendant’s criminality and culpability.

26.The psychiatrist who examined the Defendant for the Psychiatric Report opined that mental state examination found him to be calm, composed and attentive with no abnormal gestures observed.  His mood was normal, although the range of his affective responses was somewhat limited.  He spoke coherently and relevantly. Dr. Choi opined that the Defendant could be described to have problems with his psychosexual adjustment but he did not suffer from any other psychiatric disorder.

27.He was examined by a medical officer for the Detention Centre Report. He was considered unsuitable for detention in the Detention Centre as he was obese.

28.The Clinical Psychologist opined in her report that intelligence assessment for screening purposes indicated that the Defendant had normal intellectual functioning and was able to distinguish right from wrong and understand the consequences of his behavior.  She further opined that “the Defendant was impressed to be an immature, unmotivated and rigid introvert with low self-esteem.  He had weak emotional management with the propensity to avoid expression of negative emotions. He was socially insecure, withdrawn and feared of being rejected.  His poor social and communication skills, together with his introverted and passive personality, hindered his development of mutually supportive social and intimate relationship. With the distant family relationship and his social difficulties, he appeared to be overly attached to and dependent on the victim to gratify his intimacy needs and his longing for affection and emotional support.”  She concluded “he was impulsive and resorted to maladaptive strategy of threatening to maintain the relationship and resulted in the index offence.  Though the present assessment finds no evidence warranting diagnosis of pedophilic disorder or other psychological disorders, his risk of sexual and violence reoffending should not be neglected.”  The psychologist feels that psychological treatment on his self-esteem, social and intimacy skills is recommended to prevent reoffending.

29.The offences the Defendant has admitted are very serious offences. His best mitigation are his pleas of guilty and frank admissions to the police and the psychologist.  He has a previous clear record.

30.Defence counsel has done his utmost to mitigate on behalf of the Defendant, and asks for leniency in light of his pleas and genuine remorse.

31.The offences of indecent assault began in 2011, when X was only 13 years old, while the Defendant was 16 years old. These offences continued over two years, with the third offence being in 2013, when X was 15 years old and the Defendant 18 years old. Although when he was interviewed under caution the Defendant had referred to having caressed X’s private parts on more than 100 occasions from the end of 2011 until 5 April, 2014, for the purposes of sentence, I have considered only the 3 occasions as set out in the particulars of the 3 charges that the Defendant has admitted.   The age difference between the Defendant and X is some 3 years. They both had an interest in bus spotting, and their friendship had begun in 2009.  Although the Defendant was also tutoring X in his studies during this period, this was not for financial gain but rather because of their friendship. There is no suggestion that the Defendant abused his friendship with X or used any violence in committing the offences thereby causing harm or discomfort to X.   Here, the indecent assault on each occasion involved the Defendant touching and caressing X’s penis for a very short time, and on the first occasion, the Defendant had asked to touch X’s penis, and X had himself removed his trousers to allow the Defendant to touch him.

32.Counsel submitted that in respect of Charges 1, 2, 3 and 5, these were about 2 teenagers curious about sex, two teenagers who were sexually confused.  They were both only children exploring about sex and their own sexual orientation.  The Defendant was immature and did not consider the legal consequences.  He did not realize that what he was doing was wrong. I am unable to accept this.  At the time of the first indecent assault offence, the Defendant was 16 years old, while X was only 13 years old. I do not accept that the Defendant did not know that what he was asking of X was wrong.  He asked X for permission to touch him.  As X was only aged 13 years old, he could not give consent and any touching of X in a sexual manner was unlawful. I am mindful of the fact that when the offences came to light in 2014, the Defendant would have been aged 19 years. However, he was older than X by some 3 years and relative to X, he must have been cognizant of how wrong what  he was doing with X was. The Defendant knew that what they were doing was wrong, because when X would not take his calls, he threatened to publish nude photographs of X on the internet. X was alarmed by his threats and this led to the offences coming to light.

33.In HKSAR v. Cheung Kwai-sang, HCMA 47/2002,  the late Gall J said that it was important in all cases involving indecent assault that there be an element of deterrence of others to mark the public abhorrence and a need to redress the grievance suffered.  This is more so when the victim is very young.

34.For offences of criminal intimidation, there are no tariff guidelines. The Court must consider the circumstances of the offence and of the offender in determining sentence.

35.In respect of Charge 5, possession of child pornography, a total of 17 photographs and 18 video clips are involved, stored in his desktop computer, mobile phone and SD card.   These were admitted to be all classified as Level 1 child pornography, namely images depicting erotic posing with no sexual activity.  Some of the images  are contained in the two albums of photographs submitted – they are all of X, and in some his face is clearly visible.  Guidelines for sentence are laid down in Secretary for Justice v. Man Kwong Choi, CAAR 8/2007.  The Court of Appeal held that in the case of possession of Level 1 depictions, where the quantity is small, e.g.  less than 20, a community service order, probation or fine may be appropriate. But where numbers are large or the depictions extremely suggestive, terms of imprisonment from 1 month to 6 months will be appropriate.     

36.I have considered the fact that the Defendant is a young man with a previous clear record. He has not exhibited any serious deviant or wayward behavior. He may have committed the present offences by allowing his sexual impulses to get the better of him in the course of experimenting and exploring his own sexuality in a wrong and misguided way. There is no evidence to suggest that what the Defendant did to X was done out of any desire to harm him or exploit his youth and innocence and immaturity.  That X has forgiven the Defendant can be seen from the letter in mitigation from him, as well as from the continued friendship of the Defendant and X.  But this does not mean that X has not suffered any trauma as a result. It is clear from the Victim Impact Assessment Report before me that he has.

37.After carefully considering the facts of this case, the actual acts of indecent assault committed and the criminal intimidation, as well as the amount of child pornography and the nature of it, the mitigation put forward on behalf of the Defendant as well as his previous clear record, and the contents of all the reports before me, I am satisfied that the only appropriate sentence must be a custodial sentence. 

38.In respect of Charges 1 to 3, on each charge of indecent assault, I take as a starting point 2 years’ (24 months) imprisonment, discount this by one-third to reflect the Defendant’s pleas and sentence him to 16 months’ imprisonment on each charge.

39.In respect of Charge 4, criminal intimidation, I take as a starting point 9 months’ imprisonment, discount this by one third to reflect his plea, and sentence the Defendant to 6 months’ imprisonment.

40.In respect of Charge 5, possession of child pornography, I take as a starting point 4 ½ month’s imprisonment, discount it by one-third to reflect the Defendant’s plea, and sentence the Defendant to 3 months’ imprisonment.

41.Mr. Ng does not seek to say that there has been undue delay or attach blame to the Prosecution for the time taken to charge the Defendant. The Defendant was arrested for the present offences in April, 2014, but not charged until June, 2016, over 2 years after his arrest. He submitted that the Defendant had suffered much stress as a result of the long wait. He had started working since January 2015 in a job that he enjoys and his supervisor has spoken well of him.  Mr. Ng asks that I take delay into account in passing sentence.  I am satisfied that there has been no delay by the Prosecution. Time was required for the examination of the computer, mobile phone and SD card.  However, I am satisfied that some credit should be given in sentence for the time it has taken for this matter to be brought to court.  In the circumstances, I would reduce the sentence in respect of each charge by a further one month. I am satisfied that there are no grounds to further reduce the sentence.

42.These are separate and distinct offences warranting consecutive sentences. But I do bear in mind the totality principle of sentence. I shall order that the sentences in respect of charges 1 to 3, namely 15 months’ imprisonment on each charge, are to be served concurrently, and that for charge 4, i.e. 5 months’ imprisonment and charge 5 of 2 months’ imprisonment, are to be served concurrently but consecutively to the sentence for charges 1 to 3. That is a total of 20 months’ imprisonment. I am satisfied that this sentence properly reflects the criminality of the Defendant on all the charges.