HKSAR v. Hui Sze Ming

DCCC 393/2017

[2018] HKDC 132

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 393 OF 2017

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Reasons for Sentence

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1.The defendant, Mr Hui, has pleaded guilty to four offences. Two of those involve unlawful sexual intercourse with a girl under 16 years, and the other two offences involve the offence of making child pornography, which is contrary to section 3(1) of the Prevention of Child Pornography Ordinance, Cap 579.

2.Mr Hui has agreed the facts as presented against him by the prosecution, which show that the offences arise out of a relationship that he had with the victim.

3.The victim, described as “X” in the facts, was born on 3 December 2002, so when the offences were committed in 2016 and 2017, she would have been between the ages of 14 and 15.

4.The offences came to light on 17 January 2017, when the victim made a complaint to her mother that she had visited the defendant, who had been injured in a traffic accident, and during the course of that visit, the defendant had had sexual intercourse with her, and the defendant told the victim it was not possible for them to become lovers.

5.The matter was reported eventually to the police, and on 27 January, the victim made a more extensive video‑recorded interview, where she set out, as far as she recalled them, the particulars of the offences.

6.She said she had known the defendant on Facebook, and at the time she came to know him, she was aged 13, and they had met after knowing each other for about a month and then they had had sexual intercourse in a residential flat in Kwun Tong.  The relationship had seemed to come to an end in about June 2016 for various reasons, but on 17 January 2017 - that is, last year - the defendant had sent messages to her mobile phone saying he had been injured in a traffic accident and asked the victim, “X”, to come and help him take a shower, which she had done, and after that, on 17 January, after the victim had gone to the defendant’s flat, intercourse had occurred.

7.She also mentioned in her statement that the defendant had filmed their sexual intercourse with a mobile phone.

8.When the defendant was arrested at his flat on 27 February 2017, his mobile phone was seized, and he made admissions firstly that on 18 June 2016 he had had sex with the victim and filmed their intercourse with her consent; that on 17 January, she had attended the flat.  He said he did not have intercourse with her on that day, but had taken photographs of her naked on 17 January 2017.

9.As far as the charges are concerned, I note that intercourse is alleged to have occurred and the defendant pleaded guilty to that on 18 June 2016; that the child pornographic videos, by his plea, are admitted to have been made on 18 June 2016; that he admits by his plea that unlawful sexual intercourse with “X” took place again on 17 January 2017; and that on the same day, under the 4th charge, he admits by his plea of guilty to have made three child pornographic photographs.

10.That is important, because on the mobile phone of the defendant were found two videos and three photographs.  The two videos showed sexual intercourse being recorded and are agreed to be Level 4 child pornographic videos, whereas the three photographs which form the substance of the 4th charge are three photographs of the victim and are agreed to be Level 1 images.  In the facts a more extensive description of the first video of two videos is given.  I think it is sufficient for the purposes of sentencing to observe they are at Level 4.

11.Those are, effectively, the facts to which the defendant has admitted by his agreeing to these facts and his pleas of guilty.

12.As far as the defendant’s background is concerned, he is now aged 29.  He is a person, prior to these convictions, of clear record.  I have obtained psychological and psychiatric reports on him due to the nature of these offences.  I can be satisfied the defendant suffers from no mental illness, nor has he done so.  He is a settled, coherent person of stable mood and shows no signs of mental disturbance.

13.As far as his psychological condition is concerned, I have reports both from the Correctional Services Department and also from a Dr Sammy Cheng.  They are in similar terms.  The background is set out in the defendant’s psychological report.  He is the youngest of three children.  His father is a taxi‑driver.  His mother was a fulltime housewife. The defendant has had an unfortunate physical condition involving urinary incontinence since he has been a child.  Apparently it was found to have a physical cause, but he still suffers from that.  He currently lives at home. He is found to have what is described as normal intellectual functioning, but is described to be impulsive and immature, which may well account for his involvement in an offence such as this.  He has had poor social intimacy skills and has a superficial and casual attitude towards intimate relationships, thus has been unable to maintain stable courtships.

14.The offences are said to arise out of what is described as the defendant’s maladaptive coping with loneliness, impulsive personality, and desire for gratification.  There is no evidence to suggest the defendant is paedophiliac or has any disorder of that nature.  His sexual orientation is apparently quite normal.

15.Risk is seen in his social and intimacy deficit and his preoccupation with loneliness and impulsivity and using sex as a coping mechanism.  Because of that, the risk of sexual recidivism is considered to be at the high end of moderate risk with reference to international actuarial assessments.

16.The psychological report from Dr Cheng reaches similar conclusions as to the defendant’s problems with intimacy and the like and deals with them in quite some detail.  He assessed the defendant’s future risk of reoffending in what he could describe as sex‑related crimes as in the moderate to low risk category, so there is some divergence between the two psychologists in their assessment of that particular area of the defendant’s risk of recidivism.  However, having regard to the overall picture I have of the defendant, I think it is particularly relevant to the approach I will take to sentencing.

17.As far as the sentencing for these kind of offences, I have been referred to the case of Yip Chi Chung DCCC 417/2013, which provides some review of these offences and also involves a case of a similar nature where child pornography was made out of the result of unlawful sexual intercourse with a girl under 16.

18.Turning to the approach to be taken to the offences involving child pornography, in this case there are two offences of making child pornography.  The case as you referred to is Secretary for Justice v Man Kwong Choi, App R 8 and 9/2007.  That case of course concerns the possession of child pornography.  It describes various aggravating factors such as a previous record, which is not present here; the age of the children depicted; the purpose for which the defendant possessed depictions; and the number of images.

19.The offence here is making of child pornography.  The court, in the case of HKSAR v Chow Yuen Fai CACC 392/2008, said that:

“Although the making of child pornography is treated more seriously than mere possession, some guidelines can be taken from Man Kwong Choi.”

20.In the case of Chow Yuen Fai, the judge adopted a starting point of 2 years for each of three offences of making child pornography as the image files contained pornographic images up to Level 4 depiction, which Man Kwong Choi states could generally merit a custodial sentence of 12 to 36 months.  In that case, the court was willing to follow the starting point of 2 years’ imprisonment.  That of course would be relevant to the 2nd charge where the videos which are particularised in that charge do relate to Level 4 activities, whereas the 4th charge, which relates to the photographs, relates to Level 1 activities.  In Man Kwong Choi those can sometimes be dealt with by way of sentencing such as community order or probation order.

21.As far as the 2nd offence - that is, unlawful sexual intercourse - there are a number of relevant cases.  The predominant factors would appear to be the age of the defendant and the age of the girl. Where the disparity is greater, then of course that is seen as a more serious offence.  And of course the courts must bear in mind that girls under the age of 16 require protection from mature men such as the defendant.

22.In HKSAR v Lai Yip Sing Mag App 1104/2000, the judge said:

“The important factor is the marked difference in age between the offender and the victim.”

23.I note that in the Sixth Edition of Sentencing in Hong Kong, sentences for offences of this nature generally range from 6 to 18 months’ imprisonment.

24.In sentencing the defendant, I bear in mind the nature of these offences, the mitigation advanced, his previous clear record and his clear remorse that he has shown by his pleas of guilty today.

25.I will adopt the following starting points and discounts for sentence.  In each of the charges the defendant has indicated a plea of guilty from an early stage, so he is entitled to one-third discount.

26.Looking at the charges the defendant faces, in the 1st charge, unlawful sexual intercourse with a girl under the age of 16, that is the offence that occurred on 18 June 2016.  Of course, the girl at that stage, I believe, was 14 years old, whilst the defendant was 28 years old.

27.I will take a starting point on that offence of 15 months’ imprisonment and reduce it to 10 months’ imprisonment for the defendant’s plea of guilty.

28.On the same day, on the 2nd charge, the defendant is charged with making the two child pornographic video clips at a Level 4 level.

29.I will take a starting point then of 24 months’ imprisonment and reduce that to 16 months’ imprisonment for the defendant’s plea of guilty.

30.As far as the 3rd offence is concerned - that is the offence of unlawful sexual intercourse with a girl under the age of 16 years - this occurred in 2017, the girl being somewhat older by then.

31.I will take a starting point of 12 months’ imprisonment and reduce that to 8 months’ imprisonment for the defendant’s plea of guilty.

32.As far as the making of child pornography is concerned in the 4th charge, these refer to the three child pornographic videos at Level 1.

33.I will take a starting point of 3 months’ imprisonment for those and reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.

34.Having regard to the overall totality, there should be a correct overall totality of sentence in this case.  I will order that the 1st and 2nd offences run concurrently to each other.  I will order that the 3rd and 4th offences run concurrently to each other, but 2 months of those offences will run consecutively to Charges 1 and 2.

35.That will lead to an overall sentence of imprisonment of 18 months’ imprisonment for these four offences.