HKSAR v. Ho Wing Hong

HCCC 298/2018

[2019] HKCFI 1941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 298 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

I will start with a table of charges because there are so many charges. All 13 charges are against the same victim.

Charge	Against A Child under the age of 16 (Same Victim)	Date of offence
1	Indecent Conduct	1 Sept 2012 to 31 Jul 2013
2	Indecent Conduct	On or about 24 Dec 2014
3	Making Child Pornography	On or about 24 Dec 2014
4	Indecent Conduct	On or about 25 Apr 2015
5	Making Child Pornography	On or about 25 Apr 2015
6	Indecent Conduct	On or about 3 Mar 2016
7	Making Child Pornography	On or about 3 Mar 2016
8	Indecent Conduct	On or about 24 Sept 2016
9	Making Child Pornography	On or about 24 Sept 2016
10	Attempted Buggery	Date unknown in 2016
11	Buggery	1 Mar 2017 to 31 Mar 2017
12	Buggery	1 Mar 2017 to 31 Mar 2017
13	Possession of Child Pornography	15 May 2017

The defendant has pleaded guilty to all 13 charges. I will summarise them. These include five charges of indecent conduct with or towards a child under the age of 16, Charges 1, 2, 4, 6 and 8; four charges of making child pornography, Charges 3, 5, 7 and 9; one charge of attempted homosexual buggery with a man under the age of 16, Charge 10; two charges of homosexual buggery with a man under the age of 16, Charges 11 and 12; lastly, one charge of possession of child pornography, Charge 13.

There was one victim here, a boy known for the purposes of these proceedings as X, who was under the age of 16 at the time of all the offences. The last charge, Charge 13, relates to the possession of child pornography found on the defendant’s personal computer. The defendant was arrested on 15 May 2017 when a police operation targeting child pornography led to the discovery of an IP address belonging to the defendant. He was arrested at home after the police obtained a search warrant. The defendant identified the computer on which he stored child pornography.

Charge 13

Upon a forensic examination of his computer, the police found 87 videos. There were 34 videos depicting level 2 activities; three videos depicting level 3 activities, and 50 videos depicting level 4 activities. The approximate age of the children depicted in the videos ranged from 5 to 15 years old. None of the videos depicted X. The defendant admitted under caution that he had downloaded all the videos himself. He admitted that he knew the videos were child pornography and downloaded them via a software called Foxy.

Charges 1 to 12

The other 12 charges came to light when the police also checked the defendant’s mobile phone and found video clips of a boy performing oral sex. These videos were taken at the defendant’s home by him of X performing sexual acts on him. The boy X was later identified by the police. He identified the defendant in a subsequent identification parade. This victim was born in January 2002 and was 15 years old when the defendant was arrested.

The defendant told the police that he met X playing basketball about four to five years prior to his arrest, when he was about 10, and he knew that X was in primary school at the time. X would go to his home to play video games. The defendant admitted that all the videos and images in his mobile phone depicted X.

The videos and photographs depicted the following.

(a) The defendant took three videos of X performing oral sex on him, classified as level 4 pornography, on or about 24 December 2014 when X was 12 years old. The defendant is charged with indecent conduct with or towards a child under the age of 16, and making child pornography, Charges 2 and 3;

(b) The defendant took two photographs of X in his school uniform, exposing his penis to the defendant upon his request in an erotic manner in a public place. They were taken on or about 25 April 2015 when X was 13 years old. The defendant is charged with indecent conduct with or towards a child under the age of 16, and making child pornography, Charges 4 and 5.

(c) The defendant took one video of X performing oral sex on him on or about 3 March 2016 when the victim was 14 years old. The defendant is charged with indecent conduct with or towards a child under the age of 16 and making child pornography, Charges 6 and 7.

(d) The defendant took one video of X performing oral sex on him on or about 24 September 2016 when the victim was 14 years old. The defendant is charged with indecent conduct with or towards a child under the age of 16 and making child pornography, Charges 8 and 9.

According to the defendant, the first time there was indecent conduct with X was when the victim asked the defendant to lend him money. He only lent the money after X performed masturbation and oral sex on him. This occurred on a date between 1 September 2012 and 31 July 2013 when the victim was 10 or 11 years old, Charge 1.

Thereafter again, according to the defendant, he would lend X money if he performed masturbation and oral sex on the defendant. This normally took place in the defendant’s own home, but if there were others at home, the sexual act was performed on public rear stairs. If X could not repay the defendant, then in lieu of repayment, he would have X perform the same sexual acts on him. The defendant said he never shared the videos or photographs with anybody else; they were for his personal viewing only.

The police did interview X and he confirmed that he first met the defendant when he was 10 or 11 years old, and according to him, the first time there was indecent conduct, the defendant offered him money if the victim touched his penis. After that, he performed sexual acts on the defendant on multiple occasions. X told the police that the defendant repeatedly asked him to let the defendant have anal sex with him.

The defendant confirmed this, and said that X initially refused, but in 2016 when he was 14 years old, they attempted to have anal sex. It only lasted a few seconds because of the pain X experienced. The defendant admitted he did not wear a condom but did use lubricant. Immediately after this attempt, X performed masturbation on the defendant instead and he ejaculated. These are the particulars of Charge 10, attempted homosexual buggery with a man under the age of 16.

There was a second occasion, sometime in 2016 or 2017 when X was 14 or 15 years old, when the defendant performed anal sex on X without the use of a condom, but did use lubricant. He did insert his penis to about 4 centimetres, but did not ejaculate inside X. Instead he performed masturbation on himself in front of him until he did ejaculate. These are the particulars of Charge 12, homosexual buggery with a man under the age of 16.

On the last occasion when the defendant committed homosexual buggery with X, he was 15 years old. The defendant invited him to his home to give him some computer components he had purchased for him. The defendant suggested to X that if he would agree to anal sex, then he would not have to pay for those components. X agreed and the defendant penetrated his anus without wearing a condom. The defendant ejaculated inside X after 5 to 10 minutes. These are the particulars of Charge 11, homosexual buggery with a man under the age of 16.

X told the police that there were numerous occasions when he performed masturbation and oral sex on the defendant. The defendant devised a payment schedule. He would pay him $100 for masturbation, $200 for oral sex, and $400 for anal sex. I accept X was a willing party, but I would not say an equal partner, and only after he had been preyed upon and offered attractive inducements over a long period of time. That fact does not detract from the seriousness of the offences.

After that last occasion, Charge 12, the defendant said X told him that he no longer wanted to perform any more sexual acts. It is clear from the victim impact assessment report that X knew that the defendant had taken videos and photographs during those sexual acts. They were a source of his ever-present and continuing anxiety and distress. The defendant is now 32 years old and X just 17. There is a 15‑year age gap between them. The defendant had a clear record. Little weight is placed on this fact where such egregious crimes are committed.

In mitigation, I have heard that the defendant was last working as a warehouse assistant when arrested. He is single and lives in his family home. He was educated up to Form 5 level.

Sexual offences involving a predator and an underage boy are taken very seriously by the courts in Hong Kong. This is because children in their formative years, or when they become sexually aware during puberty, are extremely vulnerable and easily induced, corrupted or persuaded by adults. X was of a very young age when he met the defendant, who did indeed induce, persuade and corrupt a boy from the age of 10.

The Court of Appeal has set out principles to take into account during sentencing in relation to sexual offences involving young children, HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239. These principles apply to Charges 1 to 12 here. In that authority, the applicant pleaded guilty to 12 counts of sexual offences, namely, four counts of indecent assault, six counts of homosexual buggery with a man under 21, and one count of making child pornography as well as one count of indecent conduct towards a child under 16. He was sentenced at First Instance to a total of 12 years’ imprisonment. That sentence was upheld.

The applicant was 37, the victims were six boys aged between 11 and 13. Those offences took place over two periods of time, from 2005 to 2007, and in 2010. The Court of Appeal found that that applicant was a paedophile. Although there is no tariff in sentencing sexual offenders involving young children, the court there identified the following factors as relevant in similar cases in paragraph 13:

“(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 paedophilic and the likelihood of re-offending.”

In addition to the above factors, the Court of Appeal in that authority found that the following overview should also be taken into consideration when sentencing:

“(1) The courts have taken a serious view on paedophiles preying on young children. This is reflected in the heavy sentence imposed in recent judgments.

(2) Deterrent sentences should target the mischief of the sexual exploitation and abuse of children. 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. The exploitation and abuse may take the form of sexual conduct with young children and depicting children in pornographic materials.

(3) The trauma, distress and psychological harm that are caused to young sexual victims have been recognised. In this case, it is sadly evident and supported by a psychological report on the impact of the victim. Even if there was no such report, in the vast majority of cases, that harm can be assumed to have been inflicted.”

In HKSAR v Chau Yuen Fai [2010] 1 HKLRD 354, the Court of Appeal stressed that in sentencing sexual offences against young children, the sentencing court must consider the background of the defendant, whether there is risk of reoffending, the impact of the offences on the victim and his family, and the sentence must reflect the abhorrence of the public to these offences. A deterrent sentence is always warranted. The Court of Appeal was also of the view that it was not practical or possible to lay down tariffs or guidelines for the offences of buggery and indecent assault because the circumstances of the offences will vary from case to case.

The same applies to the making of child pornography. That authority makes it clear that this offence is to be treated more seriously than mere possession. Guidance can be taken from the Secretary for Justice v Man Kwong Choi & Anor [2008] 5 HKLRD 519, which I will refer to later.

This defendant demonstrates the features of a paedophile, and in this case, the relevant sentencing factors which I will take into account include the following:

(a) The significant age difference between the defendant and X. There was a 15-year age gap, and X was only 10 or 11 when first assaulted by the defendant;

(b) The defendant has used at least, inducements to make X succumb falling prey to his licentious exploitation;

(c) The number of occasions he committed the offences and the repeated course of conduct during a span of over four years;

(d) The fact that the defendant did not take any safety precautions, a lack of condoms worn on all occasions;

(e) The fact that the offences have caused serious psychological trauma to the victim and has had an impact on his family life;

(f) Whether the defendant is psychologically imbalanced or paedophilic and what is the likelihood of him reoffending with children. The psychologist’s report says there is a high risk;

(g) The additional aggravating factors of the defendant keeping a record of some of the offences, and for the buggery offences, the non-use of a condom was particularly serious.

When the buggery offences were committed and the defendant arrested, the maximum sentence for a man who committed buggery with a man under the age of 16 was life imprisonment. I did adjourn sentencing of this case at the request of the parties to await the decision of Yeung Chu Wing v Secretary for Justice [2019] HKCFI 1431. In that case, section 118C, and other sections, has been remedially interpreted by the court to make it basic law compliant, constitutional and is the law as of today.

It was argued in that judicial review that some of the provisions of the Crimes Ordinance discriminated against male homosexuals. I will quote from the case. Paragraph 32 of that case says:

“Section 118C provides as follows:

118C. Homosexual buggery with or by a man under 16 a man who:

(a) commits buggery with a man under the age of 16; or

(b) being under the age of 16 commits buggery with another man, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.”

Paragraph 33:

“Section 118C covers homosexual buggery with or by a boy under the age of 16, which includes buggery with a boy under the age of 13. The SJ accepts that as it is, the provision amounts to differential treatment against male homosexuals to the extent that:

(1) It criminalises a man aged under 16 for committing buggery with another man whereas for the same or similar act between heterosexuals, for example, sections 118D, 122, 123 and 124, the participants under the age of 16 would not be held criminally liable.”

In Leung v Secretary for Justice, the Court of Appeal held at paragraph 128 that such direct inequality of treatment in section 118C was discriminatory.

“(2) Upon conviction under section 118C, the man who commits buggery with a man under 16 is liable to imprisonment for life whereas under section 124 a man who has unlawful sexual intercourse with a girl under 16 shall be liable to imprisonment for 5 years only.”

As mentioned above, the Court of Appeal in Leung v Secretary for Justice has held at paragraph 7 that buggery and sexual intercourse between a man and woman are regarded as being similar. Accordingly, the maximum sentence should be the same.

Paragraph 44:

“However, Mr Leung proposes that section 118C should be remedially interpreted by reading it down as follows to make it Basic Law‑compliant as follows:

A man who commits buggery with a man under the age of 16 shall be guilty of an offence and shall be liable on conviction on indictment to:

(a) Imprisonment for life if the buggery is committed with a boy under the age of 13; or

(b) Imprisonment for 5 years if the buggery is committed with a boy under the age of 16 but is of or above the age of 13.”

Paragraph 35, Mr Leung submits that:

“(1) By Striking out the words ‘or being under the age of 16 commits buggery with another man’, the man under 16 is no longer criminally liable if the other man with whom he commits buggery is above 16; and

(2) Reading down the maximum sentence for buggery for imprisonment to five years if committed with a boy under the age of 16 but is or above the age of 13 brings it in line with the sentence for unlawful sexual intercourse with a girl under section 124; section 118C will be Basic Law-compliant.”

36:

“I agree with Mr Leung that the court should adopt this remedial interpretation for section 118C.”

37:

“The clear objective fundamental feature and essential principle of the legislative scheme of this provision is to protect a man under 16 from buggery. The remedial interpretation, even though having the effect of reducing the maximum sentence if the buggery is committed with a boy under 16 but above 13 from life to 5 years, it is still consistent with this principle. The interpretation also will not have any effect of creating new offence. Quite to the contrary, if anything, it has the effect of making a man under 16 no longer being criminally liable if he commits buggery with another man above 16, as he would have been under the originally worded section 118C.”

Paragraph 38:

“In the premises, as submitted by Mr Leung, this remedial interpretation does not go beyond the limits set out in paragraphs 25(3) and (4) above. The legislature would have intended its legislative provision to have a valid, even if reduced, operation than to have no operation at all and it is not fundamentally different from what was enacted. It is the court’s judicial duty to remedially interpret section 118C as proposed instead of striking it down.”

I have heard from the prosecution and defence today, and I am sure it is appropriate for me to act upon and adopt this remedial interpretation for this section of the Crimes Ordinance. It does not make this defendant’s actions less serious than before the interpretation. This section, 118C, applies here because the prosecution could not have considered the offence of non-consensual buggery, section 118A, which still carries a maximum sentence of life imprisonment.

X was willing, but as I have said, in my view, he was not an equal partner. I take into account the defendant made inducements to X since he was about 10; he made X succumb and compliant. There was consent because he was preyed upon and exploited successfully. I do take into account the remedial interpretation, but consider these facts here make it appropriate to impose close to the maximum sentence of now 5 years for Charges 10 to 12.

Before mitigation, I called for a victim impact assessment report and a psychologist’s report for the defendant. The victim impact report prepared by a psychologist finds that the sexual abuse and trauma had adversely affected X’s psychological wellbeing and daily functioning. X has lived:

“...in fear, shamefulness and a depressive mood, making him become socially withdrawn.”

He still has:

“Moderate traumatic stress responses and emotional disturbance, particularly in anxiety, depression, overt disassociation, fantasy, sexual concern, sexual preoccupation and sexual distress.”

X strives to keep this abuse a secret. He avoids recalling distressful memories. He persistently avoids stimuli associated with the trauma and the psychologist is of the opinion that he may have under-reported his symptoms and reactions about the abuse as the feelings were too overwhelming and painful. He has very low self-esteem. It is hard to see how he can ever fully recover. His parents have not directly talked about the abuse with him. The abuse is not known by his friends and classmates, but X lives in constant fear that they will find out.

He is worried that the defendant will take revenge on him and his family members in a violent manner, which means he feels very anxious and insecure when he goes out. He has occasional nightmares, flashbacks and recollections of abusive experience which affects his sleep.

Socially, he has become withdrawn. With no one to talk to, he has trust issues and has not developed any proper close relationships with other people.

The detail in the report makes for sad and troubling reading. It serves to highlight how serious an effect these offences have had on X.

The defendant’s psychological report describes his family background, employment and the lack of intimate or close adult relationships, even at the age of 31. The defendant confessed to having had two other prior intimate relationships with under-age males besides the victim in this case. X is the third. He admitted to the psychologist that he befriended this victim when he was around 10 years old; he would buy him food or meals. He said X initiated physical intimacy. He later lent the victim money which he could not repay. This led to a repayment of sexual activity in lieu of cash. A price range for different sexual activities was even put into place, which is depraved.

The psychologist says the defendant appears to demonstrate the features of paedophilia and appears to be attracted to under-age males. He actually preferred interacting with children rather than adults. He did not appear to have adequate interpersonal skills to maintain stable relationships with adults. The psychologist concluded that the defendant’s risk of sexual recidivism against children was high. This is an aggravating factor to be taken into account. He showed inadequate remorse and insight regarding his offending behaviour. He mistook minimal resistance from the victim as consent and did not recognise that the victim may be susceptible to his suggestions and inducements.

Despite that, he agrees to psychological intervention focusing on managing his sexual interest in children, which was highly recommended by the psychologist. The professional also suggests treatment will help to enhance his social and relationship skills with other adults.

Possession of child pornography, Charge 13

Possession of child pornography is an extremely serious offence. If no one was interested in child pornography, those producing child pornography would be less motivated to exploit and use children in the production of such pornography. Therefore, persons in possession of child pornography indirectly encourage such a shameless industry that hurts children. So the protection of children, to protect them from sexual exploitation, the courts will impose severe sentences for the offence of possession of child pornography.

There must be a deterrent to try and eradicate this exploitation and industry, and sentencing for possession of child pornography, protection of children shall be given more weight than the rehabilitation of the offender; hence, why this defendant’s clear record carries little weight. In the Man Kwong Choi authority, the Court of Appeal laid down a sentencing guideline based on the level of eroticism of the pornography.

“Level 1, images depicting erotic posing with no sexual activity.

Level 2, images depicting sexual activity between children or solo masturbation by a child.

Level 3, images depicting non-penetrative sexual activity between adults and children.

Level 4, images depicting penetrative sexual activity between children and adults, or sadism or bestiality.”

The Court of Appeal considered that:

“(1) The sentence for child pornography at level 1 can range from a community service order, probation or fine, to 1 to 6 months’ imprisonment.

(2) Depending on the number of depictions, sentence for child pornography at level 2 could be up to the immediate imprisonment of 9 months.

(3) Depending on the number of depictions, sentence for child pornography at level 3 should be imprisonment of 6 months to 12 months.

(4) For child pornography at level 4, serious treatment is warranted. Generally, sentences should range from 12 months, even for a few images, to 36 months.

The Court of Appeal also identified aggravating factors such as the number of images, the age of the children depicted, and whether the defendant intends to disseminate the images for commercial or non-commercial gain, or intends to publish.

In the present case, there were 87 videos, and 50 of them were level 4. Therefore, a starting point should range from between 12 months and 36 months. None of these videos depicted X. There was no evidence he intended to share or disseminate the images. They included images of masturbation, oral sex, vaginal penetration and adult males buggering young boys. The children were between the age of 5 and 15. That age range is an aggravating factor to take into account.

I find a starting point of 2 years and 6 months appropriate for Charge 13.

Charges 1 to 12

In sentencing the defendant, I have had regard to his background, mitigation put forward on his behalf, the above sentencing principles and relevant factors specific to this case. This includes the facts and the filming of the assaults, as well as the circumstances of the buggery offences. I have taken into account the very young age of the victim when he was first assaulted by the defendant, and how it continued for so long and with increasing depravity. I have also considered the trauma suffered by X, and the profound and damaging effect it is having on his teenage life, and possibly well into the foreseeable future.

I have considered the defendant’s psychologist’s report as well. Here, I am acutely aware the psychologist says the defendant appears to demonstrate the features of paedophilia and the risk of reoffending against children is high. He will accept help from professionals, and in his mitigation letter today, he expresses remorse. Mr Boey has said all he can say on behalf of the defendant in mitigation. The features and aggravating factors I have identified as relevant to sentencing in this case apply both equally to the indecent assault offences, as well as the buggery offences. I have taken into account the totality principle and the defendant’s early pleas. His pleas are his strongest mitigation.

I find a term of 10 years and 6 months starting point would have been appropriate for all 13 charges if the defendant had been convicted after trial. For the purposes of sentencing, I intend to group the offences as follows.

The indecent assault charges and the making of child pornography as one group, that is, Charges 1 to 9, the buggery charges as the second group, Charges 10 to 12, and the last charge, Charge 13, possession of child pornography, which do not include the images of X, as separate and on its own.

For the offences of making child pornography, the sentences ought to run concurrently with the sexual offences to which they are related, the indecent assault charges. The starting point of the sexual offences reflect the aggravating factor of the defendant recording the acts, therefore, it is not appropriate to pass anything but concurrent sentences.

An overall term of 7 years’ imprisonment is appropriate for all 13 charges after taking into account his pleas and the benefit of a one-third discount, as well as the totality principle. I shall now pass individual sentences for each offence, and effectively pass concurrent terms within each group, but consecutive to the other groups, except for Charge 13. I will make the indecent assault and making child pornography sentences concurrent with each other, but consecutive to the buggery charges, and part-consecutive to the possession of downloaded child pornography.

I sentence the defendant as follows.

Charge 1 was committed when X was 10 or 11, and induced into touching the defendant’s penis. I take a starting point of 2 years’ imprisonment.

Charge 2 was committed when X was about 12, performed oral sex on the defendant who filmed it. A starting point of 4 years and 6 months.

Charge 3, making level 4 child pornography by filming that sexual act, a starting point of 3 years.

Charge 4, committed when X was 13 when X posed erotically in his school uniform exposing his penis in a public place, a starting point of 3 years.

Charge 5, making child pornography by filming Charge 4, a starting point of 2 years and 6 months.

Charge 6, committed when X was 14, who performed oral sex on the defendant who filmed it, a starting point of 4 years and 6 months.

Charge 7, making level 4 child pornography by filming the sexual act, a starting point of 3 years.

Charge 8, committed when X was 14, who performed oral sex on the defendant who filmed it, a starting point of 4 years and 6 months.

Charge 9, making level 4 child pornography by filming that sexual act, a starting point of 3 years.

Charge 10, attempted buggery when X was about 14 years old, a starting point of 4 years.

Charge 11, buggery when X was about 15, a starting point of 4 years and 6 months.

Charge 12, buggery when X was about 15, a starting point of 4 years and 6 months.

Charge 13, possession of 80 videos of child pornography where the majority were level 4, a starting point of 2 years and 6 months.

For the defendant’s plea, he is entitled to a discount of one‑third. After that discount is applied, the defendant is sentenced to the following.

Charge 1, 1 year and 4 months’ imprisonment.

Charge 2, 3 years’ imprisonment.

Charge 3, 2 years’ imprisonment.

Charge 4, 2 years’ imprisonment.

Charge 5, 1 year and 8 months’ imprisonment.

Charge 6, 3 years’ imprisonment.

Charge 7, 2 years’ imprisonment.

Charge 8, 3 years’ imprisonment.

Charge 9, 2 years’ imprisonment.

Charge 10, 2 years and 8 months’ imprisonment.

Charge 11, 3 years’ imprisonment.

Charge 12, 3 years’ imprisonment.

Charge 13, 1 year and 8 months’ imprisonment.

To reflect the term of 7 years’ imprisonment after a plea, I order the 3 years of Charge 11 to run consecutively to the 3 years of Charge 2, making a total of 6 years. I then order 1 year of Charge 13 to run consecutively to Charges 2 and 11. This partly consecutive sentence of Charge 13 is to reflect the totality principle. The remainder of the terms in each charge will run concurrently to all terms of imprisonment.

Therefore, the defendant is sentenced to a total of 7 years’ imprisonment.