HKSAR v. Ng Chi Kin

DCCC 88/2019

[2019] HKDC 1107

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 88 OF 2019

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to 6 counts of indecent conduct towards a child under the age of 16 years, contrary to section 146(1) of the Crimes Ordinance, Cap. 200. 

Facts

Background

2.At all material times, PW1 (“X”)(DOB: 25 May 2004) was a full-time Form 2 Secondary School student.  He resided with his family members including his father (“Y”).  He is now 14 years old.

3.The Defendant was 20 years old at all material times (DOB: 14 November 1997).  He was a waiter by occupation.  The Defendant resided at a public housing flat situated in Kwai Chung Estate, Kwai Chung, New Territories (the “Flat”).  X came to know the Defendant via “Instagram” on 25 August 2018.

Disclosure of offences

4.On 26 September, 2018, Y saw some unusual phone message exchanges between X and another male subsequently identified to be the Defendant on X’s mobile phone.  When confronted, X told Y that the Defendant was his boyfriend and that they had engaged in intimate conduct including masturbating for each other.

5.The matter was subsequently reported to the police. 

6.During a video recorded interview conducted with X by the police on 3 October 2018, X disclosed the following offences against the Defendant:-

Charge 1

7.On or about 31 August 2018, X went to the Flat to visit the Defendant.  Inside the Defendant’s room in the Flat when they were on their own, X and the Defendant masturbated for each other for around 15 minutes.  The Defendant ejaculated but X did not.

Charge 2

8.On or about 4 September 2018, X went to the Flat to visit the Defendant.  Inside the Defendant’s bedroom, they masturbated for each other and performed oral sex upon each other.  According to X, they formally dated each other since then.

Charge 3

9.On or about 7 September 2018, X went to visit the Defendant at the Flat.  Inside the Defendant’s bedroom, they masturbated for each other and performed oral sex for each other.

Charge 4

10.On or about 11 September 2018, X went to the Flat to visit the Defendant.  They were on their own inside the Defendant’s bedroom at the time.  They masturbated for each other and performed oral sex upon each other.

Charge 5

11.On or about 14 September 2018, X went to the Flat.  Inside the Defendant’s bedroom when no one else was present, X and the Defendant masturbated for each other and performed oral sex upon each other. 

Charge 6

12.On or about 15 September 2018, X visited the Defendant at the Flat. X and the Defendant masturbated for each other and performed oral sex upon each other inside the Defendant’s bedroom.

Arrest of the Defendant and Cautioned Statements

13.On 4 October 2018, the Defendant was arrested by DSPC 1889 (“PW3”) at the Flat.  Under caution, he admitted that he and X truly loved each other hence they masturbated for each other and engaged in oral sex etc.

14.On the same date, PW3 conducted a video recorded interview with the Defendant.  Under reminded caution, he admitted, inter alia, the following:-

(i) he realized he was a homosexual since Form 4 Secondary School;

(ii) on around 27 August 2018, he came to know X via “Instagram”,

(iii) since then, he and X communicated via “Instagram” and “Whatsapp” on a daily basis;

(iv) he was aware that X was 14 years old at all material times;

(v) he first met X in person on around 31 August 2018 at the Flat;

(vi) on that occasion, they kissed and engaged in oral sex;

(vii) after that, they would meet up at the Flat every Tuesday or Friday and they would engage in conduct including masturbation and oral sex;

(viii) they never used any condom on those occasions;

(ix) they met for the last time in around mid-September 2018;

(x) he stopped contacting X after 17 September 2018 as he had become busy with work;

(xi) he knew it was illegal to engage in sexual activities with a tender-aged boy;

(xii) they engaged in sexual activities for the first time on around 31 August 2018 and also on 4, 7, 11, 14 and 15 September 2018 respectively.

15.Two mobile phones belonging to X i.e. 1 Sony Xperia and 1 I-phone 5 were submitted to the Cyber Security and Technology Crime Bureau of the police for digital forensic examination.  Screen captures of “Instagram” message exchanges between X and the Defendant had been taken by WDPC 15921 from X’s I-phone 5.  X in the message exchanges addressed the Defendant as “husband”.

Identification Parade

16.On 5 October 2018, X attended an identification parade and positively identified the Defendant as the male person with whom he engaged in sexual activities including masturbation, etc.

Crux of the Case

17.At the material times, the Defendant committed acts of gross indecency with a male person under the age of 16 years.

Sentencing considerations

18.In HKSAR v Tsang Chiu Tak CACC 386/2011, the Court of Appeal gave the following guidelines about the sentencing principle for cases involving sexual assaults on children by adults:-

The Sentencing Principle

8. The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.

9. The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:

(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 in the case;

(3) Whether the defendant had used threats or inducements to make the victim succumb;

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

(5) Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6) Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7) Whether the sexual abuses have caused physical or psychological trauma to the victim;

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

(9) Whether the defendant was involved in other inappropriate behaviour such as inviting other people to watch or take photos or videos of the offence he committed; and

(10) Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.

Mitigation

19.The Defendant is now 21 years of age, single.  He has a clear record.  He was educated up to Form 6 level.  He was a part-time waiter at the time of the offences.  He now works as a mechanic in a garage, which belongs to his father.  His mother is a housewife.  His younger brother is a university student.   

20.Counsel in mitigation informs me that the offences had arisen out of courtship between the Defendant and the victim. 

21.According to the Victim Impact Report, prior to the association with the Defendant, the victim had been sexually abused by a man aged 30.  Still suffering the traumatic impact, he had a void which the Defendant appeared to plug.  He trusted the Defendant, who promised a lasting future between them.  It turned out that the Defendant was cheating on him, using him primarily for sexual gratification.  The encounter with the Defendant had exasperated his post-traumatic stress symptoms.  He has to attend psychotherapy in future.  Family therapy is also recommended to mend his relationship with his parents who are caring but virtually clueless to help him. 

22.According to the clinical psychologist’s report on the Defendant, the risk of sexual reoffending is moderate but he is not a sexual deviant or paedophilic. 

23.The Detention Centre Report considers him suitable for detention in a Detention Centre.  The Probation/Community Service Report recommends 15 months’ probation with prescribed special conditions, including psychological treatment as and when directed by the probation officer.  

Sentencing this Defendant

24.The Defendant was 20 years old whereas the victim was 14 when the instances of oral sex and masturbation took place on 6 occasions between 31 August and 15 September 2018.  At the present moment, nearly one year after the offences, the victim is still suffering from post-traumatic stress symptoms exasperated, though not initiated, by the Defendant. The Defendant is confirmed not to be a sexual deviant or paedophilic. 

25.The Defendant has a clear record.   I accept that the offences had arisen out of courtship between an adult and young person aged 14.  The Defendant was detained for the Detention Centre Report and Probation/Community Service Report.  Owing to the preparation for the Victim Impact Report, the Defendant has been detained for 24 days until the pronouncement of his sentence now.  I am sure that he has now learned a bitter but valuable lesson behind bars.  I decide to give him a chance to reform in the open setting.  The recommendation for probation with the prescribed special conditions is adopted.  The terms of probation shall be concurrent for all 6 charges.