COURT: The defendant pleaded guilty to four charges of indecent assault and two charges of homosexual buggery with a man under the age of 16.
The victim was a 9-year-old boy at the material time. The defendant got to know him in a park in Kennedy Town. The victim lost his mobile phone and was eager to get it back. The defendant told the victim that an unknown person had his mobile phone and would only return it to him if he allowed him to take video of his private part. The victim then went to the defendant’s home for video-taking. That is the background to the present six charges.
Charge 1
Five days later, the defendant met up with the victim and the victim was led to a disabled toilet in a park. Under the pretext of punishing the victim for being late, the defendant took video of and touched the victim’s penis. After this, the victim still did not manage to get back his mobile phone.
Charge 2
The defendant asked to meet up with the victim again, and again under the pretext of punishing the victim for being late he led the victim to a disabled toilet where he took a video of the victim’s penis and anus, and during such he touched the victim’s buttocks and penis and moved it up and down for about 30 seconds.
Charges 3 and 4
A week thereafter, the defendant led the victim to a disabled toilet for another video-taking. He used his penis to penetrate the victim’s anus and the victim told the defendant he felt painful. The defendant retreated and resumed again and the victim asked the defendant to stop and eventually the defendant did. After that, the defendant resumed video-taking for about 5 minutes during which he touched the victim’s penis.
Charges 5 and 6
About a fortnight later, the defendant invited the victim to his home. Inside his bedroom, he penetrated the victim’s anus again. The victim felt painful and asked the defendant to stop and the penetration lasted about 30 seconds. Afterwards, the defendant took video of the victim’s penis and anus during which he touched the victim’s penis.
Upon arrest and under caution, the defendant alleged that another boy had the victim’s phone and he was asked by the other boy to take photos and videos before that other boy would give the victim’s phone back.
Investigation of the defendant’s phone did not support his allegation. Further, messages between him and the victim revealed that when the victim refused his request to come out to play, the victim was threatened with worldwide publication of his photographs taken.
The defendant is now aged 39. He used to be a waiter. He has six previous convictions involving two thefts and four managing vice establishment. He has been in prison before for managing a vice establishment; he has been sentenced to 4 months as well as 6 months’ imprisonment.
Mr Donald, on behalf of the defendant, quite sensibly conceded that no condoms being used on all the occasions and filming of the sexual intercourse are aggravating features.
I have perused the background, clinical psychologist and psychiatrist report for the defendant, which revealed that he is a naïve, ignorant adult of low ego and self-esteem with borderline intelligence, and who was prone to bullies and discrimination. He was scared from socialising with adults, especially of the opposite sex, and whose need for acceptance, recognition and intimacy were compensated by his association with primary school boys whom he met at public playgrounds.
According to both the psychiatrist and psychologist, the defendant is not diagnosed as suffering from any mental illness, but with a paedophile disorder. The psychologist is of the view that given the presence of major risk factors, such as his emotional identification with children, impulsiveness, poor problem-solving skills, sexual preoccupation and deviant paedophile interest, his risk of reoffending is at the higher end of moderate range to high. It is opined that he will benefit from counselling.
In the present case, no psychological assessment was performed on the victim because he was already seen by a psychiatrist of the Hospital Authority, and his mother claimed that she observed nothing abnormal about her son and refused to let him undergo further psychological assessment.
The victim impact report was compiled by a psychiatrist instead, who likewise did not observe any symptoms or signs of active or acute stress reaction or post-traumatic stress or disorder on the victim, who is now aged 11.
I have taken into account all that could have been said on behalf of the defendant by counsel on his behalf. I give him full credit for his pleading guilty. That said, this case contains the aggravating features set out in the case of Chow Yuen Fai, namely the young age of the victim at the material time and there has been a huge age difference between the victim and the defendant. There was a repeated course of conduct. There had been threats by the defendant to publish photographs taken of the victim and also the actual taking of video at the time of the incident relating to the last four charges. Plus, the keeping of those records and then there was the non-use of condoms.
One must not lose sight of the fact that the legislation is to protect the young and the vulnerable. The defendant exploited the victim’s vulnerability and young age and made threats to make him succumb to his demands. Those behaviours were appalling, despicable and disgraceful. The fact that the psychiatrist observed that the victim suffered no post-traumatic symptoms and concluded that the victim managed well after the incidents does not lessen the culpability of the defendant.
In the circumstances, I adopt the following starting points for the respective charges. For each of the indecent assaults, I adopt three years as the starting point. Given a one-third discount for each, he is sentenced to 2 years’ imprisonment.
For Charge 4, that is the homosexual buggery, I adopt 10 years as the starting point. Discounted one-third, 6 years and 8 months.
For Charge 6, homosexual buggery, also 10 years. Discounted one-third result in 6 years and 8 months.
Taking into account totality, I consider the facts of this case warrant an overall starting point of 15 years and affording him the one-third discount, an overall sentence of 10 years on a plea to be appropriate.
So I make the order as follows: for Charges 3 and 4, they are to run concurrently; Charges 5 and 6, also to run concurrently. I order 1 year out of the sentence of 2 years in Charge 2; 4 years and 8 months out of the 6 years and 8 months in Charge 4; and 2 years and 4 months out of the 6 years and 8 months in Charge 6 to run consecutively, making a total of 10 years.