HKSAR v. Tang Chak Fai

DCCC 322/2022

[2023] HKDC 354

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 322 OF 2022

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REASONS FOR SENTENCE

The defendant faces a charge of "Indecent conduct towards a child under the age of 16 years" (Charge 1); a charge of "Making child pornography" (Charge 2); and 2 charges of "Possession of child pornography" (Charges 3 and 4).

2.He pleaded guilty to Charges 1, 2 and 3.  I granted the prosecution's application to leave Charge 4 in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

Background

3.About 8:30 p.m. on 7 September 2021, pursuant to a search warrant, police officers searched the defendant's residence situated at 8^th Floor, No.684 Shanghai Street, Mongkok.  DPC 15625 (PW1)  seized a MacBook ("the MacBook"), a Samsung mobile phone ("the Phone")  and a Samsung tablet computer ("the Tablet").  All 3 electronic devices contained pornographic video clips.

4.About 8:55 in the same evening, PW1 arrested the defendant for "Possession of child pornography" in relation to the video clips contained in the Phone and the Tablet.  Under caution, the defendant said the video clips were downloaded from LINE.

5.About 12:30 a.m. on 8 September 2021, PW1 arrested the defendant for "Indecent conduct towards a child under 16" in relation to some video clips found on the Tablet. Under caution, the defendant admitted that he had paid some girls under 16 whom he met on the internet to perform oral sex on him at his home (at $1,000 each time).  He said he knew he was wrong and asked for a chance.

6.The MacBook, the Phone and the Tablet were sent to the Cyber Security and Technology Crime Bureau for examination.

Charge 3

7.The Phone was found to contain 23 pornographic video clips, which were admitted by the defendant having been downloaded from a LINE group named "Old Driver".  22 of those video clips depicted the same girl (VTM 1)  striking erotic poses and/or masturbating.  VTM 1's breasts were shown in 4 of the 22 video clips.

Charges 1 and 2

8.The Tablet was found to contain 40 pornographic video clips; 3 of them depicted the same girl (VTM 2). In the file "VID_20200721_142343", VTM 2 was performing a hand job for the defendant.    In the file "VID_20200721_143446", VTM 2 was naked and performing a hand job for the defendant.  In the file "VID_20200721_143945", VTM 2 was naked and the defendant's penis, which was covered by a condom, was touching her genitals.

Pathologist's opinion

9.Having examined the still images captured from the relevant video clips, Dr. Chiao Wing Fu of the Forensic Pathology Service gave his expert opinion on the age of VTM 1 and VTM 2.  He considered the sexual anatomy of VTM 1 compatible with girls at pubertal age; whereas VTM 2, girls at pre-pubertal age.

Categorization of the video clips

10.The 22 video clips depicting VTM 1 (i.e. Charge 3)  are categorized as follows :-

(a)  Level 1 (images depicting erotic posing with no sexual activity)  – 7 video clips; and

(b)  Level 2 (images depicting sexual activity between children or solo masturbation by a child)  – 15 video clips.

11.The 3 video clips depicting VTM 2 (i.e. Charge 2)  are categorized as Level 3 (images depicting non-penetrative sexual activity between adults and children).

Admissions

12.Regarding Charge 3, the defendant admitted in his video recorded interview that the video clips contained in the Phone was downloaded from a LINE group named "Old Driver".  He joined the group in 2020 and left in early 2021.  He could no longer access the contents of the group after he left, but had saved some video clips on the Phone.

13.Regarding Charges 1 and 2, the defendant admitted that he had met some girls through a dating app named "SayHi"; some of them were over 16 and some were under 16.  He claimed that those girls said they wanted money, so he asked them if they wanted to earn some money by performing oral sex or hand jobs for him.  The defendant said the girls agreed, so he arranged for them to go to his home.  He paid them in cash after they finished.  In relation to the 3 video clips involving VTM 2 contained in the Tablet, the defendant admitted that VTM 2 was a 10-year-old girl he met on SayHi.  She had told him her age.  The defendant also admitted having recorded those video clips at his home with the Phone.  The video files were then transferred to the Tablet.

Mitigation & Sentence

14.The defendant is 39 and has 1 conviction record, which was "Unlawful sexual intercourse with a girl under 16" (dated 2001).  Defence counsel Mr. Tse informed me that the defendant is divorced with 2 children (aged 11 and 9). Prior to his arrest, the defendant was a hair stylist earning $19,000 per month.  He has participated in volunteer activities by providing haircuts to needy people.

15.In mitigation, Mr. Tse submitted that the defendant's wife had an affair, which led to their divorce.  Following the divorce, the custody of both children was granted to his ex-wife.  The defendant then began to live alone.  Owing to the pandemic, he was forced to spend so much time alone at home.  He committed the present offences under such circumstances.  He admitted his wrong right away and is remorseful.  Regarding the defendant's previous conviction, Mr. Tse explained that the offence took place over 20 years ago when the defendant was 17 and his then girlfriend was 15.  He was sentenced to 150 hours of community service.

16.A letter written by the defendant and a certificate were placed before me; their contents are duly noted.  I am aware that the defendant's father is suffering from cancer and that the defendant has secured a job pending his release from prison. 

17.Regarding Charge 1, the legislative intent is to impose statutory protection on those of young age such as VTM 2.  VTM 2 might well have received payment from the defendant, but the law simply does not allow them to get intimate with each other.  The message sent by the legislature cannot be clearer.

18.At law, I cannot take into consideration of VTM 2's consent or willingness to engage in intimate acts with the defendant, even if she might have solicited or seduced the defendant in the slightest degree.  The legislature thinks young girls like VTM 2 cannot protect themselves, so the law steps in.

19.Mr. Tse has submitted a number of cases on sentencing.  I find the Court of Appeal's decision in HKSAR v Tsang Cho Kiu CACC 42/2014 helpful.  In that case, the Court of Appeal held that whether or not prevalent, the sexual abuse of children in whatever form is an egregious crime.  In terms of sentencing, the stress is on the protection of children and not the rehabilitation of the offenders[2].  I have also borne in mind that VTM 2 was only 10 years old[3] and VTM 1 was perhaps slightly older, at pubertal age[4].

20.For Charge 1, I consider a starting point of 30 months' imprisonment appropriate and just.  With the timely guilty plea, the sentence is reduced to 20 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 20 months' imprisonment for this charge.

21.For Charges 2 and 3, I am aware of the sentencing guidelines laid down by the Court of Appeal in SJ v Man Kwong Choi [2008] 5 HKLRD 519.  For Level 2 depiction of child pornography, an immediate custodial sentence of up to 9 months is warranted. For Level 3, 6 to 12 months would be appropriate.

22.Charge 2 involves 3 video clips of VTM 2 at Level 3.  They were taken when she was engaging in intimate acts with the defendant.  In file 142343, VTM 2 was wearing a T-shirt and a skirt with her genitals exposed since she wore no underpants.  In files 143446 and 143945, VTM 2 was completely naked; her breasts and genitals can be seen.

23.Undeniably, Charges 1 and 2 took place at the same time; however, I consider Charge 2 to be an aggravating feature in Charge 1, which I did not factor in when determining the starting point for Charge 1.  For a 10-year-old girl to engage in intimate acts with the defendant is serious enough.  He extended his exploitation of VTM 2 by capturing her lewd acts on video with her breasts and genitals exposed.  I accept that there may not be evidence of the defendant sharing the 3 video clips with others, it is still repulsive that he intended to keep such footage for future viewing.

24.For Charge 2, I consider a starting point of 12 months' imprisonment appropriate and just.  With the timely guilty plea, I sentence the defendant to 8 months' imprisonment.

25.For Charges 1 and 2, I have reminded myself not to punish the defendant twice.  I consider a global starting point of 36 months' imprisonment appropriate for these 2 charges. With the timely guilty pleas, the overall sentence becomes 24 months.  Hence, I order 4 months in Charge 2 to run consecutive to Charge 1.

26.For Charge 3, a total of 22 video clips are involved (with 7 at Level 1; and 15 at Level 2).  According to the defendant, he downloaded them from a chat group.  Again, there is no evidence of him sharing these video clips with others.  I consider a starting point of 9 months' imprisonment appropriate and just.  With the timely guilty plea, I sentence the defendant to 6 months' imprisonment.

27.Having considered the totality principle once more, I order 4 months in Charge 3 to run consecutive to Charges 1 and 2, arriving at a total prison term of 28 months for all 3 charges.