HKSAR v. Cheung Yuk Lin

HCCC 52/2025

[2025] HKCFI 3462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 52 OF 2025

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of ‘rape’[1], ‘unlawful recording of intimate parts’[2], ‘indecent assault’[3], and ‘publication of intimate images without consent’[4] before Magistrate Ms. Minnie Wat and was committed, on 13 February 2025, to the Court of First Instance for sentence. He confirmed his pleas and admission of facts before me and the convictions were duly recorded.

PARTICULARS

Count 1: Rape

2.The defendant on 2 July, 2023, at Room 713, 7^th floor, Trans Asia Centre, No. 18 Kin Hong Street, Kwai Chung, raped X.

Count 2: Unlawful recording of intimate parts

3.The defendant on the same day and location as in Count 1, recorded an intimate part of X, in circumstances in which the intimate part would not otherwise be visible, for a sexual purpose and disregarded whether the said X consented to his conduct.  

Count 3: Indecent assault

4.The defendant on 22 August, 2021, at Room 702, 7^th floor, Trans Asia Centre, No. 18 Kin Hong Street, Kwai Chung, indecently assaulted Y.

Count 4: Publication of intimate images without consent

5.The defendant, on an unknown date between 1and 31 March 2023, both dates inclusive, in Hong Kong, published 5 intimate images of Y, knowing or being reckless as to whether the publication would or was likely to cause humiliation, alarm or distress to the said Y, and no consent was given by the said Y to the publication and the defendant disregarded whether the said Y consented to the publication.

FACTS

6.The defendant was a photographer and operated a studio at Room 702, the address in count 3.

Counts 1 and 2: victim X

7.X was a 29 year old female at the time of the offences.  On the night of 1July 2023, X and the defendant were both invited by a common friend, Cheung Lap-ki, to Room 713 (the address in count 1), which was a ‘party room’ that Cheung operated, to discuss promotion strategy for the room.  It was the first time that X met the defendant.  During discussions, the defendant used various excuses to touch X’s shoulders, which X had tried to avoid.

8.After about 30 minutes of discussion, the defendant invited X and Cheung to a party he was hosting at his studio in Room 702.  They did join and there were about 10 other guests, and they played and consumed alcohol.  

9.At about 5am on 2 July, X felt tipsy and found that most of the guests, including Cheung, had already left the studio.  

10.X also wanted to leave, but stayed when the defendant asked to discuss the possibility of cooperation between Cheung’s party room and the defendant’s studio.  

11.During the discussion, X felt dizzy, and then the defendant suddenly touched her waist and thighs.  X told him to stop.  

12.At about 6am, the defendant accompanied X back to Room 713, the party room, to rest.  By this time, X was so drunk that she lost consciousness.  

13.X came to at around 9:30am.  She had no memory of what happened because of the drunkenness, but felt painful over her private parts, and thought she had been sexually abused.  To figure out what happened, X asked Cheung for the CCTV footages of the party room.  

14.Cheung did provide the footages and X viewed them in the afternoon of 3 July 2023.  The footages captured the defendant molesting X’s private parts and using his mobile phone to take photos of her private parts.  They also captured the defendant having sexual intercourse with X on the sofa between 6 and 7 am on 2 July, without using a condom.  X saw herself resisting the defendant during the rape by kicking him.  

15.In the evening of 3 July, X told her elder sister about the rape and then went to hospital for examination and treatment.  The matter was reported to the police.

16.The defendant was arrested on 4 July at his studio for the count 1 and 2 offences.  In the search of the defendant’s home, a number of digital storage devices were found.  No photos or videos of X or Y (victim in counts 3 and 4) were found in any of the devices.  

17.The party room CCTV footages were examined, and they revealed more details of the rape.  They captured X being drunk and walking unsteadily to the party room with the defendant at about 5:51am on 2 July.  X then lay on the sofa and appeared to have fallen unconscious.  

18.At about 6:19am, the defendant removed X’s underpants and molested her private parts.  The defendant also took photos or videos of X’s private parts with his phone, and with its flashlights on.  

19.The defendant then raped X without putting on a condom and ejaculated at about 7:08am.  X appeared to have been unconscious throughout the rape, but at one stage did kick the defendant when he touched her private parts.  

20.DNA material from seminal stains on the sofa belonging to the defendant were found.  An identification parade was held and X positively identified the defendant as her rapist.

21.According to his subsequent video recorded interview, the defendant claimed that after he had accompanied X back to the party room in the early hours of 2 July, they sat on a sofa and chat, while Cheung slept on another sofa there.  

22.The defendant said he started to kiss X on her lips and face and touched her breasts, thighs and private part out of impulse.  The defendant claimed that X was tipsy and tried to turn around, but she did not say anything.  He guessed she did not want him kissing and touching her, probably because she was too tired to have sex.  

23.The defendant said he had taken photos and videos of X’s breasts and private parts with his phone when he kissed and touched her.  He claimed to have lost his phone on the same day.  

24.The CCTV footages of the party room was shown to the defendant and he confirmed they showed himself and X.  

Count 3 and 4: victim Y

25.Y made a report on 4 July 2023, alleging that she had been indecently assaulted by the defendant at his studio during a photo shoot 2 years ago on 22 August 2021.  Y also reported that she had learned from her friend on 3 July 2023 that some of Y’s naked photos taken during the said photo shoot were being listed for sale on the internet.

26.What happened in August 2021 was this.  The defendant approached Y via Instagram for a modelling photo shoot at a rate of $1,000 for 1.5 hours.  Y was then 22 years old.  

27.On 22 August 2021, Y and her then boyfriend went to the defendant’s studio for the shooting session.  Y’s boyfriend waited in the living room while Y and the defendant worked in another room.

28.During the shooting, the defendant started to persuade Y to pose naked.  Y agreed to do so on condition that her naked photos would not be disseminated.  

29.While Y was posing naked, the defendant squeezed her breasts and touched her private parts with one hand whilst shooting at the same time, whereupon Y said ‘no’ to the defendant and demanded to leave.  The defendant then gave Y $1,000 and promised that the naked photos were his personal work and will not be published.  The shooting resumed and lasted for about half an hour.  Y told her boyfriend about what happened when they left the studio, but he did not respond.

30.Two years later, in the morning of 4 July 2023, a friend of Y told her that some of Y’s naked photos were being listed for sale in a Telegram chat group.  Y reported the matter to the police.  Y also provided the police with 5 of her naked photos which were taken during the 22 August 2021 session and which were being sold online.  

31.The 5 photos showed Y’s breasts or private parts and are intimate images (“the 5 photos”).  

32.Although Y never consented to the defendant touching her in the 22 August session, and never consented to her photos being published, she did not immediately report the matter at the time because she was scared, and the defendant had promised her he will not disseminate her naked photos.

33.In the defendant’s video recorded interview, he confirmed that he had sold the 5 photos of Y online.  The defendant claimed that he had suggested to take some ‘sexy photos’ of Y with an extra remuneration of $500, which Y agreed to.  He said he found Y attractive and so he touched her.  He had taken around 300 to 500 photos of Y, of which about 100 were naked photos.  

34.He had sold one set of 300 photos of Y to 6 to 8 people in a Telegram chat group at $800 per set.  He also posted messages about the sale of Y’s photos online between March and May 2023.  He would normally post one or two Instagram photos of a female model in the Telegram group as a preview first, to see if anyone was interested. If a buyer shows interest, he would then upload photos, including naked ones, of that model to a temporary storage website.  He would send the link to the photos upon payment.  The defendant confirmed he never obtained consent from Y for publishing or selling her photos.  Despite Y and her boyfriend asking him to delete Y’s naked photos back in August 2021, he only deleted some of them.

PREVIOUS CONVICTIONS

35.The defendant has 2 previous convictions from one court appearance.  He was sentenced to concurrent sentence of 160 hours of community service for two charges of indecent assault on 7August 2020.

BACKGROUND AND MITIGATION

36.The defendant was born in mainland China and is 43.  He is educated up to Form 5 level in Hong Kong, single and was a photographer, making around $12,000 per month.  

37.The defendant is the eldest of 3 siblings.  He used to live with them and his mother in the mainland while his father lived and worked in Hong Kong, who would only visit them once a month.  The defendant reunited with his father here when he was 16. His parents divorced a few years after that.  He and his siblings moved to another public housing estate with their mother and relied on CSSA for a few years.  

38.After his HKCEE, the defendant worked as a porter.  He later became an apprentice of a photographer for two years and then found work as a photojournalist.  He worked from 2008 to 2015, when he started his own portrait studio and photography business.  

39.Business slowed down during the pandemic despite the defendant trying his best to keep his studio running.  Unable to deal with the stress and frustration over his financial situation, he drank.  He stored different kinds of alcohol at his studio and would drink with friends at parties.  For a while, he was drinking nearly every day from morning until falling asleep at night.  

40.The defendant wrote in mitigation, saying that he realized he had done wrong and had caused others to suffer.  He committed the rape under the influence of alcohol, and was remorseful as soon as he sobered up the following day.  He is willing to shoulder all responsibilities for his criminal conducts, and has all along been cooperative with police investigation, saving time and resources.  

41.The defendant said he started drinking in end of 2019, and his habit of alcohol abuse negatively affected his health and living.  

42.In the past 20 odd months in remand, the defendant claims to have been respectful towards CSD officers and had never once been reprimanded.  He has been actively reading, enrolling in courses, cultivating his interest in exercising, and focusing his energy on proper matters.  He promises to participate in voluntary work and be someone who contributes to society.  

43.The defendant’s friend and colleague Ms. Chan wrote to inform the court that the defendant had taken photos for a lot of families, as well as taken part in voluntary work such as beach cleaning and saving stray cats.  She wishes the court to consider that the defendant’s mother is recovering from cancer, and his younger brother is paralyzed after a stroke, and to give the defendant a chance to rehabilitate. She believes that with proper counselling and support, the defendant will be able to rejoin society and will not re-offend.  

44.The defendant’s another friend, Ying, wrote about how the defendant is a very generous and hardworking person.  From her mail correspondence with the defendant since his remand, she has seen startling changes in him such as the defendant now reads a lot, and appears to be much more mature.  She could tell that the defendant is remorseful of what he had done, and feels guilty for not being able to look after his mother and younger brother properly.

45.Mr. Mickey Yan JP talks about how the defendant had volunteered in a lot of district activities as an event photographer, and how he is a lively, easygoing person who is liked by everyone in the community.  He saw how the defendant’s business was affected during the pandemic, and how he started to deal with his stress by drinking.  He is sure that the defendant is truly remorseful and that he still has much to give back to society.  

46.Mr. Kevin Chan, counsel for the defendant, highlighted that no physical violence was involved in the commission of the offences, in particular the rape, and the victims were not of very young age.  Mr. Chan urged the court to consider the totality of the sentences and be as lenient as possible towards the defendant.

47.The following reports were called for to assist in sentencing.

X’S VICTIM IMPACT REPORT

48.The rape and the recording of the rape has had a huge impact on X, who is now 30 years old, as carefully explained by Clinical Psychologist Ms. Mok in her very detailed report.  To protect X’s privacy, I will not repeat the full contents here.  

49.I do, however, want to set out the following message of X to this court that Ms. Mok has found necessary to incorporate in her report, to ensure that X knows that she is being heard:

“明影對我嚟講最⼤影響，沒完沒了，佢唔認好唔 OK，法例唔可以判佢太多，想法官重視呢樣嘢，⼼靈傷害好⼤，⽽家出街要扮淡定； 希望可以判佢最⾼刑罰，唔覺得佢有悔意，唔係是旦⼀句對唔住就完。[5]”

50.It is Ms. Mok’s professional finding that X suffers from Post-traumatic Stress Disorder.  She also exhibited clinical symptoms of Depressive Disorder that emerged after the rape.  

51.The trauma has affected various aspects of her life considerably.  She has difficulty sleeping, and at concentrating at work.  She has lost her sense of self in both social and intimate relationships.  She feels ashamed and a sense of having suffered injustice.  Her worry of the video footages of her rape being released on the internet is never-ending.  

52.X had, somehow, been given the impression that she had to keep all the details of the case to herself pending the end of all legal proceedings, which resulted in a delay of 2 years in her seeking help for her mental conditions.  This delay in obtaining help had intensified the deterioration of her mental health.  

53.In view of her current psychological distress and clinical symptoms, Ms. Mok recommends that X should receive psychological treatment to process her traumatic experiences and to regain her optimal functioning at work, as well as her ability to be properly involved in interpersonal and intimate relationships.

Y’S VICTIM IMPACT REPORT

54.Y, now 25 years old, gave more details regarding what happened in the indecent assault in her interview with Clinical Psychologist Ms. Fan.

55.Y remembers thinking the defendant as someone in his 40s or 50s, but she was not sure.  The defendant had locked the door where they were shooting and he showed Y a live CCTV feed of her boyfriend waiting outside, implying that Y was not allowed to leave.  Y felt threatened and overpowered.  She was in shock and was unsure how to respond.  

56.When the defendant later on suddenly touched her private parts without her consent, she trembled and thought “I am permanently damaged (好污糟, 返唔到轉頭)”.  She expressed her disapproval and managed to get out of the room, saying she had to change.  She remembers that the defendant did offer her more money but she had refused, and had not consented to his actions.

57.She was shocked and devastated when she found out, some two years later on 4 July 2023, that her photos were listed for sale on Telegram, since she had seen the defendant deleting the naked photos in front of her in 2021.

58.It is Ms. Fan’s finding that, certain vulnerability factors from Y’s upbringing had caused her to be more susceptible to the defendant, who was older and more mature and had coerced her into taking the naked photos.  Y suffered distress as a direct result of the assault where she was touched against her will.  Additionally, Y suffers the long-term consequences of the naked photos being circulated on the internet, haunting her and impacting all aspects of her daily life.  

59.Based on behavioral observations, information gathered during the clinical interview, and the analysis of test findings, Ms. Fan is of the view that Y met the criteria for a diagnosis of post-traumatic stress disorder.  Y lacked adequate support or effective strategies to cope with the distress arising from the incident, and relied on avoidance coping which proved largely ineffective.  Psychological therapy is considered beneficial for her recovery.

60.Again, to protect Y’s privacy, I have not included all the details of the report here, but base on its contents, I find that it is clear that the assault and the release of the naked photos online have had a significant impact on Y.

THE DEFENDANT’S PSYCHOLOGICAL REPORT

61.Clinical Psychologist Mr. Ivan Ma interviewed the defendant on two occasions in July 2025 and made the following findings in his report:

“The index offence represents CHEUNG’s second sexual conviction. He used to be a sexually preoccupied individual who held distorted sex attitudes and little respect for women. He used private photo shooting as a means to conduct sexual advances towards the female models, which became the modus operandi of his indecent assaults. His impulse control was particularly loosened under the influence of alcohol at the material time, which contributed to the rape incident towards the victim after a party. He presented with genuine remorse and some insights about his problem areas. At present, his risk of sexual re-offending is assessed to be at the lower end of moderate range. Psychological intervention targeting his distorted sex attitudes, healthy lifestyle and stress management is recommended. He shall be able to benefit from psychological interventions given his strong motivation for positive change.”

SENTENCING CONSIDERATIONS

62.The maximum sentence for the 4 counts are, respectively, life imprisonment for rape; 5 years’ imprisonment for the unlawful recording of intimate parts; 10 years’ imprisonment for the indecent assault; and 5 years’ imprisonment for the publication of intimate images without consent.

RAPE

63.There is no sentencing guideline set down by the Court of Appeal in the sentencing of rape cases.  It is, however, not disputed that the starting point where there are no aggravating or mitigating features present tend to be 5 years’ imprisonment.  

64.The Court of Appeal in the case of HKSAR v Leung Yuet Hing [2014] 3 HKLRD 304 set out the following aggravating factors in cases involving sexual offences:

“35. Aggravating factors to which the cases (Billam and Millberry[6] above, and HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427) allude include, but are not restricted to, the following:

(1) the victim is very young;

(2) a weapon is used to frighten the victim;

(3) the sexual offence has been carefully planned;

(4) violence is used over and above the force necessary to commit the sexual offence;

(5) the offender has broken into or otherwise gained access to the place where the victim is living; and

(6) the offender has used no safety measures in sexually abusing the victim so as to avoid transmitting venereal disease or causing pregnancy.”

65.There is only one item in that list of factors that is present, which is the unprotected sex.

66.In Billam, the fact that the defendant has previous convictions for other serious offences of a sexual kind, and the effect of the rape upon the victim is of special seriousness are also considered to be aggravating features.

67.In the case of HKSAR v Ali Nazakat [2020] HKCA 679, the trial judge found that the fact that the defendant, a total stranger to the victim, taking advantage of the victim’s drunkenness is an aggravating feature.  He also found that the physical and psychological trauma the victim suffered from having been raped another aggravating feature.  The other features unique to that case include the Applicant’s status as an illegal immigrant; and the offence being premeditated as he had carried the victim all the way back to his own flat before raping her.

68.The learned judge adopted a starting point of 7 years for the rape, enhanced by 1 year 6 months for the said 4 aggravating factors, leading to a total sentence of 8 years 6 months’ imprisonment after trial.  

69.The factual background of that case is as follows.  The victim had met up with 3 friends at Lan Kwai Fong for drinks at about 10pm on 6 December 2016.  By 01:30am the following day, she had become quite drunk.  Her friends then put her in a taxi to take her to her home in Kwai Chung.  The victim could not recall what happened to her afterwards until about 6 or 7 am on the morning of 7December, when she woke up in a disoriented state and found herself lying on a sofa in a flat of an industrial building in Kwai Chung.  

70.The applicant was there but did not answer her questions as to where she was, nor how she had ended up there.  The applicant then squeezed her left breast, her right breast, and these actions formed the subject matters of two indecent assault counts.  The applicant then took out the victim’s handbag from a cupboard and returned it to her.  

71.The applicant took the victim downstairs later on.  Before she left in a taxi, he gave her his mobile phone number written on a receipt.  The victim got home and went to bed immediately.  She woke up in the afternoon and found some abnormal secretion on her underpants.  She suspected she had been raped and called one of the friends who was with her the night before and told him of her suspicion. A report was then made to the police.  

72.In addition to the rape and the indecent assault charges, the applicant was also charged with theft and conspiracy to obtain property by deception for stealing the victim’s mobile phone, cash, octopus card and a credit card, which an accomplice used to buy $21,885’s worth of jewellery.  The applicant also tried to use that same credit card himself to buy goods from different merchants, but was unsuccessful. For that he was charged with one count of fraud.

73.Although the victim herself was not able to recall how she came to be on a sofa in the flat of an industrial building, according to the applicant’s evidence, while he was walking home from Kwai Hing at around 1am on 7 December, he saw the victim at the far end of a footbridge, leaning against the railing and making sounds of vomiting.  He thought she was drunk.  When he walked past her, the victim asked for his help, saying that she was drunk and unable to get home.  The applicant eventually took her back to where he claimed to be staying, which was the flat in which the victim found herself in.  

74.On appeal, McWalters JA agreed with the trial judge that it was a bad case of rape calling for a deterrent sentence, pointing out that the applicant had taken advantage of a young woman whom he knew would not be able to resist him since she was so drunk. The fact that the victim was unaware of what was happening to her during the rape does not deprive the act of rape of its violent character.  

75.McWalters JA further found that it was not reasonably arguable that the trial judge had erred in characterizing as aggravating feature those items he had identified, nor in the amount of the enhancement for those features.  

76.As to the defendant’s own possibly inebriated state, the fact that the defendant might have been emboldened by his own consumption of alcohol into committing the rape is not a mitigating factor.  As the Court of Appeal stated in Secretary for Justice v Lau Yun Leung CAAR 3/1999:

“23. …It made no difference that the respondent had taken drink or that this was an attack which he had not planned in advance. The courts have just as much a duty to protect women from the unwanted, drunken attentions of such men as this respondent as from men who act in similar fashion when sober.

24. If drunkenness is a factor which leads to violence over and above the force necessary to commit rape, drunken violence will nevertheless aggravate the offence with the result that the sentence will be increased.”

77.In the present case, I am unable to find for sure that the rape was premeditated.  The reason being that the defendant had actually accompanied X back to the party room, where his friend was present.  If the defendant had planned to rape X, he could easily have done so when X was still at his own studio, and X was already very drunk by that time.  The fact that he chose to walk her back to the party room would allow a reasonable inference that the rape might not have been planned, and that he may be telling the truth in his video recorded interview when he said that, after chatting with X back at the party room, he started kissing X and touching her “out of impulse”.  The defendant will be given the benefit of the doubt and be sentenced on the basis that the rape was not planned.  

78.Although not complete strangers by the time of the rape, it was the first time the two had met, and I find that the defendant did take advantage of X’s drunkenness in raping her as an aggravating feature.  

79.The fact that the defendant committed the rape without the use of a condom is an aggravating feature.  

80.The defendant has a previous conviction for indecent assault, although the sentence, which was 160 hours of Community Service Order, would tend to suggest the seriousness of the two offences would be at the lower end of the spectrum.

81.Furthermore, the defendant had also committed the indecent assault on Y in 2021, which was before his commission of the rape.  As such, I find that his previous conviction for indecent assault is an aggravating feature.  

82.According to the defendant’s video recorded interview, “he also took photos and videos of X’s private parts whilst touching her and having sex with her”.  

83.Although this is clearly a serious aggravating feature, since the defendant is also being charged with a separate offence for this particular criminal act, I will not enhance the rape sentence on this particular basis to avoid double punishment.  

84.I will adopt an initial starting point of 5 years given the overall circumstances of the rape, and enhance it by 2 years for the aggravating features identified above, taking the sentence up to 7 years.

UNLAWFUL RECORDING OF INTIMATE PARTS

85.In the case of Secretary for Justice v Chong Yao Long Kevin (鍾曜隆) [2013] 1 HKLRD 794; CAAR 2/2012, although there the Court of Appeal was essentially dealing with the criminal act of the respondent of taking upskirt photos of his private tuition student under a different piece of legislation, the Court had made the following observations which I find pertinent to the offence under s.159AAC(1) as well:

“42. In a number of similar cases, the courts have repeatedly pointed out that taking upskirt photos or videos of a female is a very serious crime. This is because such conduct caused the victim distress and was regarded by the public with disgust. The courts also strongly commented that the indecent photos taken by the defendant could be kept permanently, exchanged, circulated, sold as commodities, or even used to threaten the victim, and that therefore the victim could be subjected to harassment over a long period of time. Such conduct is an affront to the dignity of the female victim (see AG v Wai Yan Shun [1991] 2 HKLR 209 , page 211A-B)…” (my emphasis)

86.Turning to the present case, I find that the fact that X was unconscious when the photos and videos were taken is an aggravating feature.  There was simply no chance for her to react, to resist.  

87.The fact that the images were taken during a rape is another significant aggravating feature.  Given the compromising position the victim was in, the impact on her from her knowledge that such images had been taken becomes exponentially heavier.  

88.As was sadly confirmed in X’s psychologist report, the thought of the images being in existence somewhere haunts X to this day, and this sickening consequence of the defendant’s conduct will likely continue to affect X for the foreseeable future.

89.Another aggravating feature is that the phone with which the defendant had taken the images has never been located, and so the images have not been deleted from the phone.  Whether the defendant was telling the truth when he said the phone had been lost is unknown.  Even if true, someone else could be in possession of the lost phone and the images would still be at large.  

90.Given the circumstances of the defendant’s commission of the offence, and having taken into consideration all the said aggravating features, I find that a proper starting point is 4 years’ imprisonment.  

TOTALITY IN RELATION TO THE OFFENCES AGAINST X

91.On totality, I will refer to the following passage of the Court of Appeal’s judgment in HKSAR v Ngai Yiu Ching [2011] 5 HKLRD; CACC 107/2011:

“26. Finally there is a decision of the New South Wales Court of Criminal Appeal in Cahyadi v The Queen 168 A Crim R 41. At page 47, paragraph 27 Howie J summarized the legal position in a way which we would adopt:

‘…… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.’”

92.As expressed above when deciding on the sentence of the rape charge, the fact that the defendant had taken photos and videos of the rape had not been taken as an aggravating feature there and the eventual sentence was not enhanced on this particular basis.

93.The taking of the photos and videos is a separate and unique criminal act to the rape.  I find that the sentence of the rape alone would not comprehend and reflect the criminality for the taking of the images.  

94.Taking a step back, I find that 2 years of the sentence in count 2 should be served consecutively to the sentence in count 1, the balance concurrently, leading to a sentence of 9 years for the two offences, before plea.

INDECENT ASSAULT OF Y

95.As the Court of Appeal stated in HKSAR v Tsang Ue Sum (曾煦森) CACC 32/2010, sentencing for indecent assaults “is a particularly fact sensitive exercise and covers a wide range of conduct...references to sentences imposed in other cases are usually of very little assistance to this court.[7]”

96.In the present case, the then 40 year old defendant was a professional photographer and Y, who was 22, was his model.  There was a significant age gap between the two.  The defendant had exploited his position when he “lured” Y to take her clothes off, and subsequently assaulted her by squeezing her breasts and touching her private parts with one hand whilst shooting his own assault on her.

97.The Summary of Facts are silent as to how long the indecent assault had lasted.  The defendant also did not mention how long the touching had lasted in his video recorded interview.  The shooting appeared to have gone on after Y had said no to being touched.

98.With the assistance of the 5 photos which are the subject matter of count 4, one can see the defendant squeezing together Y’s breasts, pinching her nipple, and pulling down Y’s underpants with one hand while taking a photo with Y’s private part in full view, no doubt touching that part of Y in the process.  

99.In the case of Tsang Ue Sum above, the applicant was convicted after trial of one count of indecent assault and was sentenced to 27 months’ imprisonment, with a starting point of 30 months.  The indecent assault was the alternative offence for attempted rape, which the jury had found the applicant not guilty of.

100.The facts of that case are that, the then 23 year old applicant met the 20 year old Ms. Chan on the internet on 1^st September 2008 at around 5 or 6 pm.  By 6:45pm that day, Ms. Chan was in the applicant’s home inspecting his collection of video disks.  Ms. Chan called 999 at 7:10pm and made a complaint of indecent assault.

101.The assault was found to have been the applicant lying on top of Ms. Chan and kissing her, exposing, touching and kissing her breasts whilst touching her private parts underneath her underpants.  The applicant also forced her onto a different bed and continued to sexually molest her when it was clear that she was not consenting.  The applicant desisted only in the face of the ‘vehemence’ of Ms. Chan’s reaction, her yelling and distressed breathing.  Ms. Chan’s scalp had become swollen when she bumped her head during the applicant’s attack on her.

102.The Court of Appeal, having been referred to other sentencing cases, found the judge very well-place to have the appropriate ‘feel’ of the case and thereby to determine the culpability of the applicant and to reflect that in the sentence imposed, and leave to appeal against sentence was refused.

103.I find the circumstances of the assault in the present case less serious than that in Tsang Ue Sum.  The assault appears to be of a much shorter duration, and with less violence applied.  The defendant appeared to have stopped after Y had said no to him.  

104.Again, just as with the rape of X, I have not taken into consideration the fact that the defendant had photographed the assault of Y when setting the sentence for this count, since there is a separate charge for the defendant’s publication of the 5 photos.

105.Otherwise than that, having taken into consideration all the circumstances of the assault, I find that a proper starting point is 18 months’ imprisonment.  

106.Given that this is the defendant’s 3^rd conviction for indecent assault, the previous two being in 2020, I find that there should be an enhancement of the sentence by 3 months for him being a repeat offender.  The resulting sentence after enhancement but before discount for pleading guilty is, therefore, 21 months’ imprisonment.  

COUNT 4: PUBLICATION OF INTIMATE IMAGES WITHOUT CONSENT

107.The defendant published 5 intimate images of Y, “knowing or being reckless as to whether the publication would or was likely to cause humiliation, alarm or distress to Y”.

108.Given the wording of s.159AAE quoted above, one of the factors to consider in sentencing must be the level of humiliation, alarm or distress that Y had in fact suffered.

109.The negative effects that the publication of the 5 photos have had on Y has been summarized above.  It is clear that Y has suffered great humiliation, and is highly alarmed by the possibility of there being more such photos online, and that the publication had caused her great distress.

110.I note that the defendant had said under caution that of the 300 to 500 photos he had taken of Y that day, about 100 were naked photos, and that he had sold one set of 300 photos of Y to 6 to 8 people at $800 per set.  It is not clear from the Summary of Facts whether the sold sets included naked photos of Y, but common sense suggests that they must have, given the price the photos were sold at.  Nevertheless, the defendant is only being charged with publishing the 5 photos and not more, and he will only be sentenced on this basis, that is to say, publishing 5 intimate photos of Y.

111.I have referred to the danger of taking of intimate photos above when dealing with count 3.  Those considerations apply here as well, and more so, since there was in fact publication of the photos.  Y’s worry about there being more of her naked photos at large on the internet is legitimate given that the defendant had taken about 100 naked photos of hers on the day in question.  

112.Despite the fact that the defendant is being charged for the publication of only 5 of the intimate images, I find that the harm done to the victim is not necessarily directly proportional to the quantity of images published, but is dependent on the content of the images.  

113.I have looked at the photos and one of them is a full frontal shot with Y’s face in clear view and breasts exposed.  The other 4 photos show her breasts being squeezed and nipple being pinched, and the one mentioned above of her private part being fully exposed.  One would have no difficulty in associating the ones not showing her face with the one that does, based on the underpants and bra that can be seen in the same set of photos.

114.The fact that the victim can be identified through the 5 photos add to the defendant’s culpability, because it demonstrates the total disregard that the defendant had for his victim in his peddling for sale of the photos.  

115.I find that the publication of the 5 photos had caused Y serious harm, and that this is one of the main factors to consider when deciding on the sentence.

116.I find that given the level of intimacy of the images, the harm done to Y as a result of the publication of the 5 photos, and the fact that the photos were taken during the defendant’s indecent assault on Y, a proper starting point is that of 2 years’ imprisonment.  

TOTALITY IN RELATION TO THE OFFENCES AGAINST Y

117.Taking a step back, for the same reasons given in relation to the totality regarding counts 1 and 2, I find that the sentence in either count 3 or 4 alone would not cover his criminality in both counts, and that in order to properly reflect the defendant’s culpability, 15 months of the sentence in the publishing charge should be made consecutive to the sentence in count 3, leading to a sentence of 3 years for the two counts, before discounting for the defendant’s pleas of guilty.

OVERALL TOTALITY

118.The defendant had committed two different sets of offences against two different victims at different times.

119.I see no reason at all to not order the two set of sentences to run wholly consecutively.  To do otherwise would result in an unjust, unfair and unbalanced sentence.  

120.Therefore, the final sentence for all 4 counts after plea is 8 years’ imprisonment after granting the defendant the full one-third discount for his timely guilty pleas.

Mr. Marcus LEE, SPP of Department of Justice, for the Prosecution/ HKSAR

Mr. Kevin CHAN, instructed by Director of Legal Aid, for the defendant