HKSAR v. Shek Kuen

DCCC 1054/2024

[2025] HKDC 1873

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1054 OF 2024

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to 2 charges :

(a)  Charge 2 : indecent conduct with a child under the age of 16 years, contrary to section 146(1)  of the Crimes Ordinance, Cap 200;

(b)  Charge 3 : homosexual buggery with a man under the age of 16 years, contrary to section 118C(a)  of the Crimes Ordinance, Cap 200.

2.As to charge 1 which was indecent assault on another person, it is now ordered to be left on the Court’s file, not to be proceeded with without the leave of the Court.

Summary of facts

3.X was a 13 year old boy.

4.In January, 2024, D asked X for directions at a bus terminus at Elements near Kowloon Station.

5.In their conversation, D told X that his name was Ken and he was 16 years old.  X told the D that he was 13 years old.  They subsequently exchanged contact details.

The Incident

6.On 20 March, 2024, at about 9:40pm, they met as X invited D for dinner.  D then told X that he needed to go home to put away some laundry.

7.They arrived at D’s home at about 9:45pm and no one was in D’s home.  They sat on the sofa for a chat.

8.X replied to D that he had masturbated before.  D then asked X for permission of which X replied “yes.”

9.After X removed his trousers, D performed oral sex on him and sucked on his nipple once for about 5 to 10 seconds.

10.They then went into D’s room.  X removed his own clothes as suggested by D.  X complied to D’s request to masturbate.  D also took out a bottle of liquid and rubbed on X’s penis and anal region, D then inserted 2 fingers inside X’s anus for about 30 seconds, which caused him some pain.

11.X then perform oral sex on D for about 5 -10 seconds.

12.X agreed to D to put his penis into his anus.  D did it without using a condom and the insertion of the D’s penis had caused X a great deal of pain.  D counted 3 and pulled out.  The incident lasted for about 10 to 15 minutes.

13.At around 10:10pm, D walked X back to the MTR station.

14.X informed his mother about the incident.  The matter was then reported to the police.

15.Medical examination of X was conducted on 21 March 2024.  The result was that X was 179 cm tall with 84 kg in weight, he was not suffered from any form of injury.

16.D was arrested on 21 March 2024, he said under caution that he did something wrong and he had consensual sexual intercourse with X.  He did not know X was under 16.

Criminal record

17.The Defendant has a clear record.

Background of the Defendant

18.He is now 24 years of age.  He was previously a medical student of a university in China.  Due to the present offence, he discontinued his studies.

19.D was raised by his mother and grandmother as his father passed away before he was born.

20.Both the Defendant and his mother in their respective letters, apologized to X and his family for causing them harm and stress in this matter. Today, the Defendant’s grandmother comes to Court to show her support to him, she also writes to inform the Court that it is a great blow to the Defendant as he could not continue his studies.

21.The Defendant is very much regretful of what he had done to X.  He was drown in guilt and remorse in committing the present offence.

22.When the Defendant committed the present offence, he believed that X was over 16 years old as he was much taller and bigger in his physique.

Pre-sentencing report

23.The defence had provided a psychiatric report from Dr Leung (who was a retired psychiatrist from the government hospital in 2017)  to say that the Defendant is not pedophilic and his tendency to reoffend was low as he does not have deviant personality trait or paedophilic tendencies.

24.Both the psychologist and psychiatrist reports from government doctors confirmed the view of Dr. Leung.

Sentence

25.The maximum sentence for :

(a)  Charge 2 is 10 years imprisonment;

(b)  Charge 3 is life imprisonment. However, according to the case of HKSAR v Yeung Ho Nam[1] that the maxmium sentence for homesexual buggery under 16 years old should be read down to 5 years’ imprisonment.

26.As said in the case of HKSAR v Lee Hon Wah and Another[2] that sentencing guideline for homosexual buggery and indecent conduct towards or with a child under 16 years old were neither possible not practical, given their varied circumstances and references to previous sentences were often of limited assistance[3].

27.In the judgement of Lee Hon Wah, the Court of Appeal also reiterated the 10 sentencing factors as stated in HKSAR v. Tsang Chiu Tak[4].

28.In the present case :

(a)  There was a age gap of 10 years between X and D;

(b)  D did not use threat, intimidating means or violence to ask X to engage in sexual activity, there is no element of corruption such as money involved;

(c)  As X refused to take part in the interview by the government psychologist, there is no evidence before the Court whether X suffers from any psychological trauma. Nonetheless, as X was only 13 at the material time, he is a young boy going through puberty, I can safely assume that there is certain degree of distress/psychological harm as he went home and immediately told his mother about the incident;

(d)  During the acts of sexuality, there were only X and the Defendant present, it did not involve the presence of third parties or others to watch, to take photos or video;

(e)  There are aggravating features :

(1)  did not use condom;

(2)  caused X to suffer from pain during the intercourse.

(f)  I accepted from what the Defendant said that X ‘s appearance appeared to be more mature that a 13 years old boy as he weight 84 kg and measured at 178cm. Be that as it may, X did inform the Defendant that he was only 13;

(g)  The law meant to protect those vulnerable children who are under 16 years old as they are not capable to provide consent in sexual activity;

(h)  All the specialist reports tell me that the Defendant is not a pedophile;

(i)  The chance of the D to reoffend is low;

(j)  With all the medical reports before me, I come to the conclusion that it was not a case of a pedophile preying on a young and immature boy.

29.On the other hand, from all the certificates before me, I also know that the Defendant has got very outstanding academic achievement.  Dr Leung said that the Defendant remains realistic and positive in the future.

30.One of the bail conditions imposed on th Defendant was not to leave Hong Kong.  As such he could not continue his studies in China. Nonetheless, it is certain that he will return to his studies once he serves his sentence or even during the period of remand.  He plans to take the DSE examination and to resume his university education in Hong Kong.

31.With all these background information and sentencing factors in mind, I consider that a starting point of 12 months and 18 months is appropriate for both charge 2 and 3 respectively.

32.The Defendant indicated his guilty plea after the trial days has been set down, however, bearing in mind that his plea has spared X to give evidence in Court, I take 25% discount for his late plea.

33.As such, the sentence for charge 2 and 3 is now arrive at :

(a)  Charge 2 – 12 months x 25% = 3 months;

- The sentence is one of 9 months.

(b)  Charge 3 – 18 months x 25% = 4.5 months;

- The sentence is reduce to 13.5 months. That is 13 months and 2 weeks.

34.Finally, I order both sentences to run concurrently.  The Defendant is ordered to serve a sentence of 13 months and 2 weeks’ imprisonment for both charges.