HKSAR v. Tong Ming

HCCC 407/2025

[2026] HKCFI 1703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 407 OF 2025

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REASONS FOR SENTENCE

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The Charges

1.The defendant faces a total of 9 charges: one count of indecent assault (1^st charge), two counts of indecent conduct with or towards a child under the age of 16 years (2^nd and 7^th charges), two counts of unlawful sexual intercourse with a girl under the age of 13 years (3^rd and 4^th charges), one count of buggery with a girl under the age of 21 years (5^th charge), two counts of unlawful sexual intercourse with a girl under the age of 16 years (6^th and 8^th charges), and one count of doing a series of acts tending and intended to pervert the course of public justice (9^th charge).  The eight sexual offences were committed on five occasions (between 29 August 2023 and 20 January 2024)  and the perverting charge was committed by the defendant between late February 2024 and 17 April 2024 after he had been arrested on 7 February 2024.

2.On 20 November 2025, the defendant pleaded guilty in the magistracy to all nine charges and admitted a Summary of Facts dated 5 November 2025 and he was committed to the Court of First Instance for sentencing. Today, before this Court, the defendant confirmed his guilty pleas to the charges and his admission of the Summary of Facts.

Facts Admitted

3.The facts of the case can be summarized as follows. 

4.At the material times of the charges, the victim girl (“X”)  was a Form 2 student aged 12 or 13 and the defendant was aged 27.  They came to know each other through an app on the internet and later chatted on Instagram. 

5.In gist, on five separate occasions between 29 August 2023 and 20 January 2024, the defendant committed or was involved in various sexual acts on or with X as per the first eight charges on the indictment.  Following his arrest on 7 February 2024 for those sexual offences, the defendant did a series of acts with intent to pervert the course of public justice.

6.For the 1^st charge committed on 29 August 2023: the defendant invited X (aged 12)  to his studio and there, he removed her trousers and underwear and rubbed her private parts with his finger for about 5 minutes.  X said no to him but he ignored her.  He even suggested that they had sex but X refused.  This offence was thus committed against X’s will.

7.For the 2^nd and 3^rd charges committed on 9 September 2023: X (aged 12)  was playing with her mobile phone at his studio and the defendant went over to her and kissed her.  At his request, X performed oral sex on him and he ejaculated inside her mouth.  The defendant then put on a condom and had sexual intercourse with X.  During the intercourse, she saw the defendant holding his mobile phone as if he was taking a video.  She did not agree to him filming the intercourse and asked him to delete the video but he refused.  He then put away his mobile phone and continued having sexual intercourse with her.  The whole incident lasted for about 30 minutes.

8.For the 4^th and 5^th charges committed on 5 November 2023: X (aged 12)  and the defendant had sexual intercourse in his flat with a condom for 5-10 minutes.  During that time, the defendant inserted an anal plug inside X’s anus and left it there.  X was in pain and kept screaming but the defendant asked her to just relax.  He then placed a vibrator on X’s private parts for several seconds.  He had wanted to take a video of the intercourse but X took away his mobile phone and so he did not do so.  Later he took out the anal plug and asked X whether he could have anal sex with her without a condom.  She refused and said that she did not really want to but he still penetrated her anus with his penis and with the use of a condom.  X told him that it was very painful and so the buggery only lasted for less than a minute.  The defendant ejaculated inside the condom. 

9.For the 6^th charge committed on 26 December 2023: X (aged 13)  and the defendant had sexual intercourse in his studio with a condom for 15-20 minutes. 

10.For the 7^th and 8^th charges committed on 20 January 2024: X (aged 13)  performed oral sex on the defendant at his request in his studio.  They then had sexual intercourse with a condom for 15-20 minutes. 

11.On 1 February 2024, X disclosed to a social worker at school that she had had sexual acts with the defendant on five occasions and the matter was reported to the police on 2 February 2024.  On 7 February 2024, the defendant was arrested for the sexual offences. 

12.For the 9^th charge of perverting: on six occasions between late February 2024 and 17 April 2024, the defendant had contact with X through messages or Instagram and committed a series of acts with intent to pervert the course of public justice.  In particular, on the first occasion in late February 2024, he asked X not to identify him at the identification parade and X later did as told.  On an occasion in early March 2024, the defendant asked X to continue to help him and to tell the court that she did not know or had forgotten the answer if questioned at the trial.  On an occasion in April 2024, he told her to say things in court which were not convincing and to make up answers or say that she had forgotten; and X agreed to help him.  He also said to X that if the judge asked her whether she wished to continue pursuing the case, she should say that she did not.  On another occasion in April 2024, he even taught X to send him a message purportedly to show that she had framed him up with the offences; and X did as told on 11 April 2024.  

13.On 18 April 2024, X told the social worker about some of these perverting acts by the defendant and the matter was reported to the police.   

Background and mitigation

14.The defendant was 27 years old at the time of the offences and is now 29 years old.  He was born in the Mainland, moved to Hong Kong in 2009 and attained Form 6 education here. From 2016, he worked as a construction worker with a monthly salary of $25,000 and he later set up his own company and engaged other construction workers to work for him.

15.The defendant has two previous convictions of “unlawful sexual intercourse with a girl under the age of 16” recorded on 1 December 2014 for which he was sentenced to a probation order of 15 months.

16.The defendant’s parents have divorced and before his arrest, the defendant was living with his father (aged 74)  in a public housing flat in Kwun Tong.  His father is a colon cancer patient who has been receiving medical treatment.  Before his arrest, the defendant was his father’s sole caretaker and he also provided financial support to him as well.

17.His counsel, Mr. Chan, submitted that D was a hardworking person who was dedicated to taking care of the well-being of his old and frail father.  

18.A total of seven letters were produced in mitigation, written by the defendant himself, his divorced parents, his former girlfriend and three other friends respectively.  In his own letter, the defendant asserted that he is deeply remorseful for the offences and for bringing more misery to his father; he also apologized to X and wrote that he hopes she will not be too severely affected by these offences.

19.Each of the defendant’s father and mother wrote a mitigation letter in support of their son.  The father especially recounted on how the defendant had taken the initiative to shoulder the family responsibilities and to take good care of him when he was receiving cancer treatment.  

20.The rest of the four letters from the defendant’s ex-girlfriend and three other friends tend to show the defendant’s dedication to his family and his diligent attitude at work.  

21.One may say that these mitigation letters tend to show the positive side of the defendant’s character and personality.  The authors asked this Court to be as lenient as possible so that the defendant could reunite with his family and move on and return to the society as a law-abiding and useful person.

22.Mr. Chan in his written mitigation submissions dealt with some of the sentencing cases[1] produced by the Prosecution and contended that the 1^st charge (involving the use of fingers to rub X’s private part)  and the 2^nd and 7^th charges (involving oral sex)  were not as serious as the other counts of unlawful sexual intercourse.  Mr. Chan submitted that a starting point below 18 months would be appropriate.

23.For the 3^rd and 4^th charges of unlawful sexual intercourse with a girl under the age of 13 years, Mr. Chan submitted that there was no threat, violence nor inducement by way of payment involved in the present case although he acknowledged that there was a “slightly wider age gap” between the defendant and X.  Mr. Chan submitted that the appropriate starting point would be 2 years. 

24.For the 5^th charge of buggery with a girl under the age of 21 years[2], Mr. Chan submitted that the sentence should be at a level similar to that for the unlawful sexual intercourse charges, i.e. around 2 years.

25.For the 6^th and 8^th charges of unlawful sexual intercourse with a girl under the age of 16 years, Mr. Chan submitted that a starting point of around 18 months could be adopted.  Mr. Chan submitted that all these sexual offences were committed by the defendant when he and X were apparently in a relationship. 

26.For the 9^th charge of perverting the course of public justice, Mr. Chan submitted that given the particular circumstances in this case, including the initiative taken by X to approach the defendant on various occasions, the starting point for sentence should be around 2 years.

27.For the purpose of sentencing, this Court was minded to call for a victim impact report but was informed by the Prosecution that X was reluctant to take part in a psychological assessment. 

Sentence

28.The Court of Appeal has reiterated in many cases the sentencing principles involving sexual assaults on a child.  The Court has to protect innocent children and prevent vulnerable persons from sexual assault which would cause them physical and psychological trauma; and it is necessary for the Court to adopt deterrent sentences to deter others from committing similar offences.  Such deterrent sentences are 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: see HKSAR v Tai Yi Nam [2006] 1 HKLRD 468; and HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427.

29.In HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239, the Court of Appeal explained (at §13)  that although there is no tariff in sentencing sexual offenders involving young children, the following factors have been regarded as relevant:

(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 at the time of the offence?

(3)  Whether the defendant had used threats or inducements to make the victim succumb, falling prey to his licentious exploitation?

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

(5)  Whether inappropriate and unnecessary violence was involved in committing the offences and whether any harm or discomfort was caused to the victim?

(6)  Whether any suitable safety measures were taken in committing the offences and whether any hazard to the health and safety of the victim and the public was caused?

(7)  Whether the offences have caused physical or psychological trauma to the victim?

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

(9)  Was the defendant involved in other inappropriate behaviours such as inviting/permitting other people to watch or take photos/videos?

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

30.The Court of Appeal also stated (at §14(3))  that the trauma, distress and psychological harm that are caused to young sexual victims have been recognized and in the vast majority of cases, the court can make such an assumption even without victim psychological reports.  

31.In the present case, I find that the following factors are relevant in sentencing: (1)  the victim was only aged 12 or 13 at the material times and there was a significant gap in age between her and the defendant of some 14 to 15 years; (2)  the 1^st charge of indecent assault and the 5^th charge of buggery involved sexual acts committed on X against her will, and the use of the anal plug on her and the buggery caused X pain; (3)  a total of eight offences were committed on five occasions over the period of about six months; (4)  X was put under the apprehension that the defendant was filming or seeking to film the sexual intercourse for the 3^rd and 4^th charges; and (5)  the defendant is a repeated offender with two previous convictions of unlawful sexual intercourse with a girl under the age of 16. 

32.Given the multiple sexual offences committed on X over the said period, despite the lack of a victim impact report, I shall assume that some impact has been brought upon X as well as her family by these offences. 

33.I have noted the personal circumstances of the defendant but given the seriousness of the offences, the only effective mitigation is his plea of guilty which was entered at the earliest opportunity, for which he will be given the full one-third discount. 

34.Having considered the circumstances of the sexual offences (including the factors aforementioned), I will use the following starting points and impose the following sentences for the 1^st to 8^th charges:

1^st charge: a starting point of 2 years to be reduced to 16 months’ imprisonment due to his plea.

2^nd charge: a starting point of 21 months to be reduced to 14 months’ imprisonment due to his plea.

3^rd charge: a starting point of 2 years to be reduced to 16 months’ imprisonment due to his plea.

4^th charge: a starting point of 2 years to be reduced to 16 months’ imprisonment due to his plea.

5^th charge: a starting point of 4 years to be reduced to 2 years and 8 months’ imprisonment due to his plea.

6^th charge: a starting point of 21 months to be reduced to 14 months’ imprisonment due to his plea.

7^th charge: a starting point of 21 months to be reduced to 14 months’ imprisonment due to his plea.

8^th charge: a starting point of 21 months to be reduced to 14 months’ imprisonment due to his plea.

35.Appling the totality principle and in light of all the circumstances of these sexual offences, I take the view that an overall starting point of 6 years and 6 months’ imprisonment would be appropriate, to be discounted by one-third, resulting in an overall sentence of 4 years and 4 months’ imprisonment for the 1^st to 8^th charges.

36.To achieve that, in respect of these sentences, I shall order 3 months of each of the sentences for the 1^st to 4^th, 6^th and 7^th charges and 2 months of the sentence for the 8^th charge to run consecutively with the sentence for the 5^th charge, making a total sentence of 4 years and 4 months’ imprisonment for the 1^st to 8^th charges.

37.Turning now to the 9^th charge of perverting the course of public justice[3].  In the present case, the perverting acts were committed by the defendant with a view to avoiding the prosecution of and imprisonment for very serious offences. Having considered all the circumstances pertaining to the offence, I take the view that a starting point of 3 years and 6 months is appropriate for the offence.  By virtue of his guilty plea, the defendant is to be given a full one-third discount, bringing it to a sentence of 2 years and 4 months’ imprisonment.

38.The perverting offence was separate and distinct from the sexual offences.  Applying the totality principle and in light of all the circumstances of the present case, I take the view that an overall final sentence of 5 years and 9 months (after discount by virtue of his pleas)  is appropriate for all the offences.  I therefore order 1 year and 5 months of the sentence for the 9^th charge to run consecutively with the sentences for the 1^st to 8^th charges, making a final sentence of 5 years and 9 months’ imprisonment.

39.The defendant is therefore sentenced to a total term of imprisonment for 5 years and 9 months.

Ms Angel Yuen, SPP of the Department of Justice, for the Prosecution

Mr. Kevin Chan and Ms Angel Wong, instructed by Messrs. Hastings & Co., assigned by DLA, for the Defendant