HKSAR v. Ng Tin Yu

DCCC 967/2024

[2026] HKDC 966

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 967 OF 2024

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REASONS FOR SENTENCE

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1.Mr Ng is charged before me with 13 charges of Indecent conduct with a child under the age of 16 years, contrary to section 146(1) of the Crimes Ordinance, Cap 200.

2.He pleaded guilty to Charges 5 to 13, but not guilty to Charges 1 to 4.

3.Prosecution asked that Charges 1 to 4 be left on court file not to be proceeded with without the leave of this court or the Court of Appeal.  Upon conviction of Mr Ng on Charges 5 to 13, I so ordered.

4.Particulars of the charges are that Mr Ng, on A, at a flat in Kowloon City, Kowloon, in Hong Kong, committed an act of gross indecency with X, a boy of the age of B years.

5.For Charge 1, A is a day unknown between 9 August 2023 and 21 August 2023, both dates inclusive; B is 6.

6.For Charge 2, A is a day unknown between 11 September 2023 and 27 September 2023, both dates inclusive; B is 6.

7.For Charge 3, A is a day unknown between 4 October 2023 and 30 October 2023, both dates inclusive; B is about 6.

8.For Charge 4, A is a day unknown between 1 November 2023 and 20 November 2023, both dates inclusive; B is 7.

9.For Charge 5, A is a day unknown between 4 December 2023 and 13 December 2023, both dates inclusive; B is 7.

10.For Charge 6, A is a day unknown between 4 December 2023 and 25 March 2024, both dates inclusive, on an occasion other than that referred to in Charge 5; B is 7.

11.For Charge 7, A is a day unknown between 4 December 2023 and 25 March 2024, both dates inclusive, on an occasion other than those referred to in Charges 5 and 6; B is 7.

12.For Charge 8, A is 29 January 2024, on an occasion other than those referred to in Charges 6 and 7; B is 7.

13.For Charge 9, A is a day unknown between 19 February 2024 and 28 February 2024, both dates inclusive, on an occasion other than those referred to in Charges 6 and 7; B is 7.

14.For Charge 10, A is a day unknown between 1 March 2024 and 25 March 2024, both dates inclusive, on an occasion other than those referred to in Charges 6 and 7; B is 7.

15.For Charge 11, A is 27 March 2024; B is 7.

16.For Charge 12, A is 30 March 2024; B is 7.

17.For Charge 13, A is 10 April 2024; B is 7.

Facts admitted by Mr Ng

18.Since August 2023, Mr Ng had been the private tutor of a boy “X” of 6 to 7 years old (PW1).  Mr Ng was hired by PW1’s mother PW2.  The lessons took place inside PW1’s room at his residential flat in Kowloon City, Kowloon, when both of his parents had gone to work, leaving only the foreign domestic helper to guard the flat.

Charges 5 to 10

19.During each lesson between 4 December 2023 and 25 March 2024, both dates inclusive, Mr Ng instructed PW1 to sit opposite him.  With PW1 facing him, Mr Ng then covered PW1’s eyes with a facemask and instructed PW1 to masturbate Mr Ng’s penis with both hands.  On each occasion, PW1 complied.

Charge 11

20.During the lesson on 27 March 2024, Mr Ng, after covering PW1’s eyes with two facemasks, instructed PW1 to kneel down in front of him.  Mr Ng then instructed PW1 to masturbate Mr Ng’s penis with both hands and to perform oral sex on Mr Ng.  PW1 complied.

21.After having ejaculated into PW1’s mouth, Mr Ng instructed PW1 to open his mouth for Mr Ng to see the semen.  Mr Ng then instructed PW1 to swallow the semen.  PW1 complied.

22.PW1 felt disgusted with these acts and the “foul smell”.  Next day, PW1 relayed the incident to PW2.  PW2 felt suspicious but could not be certain what exactly happened.

Charge 12

23.During the lesson on 30 March 2024, Nr Ng similarly covered PW1’s eyes with two facemasks and instructed PW1 to kneel down in front of him.  Mr Ng then instructed PW1 to masturbate Mr Ng’s penis with both hands and to perform oral sex on Mr Ng.

24.PW1 complied and Mr Ng ejaculated into PW1’s mouth.  Mr Ng then told PW1 to open his mouth and, after seeing the semen inside PW1’s mouth, instructed PW1 to swallow the semen.  PW1 complied.

25.PW1 again felt disgusted after these acts and, that evening, relayed the incident to his father PW3.  PW3 also relayed the incident to PW2.

26.PW2 and PW3 then installed a CCTV camera inside PW1’s room to monitor PW1’s lesson with Mr Ng.

Charge 13

27.During the lesson on 10 April 2024, Mr Ng covered PW1’s eyes with two facemasks and instructed PW1 to kneel down in front of him.  Mr Ng then instructed PW1 to masturbate Mr Ng’s penis with both hands and to perform oral sex on Mr Ng.  PW1 complied.

28.Mr Ng, after having ejaculated into PW1’s mouth, instructed PW1 to open his mouth for Mr Ng to see the semen.  Mr Ng then instructed PW1 to swallow the semen.  PW1 complied.

29.The incident, lasting about 18 minutes, was captured by the CCTV camera.  After viewing the CCTV footage, PW2 and PW3 reported the case to the police.

30.On 11 April 2024, as Mr Ng was approaching the Ground Floor lobby of the building in which PW1’s residence was located, he was arrested by the police. Police seized two facemasks from Mr Ng.

31.During cautioned interviews, apart from admitting the offences, Mg Ng also stated:

(a) Since December 2023, he had held PW1’s hand to masturbate his penis until he ejaculated;

(b) He told PW1 that it was “training of the hands” and he cleaned PW1’s hand afterwards;

(c) He did not ask if PW1 was willing to perform the masturbation or the oral sex; and

(d) If PW1 did not follow his instructions, he would tell PW1 it was “training”.

Criminal record

32.Mr Ng has 3 previous convictions, all similar and recorded while he was 16 or younger.

Antecedents

33.Mr Ng is aged almost 24 (21 to almost 22 at time of the offences), educated to University level in Hong Kong.  He was a private tutor at the time of the arrest.  Mr Ng is single and before remand used to live with his parents and younger brother in private housing in TKO.

Mitigation

34.Mr Kamlesh Sadhwani of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Ng.  The following is a summary of the mitigation submissions.

35.Mr Ng indicated his pleas early.  He asks for the full sentencing discount.

36.Mr Ng has supportive parents who have provided for him.  Mr Ng has progressed through the local education system, sat the DSE examinations and gone on to pursue tertiary studies.

37.While studying, Mr Ng undertook part-time work to ease the financial burden on his family and to gain work experience.  In about August 2023, he began working as a freelance private tutor primarily to earn income in his spare time.  The present offences were committed in the course of that tutoring work.

38.Mr Ng understands his offending was not a single lapse but a repeated course of conduct towards a very young child over several months, and the breach of trust was particularly serious because he was X’s tutor.  Mr Ng recognizes his actions may have long-term emotional and psychological consequences for X and his family.

39.Mr Ng has suffered from psychological difficulties from a young age.  He was sexually molested as a child.  He has attended sessions with psychiatrists and clinical psychologists in the past.

40.Mr Ng indicated his willingness to plead guilty at the earliest opportunity.

41.In terms of sentencing framework, defence appreciates that the court will look to section 146 and to authorities such as Secretary for Justice v Yu Chun Hing [2022] 1 HKLRD 97 for guidance.  In that case, starting points of about 2 years’ imprisonment were adopted for single counts of indecent conduct against 11- and 12-year-old girls, and an overall sentence of 5 years and 8 months, later reduced to 5 years on review, was ultimately held appropriate for what the Court of Appeal described as “a very bad case” involving six different child victims and a wide pattern of sexual misconduct.

42.Mr Sadhwani also referred to a District Court sentencing case HKSAR v Zhao Hong Shing, DCCC 219/2022, for comparison purposes.

43.Mr Sadhwani acknowledges that the court may regard this case as being more serious than a single or isolated incident that the overall sentence must be substantially more than the sentence for one count alone.  It was however submitted that this case does not fall into the very worst category of sexual cases.  There is only one complainant; the offending, though gravely serious in involving repeated indecent conduct and oral sexual activity with a very young child, did not involve anal intercourse, the deliberate making or publishing of child-pornography images, online grooming of multiple children, prostitution, or offending while on bail; and Mr Ng is still a young offender who has pleaded guilty and is willing to undergo treatment.

44.In those circumstances, Mr Sadhwani submitted that the total term should remain materially lower than the sentences imposed in the most serious cases, and he asked the court to structure the sentences on Charges 5-13 so that those representing the initial cluster of offending run largely concurrently, with such limited additional consecutive elements as may be necessary to reflect the continuation and persistence of the conduct up to April 2024, and to ensure the final sentence is severe but not crushing.

45.Whatever sentence the court imposes, Mr Ng will leave prison with a serious criminal record that will affect him for the rest of his life.  Mr Ng will not be able to resume work as a tutor or in any role involving children. He must live with the stigma of being a sexual offender, the knowledge that he has harmed a child, and the shame he has brought upon his family.  Mr Ng accepts these consequences as the result of his own actions.  He hopes that with proper treatment, he can use the time in custody to address his problems and ensure that there is no repetition.

46.Mr Sadhwani asked for the shortest term of imprisonment that is consistent with the protection of children, the need for punishment and deterrence, and the guidance of the higher courts.

47.Mr Ng knows he does not deserve leniency as of right but nonetheless asks the court to temper justice with mercy and to give him a real opportunity to reform and rebuild his life in a way that will never again place any child at risk.

48.Mr Sadhwani submitted on behalf of Mr Ng two mitigation letters written one by Mr Ng himself in English, and the other by Mr Ng’s parents and younger brother in Chinese.  The contents generally are that Mr Ng apologizes to the victim and felt regretful for his misconduct towards the victim; that he overestimated his self-control and underestimated the consequences; that speaking from experience, he knew what he did had harmed the victim mentally such that the latter’s social life and studies might be affected; that he knew he had brought pain to the victim’s parents; that he committed the acts out of selfish and momentary satisfaction; that he is confident that he will never commit the offence again.  The letter writers asked for a chance for reform and a lenient sentence for Mr Ng.

49.Mr Sadhwani asked the court to take in account the fact that facemasks had been used on all occasions to cover the eyes of the victim so that the impact of what was happening was lessened.

50.Upon enquiry by the court, Mr Sadhwani submitted upon taking instructions that Mr Ng did not use the word “semen” when giving instructions to X.

51.Upon invitation by the court, Mr Sadhwani made further submissions by reference to HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 and Secretary for Justice v Lam Yu Wai [2015] 1 HKLRD 400.

52.Against each of the 10 principal factors relevant to sentence in such cases identified in para 9 of Tsang Chiu Tak, Mr Sadhwani has the following submissions:

(i) There is a substantial age difference between Mr Ng and X: 14 years;

(ii) The case involves a serious breach of trust: Mg Ng as private tutor placed in a position of trust by X’s parents;

(iii) The facts did not disclose threats or intimidation;

(iv) The offences concern repeated acts over a period of 4 months;

(v) No gratuitous violence was involved;

(vi) Pregnancy and disease-risk commonly found in rape or buggery cases do not arise here although there is oral sexual activity;

(vii) There is no victim trauma report here hence there is no expert trauma assessment demonstrating psychiatric injury, post-traumatic stress, severe depression, self-harm, or other long-term sequalae of the sort documented in Tsang Chiu Tak or to the extent thereof;

(viii) It may readily be accepted that offending of this kind affects not only the child but also the child’s family, particularly where it was the parents who entrusted Mr Ng as tutor of X;

(ix) There is no filming or photographing or publication or display of indecent images or acts; and

(x) Risk of re-offending is high but Mr Ng will undertake treatment.

53.Lam Yu Wai where the Court of Appeal held the appropriate starting point for indecent conduct towards a child under 16 should not be lower than 6 years’ imprisonment was restricted to the peculiar facts of that case involving the following features:

(a) The respondent had a more serious record of prior sexual offending demonstrating entrenched recidivism, superficial remorse and very high likelihood of reoffending;

(b) The respondent lured the child from a public place to a secluded stairwell and made the child to perform oral sex on him with threats/inducements; and

(c) There was a psychological trauma assessment report addressing the child’s reaction and recovery, even though the long-term adverse impact was said not to be significant.

54.It was submitted that the above features are absent in the present case which should be distinguished on that basis.

55.It was submitted that Lam Yu Wai should be treated as a high-end comparator within the section 146 spectrum, rather than as a direct measure of sentence in the present case.

Psychologist’s report

56.I called for a psychologist’s report before sentencing.  It came back with conclusion and recommendation that included the following:

“18. Mr Ng was diagnosed with Paedophilic Disorder, and his risk of sexual reoffending was impressed to be high. Prominent risk factors include his history of repeated sex offences targeting both stranger and familiar children, sexual preoccupation, deviant sexual interest ie, paedophilia, social isolation, and weak capacity for building healthy courtship with similar-aged peers. Despite progress was made during previous psychological intervention on his paedophilic tendency and he showed motivation towards treatment, the index offence (sic) constituted a relapse in sexual offending. His difficulty resisting sexual impulses, and the escalating transgression from masturbation to oral sex in the index offence (sic), was of major concern. Without clinical intervention, Mr Ng’s prognosis was considered poor and he would pose a genuine risk to young children. Intensive psychological intervention targeting his paedophilic interest and to help Mr Ng build sustainable and fulfilling interpersonal relationships is considered highly crucial for his rehabilitation and protection of the community at large. Multidisciplinary supervision and support, under which his access to children should be monitored and restricted, is strongly recommended for his reintegration upon discharge.”

Sentence

57.The maximum penalty for this offence is 10 years’ imprisonment.  There are no sentencing guidelines.

58.In Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136, the Court of Appeal held that there were three crucial considerations for the offence of indecent assault on young children by adults: (a) To deter others from committing similar offences; (b) To show the abhorrence of members of the public to offences of this nature; and (c) To redress the grievance suffered by the victim and his or her friends and relatives; that in addition, the sentencing courts had to consider three other important factors: (d) Even if no psychological assessment report on the abused victim was available, the court could not overlook the possibility of the victim suffering psychological damage as a result of sexual abuse; (e) It was difficult to detect this type of offence because child victims of sexual abuse would normally be at a loss and feel too embarrassed to complain to their parents or teachers about the molestation; and (f) in dealing with this type of offence, the courts would have regard to the protection of children as the most important consideration.

59.In HKSAR v Kong Yun Chiu [2007] 4 HKC 391, the Court of Appeal held that offences of this kind call for substantial terms of imprisonment; that the absence of other aggravating factors should not be permitted to derogate from the inherent seriousness of any indecent assault on a child. Stock JA (as Stock NPJ then was), in giving the judgment of the Court said, at para 11:

“In Chan Ching Ho[1], at p 481, Stuart-Moore VP cited with approval the words of the sentencing judge who had spoken of the importance of punishing crimes against children of this kind ‘with a sentence severe enough to deter others from acting like the defendant, and also to show the abhorrence of members of the public to crimes of this nature, and also to redress the grievance suffered by the victim, her friends and relatives.’ It should go without saying that children are particularly vulnerable members of society. It is too easy for those who would prey on their naivete and trust to succeed, for children are by nature trusting and the deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly. The trauma caused to a child by an indecent assault, and the long-term adverse impact, is difficult to calculate but trauma may safely be assumed in the vast majority of cases, perhaps all. Similarly, the trauma and distress, immediate and long-term, is not confined to the child. Parents of child victims will almost certainly be haunted by images of what has been done to the child and, in addition, will nurture a deep sense of guilt either for having entrusted the child to the company of someone who breaches that trust or, in other cases, for having left the child unguarded for the odd moment…”

60.In HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427, the Court of Appeal has the following observations:

“8. The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were 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.

9. The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:

(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 in the case;

(3) Whether the defendant had used threats or inducements to make the victim succumb;

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

(5) Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6) Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7) Whether the sexual abuses have caused physical or psychological trauma to the victim;

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

(9) Whether the defendant was involved in other inappropriate behaviour such as inviting other people to watch or take photos or videos of the offence he committed; and

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

61.In Secretary for Justice v Lam Yu Wai [2015] 1 HKLRD 400, a mildly mentally disabled respondent (aged 41) with 22 previous convictions including three or four similar ones[2] committed an act of indecent conduct towards a child under 16.  The respondent’s actions involved luring a 5-year-old boy (Y) to follow him to a quiet staircase and forcing Y to perform oral sex on him for 3 minutes.  The Court of Appeal commented that because of Y’s age, there was no need for the respondent to use violence on Y in order to force the latter to succumb (para 37).

62.The Court commented in para 28 that:

“In our judgment, the sentence imposed on the respondent must serve the following purposes:

(1) To reflect the seriousness of the offence committed by the respondent;

(2) It must be deterrent in order to prevent others from committing similar offences;

(3) It must be able to deter the respondent from committing similar offences; and

(4) If it fails to deter the respondent, at least it can prevent him from committing similar offences again within a length of time.”

63.In the Court’s judgment, looking at the nature of the case, particularly the age of Y and the previous similar records of the respondent[3], even in the case of an application for review of sentence, the appropriate starting point should not be lower than 6 years and that was the starting point adopted on review (para 39).

64.Running through the Tsang Chiu Tak factors, it can be seen that this case is loaded with aggravating circumstances.  There was an age difference of 14 years between victim and perpetrator; there was a serious breach of trust with Mr Ng appointed as a tutor taking care of a 7-year-old child in a private setting; there were 9 acts of abuse over a course of 4 months, with escalation of severity after the first 6 acts; although no gratuitous violence was involved, there was no need to use violence given PW1’s age; no safety measures were taken under Charges 11-13 to prevent venereal disease from spreading to PW1’s mouth; trauma and distress to PW1 and his parents can and will be assumed even in the absence of a victim impact report; Mr Ng has been diagnosed as having Paedophlic Disorder and his risk of reoffending is assessed to be high; and with his 3 previous similar convictions, he can be regarded as a sexual recidivist.

65.There is also the stand-out aggravating factor that the offences took place in the home of PW1 which location he was, until the offences, entitled to treat as his safe haven.

66.Given the overwhelming weight of the authorities I have referred to and the severity of the circumstances of the case, I feel compelled to adopt a high starting point of sentence for each of the charges in relation to Mr Ng.

67.For Charges 5 to 10, I will adopt a starting point of 4 years’ imprisonment.

68.For Charges 11 to 13, because of the escalation to oral sex and the swallowing of semen under the instructions of Mr Ng, I will adopt a starting point of 5 years and 6 months’ imprisonment.

69.Mr Ng pleaded guilty to the charges in good time.  He shall be entitled to the customary 1/3 sentencing discount.  There are no other mitigating factors of weight to justify another sentence reduction.

70.Mr Ng committed the offences at the same place against the same victim but at different times.  For this reason, I feel unable to order wholly concurrent sentences even in relation to Charges 5 to 10.  In determining the overall sentence, I will bear in mind the principle of totality and impose partially concurrent sentences wherever I could.

71.The overall sentence will not be a light one but given the circumstances of the offences and the offender, this is not avoidable.  It is hoped that Mr Ng will finally learn a lesson and stay away from temptations and opportunities to re-offend after release from a long prison term.  The court can only do so much to protect the community from harm.

(Mr Ng, please stand)

72.On Charge 5, the sentence is 32 months’ imprisonment.

73.On Charge 6, the sentence is 32 months’ imprisonment.

74.On Charge 7, the sentence is 32 months’ imprisonment.

75.On Charge 8, the sentence is 32 months’ imprisonment.

76.On Charge 9, the sentence is 32 months’ imprisonment.

77.On Charge 10, the sentence is 32 months’ imprisonment.

78.On Charge 11, the sentence is 44 months’ imprisonment.

79.On Charge 12, the sentence is 44 months’ imprisonment.

80.On Charge 13, the sentence is 44 months’ imprisonment.

81.I order that 1 month of each of the sentences on Charges 5 to 10, and 2 months of each of the sentences on Charges 11 to 12, are each to run consecutively to the sentence on Charge 13, making a final overall sentence for Mr Ng of 54 months’ imprisonment.