HKSAR v. L M S
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HCCC 138/2026 [2026] HKCFI 5197 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 138 OF 2026 -----------------
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--------------------------------- Transcript of the Audio Recording of the Sentence in the above Case
COURT: The defendant plead guilty to two counts of indecent assault and one count of rape during committal stage, and was committed to the Court of First Instance for sentence. All the counts involving the same victim, X, a girl born in October 2006, and all took place on 28 August 2023. That is to say she was nearly 17 at the time when these offences were committed. The Summary of Facts which you have admitted are as follows. Background X was born in October 2006. At the material time of the offences, X suffered from refractory epilepsy and intellectual disability. According to a clinical psychologist’s report dated 11 August 2024, at the time of the assessment of X (ie on 16 and 31 July 2024), X obtained a full-scale IQ of 75, which placed her overall intellectual abilities in the borderline range. Her FSIQ ranked 5th percentile, indicating that X scored better than only 5 per cent of her age peers in the norm. She was assessed to be weak in her verbal comprehension, abstract reasoning and working memory. In relation to X’s personal independence ability, at the time of her assessment (ie when X was 17 years and 9 months old), she obtained a level of functioning equivalent of a person of 12 years and 9 months old. Her social interaction and communication skills, personal living skills and community living skills were assessed to be within the low average range. The assessments indicated that X needed infrequent support and supervision in her daily life. It was assessed that X had difficulty in performing age-appropriate tasks, given her social interaction, communication and community living skills were in the low average range. The defendant was the paternal cousin of X as his father and X’s father were brothers by blood. X treated the defendant as her elder brother. Charge 1 A few days prior to the incidents, the defendant sent X’s father (“Z”) a WhatsApp message inviting him and X to play basketball and have dinner together on 28 August 2023. As Z needed to work, he told X to play with the defendant alone. This was the first occasion the defendant went out with X alone. On 28 August 2023, at around 2 pm, the defendant called X and told her that he would come to her home at a housing estate in Shau Kei Wan (“Location B”) to pick her up for basketball. X changed her outfit at Location B and then went out with the defendant together to play basketball at a rooftop basketball court at the carpark building of her housing estate (“the Basketball Court”). However, instead of taking X to the Basketball Court, the defendant led X to the rear staircase in the vicinity of X’s home (“Location A”). Upon arrival at Location A, there was no one else apart from the defendant and X. The defendant then instructed X to remove all her clothes including her undergarment and underpants. Afterwards, defendant asked X to lean forward on the staircase with her face facing downwards at the staircase and her legs spreading apart. Meanwhile, the defendant pressed his body against X’s back. The defendant then penetrated his right index finger into X’s vagina and fiddled for two to three times. X felt pain and told the defendant that she felt pain and did not like it. However, the defendant forced X to express that she liked him and kept asking her if she liked the acts. The defendant then further placed his mobile phone on the staircase and took photograph and/or videos of X’s vagina, buttocks, as well as her breasts while requesting X to look into the camera of his mobile phone. The defendant further told X that he wanted to take such photos in order to send them to their family members. Subsequently, the defendant further kissed X’s mouth and asked her to stick out her tongue. Defendant also told X that he liked her. Later, the defendant further molested X’s breasts. Later, the defendant removed his underwear and asked X to sit on the staircase to perform oral sex on him and help him masturbate with her hands until he could ejaculate. X was tired and did not want to follow the defendant’s instruction. However, as X was scared that the defendant would throw a tantrum and hit her, she decided to comply with his request by sucking his penis for five to six times and stroking his penis for three to six times. During the aforesaid, X wanted to stop but the defendant did not let her stop and ordered her to continue. After a while, the defendant ejaculated and again expressed that he liked X. The aforesaid incident lasted around 5 to 6 minutes. After the aforesaid incident, defendant told X to put on her clothes, save for her undergarments and underpants. CCTV at the building of X’s home captured both the defendant and X took a lift to the ground floor of the building and left the building together. X was walking in front of the defendant. All along, the defendant and X neither had any bodily contact nor showed any sign of intimacy. The defendant kept X’s underwear in his own bag and subsequently let X to play basketball at the Basketball Court. Whilst waiting for the lift to head to the Basketball Court, at around 2.30 pm, defendant suddenly extended his arm towards X and used his left finger to poke X’s right nipple over her top momentarily (as X was not wearing any undergarment at that time). At around 2.39 pm, the defendant and X arrived at the Basketball Court. At around 2.51 pm, the defendant and X left the Basketball Court. Whilst the defendant and X were waiting for the lift to head to the ground floor, the defendant took out X’s underwear from his bag and smelled them. He told X that he was a pervert. He further swung his bag back and forth, such that the bag repeatedly hit X’s buttocks. At around 2.55 pm, after leaving the Basketball Court, defendant and X returned to X’s home (“Location B”). Upon arrival at Location B, apart from the defendant and X, no one else was there. X asked the defendant if he wanted to take a shower first but the defendant stated that he would take the shower at his home. X therefore went to take a shower alone with door closed but the door was not locked. After X finished taking a shower, defendant suddenly entered the bathroom and asked X to take a shower again with the shower curtains opened. Defendant then took nude photos and/or videos of X with his mobile phone. Defendant again expressed that he liked her and asked X to express that she liked it but X did not want to do so. After X took a shower again, she changed to another set of clothes. However, the defendant again ordered her not to wear her undergarment and underpants. Charges 2 and 3 At around 3.18 pm, the defendant and X left Location B. At around 3.35 pm, the defendant brought X to his home at a housing estate in Sai Wan Ho (“Location C”). Upon arrival at Location C, the defendant turned on the air-conditioner and got X a cold drink, whilst she was sitting on the sofa. The defendant and X were alone at Location C as the defendant’s parents were in the mainland China at that time. Subsequently, the defendant instructed X to lie down on the sofa at the living room and spread apart her legs while he stood next to the sofa. Afterwards, the defendant kneeled down on the sofa with his legs placed between X’s legs and leaned forward towards X and kissed her. He then instructed to X to lift up her top and then molested and licked X’s breasts. He also instructed X to fully undress herself. He used his tongue to kiss X and further molested and licked her breasts for around two to three times per each act. In addition, he forced X to lick and touch his chest for around 2 to 3 minutes. Subsequently, the defendant asked X to sit up and he then also sat on the sofa. He instructed X to sit on his lap whilst spreading apart her legs across him. He again leaned forward towards X and kissed and molested her breasts. He also asked X to kiss and touch his breasts again. X hugged him and then started crying. Shortly afterwards, the defendant headed to his bedroom to get a condom and asked X if she knew what condom was. X replied in the negative. The defendant then demonstrated to X as to how he put on the condom whilst standing in front of X by the sofa. He then sat on the sofa and X was again instructed to sit on his lap while spreading apart her legs across him. Defendant then asked X to grab his penis and initially instructed X to insert his penis into her vagina but X failed to do so after trying for five to six times. After a few failed attempts, the defendant then, on his own, penetrated his penis into X’s vagina. X felt pain and tried to push the defendant away. However, the defendant told X to tolerate the pain and asked her to hang on as she would get used to it. X cried and said no as she did not want it. She also continued to push him away. However, the defendant in return ordered X not to move. The defendant’s physique was significantly larger than X’s physique at the material time of the offences. After a while, the defendant stopped penetrating his penis into X’s vagina. X saw some semen in the used condom when the defendant was removing it and the defendant then threw the used condom into the rubbish bin. Afterwards, the defendant headed to his bedroom to take another condom. He then put on the new condom and asked X to hold his penis and then manually penetrate his penis into her vagina with her hands but X failed. At this juncture, he threw a tantrum towards X as X failed to follow his instructions. As a result, he also smacked X’s buttocks. X started crying due to the smacking. He again molested X’s breasts and then penetrated his penis into X’s vagina by himself. He subsequently removed his second condom. Afterwards, the defendant ordered X to head to his bedroom whilst X was still being naked. Upon entering the room, the defendant made X lie down on his bed and then spread apart her legs while he was sitting on the bed. He then penetrated his right index finger into X’s lower private parts. X felt pain and tried to push him away but he asked her to tolerate the pain again. At one point, he asked X to sit up to fetch his mobile phone from his table. After X passed the defendant his mobile phone, he again used his mobile phone to take nude photos and/or videos of X. Subsequently, the defendant then forced X to help him masturbate by stroking his penis and further instructed her to suck and lick his penis until he could ejaculate. At one point, X wanted to use the bathroom but the defendant did not let her do so. X therefore continued to perform the previous acts and he told X that he would make X get used to it. During the aforesaid, X had again tried to push the defendant away and had said no to the defendant but he ignored her and asked her not to push him. After the aforesaid acts, the defendant eventually ejaculated and X felt that there was some liquid on her legs as well as her private parts. X then headed to the bathroom and the defendant followed her. The defendant taught X how to clean the semen at her private parts thoroughly and monitored X’s showering. After X’s shower, the defendant ordered takeaway for their dinner. At around 7.44 pm on the same day, the defendant sent X back to her home at Location B. However, before sending X back home, the defendant gave her a stuffed toy and reminded X not to disclose to others about the said incidents. The defendant also promised X that he would never do such acts towards her again. After X returned home and the defendant had left, X’s mother (“Y”) noticed that X’s eyes were red and it appeared that she had cried. Y asked X what happened and X replied that she was hit by the defendant and he told her to keep a secret and forbid her from disclosing the matters to others. Y initially thought X was merely throwing a tantrum and thus told her to take a shower first. After X took a shower, Y talked to X again and X disclosed, inter alia, that after picking her up from her home for basketball, the defendant then brought her to the staircase at 6th floor and suddenly told her to take off all her clothes and lean forward. He then used his fingers to molest her important body parts. Afterwards, when she was taking a shower (with the door unlocked) at her home, defendant suddenly pushed the door and instructed her to open the shower curtain and further took photos of her. X also complained that after arrival at the defendant’s home, the defendant ordered her to remove all her clothes and lie on the sofa. He used his important body parts to molest her lower private parts. She felt so much pain and thus cried. She said no but in return hit her (in particular, her buttocks) and scolded her. She therefore complied with his requests and instructions as she was scared. When X disclosed the incidents to Y, she again cried and expressed that she felt scared and would never want to see the defendant again. X’s mother then told her husband (Z) about it and subsequently requested the defendant’s parents to return to Hong Kong immediately to deal with the matter. In light of the seriousness of the matter and the fact that the defendant’s parents were out of town, Z decided to approach his parents (ie the grandparents of the defendant) to discuss the matter. At around 9 pm, Z arrived at his parents’ home and his parents became very emotional upon being informed about the incidents. Meanwhile, Z received a call from Y stating that the defendant had taken nude photos and/or videos of X while X was taking a shower. As Z was concerned that the defendant would upload the photos and/or videos of X to the internet, Z together with his parents immediately rushed to the defendant’s home. At around 9.20 pm, Z and his parents arrived at the defendant’s home. The defendant greeted his grandparents but remained silent when he saw Z. Z immediately told the defendant off and questioned why he could do such things to his younger sister. Defendant remained silent again. When Z asked the defendant whether he had uploaded X’s photos and/or videos to the internet, defendant replied in the negative. Z thus checked the defendant’s mobile phone but could not find the relevant photos and/or videos. Z further requested the defendant to completely reset his mobile phone and the defendant complied with Z’s request. Z further scolded the defendant and then left Location C. At around 11.00 pm, Y received a call from the defendant’s mother stating that she would return to Hong Kong on the next day and would bring the defendant to surrender to the police. On 29 August 2023 at around 6.00 pm, the defendant arrived at the report room of the Chai Wan Police Station and told the police officers on duty that he wished to surrender himself to the police as he had committed a case of indecent assault. At around 8.46 pm, on the same day, the defendant was informed of his rights and cautioned the accordingly. Under caution, the defendant stated, inter alia, the following. He came to the police station today to surrender himself as he had indecently assaulted his cousin, X. On the 28 August 2023 at around 2.00 pm, on the rear staircase of X’s residential building, he told X to take off her clothes. He then kissed her mouth and breasts. He also used his right hand to molest her breasts and penetrated his right fingers into her lower private parts. Subsequently, he took her to play basketball at the rooftop basketball court. Afterwards, X took a shower at her home, during which he went into the bathroom to take nude photos and/or videos of her full body. Such photos and/or videos had already been deleted, as Z already instructed him to reset his mobile phone. He then took X to his home. He took out a condom and wore it. He instructed X to ride on him such that she was at the top and he was at the bottom. He then penetrated his right fingers into her lower private parts. He was aware that X had expressed that she felt painful. He went to the bathroom at around 3.30 pm and went to the bathroom to check on X. X remained to be in pain and he thus told her to take some rest. Between around 9.25 pm and 10.17 pm on the same day, defendant was arrested by the police. On 31 August 2023, a cautioned video-recorded interview was conducted with the defendant. Under caution, the defendant stated, inter alia, the following. X was his paternal cousin. Both his family and X’s family had frequent family gatherings at his grandmother’s home every week and they usually had dinner together. He had never gone out alone with X and never contacted X directly via WhatsApp. A few days before 28 August 2023, he asked X’s father (ie Z) via their family WhatsApp group whether Z wanted to play basketball with him. As Z needed to work, he then asked Z if he could bring X out for basketball. Z then gave him X’s mobile phone number. On 28 August 2023, he called X and told her that he would pick X up from her home at around 2 pm. After they left X’s home, he took X to the rear staircase of X’s residential building. Upon arrival at the staircase, he asked X to remove all her upper clothes (including her undergarment) and he then kissed her mouth and breasts. He further molested and squeezed her breasts. He then asked X to remove all her underwear and pants and further penetrated his right index finger into her lower private parts for a few minutes. He also requested X to suck his penis for a few minutes. In addition, he requested X to use her hands to help him masturbate for around 1 to 2 minutes. He admitted that he had used his mobile phone to take photos and videos X’s private parts when X was naked. He also took photos and videos of the processes when X helped him masturbate and perform oral sex on him. Subsequently, he asked X to wear her top and pants but instructed her not to wear her undergarment and underpants. He took away X’s underwear due to some perverted thoughts. They then left the rear staircase and he took her to play basketball together. After around 20 to 30 minutes, they finished playing basketball and returned to X’s home. Upon arrival at X’s home, he asked X to take a shower first as X was sweating. Noting that X did not fully close the bathroom door, he walked into the bathroom and observed that X was naked. Although X had already finished shower, he instructed her to take a shower again such that he could take photos and videos of X whilst X was naked. He took nude photos and videos of X for around 10 to 20 seconds. After shower, he again instructed X not to wear her undergarment and underpants. He then took X to his own home. Upon arrival at his home at around 3 pm or 4 pm, he first requested X to take off all her upper clothes at the living room. He then kissed X’s mouth and breast and further molested her breast. Afterwards, he requested X to take off her pants as well. He then also took off her underpants and then penetrated his fingers into her lower private parts. X was standing during the aforesaid acts while he was sitting on the sofa. The aforesaid acts lasted for a few minutes. He also demanded X to perform oral sex on him. Meanwhile, he continued to molest X’s breasts and lower private parts. After a while, he went to his own bedroom to take a condom and X followed him. He then instructed X to lie on top of him on the bed. He then molested her and then penetrated his fingers into her lower private parts. He again made her perform oral sex on him. Subsequently, he went back to the living room and wore the condom. He requested X to ride on him and rub her private parts against his private parts. He also further penetrated his fingers into X’s vagina. All the said acts lasted for a few minutes. He admitted that he had smacked X’s buttocks in order to rush her to speed up after rubbing against him. At that juncture, X had expressed that she felt pain, but he ignored her and continued with his acts. X then used his(her?) hands and legs to push him away and again expressed that she was in pain. He eventually stopped his acts. X then headed to the bathroom. In the meantime, he removed his condom at the living room. He then walked into the bathroom to check on X. X again expressed that she was in pain. He asked if he could help with anything, and he witnessed that X had tears in her eyes. The aforesaid incident at his home lasted for around an hour. At around 5 pm, they ordered takeaway for dinner and had dinner together. He admitted that he had given X a stuffed toy before sending her back home. At around 8 pm, he viewed all the photos and videos he had taken of X at his home and further deleted such photos and videos of X as he felt disgusted by himself. Around 9 pm, his grandparents and X’s father came to his home and questioned him about his acts. He admitted his acts. Z then checked on his mobile phone and demanded him to completely reset his mobile phone in case any of the photos and videos could be leaked. And upon the return of his parents from mainland China, he confessed to his parents and asked them to accompany him to surrender to police. After the aforesaid incident, X manifested emotional distress and stress-related symptoms, such as sleeping disturbance, hair loss, decreased appetite, and spitting of blood. The defendant was born in Hong Kong in October 2002. He is now 23 and 20 at the time of the offences. He has a clear record and prior to his arrest, he was studying at the Hong Kong Baptist University. He was employed as a waiter and before that he worked in the airport. I have called reports, background and psychological report on the defendant. According to the report of the psychologist, defendant had normal cognitive functioning. He is the only child in the family and in fact the only son of the grandparents or I would say the family tree, he is the only son. He has been well looked after by the grandparents, by his parents and also by the paternal uncles and aunts. He was looked upon by the younger ones as the elder brother in the family. From time to time, the families, that is the grandparents, his family and the victim’s family, had social gatherings and enjoyed a harmonious relationship among the three families. From the facts admitted, not only X was 16 at the time of the offence, but also she is physically and mentally handicapped. In Leung Ping Kuen, Cheung JA in dismissing an application for leave to appeal, he had this to say:
In the case of Tsang Chiu Tak, CACC 386/2011, Cheung JA, giving the judgment of the Court of Appeal, stated:
There are a number of aggravating factors in this case, namely, there is a serious breach of trust, trust from the victim, X, and Z (X’s father) in allowing you to take X out. You had taken advantage of your status as the elder brother of X. In fact, you are the paternal cousin of X. You two share the same surname. In the old days, she should properly address you as elder brother. Second aggravating factor is that violence had been used in that you smacked her buttocks. Third aggravating factor is that you take photos and/or videos while you commit these distasteful offences. I have to consider the psychological trauma to the victim as well. I have a psychological report of X before me. The psychologist assessed her on 13 July 2026. That is some three years after the incident. In the report, it is disclosed that after the disclosure of the offences, X’s mother supported reporting the matter to police and urged the defendant to surrender to the police. Despite strong opposition from the paternal extended family. X coped primarily by repressing her experience and suppressing her feelings. In the immediate aftermath, she experienced acute distress and harboured intense fears that the defendant would find her and sexually assault her again. Consequently, she developed marked avoidance, actively shunning any reminders of the incident or potential encounters with the defendant. She expressed irrational anxieties about being imprisoned herself after reporting the crime, which was later elevated following clarification by authority. Mother reported that X manifested intensified emotional distress and stress-related somatic symptoms in the month following the disclosure of the incident. She became increasingly withdrawn, socially isolated and tended to keep to herself. She displayed ongoing anxiety-related behaviours, including repetitive picking and scrapping at her nails. She displays other stress-related symptoms, including sleep disturbance, hair loss, abnormal pain, reduced appetite and episodes of hematemesis, which necessitated a visit to the A&E Department. During this period, X also expressed fleeting suicidal ideation. These psychometric findings closely aligned with the clinical interview data. On the impact of event scale revised, X’s scores indicated significant post-traumatic stress symptoms, falling well within the clinical range. She endorsed high levels of intrusive thoughts, hyperarousal and avoidance behaviour. Although she reported some reduction in the intensity of distress over time, her underlying mood disturbance, hypervigilance and need to block out trauma reminders remained clinically significant. Furthermore, the trauma had adversely affected her self‑concept. On the Culture Free Self-esteem Inventory, X’s self-esteem fell within the intermediate range. Qualitatively, she expressed feelings of shame and self‑blame, describing herself negatively for failing to protect herself. The incident has affected her sense of safety and trust. Her capacity to trust others, particularly males, have been impaired. She tends to maintain her distance from unfamiliar men. Her heightened sense of insecurity led her parents to escort her to and from school for approximately two years after the incident. Furthermore, X and her immediate family have endured substantial emotional strain due to victim-blaming attitude and initial opposition to report to police from the defendant’s family. In concluding, the psychologist said, the assessment findings indicated that the sexual assault has inflicted significant and multifaceted trauma on X, significantly disrupting her psychological, physical, and interpersonal well-being. The clinical findings indicated that X is suffering from significant and enduring post-traumatic stress symptoms, characterised by intrusive memories, pervasive avoidance, and hypervigilance. The internalised stress of the trauma manifested in significant physical symptoms, including sleep disturbance, hair loss, loss of appetite, and vomiting blood. These symptoms were severe enough to require emergency medical attention and ongoing psychiatric care. The psychological impact of the assault is severe and long‑lasting. The intrafamilial betrayal shattered her sense of safety within the family system, impaired her interpersonal trust, and damaged her self-esteem. It is recommended that ongoing psychological intervention is recommended for working on her post-traumatic symptoms, rebuild her self-esteem and interpersonal trust and enhance her adaptive coping strategies and self-protection skills. These interventions are essential to support her long-term psychological rehabilitation and social integration. These offences also have impact on the family members of X. In the psychological report of X, it is disclosed that the incident has severely fractured the relationships that I have talked about earlier, the harmonious relationships enjoyed by the three families. It is also disclosed in the report that X’s family have endured substantial emotional strain due to victim-blaming attitude and the initial opposition to report to police from the defendant’s family. In the case of Kong Yun Chiu, CACC 315/2006, Stock JA (as he then was) said:
As I said earlier, X’s father trusts the defendant, hence leaving X with the defendant alone. It is not difficult to imagine Z must be very regretful in allowing her(his?) poor girl, who is of low intellect, to be taken out by you. The sexual assaults on X are most distasteful and perverted and you did not desist. Even X cried and told you that she felt painful. The sexual abuse in the 1st count lasts on and off for over an hour and at different locations. Photos and/or videos were taken and she was told these photos or videos would be sent to family members. She was forced to perform oral sex and masturbate you until you ejaculate. I adopt a starting point of 5 years. In the case of Lee Kwok Wai, CACC 199/2011, Cheung JA, giving the judgment of the Court of Appeal, said this:
You apparently show remorse by surrendering yourself to the police after the victim’s father and the grandparents visited you. However, that apparent remorse was displaced by, first, although you surrendered to police, you on two occasions under caution did not frankly admit that you had raped your paternal cousin. Not only that, also when you were interviewed by the psychologist a couple of weeks ago, you still maintained that you had not raped her. You only admitted that you had inserted your fingers into her vagina. I will not give you any extra discount for pleading guilty other than the one-third. Hence, for the 1st count, the sentence is 3 years and 4 months. The 2nd count of the indecent assault is much more serious, both in terms of the length of time and the gravity. She cried in the course and she was smacked. The sexual abuses repeatedly within four hours and are most distasteful. I adopt a starting point of 7 years with one-third discount down to 4 years and 8 months. For the rape, I adopt 10 years as a starting point and reduce it to 6 years 8 months for your plea. The facts of the 2nd and the 3rd count are so intermingled that it would be artificial to treat them separately. Moreover, in adopting 10 years as my starting point for the rape, I have taken into consideration of the sexual abuses in the 2nd count. Hence, I think it is appropriate to order the sentences on the 2nd and the 3rd count to run concurrently. As to the 1st count, it was committed earlier at a different time and at different locations and, in principle, should be treated separately from the 2nd and the 3rd count. If the sentence on the 1st count, namely, 3 years and 4 months, is to run wholly consecutive to the total current sentences of the 2nd and the 3rd count, it comes up to 10 years, which I think is a little bit too high. Having considered all the circumstances in this case, in particular, X had been subjected to prolonged hours of sexual abuses in various locations. Your disgusted conduct in satisfying your perverted sexual desire and the gross breach of trust by X and her family, I am of the view that a total term of 8 years is about right. In the circumstances, I order 1 year and 4 months of the 1st count to run consecutively to the concurrent total of the 2nd and the 3rd counts. The remaining 2 years of the 1st count is to run concurrently with the concurrent total of the 2nd and the 3rd count. You are sentenced to a total term of 8 years for the three offences which you have pleaded guilty to. You are now 23. When you are out from the prison, you are still very young. Hope you would stay away from pornography, they only poison your mind. I also hope, meanwhile, while you are in prison, you truly reflected upon yourself on what you have done to your poor cousin. Your attitude while you were being interviewed by the probation officer and the psychologists does not show your remorse nor truly reflected on what you have done.
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Cases cited in this judgment