HKSAR v. Hong Yat Ming

HCCC424/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 424 OF 2009

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:  You appear in this court today to be sentenced in respect of four charges of indecent conduct towards a child under the age of 16 years, contrary to section 146(1) of the Crimes Ordinance, and two charges of homosexual buggery with a man under 21 years of age, contrary to section 118C(a) of the Crimes Ordinance.

You pleaded guilty to those charges in the magistracy on 24 December 2009 and were committed to this court for sentence.  You first appeared in this court on 24 February 2010 when you confirmed that you accepted the Summary of Facts as the basis upon which you tendered your plea of guilty, upon which you were convicted and upon which this court is to pass sentence. 

On that occasion, this court ordered the preparation of reports from a probation officer, a psychiatrist and a psychologist.  Those reports are before this court now, having been provided to the parties yesterday.

The charges are set out in chronological sequence for the commission of the offences.  Charge 1, of indecent conduct, occurred on an unknown date in February or March 2008, in a toilet at the school at which you were a schoolmaster and the victim a pupil. 

Charge 2, also of indecent conduct, occurred on a date unknown in October or November 2008, in a toilet at the Hong Kong Institute of Education. 

Charge 3, of homosexual buggery with a man under 21 years of age, occurred in a toilet at the Hong Kong Institute of Education on a date unknown between October 2008 and June 2009. 

Charges 4 and 5, of indecent conduct, occurred whilst you were travelling together in different taxis on unknown dates between January and June 2009. 

Charge 6, of homosexual buggery with a man under 21 years of age, occurred on an unknown date in June 2009 in a toilet at the Hong Kong Institute of Education.

The victim of all six charges is a schoolboy born in January 1997.  It follows that you committed these offences against him in the period of a little less than one and a half years, whilst he was aged 11 years and 1 or 2 months, to when he was about 12½ years of age.  From September 2007, you were his class teacher as he studied in primary school in P5 and P6.  In due course, you came to give him private tuition after school hours and then, no doubt having won his trust and friendship, went on to take him out shopping where you bought him toys and clothing.

I turn then to the circumstances of the commission of the individual offences. 

Charge 1, indecent conduct:  having persuaded the victim to allow you to inspect the development of his penis, you masturbated him. 

Charge 2, indecent conduct:  at your request, the victim performed oral sex on your penis, you ejaculating into his mouth.

Charge 3, homosexual buggery:  the victim having performed oral sex on your penis, you sodomised him without using a condom.

Charge 4, indecent conduct:  while the two of you were travelling in a taxi, you placed his hand underneath your trousers but above your underpants.  You invited him to stroke your penis. 

Charge 5, indecent conduct:  whilst the two of you were travelling in a taxi, at your request, the victim kissed your penis above your trousers. 

Charge 6, homosexual buggery:  the victim, having performed oral sex on your penis, you sodomised him without using a condom.

Your misconduct came to light as a result of the victim explaining to his mother why it was that he was not prepared to accompany you on a particular outing on 21 June 2009.  After he had received some psychological counselling and a medical examination from a doctor at the End Child Sexual Abuse Foundation, the matter was reported to the police on 23 July 2009.  You were arrested that day.  Under caution, you admitted the misconduct that I have just described.

The court has received a psychological report dated 9 February 2010 on the victim in order to assess the impact of the offences on him.  The victim has participated in four psychotherapy sessions beginning in August 2009, the last of which was on 4 February 2010.  It appears that his most prominent anxieties related to his identify and interpersonal adjustment at school.  He is, by now, at secondary school.  The clinical psychologist’s conclusion was that the victim had -

“...demonstrated excellent resilience to handle his experience of sexual abuse trauma.  All clinical emotional or somatic...”

- somatic meaning pertaining to the body -

“...symptoms had subsided.  No unusual anxiety in social situation was reported, apart from some adjustment problem at school.  Though some ambivalence towards the offender was present, it had no significant adverse effect on his relationship and boundary with other authority figures.  In the treatment process, his good coping was further reinforced while better skills to handle social situations had been explored with him.” 

The author of the report noted that the victim would continue to receive therapy to facilitate his emotional healing process.

Not surprisingly, the discovery of the offences has had an impact on his family, the victim’s mother reporting to the clinical psychologist the sleepless nights that flowed from the stress and fear that she experienced during the police investigation process.  She remains concerned as to the ability of her son to adjust and develop, particularly in respect of his sexual orientation.  She too has been offered supportive therapy.

It is clear from the reports of the probation officer, psychologist and psychiatrist that you come from humble origins.  Your parents are illiterate.  You were their only child.  You are now 28 years of age.  At first, your parents worked in the garment industry, then your father became the sole breadwinner of the family, earning a living as a workman in a school.  Your mother had a significant height deficiency, being only 1.28 metres tall and, unfortunately, is a hunchback.  For your part, you are only 1.6 metres tall. 

It is clear that your own academic progress at school was troubled.  You failed your Hong Kong Certificate of Education Examination, however, you persevered and re-sat the exams, obtaining modest results.  You progressed to Hong Kong Advanced Level Examination, securing passes in three subjects.  In 2004, you obtained a Bachelor’s Degree in Education at the Hong Kong Education Institute.  Since then, you have been employed as a primary schoolteacher in two different primary schools.  Notwithstanding your short stature, you have pursued the sport of basketball, coaching teams successfully over a number of years.

It is clear that over the years as a schoolteacher, you became a “workaholic”.  The clinical psychologist reported that you developed “very intense emotional identification with students who have family backgrounds similar to his”.  By this, she meant poor and deprived.  You arranged tutorial groups for your pupils, both after school and at weekends.  In addition, you arranged extra-curricular activities for them, including basketball and art classes.  These activities appear to have absorbed an increasing amount of your time and led to you becoming increasingly exhausted and stressed.

Both the psychologist and psychiatrist report that you regard yourself as heterosexually orientated, having had several girlfriends before you commenced a relationship with your current girlfriend, some three years ago.  She continues to visit you in prison.  However, you have not enjoyed sexual relations with a woman. 

The consultant psychiatrist, Dr Tsoi Wing-kit, stressed the opinion that you have “no psychotic symptoms or cognitive deficit”.  He went on to state his opinion that:  “Hong does not suffer from any formal psychiatric disorder.  He also does not appear to have psychiatric traits in personality or problems of sexual deviancy”.  He concluded that psychiatric treatment is not indicated.  Of the issue of the risk of you re-offending, it was his opinion that that would much depend “on how much insight he has gained and his motivation to deal with his personality weakness”.

The clinical psychologist reported that you admitted to being puzzled at your homosexual activity with the victim in light of what you understood to be your heterosexual orientation.  She expressed the opinion that although you asserted a sexual preference for adult women, she noted that you had a “rather strong emotional identification with children, usually aged 10 to 12”. 

Of that, she said, “This together with his repeated sexual acts with the victim suggest that he may be developing paedophilic tendency.  Signs of other major psychopathology have not been identified”.  Of the risk of sexual re-offending, she said that the results of the examination that she performed showed that you were “within the range of low to moderate”.

The clinical psychologist noted that you had expressed motivation to receive psychological treatment to deal with your psychosexual problem.  In conclusion, she recommended “psychological intervention targeting his self-esteem issues, problematic stress management, paedophilic tendency, as well as difficulties in handling intimate relationships and sexual needs”. 

At the outset of his mitigation on your behalf, your counsel, Mr Andrew Leung, acknowledged that your conduct was a serious breach of the trust reposed in you.  He informed the court that you were remorseful for your misconduct and sought forgiveness, hoping that the victim and his family can move on from these painful events.  He placed a letter that you had written to that effect before the court. 

He invited the court to take note that in the month prior to your arrest, on 23 July 2009, but after the victim had ceased to have any contact with you in late June 2009, you repeatedly contacted his mother by SMS text messages, admitting your wrongdoing and asking for a chance.  Also, he invited the court to note that, following your arrest, in interviews with the police, you had admitted all the offences with which you have been charged.

Finally, on 13 November 2009, the date fixed as the return day in the magistracy, you indicated in court that you wished to plead guilty.  Proceedings were adjourned until 24 December 2009 for the Summary of Facts to be prepared to reflect your pleas of guilty.

Mr Leung relied upon the judgment of the Court of Appeal in HKSAR v Chow Yuen Fai unreported, CACC392/2008, delivered on 8 December 2009 as supporting his submission that your intimation of a plea of guilty some three and a half months or so after you had been arrested and placed before the courts, together with your admission of your culpability both before and after arrest, gave rise to circumstances that were such as to fall within the “exceptional circumstances” in which a discount of greater than one-third from the appropriate starting point could be taken.  The passage Mr Leung relied upon is to be found in the judgment of the Chief Judge of the High Court, Ma J, at paragraphs 30 and 31. 

“Here, our attention has been drawn by Mr McGowan to a number of cases in which the courts appear to have given more than a one-third discount for the plea of guilty.  In HKSAR v See Tak Man [1998] 1 HKLRD 794, in relation to a charge of indecent assault (the victim was 12 years old; the offence involved oral sex and various other acts falling short of attempted buggery and also ejaculation into the boy’s mouth), the Court of Appeal reduced the starting point by ‘little more than one-third’ in view of the accused being a first time offender and also the victim being spared the ordeal of having to give evidence.  We were also referred to Wong Ying Ho where the Court of Appeal left undisturbed a discount of 37.5%. 

In our judgment, however, these and other cases which suggest that an additional discount may be given where a victim is spared the ordeal of giving evidence (and therefore having to recount the traumatic incident or incidents in question) must now be viewed against the general principle that the one-third discount is usually to be regarded as the high watermark of the discount for pleading guilty in good time: see HKSAR v Wen Zelang [2006] 4 HKLRD 460; HKSAR v Ng Ngok Wai [2008] 1 HKLRD 546 (this case involved an indecent assault on teenage children).  Only in exceptional cases should a discount of more than one-third be given for a timely plea.”

I should add, Wong Ying Ho has been reported now in [1999] 4 HKC 825.

Mr Leung submitted that although in Chow Yuen Fai, the Court of Appeal had in fact declined to give a greater discount than one-third from that appropriate for the starting point for sentence, it did so in circumstances where the earliest indication of a plea of guilty was at a pre-trial review in June for a rape trial fixed to begin about two months later, in August.  The court noted that the applicant in the case had been arrested the previous September.

In addition, Mr Leung relied upon the judgment of the Court of Appeal in The Secretary for Justice v Chau Chi Yan now reported in [2009] 5 HKLRD at 230, in which judgment was delivered on 26 August 2009.  The Secretary for Justice sought to review a total sentence of imprisonment of 3 years imposed upon the respondent in respect of two charges of unlawful sexual intercourse with a girl, the daughter of the woman with whom he cohabited at the time of the 1st charge and his stepdaughter by the time of the 2nd charge. 

The 1st charge was in respect of unlawful sexual intercourse with a girl under 13, contrary to section 123 of the Crimes Ordinance, she being 11 years of age.  The 2nd charge was in respect of unlawful sexual intercourse with a girl under 16 years of age, contrary to section 124(1) of the same Ordinance, she being 13 years of age at the time.

Having pleaded guilty in the magistracy, the respondent was committed to the Court of First Instance for sentence.  The judge took a starting point of 6 years’ imprisonment in respect of Charge 1 and reduced it by 50 per cent to 3 years’ imprisonment to reflect mitigation, in particular, the fact that the girl was saved from having to give evidence.  The judge applied a discount of one-third to the starting point he took for Charge 2 and imposed a sentence of 2 years and 8 months’ imprisonment.  He made the sentences concurrent one with the other.  Accordingly, the total sentence imposed upon the respondent was 3 years’ imprisonment.

It was contended on behalf of the Secretary for Justice that the 50 per cent discount imposed upon the respondent was wrong, albeit that it was conceded that, in all the circumstances, the respondent might be entitled to an additional discount on top of the one-third discount. 

Of the issue of the appropriateness of an additional discount to that of one-third, in the judgment of the Court of Appeal, the Vice President, Tang J, observed at paragraph 23:  “The reason for this additional discount was explained by Bokhary JA, as he then was, in The Queen v Pang Siu Hong, CACC698/1995, unreported, dated 23 February 1996, at page 4 of the judgment:

“We can see the force of the argument that the discount for the guilty plea in respect of the attempted rape should have been more than the one-third allowed by the sentencing judge.  This is because it is the sentencing policy of this court to give a particularly generous guilty plea discount in such cases so as to encourage pleas which spare victims from having to relive their ordeal by recounting the same in the witness-box.”

In the result, the Court of Appeal determined that the additional discount that the judge had afforded the respondent of 1 year’s imprisonment was not justified, whereas an additional discount of 4 months was justified. 

It is to be noted that neither Chau Chi Yan nor The Queen v Pang Siu Hong were cited in the judgment of the Court of Appeal in Chow Yuen Fai. 

Finally, Mr Leung referred to the judgment of the Court of Appeal in HKSAR v Lam Chung Tak, Jemy, unreported, CACC271/2006, delivered on 23 November 2007.  In that case, the applicant had pleaded guilty on arraignment in the Court of First Instance to two counts of incest and one count of indecent assault.  The trial judge had taken a starting point for sentence of 9 years’ imprisonment for the two counts of incest and 18 months’ imprisonment for the count of indecent assault.  The victim was 10 years and 4 months and 11 years old respectively at the time of the commission of the two offences of incest. 

The judge applied a discount of one-third to the starting points identified and imposed sentences of 6 years in respect of each of the incest counts and 1 year’s imprisonment in respect of the indecent assault.  She ordered the sentence imposed on the first of the incest counts to run consecutively to the sentence imposed in respect of the indecent assault, but only 3 years of the sentence imposed on the second incest count to run consecutively to the other terms of imprisonment.  Accordingly, in total, a sentence of 10 years’ imprisonment was imposed on the applicant.

In quashing the order that the sentence of 1 year’s imprisonment imposed in respect of the count of indecent assault be served consecutively to the sentence imposed on the 1st count of incest and ordering that it be served concurrently, thereby reducing the totality of sentence to 9 years’ imprisonment, the Vice President, Stuart-Moore J, in the judgment of the court, said, at paragraph 25:

“We bear in mind that the applicant’s subsequent conduct has had the consequence that the victim has not had to relive the trauma of these events by rehearsing the sordid details of these accounts long after they occurred.  It is because of this, and on this account alone, we consider that as a matter of principle, the applicant should have been given rather more credit for his pleas of guilty when totality was considered.”

Mr Leung placed before the court a box file of letters in mitigation, including letters from his former colleagues, that is the defendant’s former colleagues, the parents of pupils taught by the defendant and others.  He submitted that they evidence a common theme, namely, that you were a most hardworking and enthusiastic schoolteacher, determined to bring the best out of pupils, even at the cost of selflessly sacrificing your free time.

Turning then to the starting point for sentence and discount.   I have had regard to all the matters advanced at considerable length by your counsel in mitigation of sentence.  From the voluminous letters placed before the court, it is clear, and the court accepts, that your work as a schoolteacher was highly appreciated by both your colleagues and the parents of the children whom you taught.  However, having regard to all the material before the court, it is equally clear that you had become obsessed with working with your young pupils.  You spent an inordinate amount of time with them outside school hours.

The judgment of the Court of Appeal in Chow Yuen Fai sets out a useful summary of the principles that can be relevant in cases of this nature.  It is to be recognised immediately that, in that case, the court was dealing with a man aptly described as a “paedophile” who had pleaded guilty to no less than 10 charges, including two charges of homosexual buggery of two boys aged 12 and 13 years, and four charges of indecent assault on four different boys aged 9, 8, 10 and 13 years of age. 

In addition, he pleaded guilty to three charges of making child pornography.  Those charges related to the photographs taken by the applicant in that case whilst committing the offences of buggery and indecent assault.  Finally, the applicant pleaded guilty to one charge of possession of child pornography, namely, tens of thousands of pornographic images of children.

The court pointed out the considerations relevant to sentencing in the context that it was considering in that case, but of more general application.  Firstly, “the individual circumstances of the offender,” including in particular, in the present context, the risk of re-offending; secondly, the impact on the victim and the victim’s family; thirdly, the abhorrence that right-thinking members of society would regard the relevant offences and thus the need for deterrence.

Of the aggravating features in the commission of offences that can exist in certain cases, the court noted that they include cases of a breach of trust and of a repeated course of conduct, also physical harm to a victim.  The failure to use a condom in acts of homosexual buggery was described as being an aggravating feature, “deserving special mention” and noting that it “gives rise to obvious health risks, risks and consequences the extent to which young children may well be ignorant”.

In my judgment, the aggravating features in the commission of these offences by you are:

(1) Through the period in which the offences were committed, you were the victim’s class teacher at primary school.  That represented a gross breach of trust.  Furthermore, you betrayed the additional trust that his family placed in you in permitting you to give the victim private tuition after school.

(2) The offences reflected a repeated course of conduct in that you abused the victim over a lengthy period of over 12 months.

(3) Your failure to use a condom on either of the occasions when you sodomised the victim, although I accept the submission made by Mr Leung that it is the fact, apparently, that you were a virgin and that reduced the attendant risks of that conduct, that is, health risks.

(4) The victim and his mother have been subjected to trauma and distress, both requiring therapy.  Happily, so far, both seem to be emerging relatively successfully from that ordeal.

For each of the buggery charges, 3 and 6, I take a starting point of sentence of 8 years’ imprisonment.  In light of the nature of the indecency involved in Charges 1 and 2, I take a starting point of 3 years’ imprisonment.  In view of the lesser nature of the indecency involved in Charges 4 and 5, I take a starting point of 2 years’ imprisonment. 

I turn next to the discount for sentence.  In my judgment, in light of the observations made by the Court of Appeal in Chau Chi Yan and Chow Yuen Fai cited earlier, and having regard to (1) your admissions of your culpability to the victim’s mother prior to your arrest, (2) your subsequent admissions to all the charges to the police officers who interviewed you, (3) your intimation of your willingness to plead guilty on the return day in the magistracy, and (4) the fact that you pleaded guilty, honouring that intimation, I am satisfied that you are entitled to a greater discount from the starting point taken for sentence than the normal one-third.

I accept that your plea of guilty at the return day saved the victim from not only the need to give evidence at trial but also the anxiety that inevitably would be generated in him about the prospect of having to give that evidence at trial.  Further, I accept that it evidenced the remorse that you have expressed through your counsel and in your own letter to this court.

The individual sentences imposed upon you now are: 

Charge 1, 22 months’ imprisonment

Charge 2, 22 months’ imprisonment

Charge 3, 5 years’ imprisonment

Charge 4, 15 months’ imprisonment

Charge 5, 15 months’ imprisonment

Charge 6, 5 years’ imprisonment.

Finally, I turn to totality.  Having regard to the appropriate totality of the sentence of imprisonment imposed upon you, I order that:

1.  One year of the sentence of imprisonment imposed on Charge 6 is to be served consecutive to the sentence of 5 years’ imprisonment imposed in respect of Charge 3.

2.  The sentences imposed in respect of the indecent conduct offences, namely, Charges 1, 2, 4 and 5, are to be served concurrently, one with the other. 

3.  Six months of the terms of imprisonment imposed in respect of Charges 1, 2, 4 and 5 are to be served consecutively to the overall orders made in respect of Charges 3 and 6.

Accordingly, it follows that the total sentence of imprisonment imposed upon you is 6 years and 6 months’ imprisonment.