HKSAR v. Yip Chi Chung

DCCC 417/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 417 OF 2013

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant pleaded guilty to 5 of 9 charges that had been laid against him; charges 3 – 6 and charge 9. Two of the charges (3 and 5) were concerned with the making of child pornography, contrary to section 3(1) of the Prevention of Child Pornography Ordinance Cap.579. Two charges (4 and 6) involved offences of unlawful sexual intercourse with a girl under the age of 16 years, contrary to section 124(1) of the Crime Ordinance, Cap 200. The final charge, Charge 9, related to the possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap. 579. The remaining 4 charges (1, 2, 7 and 8) were ordered to remain on court file not to be proceeded with without leave.

Summary of Facts

2.In late 2010 the defendant came to know Girl X (PW1), born on 2 June 1997, through an internet chat room. During their communications PW1 disclosed to the defendant that she was only aged 13.

Charges 3 – 6 (Making of child pornography and unlawful sexual intercourse with a girl under the age of 16 years)

3.On or about 7 and 14 May 2011 the defendant took photos of PW1 in costumes without underwear, at 2 unidentified locations in Hong Kong. Following each photo-taking session, they proceeded to have sexual intercourse.

4.On 10 September 2011 PW1 was told that one of her photos was on the internet. After relating this information to her mother (PW2), she made a police report on 12 September 2011.

5.At 21 15 hours on 20 September 2011 the defendant was located and arrested at his residence. Under caution, the defendant said, inter alia, that PW1 asked him to take the photographs for her, and during the photo-taking, she asked him to have sexual intercourse with her. After the photos had been taken, she requested that he give them back to her.

6.Following the arrest a number of items were seized from the defendant’s bed room. These included: -

(1) One desktop computer (“Exhibit 26”);

(2) One Canon EOS 60D camera (“Exhibit 33”);

(3) One Samsung mobile phone I900 (“Exhibit 123”); and

(4) Some female clothing, undergarments and sex toys (“Exhibits 35-104 and 113-119”).

Charge 9 (Possession of child pornography)

7.Upon forensic computer examination 185 image files containing images of PW1 were retrieved from the hard disc of Exhibit 26. All these images files were created with the use of Exhibit 33, except for one image which was created by the use of Exhibit 123 and another 7 were created by an unknown device.

8.Among these image files, 55 were of pornographic depiction. The image files have been categorized as the following: -

(1) Level 1 Category: 37 image files depicted PW1 posing erotically with no sexual activity. Of these image files, 23 were taken on 7 May 2011; 13 were taken on 14 May 2011; and 1 was taken on 9 July 2011;

(2) Level 3 Category: 8 image files depicted non-penetrative sexual activities between PW1 and the defendant. Of these image files, 4 were taken on 7 May 2011; 3 were taken on 14 May 2011; and 1 was taken on 9 July 2011; and

(3) Level 4 Category: 10 image files depicted penetrative sexual activities between PW1 and the defendant. Of these image files, 2 were taken on 7 May 2011; and 8 were taken on 14 May 2011.

Mitigation

9.The defendant is 31 years of age, born on 10 October 1981, and has no previous criminal record. At the time of the arrest, the defendant was working as a Supervisor of a Property Management Company. The defendant is single, an only child, and lives with his father, aged 75, the defendant’s mother died when he was 5 years. His father is suffering from serious illness requiring full time medical attention. He underwent brain surgery three years ago for the removal of a brain tumour. I am told that this has left him half-paralysed and heavily dependent on the defendant who is the sole breadwinner of the family.

10.The defendant was educated to Form 5 and completed an evening Fashion Design course. After schooling he has been employed as a clerk and a part-time tutor. At the time of his arrest he was working as a supervisor for a property management company.

11.As regards the offences, it was urged upon that the offences were not the most serious of their kind. His guilty plea reflects his genuine remorse and saves the victim from the traumatic experience of being required to give evidence about these embarrassing events. The defendant had used condoms when engaging in sexual intercourse. The defendant possessed 100’s of photographs of the victim of which only 55 have been designated as pornographic.

12.I was informed that after taking the last of the photographs produced the defendant stopped seeing the victim. With regard to those images produced it was pointed out that they did not involve any scenes of violence or bestiality and the victim is not in the very young, pre-pubescent category. A copy of the photographs was given to the victim on a memory stick. Notwithstanding the assertion by the victim that she was told by a friend about viewing an image of her on the internet, there was no evidence produced of any images being uploaded to the internet and the defendant states he neither uploaded any such image nor intended to do so.

13.A series of letters were provided to the court from the defendant’s current girlfriend, the defendant himself, his direct supervisor, a previous supervisor and various colleagues. All the letters requested the imposition of a lenient sentence on the defendant.

14.The letter from his current girlfriend stated that the defendant is a compassionate boyfriend and that the defendant’s guilt and depression was evident over the last year of their relationship. She also explained the difficulty of his current situation with his father’s illness.

15.The defendant wrote of his remorse, stating that he has required psychological treatment and attends weekly mass. He expressed his guilt over the last 2 years for disappointing his family and friends, stating that he even contemplated suicide. He further mentioned his father’s condition and asked for a lighter sentence in order to continue to care for him. He highlighted the fact that he is on good terms with the victim. He states that “he had always been on good terms with the victim who had always felt comfortable to share with him her love and social lives”.

16.Official receipts of the defendant’s medical treatment for anxiety were presented to the court.

17.The defendant’s direct supervisor attested to the defendant’s diligence and hard work and also commented on the strain the criminal proceedings have taken on the defendant.

18.His previous supervisor and current colleagues express similar sentiments in relation to the defendant.

Authorities

Child Pornography

19.The court was referred toSecretaryfor Justice v. Man Kwong Choi Application for Review Nos 8 and 9 of 2007. In that case the respondentshad been convicted of possessing child pornography. The court listed a number of aggravating factors:

· a previous record involving a similar offence (or offences) against children;

· the age of the children depicted: where particularly young children were involved, this would be an important consideration;

· the purpose for which the accused possessed the depictions: where it was proved that the accused intended to disseminate the images for commercial (or even non-commercial) gain or intended to publish, these would be significant aggravating factors;

· the number of images.

20.For the offence of making of child pornography, the Court of Appeal stated in HKSAR v Chow Yuen FaiCACC 392 of 2008 that although the making of child pornography is treated more seriously than mere possession some guidance can be taken from Man Kwong Choi. In Chow Yuen Fai the Judge adopted a starting point of 2 years for each of the three offences of making child pornography. As the image files contain pornographic images up to Level 4 depiction, which Man Kwong Choi states can generally merit a custodial sentence of 12 to 36 months, the court was willing to follow this starting point of 2 years. The applicants were also charged with homosexual buggery, indecent assault and possession of child pornography. The sentences were ordered to run concurrently.

Unlawful sexual intercourse

21.I was referred to a number of cases. In HKSARv. Lai Yip SingMagistracyAppeal No 1104 of 2000 the defendant aged 24 pleaded guilty to two offences of unlawful sexual intercourse with a girl under 16, where the victim was aged 14, and was sentenced for 3 months. The judge stated that an important factor was the marked difference in age between the offender and the victim.

22.In HKSARv. Tong Kam Tin Magistracy Appeal No 738 of 2012 the defendant aged 29 pleaded guilty to a charge of unlawful sexual intercourse with a girl under the age of 16, she being aged 14. The appellant was sentenced by the Magistrate to 6 months’ imprisonment, after a one-third discount for the guilty plea. The aggravating factor stated was that the Appellant knew that the girl was half the Appellant’s age.

23.The final authority submitted was HKSAR v Chan Kwong Pui Criminal Appeal No 228 of 2003. The applicant pleaded guilty to two offences, namely, unlawful sexual intercourse with a girl under 16 and buggery with a girl under 21. The applicant was aged was 34 when the offences took place and the girl was aged 15 when the first sexual intercourse took place and aged 16 when the buggery took place. The considered aggravating factors were, namely, the age of the girl when she engaged in the sexual activities; the age gap between the applicant and the girl; the applicant knew the girl when she was young; the applicant knew the girl’s age; the applicant had taken advantage of the relationship to befriend her; and that he recorded the act on video. The sentence was 16 months imprisonment for the first offence and 32 months imprisonment for the second offence to be run consecutively. This lead to a total of 48 months after the one-third discount for the guilty plea.

24.According to the authors of the sixth edition of Sentencing in Hong Kong, the sentences for this kind of offence range from 6 to 18 months.

Delay

25.I noted that this matter was reported to the police on 12 September 2011. On 20 September 2011 the police visited the home of the defendant. He was arrested and under caution, admitted having taken photographs of the victim and having had sexual intercourse with her. A desktop computer was seized from the defendant’s home from which 55 pornographic image files were downloaded. The defendant was charged on 02 April 2013 and appeared before Fanling Magistracy on 17 April. The case was transferred to the District Court on 03 May 2013 and he appeared in the District Court before the plea court on 14 May 2013. The defendant pleaded not guilty to all charges and the case was adjourned to the 12 August 2013 for trial.

26.The court was informed by the Prosecution that it was necessary for the computer seized by the police to be examined by a computer expert from whom a report was obtained. That report together with the rest of the evidence then had to be considered and advised on by the Department of Justice. Whilst there is no suggestion that there have been inordinate delays in this case, there is evidence that during the 19 months between the defendant being arrested and charged the defendant suffered anxiety problems, for which he required medical assistance. I propose to take this factor into account in deciding the appropriate starting point.

Determination

Unlawful sexual intercourse with girl under 16 –s.124 Crimes Ordinance Cap200

27.Underaged girls require the protection of the courts. Their immaturity is not to be taken advantage of by older men. Section 124(1) was enacted as a matter of public police to ensure that the law will protect those vulnerable members of the public who cannot truly give their consent before they have reached the age of 16. The victim in this case was 13 when the abuse started, at the lowest end of the age band for offences under s.124. Had the victim been a few months younger the defendant would have been liable to be prosecuted under the provisions of s.123 of the Ordinance which carries a maximum penalty of life imprisonment. The exact age of the girl is obviously relevant to sentence, as is also the age of the accused. The age difference in this case is 15 years. At the time of the offences the defendant was more than twice the age of the victim. It is an aggravating feature of this case that the defendant recorded various sexual acts on camera and that some of the acts recorded were at level 4 according to the categories provided for in the case of Man Kwong Choi. No attempt was made to conceal her identity. The defendant went on to store many of the photographs on his computer from which they were downloaded following a police raid at his home in September 2011.

28.I was concerned that the defendant in his letter to the court felt it was in some way a mitigating feature of the case that he had always been on good terms with the victim and that she felt comfortable to share with him her love and social life. A man of the defendant’s age has no business seeking any form of relationship with a girl aged 13. As in many of these cases, contact had been made through an internet chat room, a very common method for predators to meet their child victims. Such men are not seeking to befriend their victims but to exploit them. They seek to groom the victims to accept greater levels of depravity. I noted that the photographs taken on 7 May included only two at level 4. These photographs showed the victim engaged in sexual intercourse. However the photographs taken the following week show the victim in 8 photographs at level 4 including sexual intercourse, oral sex, some with objects inserted into her vagina and I noted in others the victim had a waist belt fastened round her neck with the other end held by the defendant like a dog on a lead.

29.It was urged upon me in mitigation that the defendant used a condom. However, I noted that two of the photographs taken on 14 May show the victim with semen inside her open mouth.

30.In respect of the charges of making child pornography, charges 3 and 5, I take a starting point of 2 years and for the charge of possessing child pornography , Charge 9, 18 months imprisonment . In respect of the offences of unlawful sexual intercourse , charges 4 and 6, I take a starting point of 12 months imprisonment, the offences being aggravated by the taking of photographs.

31.These are related offences so I propose to impose concurrent sentences of imprisonment. The defendant pleaded guilty and therefore will receive a one-third discount in respect of these sentences. The discount also reflects that the victim is spared from the ordeal of giving evidence. This therefore reduces the overall sentence to 16 months’ imprisonment.

32.For the reasons stated above I propose to discount the sentences further to a total of 15 months’ imprisonment in view of the delay in this case.

33.In respect of charges 3 and 5 the sentences will be 15 months imprisonment, for charges 4 and 6, 8 months imprisonment and for charge 9, 12 months imprisonment, all the sentences will be served concurrently.