HKSAR v. Tsang Cho Kiu

DCCC 573/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 573 OF 2013

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REASONS FOR SENTENCE

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1.The defendant appeared in the District Court, facing five counts of sexual offences and one count of “possession of child pornography” (count 6).

2.The sexual offences involves two counts of “indecent assault on another person”, contrary to section 122(1) of the Crimes Ordinance Chapter 200 (count 1 and count 2) and three counts of “indecent conduct towards a child under the age of 16 years”, contrary to section 146(1) of the Crimes Ordinance Chapter 200 (counts 3 to 5).

3.After plea-bargaining, the prosecution was contended to leave one count of “indecent assault” (count 1) and one count of “indecent conduct towards a child under the age of 16 years” (count 5), to which the defendant had pleaded not guilty, on the court file.

4.The remaining three counts of sexual offences to which the defendant had pleaded guilty and was found guilty concerned three girls, W, X and Y (PW2, PW3 and PW4) who were all under 16.  In particular, PW2, the victim of count 2, was less than 14 years old while PW3 and PW4, who were the victims of counts 3 and 4 were also less than 14 years old and 14 years and 1 month old respectively on the date of the offence.

5.The child pornography in this case consists of five photographic images and 70 video files retrieved from the defendant’s notebook computer after his arrest.  According to the police, 56 out of the 75 video files have been opened for viewing.  The police officers who was responsible for viewing all the above files have classified that of the five image files, 4 is of level 1 description and one is of level 3.  Of the 56 video files, 3 is classified as level 1, 11 as level 2, 20 as level 3 and finally 22 as level 4 according to the sentencing guideline as set out in the case of HKSAR v Man Kwong Choi.

Facts

6.It is convenient in the circumstances to relate to the factual background of each count by adopting the summary of fact, which is the basis of the defendant’s plea and which has been carefully set out by the prosecution.  I do not propose here to read out the pages of the summary of facts, suffice to say that the facts has been read out in open court in the last occasion and have been accepted fully by the defendant.

7.Put simply, what the defendant have done on the date of offence was that he had claimed himself to be a photographer and then he had contacted the girl victims in the three counts of sexual offences who were part time models.  The defendant had rented a hotel room in Gold Coast Hotel, Tuen Mun and after two hours of photo session, defendant offered to the girls monetary reward in return for masturbate for him.

8.Three of the four girl models agreed and accepted the offer.  PW2, the victim of the indecent assault count was molested by the defendant on her breasts and the private parts.  PW2 agreed to let him touch her breasts and also take off his underpants and rubbed his penis against the private parts of PW2 over her underpants. In the other two counts, the two girl victims, PW3 & PW4, masturbated for the defendant. The defendant paid a total of HK$800 to the three girls for their services.

9.The matter came to light later when in May 2012, PW2 fell itchy on her private parts and complained to one of her friends who later revealed the matter to a school social worker and the matter was later reported to the police.

10.After the arrest of the defendant, the defendant made full and frank confessions to the police.  Also the police had found some pornographic and in particular, child pornographic images and video files in his personal laptop computers.  The defendant also made full and frank admissions that he had downloaded the video clips and the photographic images of these children from the internet and he said that he had viewed the relevant materials and he knew that they were child pornography by looking at the girls’ breasts and private parts.

Criminal record and the background of defendant

11.Defendant is now 24 and is still single.  At the time of the offence he was 22.  He has a clear record and he is still single.  He has a form 7 education level and he was a part-time tutor by occupation.  He still live with his parents and an elder sister in a public housing estate in Tuen Mun.

12.In the last occasion, the court had adjourned the mitigation for two weeks’ time in order to obtain a psychologist report for the defendant.  Today the report is ready and the defendant’s counsel, Mr Khattak, had fully explained the content of the report to the defendant.

13.Apart from a few matters of clarifications, the defendant accepts the findings and recommendations of the psychologist report.

Mitigation

14.Mr Khattak in his thorough mitigation had reiterated the fact that the defendant was truly remorseful and he had pleaded guilty in the first opportunity and is fully cooperative with the police.  Mr Khattak also had submitted to the court letters of mitigation written by the defendant himself and also by the defendant’s mother and sisters.

15.I am not going to refer to the details of the content of those mitigation letters, suffice it to say that the defendant had felt very remorseful for his misdeed and he also made use of the opportunity to apologise to the victims and those of them he had offended in the course of the offences.

16.The defendant is also said to be thankful to the police officers who had arrested him, something which Mr Khattak said as an indication of his remorse.

17.Mr Khattak told the court that the defendant used to be a good student with above average academic result.  The reason why he committed the present offence, I was told, was because of a failing romantic relationship with the defendant’s first lover.  I was told and as echoed by the observation in the psychologist report, the defendant said that he felt very upset and empty after the break up with his girlfriend in a few months before the present offences.  The defendant revealed therefore that he wanted to meet girls and feel accompanied. He therefore started to have photo shooting sessions with girls whom he met through online forum in January 2012.

18.Mr Khattak urged the court that the defendant is a young man with hitherto clear record.  As far as the child pornography offence is concerned, Mr Khattak reiterated the fact that there is no evidence that the defendant was trying to possess these child pornography for the purpose of redistribution.  The defendant just downloaded the relevant video clips and images by accident and that his true interest was in adult pornography rather than child pornography, although he had in fact viewed those images and video file.  He took steps to remove or delete some of them but not all of them and that is the basis of his criminality in this matter.

19.Finally, Mr Khattak referred to Court of Appeal decision in HKSAR v Leung Pui-san CACC 317/2007 and stressed the need for the court to consider “individual justice” and he submitted that sentencing guideline is not meant to be straight-jacket and there were always room for the court to impose a lesser sentence when the circumstances is correct.  Mr Khattak said although there is tariff guideline insofar as the child pornography charge is concerned, he still hope that the court can be as lenient as possible.

20.As far as the sexual offences in relation to count 2, 3 and 4, Mr Khattak asked the court to consider passing a concurrent sentences in relation to those offences as they were committed in the same premises at around the same time, albeit they were committed against three different girls victims.

21.For the last offence of child pornography, he also urged that the court can at least consider imposing some partial consecutive sentence, taking into account the totality to reflect the overall criminality of the matter.

Sentencing considerations

22.The present offence with which the defendant was convicted involved very serious sexual offences involving under-aged girls.  The child pornography charge have depicted children who were as young as eight years old in the video files or photographic images performing grossly indecent and sexually implicit conducts with adult.  According to the classification in Man Kwong Choi CAAR 8/2007, the most serious level involves penetrative sexual activities between children and adults.

23.The recent judgments by the Court of Appeal shows that the court have always taken a serious view on these matters.  In my mind, the sentences that I am going to pass this time on the defendant must have a sufficient deterrent effect so as to mark the public abhorrence and the need to protect the children, especially young girls and to address the grievances of the parents of those young female victims.

24.By age difference, the defendant is at least eight to nine years older than the girl victims.  The law is there to ensure that it will protect those vulnerable members of the public, like the three girl victims in this case as they are not truly capable of giving any consent before they reached the age of 16.

25.In this case, it is clear to me that all the three girls have been lured by the defendant or induced by him into consenting to perform the masturbation for the defendant or being allowed herself to be molested by the defendant as truly they were incapable of giving consent.  Thus, even there were consent by these three girls in the course of the offences, those consent were obtained by the monetary rewards as an inducement to make these girls succumb and falling prey to the exploitation by the defendant.

26.Although it is true that in the conclusion paragraph, the psychologist concluded that at this stage, the defendant cannot be said to be a paedophile from the present assessment, the psychologist clearly told the court that the defendant was found to have distorted sexual belief and he had limited insight into his problem.

27.What worry the court most is that the psychologist also concluded by saying that considering the defendant’s young age, criminal history psychological profile, victim characteristics and the nature of the present offence the risk of recidivism of sex offence was assessed to be at the high end of moderate range.

28.The psychologist had said that psychological services would be beneficial to the defendant in reducing his threat of re-offending but he was afraid that the defendant had shown little motivation for psychological treatment.  To this point, Mr Khattak had reassured the court that defendant have every motivation for psychological treatment and he is ready and willing and able to receive any treatment as directed by the court.

29.Taking all these matters into account, I would now first deal with the sentences on the three sexual offences.

30.For count 2, which is the “indecent assault” count, I shall use 36 months as a starting point.  For count 3 and 4, the “indecent conduct” counts, I shall use 30 months as starting point respectively.  The sentences on those counts would of course be reduced by one-third to reflect the guilty plea of the defendant.  In the end, the sentences on count 2, 3 and 4 would be reduced to 24 months on count 2 and 20 months on count 3 and 4 respectively.

31.For the possession of child pornography (count 6), the maximum sentence is 5 years and a fine of HK$1 million.  As said, all the photographic images and the video files were retrieved from the defendant’s personal notebook computer.  I accept that those material were downloaded for his own viewing purpose and not for re-distribution as submitted by the defence.  He had already explained that he had deleted some but not all the video clips after viewing.

32.I note that of the 56 files of video files, 20 are of the more serious level 3 and also 22 are even level 4.  By downloading such materials from the internet, it indirectly encourages people behind to continue to exploit these young children and contributes to the flourish of this industry by encouraging these young children to be continued to be exploited and participate in this kind of activities for the purpose of profiteering.

33.In Man Kwong Choi (supra), it has stated that the range of the sentence is said to be from 12 to 36 months for level 4 offences, even if there was a few images.  I took into account the fact that the defendant only downloaded these files for his own use and not for distribution.  Although it is clear to me that there are files who was very serious, involving level 3 and even level 4 materials, I have to take into account the fact that the overall quantity in his case is not as large as those appeared in Man Kwong Choi.

34.In the end, I consider that a starting point of 2 years would be sufficient and appropriate and this sentence will of course be further be reduced by one-third and therefore reduced to 16 months.

Totality

35.It is clear to me that the court has to further adjust these sentences that I have passed in order to reflect the overall criminality of the matter because of the principle of totality.

36.In the end, I make the following orders.  6 months of the sentences on count 3 and count 4 shall run consecutively to, and the remainder concurrently with, the sentences on count 2.  Therefore making a total for those three offences 3 years’ imprisonment.  Half of the sentences of count 6, that is 8 months are to run consecutively to, and the remainder concurrently with, the total of 3 years’ imprisonment in relation to count 2 to 4.

37.Accordingly, the total sentence in relation to these four charges is therefore 3 years and 8 months.

Please refer to CACC42/2014 for the relevant appeal(s) to the Court of Appeal.