HKSAR v. KWONG TSZ HO

DCCC 14/2022

[2023] HKDC602

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 14 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant was convicted on his own plea of 8 charges after the conclusion of voir dire. Full details of the offences are set out in the facts admitted by the defendant. The gist of the facts are as follows:

The Facts

2.  This case concerns one victim, a boy X (hereinafter called “the victim”), who was 14 years old at the material time.

3.  The victim became acquainted with the defendant through Facebook on 8 December 2020 and they kept in contact via WhatsApp.

Charges 1-2

4.  On 14 February 2021, the defendant told the victim that he wanted to introduce a girl called Anson to the victim and so the defendant gave the victim her phone number.  Anson was actually impersonated by the defendant.  The defendant told the victim to chat with Anson over WhatsApp.

5.  The victim and Anson chatted over WhatsApp that night, and Anson told the victim that she liked homosexual males.  The victim blocked her on WhatsApp but subsequently unblocked her because the defendant messaged the victim and told the victim that Anson would publish the victim’s personal information online if the victim blocked her on WhatsApp.

6.  The victim messaged Anson and Anson demanded the victim masturbated with the defendant or else she would publish the victim’s information online.

7.  Anson also continuously demanded nude photos and videos of the victim on 14 and 15 February 2021.  The victim took nude photos and videos of himself at various places, including his home, and sent them to Anson via WhatsApp.

Charge 3

8.  On the night of 20 February 2021, Anson demanded via WhatsApp that the victim visited the defendant’s home, or else she would publish the victim’s nude photos online.   The victim was afraid and therefore succumbed to Anson’s demand.

Charge 4

9.  On 21 February 2021, the victim met up with the defendant.  The defendant led him to his home.

10.  Inside the premises, the defendant told the victim to remove all his clothes and the defendant kept touching the whole body of the victim, including the victim’s genitals and the touching lasted for 5 minutes.

11.  The defendant also used his right hand to hold the victim’s genitals and he masturbated the victim for around 10 minutes.  The defendant also took out a masturbation cup and placed it on the victim’s genitals and masturbated the victim with the cup for around 10 minutes until the victim ejaculated, and the cup was removed.

12.  Then, the defendant told the victim to sit on his lap and the defendant kept rubbing his own body against the victim.  After that, the victim cleaned himself up and put his clothes back on.

13.  Around 10 minutes later, the defendant told the victim to remove all his clothes again.  The defendant took out another masturbation cup and placed it on the victim’s genitals.  The defendant masturbated the victim with the cup for around 20 minutes until the victim ejaculated.  After which, the defendant removed the cup.  The victim then left the premises.

Charge 5

14.  After all that had taken place, the victim was very frightened.  However, the defendant kept asking him over WhatsApp to meet up again.  Meanwhile, Anson threatened to expose the victim if he lost contact for more than 3 hours.  Anson then said that she had video footage of the victim’s face and his penis.

15.  On 25 March 2021, the victim told his mother, and eventually the case was reported to the police. 

16.  On 29 March 2021, the police arrested and cautioned the defendant for the offence of “indecent conduct towards a child under the age of 16 years”.   Under caution, the defendant apologized and said that he did it.

17.  Inside the defendant’s home, the police seized, among other things, a black iPhone 8 Plus (hereinafter called “iPhone 8”), a green iPhone 11 Pro Max (hereinafter called “iPhone 11”) and also a desktop computer with hard discs (hereinafter called “the computer”).

Charges 6-8

18.  In iPhone 8 and iPhone 11, the victim’s pornographic photos and video clips were found.

19.  There was a total of 16 pornographic photos and 48 pornographic videos, including Level 1 and 2 photos (depicted the victim’s genitals and the victim holding his penis with semen already ejaculated) and Level 2 videos (depicted the victim’s face and also the victim masturbating himself).

20.  Other child pornography was also found in iPhone 8, iPhone 11 and the computer including 4 Level 1 photo, 12 Level 2 photos, 12 Level 2 videos and 11 Level 4 videos.

21.  Thus, a total of 32 child pornographic photos and 71 child pornographic videos were found in iPhone 8, iPhone 11 and the computer.

22.  In a video-recorded interview conducted on 29 March 2021, the defendant admitted the offences and said, inter alia, under caution that the other pornography in iPhone 8, iPhone 11 and the computer was downloaded by him.   The images and videos showed various nationalities; some were adults, while some were children.   He believed that they ranged between around 11 and 20 odd years of age.   

Criminal record and background of the defendant

23.  The defendant’s Antecedent Statement dated 17 April 2023 is admitted.  The defendant was born in Hong Kong in 1995 and presently 27 years of age and has a clear record.

24.  Mr Boyton, counsel for the defendant, informed the court that although the defendant was educated up to Form 6, he did have some learning difficulties as he may have suffered from dyslexia.

25.  After his formal education the defendant received technical training and has been an air-conditioned technician for the last six years and earning roughly HK$21,000 a month.   The defendant’s father is also in the same profession. 

26.  The defendant is single and lives with his father, mother and elder sister.  The defendant’s father and uncle have both been attending court every day and have been extremely supportive of the defendant.  Letters of mitigation were also submitted to the court for reference.

Mitigation

27.  In mitigation, Mr Boyton emphasized the fact that the greatest mitigation for the defendant is his guilty plea. 

28.  It is submitted that though the guilty plea itself has not been entered at the earliest opportunity, it has been submitted to the Court before the start of the trial proper and more importantly, before the complainant is required to testify.  It is on this important fact that the Court is asked to exercise its discretion in the defendant’s favour.

29.  Mr Boyton referred this Court to the case of HKSAR v.  NGO Van nam [2016] 5 HKLRD 1 (2.9.2016) and the relevant paragraph in relation to the District Court is found at paragraph 225 of the Judgment: 

“A plea of guilty during the trial

225. We are satisfied that, subject to the overriding discretion of the judge in sentencing, the discount to be afforded to a defendant who pleads guilty after the plea is taken and during the trial itself would usually be less than the 20% afforded to the defendant who pleads guilty on the first day of trial and will reflect the circumstances in which the plea was tendered. The discount to be afforded to the defendant in those circumstances is pre-eminently one for the trial judge, having regard to all the circumstances including those mentioned in paragraph 215.”

30.  Mr Boyton submitted that the said passage referred to the approach in the Court of First Instance, where, as in this case, there was a voir dire on the admissibility of the defendant’s admissions: 

“A plea of guilty after arraignment and during the trial

215. Finally, we are satisfied that, subject to the overriding discretion of the judge in sentencing, the discount to be afforded to a defendant who pleads guilty after arraignment but during the trial itself would usually be less than the 20% afforded to the defendant who pleads guilty on the first day of trial and will reflect the circumstances in which the plea was tendered. Often, it will follow the holding of a voir dire. In those circumstances, it may be that the nature of the challenge to the admissibility of the evidence will be relevant. In other circumstances, it may occur in circumstances where the defence has sought to test some other aspect of the prosecution case. The discount to be afforded to the defendant in those circumstances is pre-eminently one for the trial judge.”

31.  In terms of sentence, Mr Boyton submitted that he will deal with the offences in the following order: 

i. Criminal intimidation

ii. Indecent assault on another person

iii. Possession of child pornography

iv. Procuring another person under the age of 16 for making pornography

Criminal intimidation (Charges 1, 3, 5)

32.  In relation to criminal intimidation, Mr Boyton asked the court to consider the following 4 cases :

HKSAR v TSOI Shing-cheong [2019] HKCFI 2504
(HCCC 208/2019)

HKSAR v LAM Chi-hong Patrick [2012] 2 HKLRD 1273

HKSAR v CHAN Hoi-tat [2012] 1 HKLRD 423

香港特別行政區 訴 陳庭燁 (CHAN Ting-yip)
(CACC 201/2009)

33.  In the case of TSOI Shing-cheong, the Defendant, a 26 year old man, befriended a 12 year old girl X online.  At the time, the Defendant pretended to be a 15 years old, and procured ‘X’ to send him photographs of her private parts.  The Defendant then threatened ‘X’ by using the photographs until she had sexual intercourse with him twice at his home.  A starting point of 2 years’ imprisonment was adopted.  Mr Boyton pointed out that this case is not binding and is only persuasive.

34.  In the case of LAM Chi-hong Patrick, the victim engaged in a video call with the Defendant where she was naked.  The Defendant took pictures of her in the nude without her knowledge, and then threatened to expose them to her boyfriend unless she (the victim) had sexual intercourse with him.  The victim refused and made report to the Police.  On appeal, it was found that a starting point of 18 months’ imprisonment was not manifestly excessive.  The effective final starting point was that of 15 months’ imprisonment, reduced to 10 months’ imprisonment for the guilty plea.  This was further reduced by another 2 months for ‘dashed hopes’.

35.  In the case of CHAN Hoi-tat, the Defendant, 24 years old, befriended a 12 year old girl X online.  The Defendant then persuaded X to send him two naked pictures, which he used to threaten X to meet.  They met in person on two occasions, and X was indecently assaulted both times, including masturbation, oral sex, and more nude pictures being taken.  There were two charges of criminal intimidation, and in both charges a starting point of 1 year was adopted, to be served concurrently.

36.  In the case of CHAN Ting-yip, a 19 year old Defendant befriended X, a 10 year old online.  The Defendant then met with X at her house and persuaded her to have sexual intercourse with him.  One year later, the Defendant again met X at her house and had sexual intercourse with her.  Sometime later, X engaged in a nude video call with the Defendant, where the Defendant captured nude photographs of X.  The Defendant threatened X with these nude photographs if she did not masturbate for him through video chat.  Ultimately, a starting point of 24 months was adopted, with 12 months to run concurrent to other charges.

37.  Mr Boyton submitted that the only real evidence in relation to the criminal intimidation charges comes from the defendant’s admissions.   He was initially full and frank about his involvement and without the admissions, the prosecution would be hard pushed to secure a conviction on these charges. 

38.  Mr Boyton further submitted that, because of the above confession and the fact that the defendant had not disseminated the victim’s explicit photographs, and because the criminal intimidation is part and parcel of the other offences that the defendant has also pleaded guilty to, the individual starting point of the sentence should be between 12 and 18 months’ imprisonment, and all three criminal intimidation charges should be ordered to be served concurrently. 

Indecent assault on another person (Charge 4)

39.  In relation to indecent assault on another person, Mr Boyton asked the court to consider the following 4 cases :

SJ v Huang Long Wei [2009] 3 HKLRD 136

HKSAR v TSANG Chiu-tak [2013] 1 HKLRD 427

HKSAR v LEE Hon-wah [2011] 4 HKLRD 319

HKSAR v HO Ying-sum [2015] HKEC 874

40.  In the case of Huang Long Wei, the sentencing principles were laid down as follows : 

“(1) 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. 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 (HKSAR v See Tak Man [1998] 1 HKLRD 794, Secretary for Justice v Wong Tsz Kin [1998] 4 HKC 32, HKSAR v Chan Ching Ho [2000] 3 HKLRD 476, HKSAR v Kam Wing Yin (unrep., CACC 515/2005, [2006] HKEC 1314), HKSAR v Kong Yun Chiu [2007] 4 HKC 391 applied) (See paras.13, 14.)”

41.  In the case of Huang Long Wei, the Respondent was a 18 years old man who touched the penis of a boy aged between 7 or 9 at the material times.  Respondent had a propensity of committing indecent assaults on young boys.  The court considered that although he had received psychotherapy prior to the offences.  He had obviously failed to deal with his problem or appreciate the serious consequences of his conduct.  A probation order was substituted with a rehabilitation center order with a period of detention of not less than 3 months or more than 9 months. 

42.  In the case of TSANG Chiu-tak, the Court of Appeal also provided following sentencing factors: 

“In respect of sexual assaults on children, the relevant sentencing factors included:

(a) the age difference between the defendant and the victim;

(b) the relationship between the defendant and the victim and whether the offence involved a breach of trust;

(c) whether the defendant had used threats or inducements to make the victim succumb;

(d) whether the defendant took any safety precautions;

(e) whether the abuse had caused physical or psychological trauma to the victim; and

(f) whether the offence had impact on the victim’s family members (HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, 香港特別行政區 訴 吳家健 (unrep, CACC 328/2010, [2011] CHKEC 982), HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239 considered). (See para.9.)”

43.  In the case of LEE Hon-wah, D1 (a male aged 34) was charged, inter alia, with one count of indecent assault involving a 14-year-old boy who willingly performed oral sex for money.  The conviction of this charge was quashed by Court of Appeal due to unfairness caused during re-examination.  However, the Court provided the following considerations for offence in relation to indecent conduct with or towards a child under 16 (with emphasis added): 

“(a) the age difference between the defendant and the victim;

(b) 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;

(c) whether the defendant had used threats or inducements to make the victim succumb, falling prey to his licentious exploitation;

(d) the number and the duration of offences committed;

(e) whether inappropriate and unnecessary violence was involved in committing the offences and any harm or discomfort was caused to the victim;

(f) whether any suitable safety measures were taken in committing the offences and any health and safety risks were posed to the victim and the public;

(g) whether the offences had caused physical or psychological trauma to the victim;

(h) whether the offences had any impact on the victim’s family members;

(i) was the defendant involved in other inappropriate behaviour such as inviting/permitting other people to watch or take photos/videos; and

(j) whether the defendant was psychologically imbalanced or paedophilic and the likelihood of re-offending.”

44.  In the case of HO Ying-sum, the Defendant (aged 63) pleaded guilty to two counts of indecent assault on another person.  The Defendant and the victim X, a 14-year-old boy, met online (a gay website).  Both offence took place in the Defendant’s home where he indecent assaulted X by, among other things, (i) X performing oral sex on him (1^st occasion) and (ii) the Defendant and X performed oral sex on each other (2^nd occasion).

45.  The offences contributed to X’s depression, suicidal tendencies and instability.  The Court sentenced the Defendant to (taking into consideration the one-third off for plea) 14 months’ imprisonment for each of the two counts. Taking into account the totality principle, the Court made 10 months of the 14 months in count 2 consecutive to the 14 months in Count 1 – a total of 24 months’ imprisonment. 

Possession of child pornography (Charges 6-8)

46.  In relation to possession of child pornography, Mr Boyton submitted that sentencing guideline for the possession of child pornography were laid down by the Court of Appeal in Secretary for Justice v MAN Kwong-choi [2008] 5 HKLRD 519.  The Court of Appeal held that such offence should generally attract an immediate custodial sentence unless special circumstances existed.

47.  The following matters should be taken into consideration :

(1) appropriate level of relevant depictions;

(2) whether depictions were

(i) real children or

(ii) artificially created, and if

(iii) whether the depictions might or would fall into the hands of other people (at paragraph 16).

48.  It is submitted that the guidelines for determining the starting point for a first time offender after trial are as follows: 

“(a) Level 1: images depicting erotic posing with no sexual activity. A community service order, probation or fine was appropriate where the number of depictions was small (20 or fewer). But where the numbers were large or the depictions were extremely suggestive, custodial sentences of 1 to 6 months would be appropriate;

(b) Level 2: sexual activity between children or solo masturbation by a child. This was much more serious than mere posing and depending on the number of depictions, an immediate custodial sentence of up to 9 months was appropriate. Even the possession of a few depictions at this level would generally attract a custodial sentence;

(c) Level 3: non-penetrative sexual activity between adults and children. Depending on the number of depictions, custodial sentences of 6 to 12 months would be appropriate;

(d) Level 4: penetrative sexual activity between children and adults, or sadism or bestiality. These merited the most serious treatment and custodial sentences generally of 12 months (even for a few images) to 36 months (R v Oliver & Others [2003] 2 Cr App R 15 considered). (See para.17.)”

49.  It is further submitted that in the case of MAN Kwong-choi, the Court of Appeal said,

“Here, the facts were extremely serious, albeit the downloaded images were for Ds’ personal use, and both sentences were manifestly inadequate. In D1’s case, he was aged 31, possessed 245 video files and 1,157 photographs and with many at Levels 3 and 4; all the images depicted real children, apparently aged 5 to 12 and covering every level; and more than half of these showed children with adults. D1 also had one previous conviction in 1998 for indecent assault involving a 12-year-old girl. For D1, an immediate sentence of 3 years’ imprisonment would have been appropriate after trial.”

50.  However, in the instant case, the defendant possessed a total of 71 videos and 32 photographs (including duplicates): 

• 17 photographs at Level-1 (the appropriate sentence would by itself be a community service order, probation order, or a fine);

• 15 photographs at Level-2 (the appropriate sentence: an immediate custodial sentence of up to 9 months’ imprisonment);

• 60 videos at Level-2 (the appropriate sentence would be an immediate custodial sentence of up to 9 months’ imprisonment); and

• 11 videos at Level-4 (the appropriate sentence would be an immediate custodial sentence of a minimum of 12 months’ imprisonment).

51.  Mr Boyton also referred this Court to the case of HKSAR v.  CHU Yan-chi [2021] HKDC 257.  In that case, the Defendant possessed 116 offending photos (of which 24 in Level 3 and 12 in Level 4) and 15 offending video clips (of which one in Level 3; and 6 in Level 4).  The Court adopted a starting point of 18 months’ imprisonment and reduced it to 12 months for the Defendant’s plea of guilty.

Procuring another person under the age of 16 for making pornography (Charge 2)

52.  In relation to procuring another person under the age of 16 for making pornography, Mr Boyton submitted that this Court could adopt the same approach in SJ v MAN Kwong-choi [2008] 5 HKLRD 519 for simple ‘possession’, albeit this is procuring. 

53.  Mr Boyton submitted that the defendant accepts that, as in HKSAR v.  IPP Tin-fan[2016] 4 HKLRD 486, the Court of Appeal held that the making of child pornography under section 3(1)of the Prevention of Child Pornography Ordinance, Cap 579 should be treated more seriously than merely possession of child pornography under section 3(3) of the same Ordinance. 

54.  Mr Boyton submitted that in the instant case, the highest level of procurement by the defendant was the obtaining of solo masturbation videos from the victim, which is classified as Level 2 seriousness and that the sentencing guidelines in MAN Kwong-choi are applicable, and therefore an immediate custodial sentence of up to 9 months’ imprisonment may be appropriate.  This approach has been adopted in the cases of HKSAR v WU Chi-yin (DCCC 77/2021),and HKSAR v.  Kwan Ho Fai (DCCC 460/2013).

55.  Mr Boyton further submitted that though WU Chi-yin is not binding, the parties and the District Court Judge found there to be no difference when a Defendant is charged under section 138A of Crimes Ordinance, Cap 200, or section 3(1)(a) of the Prevention of Child Pornography Ordinance, Cap 579 and the sentencing judge could adopt the MAN Kwong-choi guidelines.  The District Court Judge proceeded to adopt the MAN Kwong-choi guidelines, without aggravating the starting point as there was a concession by the prosecutor that “section 138A offence focuses on the act of procurement of making pornography, thus, the ratio decidendi in IPP Tin-fan may not be of direct relevance to the present charge, and could hence be of limited reference value” (paragraph 35).

56.  The Court of Appeal in HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, said at §[55]: “For the offence of making child pornography, the sentences ought to be served concurrently with the offences to which they are related”.  It is also submitted that a similar approach should be adopted to the charge of procuring child pornography.

57.  Before sentencing the defendant, this court has called for a background and a psychological report on the defendant as well as the victim impact report.  

Victim Impact Report

58.  According to the victim impact report, luckily, the negative emotions from the incident had turned less intense and disturbing as time went by.   The victim now treated the incident as a past event and was no longer bothered by it in daily life.   

Psychological Report of the defendant

59.  According to the clinical psychologist, the defendant is normal in cognitive functioning.   Paragraph 14 of the report stated that “Being highly defensive and evasive in the current assessment, he presented to have sexual interest in adult female only.  Yet, he was sexually preoccupied by sex between males.  His offending behaviour was a premediated act for sexual novelty and excitement.  Given the contradictory information gathered and his defensive attitude in the current assessment, the presence of paedophilic tendency could not be ruled out at this stage.  His risk of sexual reoffending was assessed to be on the higher end of moderate range.  Further psychological assessment of his sexual interest was definitely required before recommendation of psychological treatment could be made.”

Sentencing considerations

Guilty plea discount

60.  The defendant has changed his plea after the voir dire concluded, therefore he will not be eligible for a one-third discount according to HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.   The Court of Appeal said at paragraphs 215 and 225 that:

“Para 215…the discount to be afforded to a defendant who pleads guilty after arraignment but during the trial itself would usually be less than the 20 per cent afforded to the defendant who pleads guilty on the first day of trial and will reflect the circumstances in which the plea was tendered. Often it will follow the holding of a voir dire.

Para 225… subject to the overriding discretion of the judge in sentencing, the discount to be afforded to a defendant who pleads guilty after the plea is taken and during the trial itself would usually be less than the 20% afforded to the defendant who pleads guilty on the first day of trial and will reflect the circumstances in which the plea was tendered. The discount to be afforded to the defendant in those circumstances is pre-eminently one for the trial judge, having regard to all the circumstances including those mentioned in paragraph 215. ”

61.  The Court of Appeal said that this is subject to the overriding discretion of the judge in sentencing.   Mr Boyton asked me to consider the circumstances in which the plea was tendered and how the voir dire was conducted.   He has asked me to consider that the victim was not required to give evidence as a result of the defendant’s plea.

62.  I have taken into account what the Court of Appeal said in Ngo Van Nam, mitigation put forward and the voir dire proceedings.   I will exercise my discretion and find a 20% discount applicable to the defendant’s plea.

63.  When considering the sentencing starting point, this court has already considered the fact that the defendant is a young man of clear record.

1^st, 3^rd and 5^th Charges (Criminal intimidation)

64.  On conviction upon indictment of criminal intimidation, a person is liable to imprisonment for 5 years. 

65.  The defendant threatened the victim on a number of occasions so that each time the victim will accede to the demands of Anson and/or the defendant. It was also because of the threat imposed on the victim, the victim was easily manipulated by the defendant. 

66.  The sentence of this charge must reflect the abhorrence of society towards this horrendous offence.  Even considering the clear record of the defendant and the mitigation, this court considers that the appropriate starting point should be 10 months’ imprisonment for each charge.

67.  After giving him 20% discount to reflect his guilty plea, the sentence for each charge is reduced to 8 months’ imprisonment.

2^nd Charge (Procuring another person under the age of 16 for making pornography)

68.  In the present case, the defendant was charged under section 138A(1)(a) of Crimes Ordinance, Cap 200, which carries a maximum fine of $3,000,000 and a maximum imprisonment for 10 years.

69.  On the other hand, there is a similar offence under section 3(1)(a) of the Prevention of Child Pornography Ordinance, Cap 579 (“PCPO”) which carries a fine of $2,000,000 and a maximum imprisonment for 8 years for, inter alia, making of child pornography whereas section 3(3)(a) provides a maximum sentence of 5 years for the offence of possession.

70.  In the case of HKSAR v Wu Chi Yin DCCC 77/2021, the court took the view that reference could be made to the sentencing guideline regarding possession of child pornography (under section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579) as set out in Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519.

71.  In the case of Wu Chi Yin, the court took the view that procuring child pornography must be, by nature, more serious than possession of the same.

72.  This court agrees with the view taken by the court in the case of Wu Chi Yin that reference could be made to sentencing guideline for a first time offender regarding possession of child pornography (under section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579) as set out by the Court of Appeal in Man Kwong Choi case.   

73.  In that case, the Court of Appeal set out the following sentencing guidelines for offences under section 3(3), i.e. possession of child pornography, which is applicable for a first time offender:-

“(a) Level 1 – Images depicting erotic posing with no sexual activity

This is the least serious level. If the number of images is small (say 20 or less) then a community service order, probation or fine is appropriate. When the numbers are larger or the depictions are extremely suggestive, terms of imprisonment from 1 month to 6 months will be appropriate.

(b) Level 2 – Depictions of sexual activity between children, or solo masturbation by a child

Depending on the number of depictions, an immediate custodial sentence of up to 9 months will be appropriate. Even if only a few depictions are involved, the level will generally attract a custodial sentence.

(c) Level 3 – Depictions of non-penetrative sexual activity between adult and children

Depending on the number of depictions, sentences of between 6 and 12 months will be appropriate.

(d) Level 4 – Depictions of penetrative sexual activity between children and adults and sadism or bestiality

The range of custodial sentences should generally be from 12 months, even for a few images, to 36 months.”

74.  In HKSAR v Ipp Tin Fan [2016] 4 HKLRD 486, the Court of Appeal held that the making of child pornography under section 3(1) of the PCPO should be treated more seriously than mere possession under section 3(3).   The Court of Appeal was of the view that at least 18 months’ starting point for the offence of making under PCPO in that case should be required.

75.  Likewise, I am satisfied that procuring child pornography is by nature more serious than possession of the same.   This is evident by the fact that the maximum sentence for the former is a fine of $3 million and imprisonment for 10 years, and for the latter the maximum sentence is a fine of $1 million and imprisonment for 5 years.   In fact, the offence is more serious than the making of child pornography where the maximum sentence is only a fine of $2 million and imprisonment for 8 years.

76.  I also find that the system of level classification of Man Kwong Choi is equally applicable to an offence under s 138A(1)(a) of the Crimes Ordinance.  The more serious the level of pornography the child is depicted, the more serious the punishment should be.

77.  I have viewed the photos and images lifted from the videos in relation to charge 2.  I find that they are within Level 1 and 2 of the Man Kwong Choi classification.

78.  The defendant knew the victim was aged 14.   The victim was deceived and threatened by the defendant who was impersonating as Anson.  The conduct of the defendant in the present case was ugly and the way he implemented the plan for his own satisfaction was carefully executed and complicated.

79.  Under these circumstances, the victim acceded to the request of the defendant and eventually sent the defendant his pornographic photos and videos.

80.  Obviously, the victim sent him these photos and videos unwillingly in fear of the threats by the defendant.

81.  Regarding the number of photos of the victim found in iphone 8, there were 10 Level 1 photos (3 duplicated) and 2 Level 2 photos (1 duplicated).  The Level 1 photos depicted the victim’s genitals and almost all these photos depicted the victim holding his genitals.    The Level 2 photos depicted the victim holding his penis with semen already ejaculated.

82.  Regarding the number of the videos of the victim found in iPhone 8, 27 level 2 videos depicted the victim masturbating himself (5 duplicated).  The total length of these videos was around 21 minutes (excluding the duplicated videos).  In 2 of these videos, the victim’s face was also depicted.

83.  Regarding the number of the photos and videos of the victim found in iPhone 11, there were 3 Level 1 photo, 1 level 2 photos, and 21 Level 2 videos.  All these photos and videos were duplicates of the photos and videos in iPhone 8.

84.  Bearing in mind the maximum sentence of this offence and bearing in mind the level of pornography involved, I will adopt a starting point of 15 months’ imprisonment for this charge.

85.  After giving him 20% discount to reflect the guilty plea of the defendant, the sentence for this charge is 12 months’ imprisonment.

4^th Charge (Indecent Assault)

86.  On conviction upon indictment of this charge, a person is liable to imprisonment for 10 years.   

87.  In the case of HKSAR v Tsang Chiu Tak CACC 386/2011, Cheung JA (as he then was) in paragraph 8 of the judgment said that:-

“The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children 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 family.”

88.  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 that case;

(3) whether the defendant had used threats or inducement 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 abusers 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 behaviours such as inviting other people to watch or taking photos or videos of the offence he committed; and

(10) whether the defendant is psychologically imbalanced and paedophilic and the likelihood of reoffending.

89.  In this case, at the time of offence, the defendant was aged 25 and the victim was aged 14.   From the Agreed Facts, it is clear that the victim went to the defendant’s residence as a result of threats made by the defendant and Anson, and because of the impact of those threats, the victim was easily manipulated by the defendant when the victim was inside the defendant’s premises.

90.  Although no force was being used on the victim, the defendant apparently took advantage of the victim and masturbated the victim twice in his premises.

91.  Considering the circumstances of the case, the appropriate starting point should be 15 months’ imprisonment.

92.  After giving him 20% discount to reflect the guilty plea of the defendant, the sentence for this charge is 12 months’ imprisonment.

6^th to 8^th Charges (possession of child pornography)

93.  Possession of child pornography is a serious offence.  The maximum sentence is 5 years’ imprisonment.

94.  In the case of Man Kwong Choi, the Court of Appeal laid down a sentencing guideline based on the level of eroticism of the pornography.  In respect of different level of images, they have different sentencing guideline.  For child pornography at level 4, serious treatment is warranted.

95.  The Court of Appeal is of the view that where even a few images are possessed, a starting point of 12 months’ imprisonment should be appropriate.   In any event, between 12 to 36 months’ imprisonment is appropriate.

96.  The classification of the photographs and video clips in this case are as follows:

Level 1 – 17 photographs

Level 2 – 15 photographs and 60 video clips

Level 3 – Nil

Level 4 – 11 video clips

No video clips at Level 4 are of children under 5.

97.  The number of images was said in Man Kwong Choi to be a relevant factor in considering whether there are aggravating features of sentence.

98.  In addition to that, I also need to consider if there are any aggravating factors.  The Court of Appeal also listed a number of aggravating features including the age of the children depicted; an intention to publish and the number of images.

99.  I agree that the number of images and videos here are not substantial.  In category 4, there are 11 videos and the length of the videos is not long.  I am satisfied that they are all real children.

100.  Regarding the 6^th charge, apart from Level 1 and 2 of the photos and videos of the victim, there are also photos of Level 1 and videos of Level 2 and 4 of other children.

101.  Taking into account of the number of photographs and video clips and the number and the duration of the videos at Level 4, I am satisfied that a starting point of 15 months’ imprisonment is appropriate.

102.  After giving him 20% discount to reflect the guilty plea of the defendant, the sentence for this charge is 12 months’ imprisonment.

103.  Regarding the 7^th charge, apart from Level 1 and 2 of the photos and videos of the victim, there is also photo of Level 1 of other children.

104.  Taking into account of the number of photographs and video clips and the number and the duration of the videos, I am satisfied that a starting point of 30 weeks’ imprisonment is appropriate.

105.  After giving him 20% discount to reflect the guilty plea of the defendant, the sentence for this charge is 24 weeks’ imprisonment.

106.  Regarding the 8^th charge, there are altogether 12 photos of Level 2 of other children.

107.  Taking into account the number of photographs, I am satisfied that a starting point of 20 weeks’ imprisonment is appropriate.

108.  After giving him 20% discount to reflect the guilty plea of the defendant, the sentence for this charge is 16 weeks’ imprisonment.

Totality

109.  These offences took place between 14 February 2021 and 21 February 2021 against the same victim with the threats and demands of the defendant imposed against the victim to achieve certain purposes and desire.  These offences were not committed on impulse but were calculated to exploit the vulnerable young victim.   

110.  Considering the totality principle, having regard to the overall culpability of the defendant in this case, this court considers that a global starting point of 2 years and 6 months’ imprisonment would be appropriate.

111.  The defendant committed the criminal intimidation (Charges 1, 3, 5) as part of the plan played on the victim for the defendant committing Charge 2 i.e. Procuring another person under the age of 16 for making pornography.  Accordingly, the sentence of the 1^st, 3^rd and 5^th charge is to run concurrently with one another and to run totally concurrent with the sentence of the 2^nd charge.

112.  In relation to Indecent assault on another person (Charge 4), circumstances under which the victim was subjected to the defendant’s abuse was considered against the background of the 1^st, 3^rd and 5^th charges, I therefore consider that part of the sentence of this charge shall run concurrently with those charges.

113.  Accordingly, 6 months’ imprisonment in the 4^th charge is to run consecutively to the sentence of the 1^st, 2^nd, 3^rd and 5^th charges and the rest to run concurrently.

114.  In relation to the offences of possession of child pornography (6^th to 8^th Charges), I shall order the sentence of all these 3 charges to run concurrently.

115.  However, as there were Level 4 videos of other children apart from the photos and videos of the victim found in iPhone 11 (i.e.  6^th Charge), I found it appropriate to order 6 months’ imprisonment of the 6^th to 8^th charges to run consecutively to the sentence of 1^st, 2^nd, 3^rd, 4^th and 5^th charges and the rest to run concurrently.

116.  Accordingly, the defendant is sentenced to a total of 24 months’ imprisonment for these offences.