CRIMINAL CASE NO. 33 OF 2011
COURT: The defendant has pleaded guilty to a total of four counts of indecent assault, Charges 1, 8, 9 and 10; six counts of homosexual buggery with man under 21, Charges 2, 3, 4, 5, 6 and 7; one count of making child pornography, Charge 11 and one count of indecent conduct towards a child under 16, Charge 12.
Prior to sentencing I had obtained a psychological report and a probation background report on the defendant. The defendant has a clear record.
Now, the Admitted Facts are: in relation to Charge 1, a boy F, aged 11, was introduced, by a procurer, called Tommy, to the defendant in 2005. Inside Tommy’s bedroom, the defendant had rubbed his penis against F’s anus until ejaculation. No condom was used and the defendant paid this boy, F, $200. The defendant had obtained the telephone number of F and, in 2009, the defendant had telephoned F in order to try and get F interested again in meeting up with him but was rebuffed by F.
Charges 2 and 3 are in relation to a boy, E, who was aged 13 at the time. E was told by Tommy that the defendant had a lot of money, so E then telephoned the defendant and the defendant offered E $200 for buggery.
In May 2005, the defendant then brought E to a guesthouse in Sham Shui Po and kissed E and inserted his penis into E’s anus, again, without wearing a condom. E felt pain but did not resist and for that he was paid $200.
Then between June and September 2005, the defendant telephoned E and offered to pay for buggery. Defendant took E to the same guesthouse and kissed E and inserted his penis into E’s anus and, again, no condom was used. The defendant took three photographs of E without his pants on and paid E $200. Subsequently, the defendant tried to call E, but E felt ashamed and refused to speak to the defendant again.
Charges 4 and 5: in 2006 Tommy introduced B, aged 13, to the defendant and the defendant asked B to introduce young boys to him. So in 2006, B introduced C, who was aged 12 and a classmate of B, to the defendant. At that time, C had just ran away from home and B told C he could get $300 to $400 for buggery. C was in need of money so on July 5, 2006, B introduced C to the defendant. The defendant took B and C to dinner and then took them to a guesthouse in Sham Shui Po. Inside a room, the defendant inserted his penis into C’s anus. C felt pain and his anus bled. The defendant did not remove his penis until ejaculation and no condom was used. B was watching all this while it was happening. The defendant gave $400 to C and C shared half of it with B.
On 9 July 2006, C contacted the defendant as he needed money. The defendant again took C to the guesthouse and, again, he inserted his penis into C’s anus, without a condom, and he did not remove his penis until after ejaculation. The defendant had used his mobile telephone to take photos and video of C during the buggery. The defendant paid C $350 and C shared half of that with B. C subsequently identified the defendant at an identification parade in August 2010.
In relation to Charges 6 and 7, B, aged 12, was introduced by Tommy to the defendant. The defendant was always trying to seduce B with money. Between September and October 2006, the defendant took B to a guesthouse in Sham Shui Po and inserted his penis into B’s anus and did not remove his penis until ejaculation. No condom was used. The defendant admitted, under caution, that he had taken a photo of B during the buggery. B was paid $500. Subsequently, the defendant telephoned B several times but B’s mother did not allow B to go out with the defendant. B subsequently identified the defendant at an identification parade on 17 August 2010.
Charges 8 and 9: A, aged 12, was introduced to the defendant by his schoolmate, Fung, in 2009. After the introduction, the defendant kept sending messages to A that he liked him and offered him money for intimate acts. In June 2010, A needed money and allowed the defendant to molest him for 10 minutes for $500. The defendant took A and Fung to a flat in Sham Shui Po and, whilst Fung kept time, A’s anus was rubbed by the defendant’s penis until ejaculation. No condom was used and the defendant paid A $500 and A shared the money with Fung.
In July and August of the same year, all three of them met again and the defendant caressed A’s buttocks and penis and kissed A on the mouth after A had refused to allow the defendant to rub his penis against A’s anus. No money was paid at this time.
Now Charges 10 and 11: D, aged 11, had run away from home and was loitering around the Sham Shui Po area. The defendant saw him and asked to be his friend and invited D to spend the night at his place. The defendant took D to a flat and made him watch pornographic videos. Then he asked D if he wanted to earn quick money. D said, yes, but when the defendant started molesting him, D resisted and so the defendant did not persist and then they both slept together in the same bed.
During the night the defendant had tried to embrace D several times but was rebuffed. However, while D was asleep the defendant kissed D on the mouth and took off his own clothes and, when he was naked, climbed on top of D and the defendant had videoed this in his mobile. The defendant also took photographs of D’s penis. These were recovered by the police from the defendant’s mobile telephone, and can be seen in Exhibits 181 and 182.
Charge 12 concerns D. D woke up the next morning and asked the defendant about earning quick money. The defendant told him to fondle his penis for 15 minutes after the defendant had lowered his pants. Then he paid $100 to D and D left. Subsequently, the defendant tried to invite D to his flat again but D refused.
In September 2010, D identified the defendant at an identification parade.
The defendant is aged 37 and, as I have said, he had a clear record. In mitigation, Mr Whitehouse said the defendant was not a, I quote him, “true sexual predator” and that the more serious of the offences were old and that the defendant, after his marriage in 2008, did not offend any more until his wife went away because she was a two-way permit holder and he could not resist the temptation offered by his procurers. Therefore, he committed the later offences.
Testimonial letters from his family were submitted to the court which testified to the defendant being a good son, a good husband and a good father. The psychological report also disclosed that the defendant himself had been molested by men when he was in Form 1. It was urged on his behalf, by Mr Whitehouse, that the defendant had co-operated with the police and it was due to his assistance that the police located Tommy and Fung.
However, Ms Leung revealed that these offences came to light when a student complained to his social worker about the defendant and also pointed out that it was Fung who had introduced them, so Fung was arrested in July but the charge against him was dropped in December 2010.
As for Tommy, the defendant had supplied Tommy’s old address in a housing estate from which Tommy had already moved. Defendant had supplied this information in his video-recorded interview. So the police, with the assistance of the housing authority and a victim, managed to locate Tommy but he had to be released due to lack of evidence. So this kind of co-operation by the defendant cannot be said to be of such a kind that merits a discount in the sentences.
These charges are extremely serious ones. They militate against the inherent values of our society. The defendant also has, by his actions, thumbed his nose at our society which seeks to protect its youth from moral corruption, and also disrespectful of our laws that are enacted to protect our young from predators and also from themselves. These offences are truly abhorrent and severe sentences should be imposed on those who seek to take advantage of our young by luring them with gain, financial or otherwise.
There are no sentencing guidelines for these offences, but it can be seen from past cases that the courts treat these offences, especially against minors, with a seriousness that is reflected in the sentences that have been imposed. In the case of HKSAR v Chow Yuen Fai [2010] 1 HKC 181, the Court of Appeal said the fixing of a tariff in buggery cases is, and I quote, “neither possible nor practicable”.
In that case, the appellant had pleaded guilty to 10 charges including homosexual buggery, indecent assault and making and possession of child pornography. All the victims were boys under 16 years of age. That appellant had met them through the Internet and committed the offences in either his home or in the victim’s home and he had used his mobile telephone on some occasions to take pictures and videos of the indecent assault and buggery. He was sentenced to a total of 11 years’ imprisonment and his appeal against his sentence was dismissed.
In the headnote to that case report, headnote (1), the Court of Appeal said this:
“In sentencing paedophiles who preyed on young children the court should bear in mind the individual circumstances of the offender, including the risk of re-offending. Other factors included the impact on the victim and the victim’s family and the abhorrence that right thinking members of society would regard the relevant offences and thus the need for deterrents.
(2) The protection of young and vulnerable children was the underlying policy. The trauma, distress and psychological harm that would cause to young children and their families could not be underestimated. In the vast majority of cases it could be assumed that such harm as children in their formative years, or when they first become aware of their sexuality during puberty, were extremely vulnerable to and were easily persuaded by adults.
(3) The trauma, distress and psychological harm was considerably magnified if a record was taken of the sexual act or acts in question. Both the victim and his or her family might be haunted for many years with the knowledge that the act or acts in question being embarrassing and shameful were recorded and with the possibility that they might surface when the victim reached later life.
(4) Aggravating features which could exist in certain cases included a breach of trust or a risk of re‑offending or a repeated course of conduct or the fact that the accused was a sexual predator or the existence of a poor previous record. Physical harm to the victim must also be identified as an aggravating feature. It was also a serious aggravating feature that records were kept. The failure of using a condom gave rise to obvious health risks. Risks and consequences, the extent of which young children might well be ignorant, was also a serious aggravating feature.
(5) In terms of mitigating features, all the cases which suggested that an additional discount might be given where a victim was spared the ordeal of giving evidence must be viewed against the general principle that the one-third discount was usually to be regarded as the high water mark of the discount for pleading guilty in good time. Only in exceptional cases should a discount of more than one-third be given for a timely plea.
In his mitigation, Mr Whitehouse submitted that there is no evidence from any victim impact reports that the victims suffered damage psychologically and so it was not fair to assume so. In Chow Yuen Fai the Court of Appeal dealt specifically with the impact on the victim and the victim’s family by saying, at paragraph 26, this:
“Little needs to be said about the first consideration. It encompasses a standard and important principle of sentencing and is self-explanatory. We do, however, wish to make some observations on the second and third considerations:-
(1) The protection of young and vulnerable children is of course the underlying policy.
(2) In Man Kwong Choi the court, in looking at the offence of possession of child pornography under the PCPO, referred to Article 34 of the United Nations Convention on the Rights of the Child, which applies to Hong Kong. That Article states:-
“Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.”
The Court of Appeal, after stating what was said in that Article, went on to say, at:
“(3) The trauma, distress and psychological harm that are caused to young children (and, we would underline, also to their families) from the type of offences in the present case, cannot be underestimated. While the courts are sometimes provided with psychological reports on the victims of such crimes, we are of the view that in the vast majority of cases, this can be assumed. A number of decisions of this court have made this very point. We have found very helpful the observations of Stock JA (now Stock VP) in HKSAR v Kong Yun Chiu [2007] 4 HKC 391. Children in their formative years or when they first become aware of their sexuality during puberty, are extremely vulnerable to and are easily persuaded by adults. In Kong Yun Chiu, Stock JA said this at 395D-E (paragraph 11):-
‘It is too easy for those who prey on their naivete and trust to succeed, for children are by nature trusting and the deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly. The trauma caused to a child by an indecent assault, and the long-term adverse impact, is difficult to calculate but trauma may safely be assumed in the vast majority of cases, perhaps all.’”
Ms Leung had, very helpfully, referred me to the case of HKSAR V Chung Chi Wing unreported CACC 81/2009 where the Court of Appeal noted in the case before them, which is of a rape of a 13-year-old girl outside her school, nine years prior to the trial, and I quote:
“Since there was no victim’s impact report, so there is no evidence of either short-term or long-term effect of the ordeal on the young victim. In the absence of such evidence it had to be assumed in favour of the applicant that there were not profound short-term or long-term effects.”
In the present case before me there are no victim’s impact reports and, thus, Mr Whitehouse urged upon me to consider that it would not be fair to the defendant to assume there were any psychological damage. In the face of what appears to be a dichotomy of views from the Court of Appeal on this matter, I have read both judgments carefully and I am inclined to think that what was said in Chung Chi Wing was case specific, as, in that case, the rape had taken place nine years before trial and the defendant had only been brought to trial because of the advance in scientific study and knowledge that led to new evidence against the defendant.
So I am therefore inclined to follow what was said by the Court of Appeal in Chow Yuen Fai as the court there was dealing with the specific issue of protection of our young against sexual exploitation and sexual abuse and recognise that the trauma, distress and psychological harm that are caused to young victims and their families cannot be underestimated and, in the vast majority of cases, can be assumed. As I had also indicated to Mr Whitehouse earlier, it is against commonsense that a child going through the ordeal of buggery or indecent assault would not be affected by such ordeal at all.
In this case, the only mitigating factor I can see is that the defendant had pleaded guilty and saved the victims having to relive their ordeal in the witness-box. However, as I have said, this is justly covered by the one-third discount to be given for his plea. Other factors that I have also considered in arriving at a starting point is the fact that the defendant had a clear record and he had underwent a homosexual molestation when he was aged 13.
It was pleaded in mitigation by Mr Whitehouse that the defendant only committed the newest offences because his wife was away from Hong Kong and that he had not offended after his marriage in 2008. I do not think the facts support Mr Whitehouse’s contention because, in relation to boy F, the defendant had tried to call boy F in 2009 but was rebuffed. The fact that his wife was away from Hong Kong does not help him at all because one does not think that he married his wife because he wanted a nanny or a prison officer to make sure that he led a proper life.
According to the psychologist’s report, the defendant said he was sexually interested in teenage males and he was assessed as a person with paedophilia and that although he had got married, the psychologist was of the view that a normal heterosexual relationship could not satisfy his sexual needs. According to the report, and I quote, “His deviant interest, feelings of loneliness and alienation in the adult world and the distorted sexual attitudes appear to be predisposing factors to his sexual offences.” The report concludes that the defendant’s risk of re-offending is classified as high.
In considering the sentences to be imposed, I have taken into account all the factors put forward by Mr Whitehouse and I have also considered the aggravating features in this case, particularly that no condom was used, the risk to the physical health of the boys cannot be discounted and the psychological impact and distress on the victims and their families.
Here, at this stage, I would ask that the Department of Justice urge these victims to seek psychological counselling as soon as possible because experience has shown that this type of trauma may fester for years and may result in consequences that may be more distressing in the future. So I would, here, strongly urge the families of these victims to help and insist that these victims obtain the right psychological counselling as soon as possible.
Now, in considering sentencing, I have grouped the charges into different groups. The first group would be the indecent assault charges. For Charges 1, 8 and 9 the starting point for each charge will be 3 years and reduced to 2 years because of the defendant’s plea. For Charge 10, I consider that a reasonable starting point will be one of 6 years because of the making of child pornography, which aggravates the offence, and it is reduced to 4 years because of the defendant’s plea. All four of these charges will be served concurrently, making a total of 4 years’ imprisonment for the indecent assault charges.
Now, I turn to the charges of homosexual buggery which carries a maximum of life imprisonment. Charge 2, I consider a starting point of 8 years’ imprisonment to be appropriate and reduced to 5 years 4 months because of his plea. Charge 3, I consider a 9 year starting point to be reasonable because three photos were taken and, again, that sentence is reduced by one-third to 6 years. Charge 4, again, a starting point of 9 years reduced to 6 years because the defendant had caused the victim’s anus to bleed but did not withdraw his penis until after ejaculation.
Charge 5, a starting point of 9 years reduced to 6 years because photo and videos were taken. Charge 6, 8 years starting point reduced to 5 years and 4 months. Charge 7, 9 years starting point reduced to 6 years, again, photo was taken here. Charge 11, a starting point of 3 years reduced to 2 years because of his plea. Charge 12, a starting point of 3 years, again reduced to 2 years because of his plea.
Now, I have to consider the totality principle. Having considered that, I sentence the defendant in the following way: first of all, for the homosexual buggery charges, Charges 2 and 3 will be concurrent. Charges 4 and 5, the sentences will be concurrent with each other but 2 years of that concurrent sentence will be consecutive to the sentences in Charges 2 and 3. Charges 6 and 7, the sentences will be concurrent to each other and 2 years of that concurrent sentence will be consecutive to the sentence for Charges 2, 3, 4 and 5. So it brings us to a total sentence of 10 years for all the buggery charges.
For the indecent assault charges, Charges 1, 8, 9 and 10, the sentences are to be served concurrently with each other but 2 years of that sentence is to be served consecutive to the 10 years’ imprisonment for the homosexual buggery offences, bringing us to a total of 12 years’ imprisonment.
As the sentence in Charge 11 would be covered already in Charge 10, I therefore make the sentence in Charge 11 concurrent and also the sentence in Charge 12 will be concurrent to the above sentences.
So the defendant will go to prison for a total of 12 years.