HKSAR v. IPP TIN FAN

DCCC 685/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 685 OF 2015

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Reasons for Sentence

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1.  The defendant, a 41-year-old man, pleaded guilty before me to 2 counts of offence, namely, Charge (1) - making child pornography contrary to section 3(1) of the Prevention of Child pornography Ordinance Cap. 579 and Charge (2) - indecent assault contrary to section 122(1) of the Crimes Ordinance Cap. 200.

2.  What happened was that a 13-year-old school girl answered the defendant’s advert on the internet for a teen model, they finally agreed that she would be photographed completely nude by the defendant for a reward of $1,400.

3.  The two met up on 6^th January 2015, and the defendant took her to a guesthouse in Mong Kok area where the defendant began the shooting, which lasted for slightly over an hour, with his i-phone .

4.  The defendant stood her in various poses, and not only did he take naked photographs of the girl, he himself also joined in at some stage during the session. He posed his erected penis next to her vagina and had it photographed; at other times he would film his finger inserting into the vagina of the girl.

5.  The defendant had hugged, kissed and touched the girl all over her body, and when his request for oral sex was refused by the girl, he then masturbated in her presence.   

6.  The matter came to light about a week later because the mother discovered it from her daughter’s diary which eventually led to the arrest of the defendant.

7.  Under caution, he admitted that he had taken naked photographs and videos of the girl including close-ups of her private parts, that he had hugged and kissed her, inserted his finger into her vagina, posed his erected penis near her vagina, and had masturbated in her presence. He also claimed that he later transferred the girl’s photographs and videos from his i-phone to his desk top computer at home but he denied publishing any of those photographs and videos.

8.  Police were able to retrieve 64 images and 4 videos (lasting from 20s to 39s) from the defendant’s computer; 18 out of the 64 images and 3 out of the 4 videos were classified as Level 1 and the rest all belong to Level 3 in accordance with the classification as set out in the leading case of Man Kwong Choi CAAR 8/ 2007.

9.  The court adjourned the case for a psychologist’s report to be prepared on the defendant.

10.  The defendant is a man of previous good character. He was described in the report as a reserved and achievement-oriented person rarely sharing his thoughts and feelings with others. He runs a company designing software for business use; he has a long term girlfriend for 12 years. The defendant, however, had experienced stress from his work and intimate relationship.

11.  It says in the report that the defendant began to have an idea of photo shooting of teen model early this year (2015), and such idea eventually led to the commission of the present offences. The defendant admittedly felt sexually excited and lost control when he saw the girl naked; he subtly blamed the girl for luring him to commit the present offences. It is the psychologist’s opinion that no deviant sexual interest was detected in him and his risk of re-offending was assessed to be low-moderate. 

12.  In mitigation, defence counsel submitted numerous letters from the defendant’s mother, his girlfriend and friends pleading leniency on his behalf. Basically, all of them speak highly of the defendant and mention a few instances showing how helpful and caring a person he was.

13.  After the event, the defendant went to see a specialist in psychiatry, Dr. John Wong, who has prepared a report. In his opinion, the defendant has no mental problems. In terms of sexual orientation, the defendant is a heterosexual person and does not suffer from Paedophilia, but the doctor emphasized that the validity of his opinion rested entirely on the accuracy and credibility of the defendant’s account. He went on to say that a psychiatrist does not have the expertise to detect with certainty whether a subject is telling the whole truth.

14.  In the victim impact statement submitted by the prosecution, the girl said that after receiving psychological treatment, she is confirmed to have no psychological problem. Everything is normal in her life and she does not suffer any adverse effects such as anxiety or insomnia as a result of the case. 

15.  Now I come to the reasons for sentence. The psychologist said that the defendant subtly blamed the victim for luring him to commit the present offences. In his psychiatrist’s report, he told his own doctor that at the motel, the defendant thought the girl was flirting with him as she was taking the initiative and seemed jovial and at ease; when he discovered she was underage, he told the girl twice that she could change her mind and he would still pay her. He said the girl still wanted to persist. She appeared to be in good spirit up till the end of the session.

16.  It seems to me that what the defendant was suggesting is that he was a victim of circumstance – his current plight was caused by the young girl instead. But don’t forget he was the one who started all this. The psychologist said that the defendant “posted a message to recruit a teen model for private photo-shooting on an internet forum” (See paragraph 8 of the psychologist’s report). If he had been respectful of that - just confining to taking of nude picture, I wouldn’t expect that the girl would have been indecently assaulted by the defendant.  

17.  Being almost 30 years her senior, the defendant is old enough to be the girl’s father. If he wasn’t interested in young girls, why placed an advert for teen models? Why touched the girl? Why asked the girl for oral sex? His own conduct discredited what he said. Now he suggested that he could not resist the temptation from the young girl - he should be ashamed of himself for even suggesting it.

18.  The indecent assault went on for quite some time during which the defendant at times even inserted his finger into the girl’s vagina. The only saving grace was that he was able to control his lusts not to have unlawful sex with the girl; when he was refused oral sex, he simply masturbated in her presence.

19.  Notwithstanding the absence of unlawful sex, the incident as a whole was very serious indeed given the substantial age difference between the two, and what the defendant actually did to her (the indecent assault). Whichever way one looked at it, the defendant was guilty of sexual exploitation of a young girl by inducement of monetary reward. Vulnerable victims like the young girl in the case are in need of protection from abuses from adult offenders.

20.  The defendant did not simply molest the young girl and then walked off without leaving any trail; he kept a record of what transpired between them in the form of photographs and videos obviously for his future viewing and enjoyment.

21.  Neither the photographs nor the videos show the face of the girl in question because she was wearing a mask, but the defendant did keep some pictures of the girl’s ID card and student card which he took while the girl was in the shower. No one knows what the defendant would do with these images (for example, her ID picture and her naked photographs etc.), but the only certainly is the girl has no control over the matter. To me, this would add to the overall criminality of the defendant. 

22.  Stock VP said in Ngai Yiu Ching 【2011】5 HKLRD 690, “…………………It is likely to be a more effective approach in reflecting an offender’s overall culpability than one which becomes overly concerned with the one transaction rule, although in the case of more than one offence, the court must guard carefully against punishing twice for the same act. If the second offence which takes place in the course of the suggested single episode adds to the culpability of the first offence, it will normally follow that the sentence for the second offence will run wholly or partially consecutive to that for the first; to what extent, if at all, will depend upon an assessment of the totality appropriate for the conduct as a whole. As with most sentencing exercises, the approach is an art, sensitive to the individual circumstances of the case and the offender.”  

23.  For the reasons given above, taking into account all the mitigation put forward, as far as charge (1) is concerned, I take 18 months as starting point, and for charge (2) 42 months, give a 1/3 discount to reflect his plea, and I see nothing to further reduce the sentences, therefore for charge (1), the defendant is sentenced to 12 months’ imprisonment, and for charge (2), 28 months’ imprisonment.

24.  Taking into account the totality principle and what I have said about the overall criminality of the defendant, I order that the term of charge (2) should run consecutively to 6 months of charge (1) and the rest concurrently, the total term is one of 34 months’ imprisonment.