HKSAR v. LAW CHUN YIN

HCCC 383/2017

[2018] HKCFI 584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 383 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Defendant, you may sit down and listen carefully to the reason for sentence.

The defendant pleaded guilty to the following charges:

(a) One count of indecent assault (Count 1);

(b) Two counts of indecent conduct towards a child under 16 (Counts 2 and 6);

(c) Two counts of homosexual buggery with a man under 16 (Counts 3 and 7); and

(d) Two counts of making of child pornography, (Counts 4 and 5).

He was committed to this court for sentence.

The defendant admitted that he came to know the victim in 2016 through the internet. At that time, the victim was 14 years old. They communicated by WhatsApp. Initially, the victim was unwilling to meet the defendant. However, the victim received WhatsApp messages from a person claiming to be the younger brother of the defendant. This younger brother coerced the victim to meet the defendant on 3 September 2016.

In the morning of 3 September 2016, the defendant and the victim met at Kwun Tong area. They proceeded to a guesthouse at Hong Ning Road. They were unable to rent a room. They left by the rear staircase where the defendant squeezed the buttocks of the victim for several seconds. This is Count 1.

The victim did not want to be the defendant’s lover. The defendant said he would commit suicide if the relationship broke up. He asked the victim to talk to his younger brother. Subsequently, the victim received WhatsApp messages from that younger brother, who warned the victim that he would not let the victim off if anything happened to the defendant.

On 4 September 2016, the defendant went to the victim’s home. The victim was alone at home. The defendant took off the victim’s clothes, and asked the victim to perform oral sex for him. The victim dared not refuse. He performed oral sex for about 15 minutes, until the defendant ejaculated in his mouth. Count 2.

Some time after this incident, the victim received WhatsApp messages from a person claiming to be the sworn brother of the defendant. That person threatened to harass the victim’s family if he refused to have sex with the defendant. Meanwhile, the relationship continued. They called each other husband and wife.

In one afternoon, in September 2016, the defendant had sex with the victim at the latter’s home. He put his finger and then his penis inside the victim’s anus. He ejaculated inside the victim. There was no condom or lubricant used. Count 3.

On 26 September 2016, the victim visited the defendant at his home at Wah Ming Estate, at Fanling, for taking video of their sexual act. The victim was unwilling initially. He then received WhatsApp messages from the sworn brother, coercing him to do so. In the 8 minute video, the victim performed oral sex on the defendant. The defendant slapped the victim. He also hit the victim’s penis and buttock. The victim then said, “Thank you, Master.” Count 4.

On 9 October 2016, another video of similar sexual acts was recorded at the victim’s home. The victim was blindfolded. They performed oral sex on each other. The defendant hit the penis of the victim, who then said, “Thank you, Master.” The video lasted for 17 minutes. This is Count 5.

One day in October 2016, the victim went to the defendant’s home. They had sexual activity with sadistic act as in the previous videos. However, no video was taken this time. The defendant also buggered the victim until ejaculation. No condom or lubricant used. This is Count 6 and Count 7.

In November 2016, the victim indicated to the defendant that he wanted to end the relationship. He ignored the messages and calls from the defendant. In December 2016, classmate received nude photos of the victim through Facebook. The relationship was revealed and the victim reported to the police. The videos were found in one of the defendant’s mobile phone. It also transpired that some of the WhatsApp messages allegedly from the younger brother and the sworn brother, were found in the other mobile phone of the defendant.

Clinical psychologists Ms Chow and Mr Chan opined that the victim was suffering from emotional distress, including frustration and helplessness. He had post-traumatic symptoms of arousal and avoidance. He was angry when being ridiculed at school. He however managed to cope. He displayed no clinical impairment in daily functioning. Psychological treatment was not indicated.

The defendant is 30 years old. He received education up to Form 3. He was a cross-border driver at the time of the offences, earning about 11,000 per month. He has four previous convictions. In 2005, he was sentenced to rehabilitation centre for indecent assault. In 2016, he was sentenced to 28 months’ imprisonment for homosexual buggery.

In his letter to this court, the defendant pledges that he would receive treatment to tackle his problem. He is remorseful. In other letters from his mother, the church leader and the friend, the defendant is also described as helpful and conscientious. He is of good nature and determined to turn over a new leaf. They all plead for leniency.

Dr Hui of Siu Lam Psychiatric Centre opined that the defendant is strongly paedophilic. He has a dissocial personality and has little thought on his repeated criminal behaviour and about the victims. He needs psychiatric treatments.

Ms Tong, clinical psychologist of Siu Lam Psychiatric Centre pointed out that the defendant has little meaningful peer relationship and strong antisocial personality. He was not motivated for treatment during his last imprisonment in 2016. He refused outpatient treatment after discharge. Ms Tong stressed that the reoffending risk of the defendant is very high. He is a potential danger to the public. He needs prolonged intensive treatment for the paedophilic disorder.

In HKSAR v Chow Yuen Fai ([2010] 1 HKLRD 354), the Court of Appeal stressed that in sentencing sexual offences against young children, the sentencing court must consider the background of the defendant, whether there is risk of reoffending, the impact of the offences on the victim and his family, the sentence must reflect the abhorrence of the public to these offences. Deterrent sentence is usually warranted. The sentencing court must take into account aggravating factors including breach of trust, risk of reoffending, age differences, coercion and inducement, previous similar record, physical or psychological trauma to the victim, and no safety precaution.

For the sentence of making child pornography, I have considered the principles set down in SJ v Man Kwong Choi [2008] 5 HKLRD 519 and HKSAR v Ip Tin Fan CACC9/2016.

Mr Victor Lee, counsel for the defendant pointed out that there is only one victim, who was over 14 years old in the present case. Mr Lee also urges this court to consider a proportionate enhancement of the sentence, given that the defendant has a similar conviction.

In 2016, when the defendant was sentenced by this court for similar offences, this court accepted that the defendant and the victim were lovers. There was no coercion. In the present case, the defendant coerced the victim right at the beginning. He even threatened to cause trouble to the victim’s family. In my view, the nature of the relationship in the present case was quite different.

In this case, I note the following aggravating factors. The defendant has a similar conviction in 2016; clinical psychologist conclude that there is a very high reoffending risk; he had coerced or threatened the victim by posing as young brother or sworn brother; the age gap was above 15 years, it was substantial; there was video recording of the sadistic sexual acts; no condom was ever used during the buggery offences; When the relationship broke up he retaliated by revealing the nude photos of the victim in social media, causing serious distress to the victim; the victim suffered post-traumatic symptoms, albeit not serious.

Having considered the circumstances above, I sentence the defendant as follows:

For Count 1, indecent assault, I take the starting point of 3 months’ imprisonment, I deduct 1 month for the plea, I sentence the defendant to 2 months’ imprisonment.

For Count 2, indecent conduct towards a child under 16, I take a starting point of 3 years’ imprisonment, I deduct 1 year for the plea, I sentence the defendant to 2 years’ imprisonment.

For Count 3, homosexual buggery with a man under 16, I take a starting point of 5 years’ imprisonment, I deduct 1 year and 8 months for the plea, I sentence the defendant to 3 years and 4 months’ imprisonment.

For Count 4, making of child pornography, I take a starting point of 3 years’ imprisonment, I deduct 1 year for the plea, I sentence the defendant to 2 years’ imprisonment.

For Count 5, making of child pornography, I take a starting point of 3 years, I deduct 1 year for the plea, I sentence the defendant to 2 years’ imprisonment.

For Count 6, indecent conduct towards a child under 16, I take a starting point of 3 years, I deduct 1 year for the plea, I sentence the defendant to 2 years’ imprisonment.

For Count 7, homosexual buggery with a man under 16, I take a starting point of 5 years’ imprisonment, I deduct 1 year and 8 months for the plea, I sentence the defendant to 3 years and 4 months’ imprisonment.

In view of the totality principle, I make further orders as follows.

The sentence of Count 1 be consecutive to that of Count 3; 1 year of the sentence of Count 2 be consecutive to that of Count 3; 1 year of the sentence of Count 4 be consecutive to that of Count 3; 1 year of the sentence of Count 5 be consecutive to that of Count 3; 1 year of the sentence of Count 6 be consecutive to that of Count 3; 1 year of the sentence of Count 7 be consecutive to that of Count 3. All other sentences of each charge to serve concurrently.

The defendant has to serve a total of 8 years and 6 months’ imprisonment.