HKSAR v. W.C.T.

DCCC 90/2025

[2025] HKDC 1846

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 90 OF 2025

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REASONS FOR SENTENCE

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1.  The Defendant (“D”) pleaded guilty to two charges of indecent conduct towards a child under the age of 16, contrary to section 146(1) of the Crimes Ordinance, Cap 200 (Charges 1 and 3), and three charges of making child pornography, contrary to section 3(1) of the Prevention of Child Pornography Ordinance, Cap 579 (Charges 2, 4 and 5).

Facts of the case

2.  D is the mother of the two victims in the case. Boy Y was born in December 2017, and was aged 2 during Charges 1-4, and aged 4 during Charge 5. Girl A was born in December 2021 and was younger than 1 year old at the time of Charge 5 which involved her (and Boy Y).

3.  D was born in the Mainland in 1988; she came to Hong Kong in March 2016. She was granted a Hong Kong Identity Card in October 2023 to reside in Hong Kong.

4.  D and PW1 got married in March 2016. Subsequently, they had three children: Boy Y (born in December 2017), Girl A (born in December 2021) and Boy B (born in June 2023). They resided in a flat in Prince Edward (“the Flat”) at the material time.

5.  In February 2024, D and PW1 separated. The three children lived with D and had no contact with PW1. In May 2024, divorce proceedings started.

How the case came to light

6.  On 21 June 2024, PW1 provided to the police several video clips which he had received from D. Among the video clips were the following taken at the Flat by D:

Video Clip	Duration	Description
“Video Clip 1” (related to Charges 1 and 2)	4 seconds	Boy Y (2 years old) faced D’s naked private part and stuck out his tongue. Boy Y then moved his tongue towards D’s naked private part. At the time, D’s legs were spread wide apart.
“Video Clip 2” (related to Charges 3 and 4)	33 seconds	Boy Y (2 years old) faced D’s naked buttocks and moved his body forward and backward, during which Boy Y fell and his face touched D’s naked buttock.
“Video Clip 3” (related to Charge 5)	12 seconds	Boy Y (4 years old) was naked from the waist down. He squatted and placed his private part towards the mouth of Girl A (less than 1 year old), who was lying on the floor with her face facing Boy Y.

7.  Video Clip 1 is Level 3 child pornography, Video Clip 2 is Level 3 child pornography and Video Clip 3 is Level 2 child pornography. These Video Clips form part of the summary of facts.

Incident 1: Charges 1 and 2

8.  On a day between 12 December 2019 and 11 December 2020, when Boy Y was 2 years old, at the Flat, D committed an act of gross indecency with Boy Y. D was lying on a bed with her naked private part exposed to Boy Y and her legs were spread wide apart. At the time, Boy Y was immediately in front of D’s naked private part. Boy Y stuck out his tongue and moved his tongue towards D’s naked private part.

9.  D used a digital phone to take a video of what happened (i.e., Video Clip 1). Subsequently, D sent Video Clip 1 to PW1. Video Clip 1 is a Level 3 child pornography.

Incident 2: Charges 3 and 4

10.  On a day between 12 December 2019 and 11 December 2020, when Boy Y was 2 years old, on an occasion other than that referred to in Charges 1 and 2, at the Flat, D committed an act of gross indecency with Boy Y. D was not wearing any lower garment. She raised her naked hips in front of Boy Y who then moved his body forward and backward against D’s naked buttocks from behind.

11.  D laughed and used a digital phone to take a video of what happened (i.e., Video Clip 2). Subsequently, D sent Video Clip 2 to PW1. Video Clip 2 is a Level 3 child pornography.

Incident 3: Charge 5

12.  On a day between 12 December 2021 and 11 December 2022, when Boy Y was 4 years old, at the Flat, D made child pornography with a digital phone. Boy Y was naked from the waist down. He walked towards Girl A, squatted and placed his penis towards the mouth of Girl A. D used a digital phone to take a video of what happened. Subsequently, D sent the video clip to PW1 (i.e., Video Clip 3). Video Clip 3 is a Level 2 child pornography.

Arrest and cautioned admissions of D

13.  On 21 June 2024, D was arrested at her residence for indecent conduct with a child under 16 in respect of Video Clip 1. Under caution, D admitted recording Boy Y when he imitated PW1 having sexual intercourse with her.

14.  D subsequently admitted in video-recorded interviews, inter alia, the following:

(1) In Video Clip 1, the boy was Boy Y and the woman was D. PW1 would have oral sex with D in front of the three children. At the material time, Boy Y imitated PW1’s sexual act by licking or kissing D’s private part. D recorded Video Clip 1 with her phone at the Flat and she had sent the clip to PW1.

(2) In Video Clip 2, the boy was Boy Y and the woman was D. Boy Y was 2 years old at the time, D recorded Video Clip 2 at the Flat when she was alone with Boy Y. Since PW1 would engage in sexual conduct with her in front of their children, Boy Y imitated PW1 in Video Clip 2. She had sent Video Clip 2 to PW1.

(3) In Video Clip 3, the boy was Boy Y and the girl was Girl A. D recorded Video Clip 3 and sent it to PW1.

(4) At the material times, D was used to not wearing any pants or underwear at the Flat. She knew that Boy Y would imitate the sexual acts between PW1 and herself and Boy Y would do the same towards his younger siblings.

Background and mitigation

15.  D is 36 years old. She was born in Xinjiang and was primarily raised by her paternal grandparents. Her grandmother passed away when D was 7, and she was sent to live with her father and stepmother a year later; she subsequently lived with her mother and stepfather starting at age 14. D graduated from Jiangnan University with a degree in Business Administration and then worked as a teacher.

16.  The defence submits that from the mitigation of D’s aunt, it can be seen that D was simple and innocent before marriage, and her sheltered upbringing resulted in her insufficient social knowledge and lack of judgment in handling difficulties, and rendered her susceptible to manipulation by PW1. D was introduced to PW1 (11 years her senior) by her aunt and they got married in 2016. D left everything behind to come to Hong Kong to live with PW1. However, D was subjected to physical violence by PW1’s uncle who lived with them. Subsequently, their situation deteriorated to the point of homelessness and they were forced to sleep in a flyover. Eventually, with the assistance of a social worker, D and PW1 moved to a subdivided flat (i.e., the Flat) in Prince Edward measuring about 150 square feet.

17.  The defence submits that D felt utterly alone and without support in Hong Kong, and it was in this environment of poverty, turmoil and isolation that PW1 and D had their three children. The defence submits that D’s life in Hong Kong was one of systemic abuse and coercive control by her husband. D was forced to change her name and was monitored by PW1. D was forbidden to work and could only rely on PW1 financially. D constantly feared that if she displeased PW1, PW1 would abandon her and their children. According to D, PW1 has been unemployed since about 2017 and the family subsisted on CSSA with PW1 allocating portions to D and their children. D was also controlled by PW1 at home, and according to D, PW1 had disturbing sexual habits. PW1 demanded that D remain unclothed at home even with the children present; when she refused, he threatened to withhold money for their children’s food expenses. D was also forced to have sex with PW1 in plain sight of the children

18.  The defence submits that D feels extreme shame for not preventing this from happening; however, such prolonged and repeated conduct gradually distorted D’s sense of judgment. She stated under caution that “my son was imitating what his father does when he has sex with me, so I filmed it to show his father.” The defence submits that D does not deny her actions were wrong and she accepts full responsibility as a mother; however, the acts were not purely for her own gratification but partly shows the act of a person who was misguided.

19.  D finally escaped the abuse in February 2024, leaving her husband and taking her three children with her. They moved into a shelter and she prepared to file for divorce. The defence submits that the motive of PW1 in making the police report in June 2024 are highly questionable (as the offences occurred in 2019 and 2022), and submits that it is the calculated act of a resentful husband.

20.  The defence submits that D’s frank admission, early plea and clear record are the strongest mitigating factors. The defence also asks the court to take into account D’s exceptional tragic personal background. The defence handed up mitigation letters written by family members, social workers and pastor, as well as family photographs and drawings by D’s children to her, and submits that D is a caring and devoted mother and a person of good character and the criminal acts were a shocking deviation.

21.  The defence further submits that during her remand, D has completed numerous certified training programs, as well as a recognised Early Childhood Development and Parenting Skills course, which shows D’s determination to becoming a more capable mother for her children upon her release from prison.

22.  Regarding Charges 1 and 3, the defence referred to HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427, HKSAR v Y.C.W (HCCC 45/2021) and HKSAR v L.M. (HCCC 50/2022), and submits that the circumstances of this case are exceptionally unique. The defence submits that while D’s criminal conduct was grave, the breach of trust was of the highest order, and the victims were exceptionally young, D committed the acts not purely out of sexual gratification (unlike in the above case authorities which involved predatory offenders) but also out of an aim to confront her abuser. The defence submits that the starting points for charges 1 and 3 should be within the range of 2 to 2.5 years’ imprisonment.

23.  It is of note that in oral submissions, the defence confirms that there was sexual intention and gratification on the part of D in the commission of Charges 1 and 3 (being an essential element of the offence of indecent conduct with or towards a child under the age of 16 according to HKSAR v F.S.L. (CACC 174/2022)); the defence also confirms that D did the acts in the five charges out of her own free will (she was not coerced or threatened), she knew what she was doing and knew that it was wrong; her sense of morality and what was right and wrong was not “distorted”. In essence, D confirms that she had the requisite mens rea, intention, and she chose to do the acts in the charges. D withdraws any statement contrary to that made in any reports, written submissions and mitigation letters.

24.  As to Charges 2, 4 and 5, the defence refers to HKSAR v Man Kwong Choi (CAAR 9/2007) and HKSAR v Ipp Tin Fan [2016] 4 HKLRD 486 and agrees that the offence of making child pornography should be treated more seriously than the offence of possession of child pornography. The defence submits that the conduct depicted in the videos in the present case are less serious than that exhibited in Ipp Tin Fan (in which the count of making child pornography (charge 1 in that case) involved 18 photographs and 3 videos classified as Level 1, 46 photographs and 12 videos classified as Level 3) and the number of videos in the present case is not particularly large. The videos were only sent to D’s husband without any intention of publication to others or commercial gain. The defence further submits that Video Clips 1 and 2 were made within a close timeframe. It is submitted that for Charges 2 and 4 (involving Video Clips 1 and 2, both classified as Level 3), the appropriate starting point should be within the range of 12 to 15 months’ imprisonment; and for Charge 5 (involving Video Clip 3, classified as Level 2), the appropriate starting point should be 9 to 12 months’ imprisonment. Moreover, the sentences for Charges 1 and 2 should be concurrent; the sentences for Charges 3 and 4 should be concurrent.

25.  The defence submits that the period of custody since June 2024 during which D has been away from her children has already been a significant punishment. The defence asks for leniency and asks the Court to consider totality.

26.  As to the other case authorities handed up by the prosecution on the sentencing principles for the offences in this case upon the Court’s direction (including HKSAR v Kong Yun Chiu [2007] 4 HKC 391, HKSAR v Ng Ngok Wai [2008] 1 HKLRD 546, SJ v Huang Long Wei [2009] 3 HKLRD 136, 香港特別行政區訴吳拾伍及另一人 (CACC 400/2012), 律政司司長訴吳浩楠 (CACC 96/2021 & CAAR 6/2021)), the defence has been given a chance to comment on the same, and indicated it had nothing to add. The defence agrees with the principles referred to therein as summarised by the prosecution, and that they are applicable to the present case.

Reports

Victim impact report

27.  I am of the view that given the extreme young ages of the victims when the offences occurred (and even at present), it is unlikely they would be able to verbalise the impact of the offences on them. Although it is quite certain that the incidents caused them trauma, it is hoped that the incidents are not fresh wounds in the forefront of their minds. In any event, I did not want them to relive the ordeal from having to recall the incidents considering the unlikelihood of it resulting in anything useful in the sentencing exercise. As such, there is no victim impact report before me.

D’s psychologist’s report

28.  Clinical Psychologist Mr David Wong stated in his report that “[t]here is no evidence of deviant sexual interest. [D’s] risk of sexual reoffending, as assessed in the current assessment, falls in the low range as the offence was impressed to be situational.”

D’s psychiatrist’s report

29.  Psychiatrist Dr Dorothy Tang opined that “[D] likely had an adjustment disorder precipitated by … multiple stressors … Her mental condition was observed to be stable in custody. No inpatient psychiatric management is warranted at the current juncture, and outpatient follow-up is respectfully recommended.”

Sentencing

30.  It must be reiterated at the outset that, as clarified and confirmed at the hearing today, D admits that she knew right from wrong at the time of the offences, and she knew that what she was doing was wrong; her sense of morality and what was right or wrong was not “distorted”. It was also clarified and confirmed at the hearing today that D committed the offences out of her own free will – she was not coerced by her husband nor had he made any request or suggestion that she should perform such acts or film the incidents. D’s husband was not present at home when the three incidents occurred – she filmed them in his absence and sent the video clips to him. In Video Clip 1, D is obviously naked from the waist down and exposing her private parts towards and facing Boy Y when he approached her. In Video Clip 2, D is lying face down on the bed holding the camera to take a “selfie” video showing her naked buttocks and Boy Y kneeling / squatting behind her and making gestures towards her buttocks as already described; D can be heard giggling or laughing and also saying Boy Y’s name. In Video Clip 3, the children are doing the acts as already described and D called out Boy Y’s name once. Never once did the video clips show D trying to correct their behavior or say no; on the contrary, she was encouraging what they were doing, or at least letting them carry on as if it were normal. All this supports that D did not conduct herself in the way she did during the three incidents as a result of coercion or even request by her husband; nor was she filming it to correct the behavior of her husband or of her children (as claimed by her in her mitigation letter, a statement which she has since withdrawn); on the contrary, the video clips support D acting the way she did purely for sexual gratification.

31.  The mitigation submissions of the defence portray D as a victim. She is not the victim in this case. Although the Court accepts that D grew up in an unhappy household, that she regrets marrying her husband (i.e., PW1), that she had a difficult childhood and had been mistreated by her husband, that does not justify or excuse in any what she did to her children. At the time of the offences, she was a grown adult in her 30s; she had a tertiary degree and work experience; she was not new to Hong Kong with no way to seek help (she had already been assisted by social workers / NGOs during the period when she and her husband were homeless and before the children were born). She was the adult and the mother in the household. And if her husband had been abusive towards her, there was all the more reason for her to protect them from his influence – instead, she committed the abhorrent acts herself on the children; she became the predator.

32.  The defence submits that the husband had an ulterior motive for disclosing the video clips and reporting the case to the police (i.e., the pending contentious divorce proceedings). However, it is clear that his motive for disclosing the incidents could not be considered a “mitigation” factor in any way – regardless of whether his motive for disclosing the incidents was tainted, that does not take away from the fact that D committed the egregious offences, and it is fortunate that this case came to light.

33.  It must be borne in mind that this was not a one-off incident but there were 3 separate incidents, the first one involving Charges 1 and 2, the second involving Charges 3 and 4, and the third one involving Charge 5; Charge 5 was committed 2 years after Charges 1-4 (albeit this incident involved the making of child pornography and not indecent conduct on D’s part). This is not a situation where D acted out of character and succumbed to her sexual urge only once. She repeatedly preyed on her children.

34.  The defence has produced drawings done by Boy Y and his younger siblings given to D during her time in custody, which include the sentiment that they love her; the defence states that this is “a heart-breaking situation, where the mother is being separated from her beloved children under such … tragic circumstances.” In my view, the real heartbreak stems from seeing Boy Y still offering unconditional love to his mother who has so mistreated and abused him.

Charges 1 and 3

35.  The maximum penalty on conviction upon indictment for the offence of indecent conduct towards a child under 16 is 10 years’ imprisonment.

36.  In Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136, the 18-year-old respondent/defendant pleaded guilty to four counts of indecent assault which involved two victims, a boy aged 7 and a boy aged 9; the indecent acts included touching the victims’ penises and buttocks and kissing them. He was sentenced to probation for 18 months. The Secretary for Justice applied for a review of the sentence on the ground that it was manifestly inadequate. In allowing the application for review of the sentence (and varying the same to a rehabilitation centre order), the Court of Appeal stated that:

“13. The sentencing principles laid down by the court for the offence of indecent assault on young children by adults have highlighted the following three crucial considerations:

(1) to deter others from committing similar offences;

(2) to show the abhorrence of members of the public to offences of this nature;

(3) to redress the grievance suffered by the victim and his/her friends and relatives.

See: HKSAR v Chan Ching Ho [2000] 3 HKLRD 476.

14. Given the diverse circumstances pertaining to this kind of offence, in particular the diversity of the acts of indecent assault, the Court of Appeal has not seen fit to lay down any tariff for this kind of offence. That said, the courts must sentence on the basis of the said sentencing principles. In addition, the courts have to consider three other important factors:

(1) Even if no psychological assessment report on the abused victim is available, the court cannot overlook the possibility of the victim suffering psychological damage as a result of sexual abuse: see HKSAR v See Tak Man [1998] 1 HKLRD 794 and HKSAR v Kong Yun Chiu [2007] 4 HKC 391;

(2) It is rather difficult to detect this type of offences 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: see Secretary for Justice v Wong Tsz Kin [1998] 4 HKC 32; and

(3) In dealing with this type of offences, the courts will regard the protection of children as the most important consideration: see HKSAR v Kam Wing Yin (CACC 515/2005).”

37.  In HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427, the applicant was charged with 2 counts of “Rape”, contrary to Section 118(1) of the Crimes Ordinance, Cap. 200. Following a trial, the applicant was convicted on both counts and sentenced to 12 years’ imprisonment. He applied for leave to appeal against sentence. In dismissing the appeal, the Court of Appeal set out the following sentencing principles:

“8. The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons 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 families.

9. 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 the case;

(3) Whether the defendant had used threats or inducements 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 abuses 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 take photos or videos of the offence he committed; and

(10) Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.

See HKSAR v Chow Yuen Fai [2010] 1 HKC 181, HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, HKSAR v Ng Ka Kin (CACC 328/2010) and HKSAR v Lee Kwok Wai (CACC 199/2011).”

38.  In HKSAR v Kong Yun Chiu [2007] 4 HKC 391, the applicant pleaded guilty to two offences of indecent assault. He was the maternal uncle of the victim. At the time of the first offence, he was aged 28 or 29 years and the victim was then aged 8 years. The applicant touched the victim’s breast and private parts during a bath. He later stripped the victim’s trousers and underpants and rubbed his penis on the outside of her private parts. He masturbated and ejaculated at that time. The second incident occurred around 3 years later. The applicant touched the victim’s breast and private parts. He pulled down her underpants and rubbed his penis against her private parts and masturbated and ejaculated. The judge took a starting point of six years’ imprisonment for each of the two counts and accorded the normal one-third discount on the pleas. She then ordered that two years and six months’ imprisonment on the second count were to run consecutively to the term imposed in respect of the first count, making a total of six years and six months’ imprisonment. The applicant appealed against sentence. The Court of Appeal was of the view that the starting point adopted was too high and the resulting sentence, after pleas of guilty (taking into account that this resulted in the child avoiding having to relive her experience in the witness box) was manifestly excessive. The appropriate starting point should be one of five years’ imprisonment; and the total sentence was substituted with a total of four years six months’ imprisonment.

39.  The Court of Appeal stated in this case that:

“11. … It should go without saying that children are particularly vulnerable members of society. It is too easy for those who would 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. … It should be remembered too, particularly in cases of breaches of trust, that children are much more likely than adults to suffer the trauma in silence rather than report, and in cases where there are threats levelled at the child not to report, whether the threats are express or implicit, fear is added to the initial offence and the culpability is that much the greater. Whilst the range of offences within the category of indecent assault is wide, the fact that the victim of such an offence is a child is always a severely aggravating feature. Viewed in the light of these factors, offences of the kind in this case call for substantial terms of imprisonment …”

40.  In HKSAR v Ng Ngok Wai [2008] 1 HKLRD 546, the applicant pleaded guilty to five counts of indecent assault, two of which were committed on his wife’s niece (aged 13 and 15 at the material times) by touching her breasts, while three counts were committed on his own niece (aged 14 and 15 at the material times) by touching her breasts or touching her private parts. The trial judge adopted an overall starting point of 5 years’ imprisonment and reduced the term to 40 months on account of the applicant’s plea. The defendant applied for leave to appeal against sentence. The Court of appeal, in granting leave and allowing the appeal, stated that for the offence of sexual assault upon children, the appropriate sentence must depend on the circumstances of the particular case and previous decided cases would not necessarily assume much importance as sentencing guidelines; however, justice and fairness required the court not to impose inconsistent sentences for offences of a similar degree of seriousness. The Court of Appeal was of the view that although the offences were serious, they did not fall within the most serious category. For the three offences involving the touching of breasts, an appropriate starting point was 18 months’ imprisonment; and for the two offences involving the touching of private parts, an appropriate starting point was 30 months’ imprisonment. The overall starting point was 48 months’ imprisonment. However, no sentencing guidelines were intended to be imposed on the basis of the body part being assaulted and that, where the circumstances of the offence were serious, the court was justified in imposing a sentence different from those imposed in other cases even where the same body part was involved.

41.  In 香港特別行政區訴吳拾伍及另一人 (CACC 400/2012), the two applicants, who were the parents of a then thirteen-year old daughter who had mild intellectual disability, repeatedly committed sexual assaults against the daughter. One of the less severe instances of sexual assaults involved the 2^nd applicant, the mother of the victim, licking the victim’s breasts and private parts (charge 4); the trial judge adopted a starting point of 4 years’ imprisonment for this charge. The Court of Appeal, in upholding the sentence imposed on the applicants, observed that even if the victim had behavioural issues which might have affected the applicants, the applicants as parents and adults were responsible for disciplining and correcting their daughter’s inappropriate behaviour, instead of succumbing to their own desires and assaulting their intellectually disabled daughter.

42.  In 律政司司長訴吳浩楠 (CAAR 6/2021), the respondent, a teacher, was convicted of two counts of indecent assault after trial for indecently assaulting two students who were then aged 15. In allowing the prosecution’s application for a review of the sentence, the Court referred to the case of Attorney General v Ho Yu Ping [1996] 1 HKC 555, wherein it was stated at 560E that: “Re Application for review of Sentences [1972] HKLR 370 is another authority in a similar vein. There, Leonard J said at 417 that the personality, youth or personal circumstances of the offender may pale into insignificance because of the magnitude or prevalence of the offence.” The Court of Appeal also referred to HKSAR v Tsang Cho Kiu (CACC 42/2014) wherein it was stated that: “15. Whether or not prevalent, the sexual abuse of children in whatever form is an egregious crime. This sentiment received powerful expression in the case of HKSAR v Chow Yuen Fai [2021] 1 HKLRD 354. Where sentencing is concerned, the stress was on the protection of children and not the rehabilitation of offenders…”

43.  As mentioned, in the defence written submissions, several Court of First Instance cases are referred to. It has been held by the Court of Appeal that sentencing at first instance (even if it is in a court of a higher level) which has not gone through appeal, is not binding; such cases do not propound any sentencing principles nor are they of any reference value, and therefore should not be referred to as “case authorities” (see para 27 of 律政司司長訴溫達揚 (CAAR 21/2021)). I do not find these Court of First Instance cases to be helpful in this sentencing exercise.

44.  In the present case, for Charges 1 and 3, the perpetrator is the mother of the victim – a breach of trust of the most serious kind. The victim (Boy Y) was extremely young (being only aged 2) and D was around 30 years old – the difference in age between the victim and the offender was significant. Importantly, the victim was not at an age where he could even comprehend what was going on; he would not know that he could ask for help; nor was he of school age yet when any teacher or counselor could suspect anything amiss with him such that help could be offered at all. D no doubt took advantage of this – and thus was surprised and indignant when this came to light, with the defence in written submissions blaming the father for having an ulterior motive for disclosing the related video clips.

45.  Charge 1 involved the victim (Boy Y, 2 years old) facing D’s naked private part and sticking out his tongue; he then moved his tongue towards D’s naked private part; at the time, D’s legs were spread wide apart. Charge 3 involved D lying face down on the bed with her naked buttocks facing the victim (Boy Y, 2 years old) and Boy Y moving his body forward and backward, during which Boy Y fell and his face touched D’s naked buttock. The acts involved D’s naked private parts and naked buttocks. The incidents (as recorded) were each under 1 minute, the first one being 4 seconds, and the second being 33 seconds long, but they were grossly indecent.

46.  As the Court of Appeal has repeatedly stated, even if no psychological assessment report on the abused victim is available, the court cannot overlook the possibility of the victim suffering psychological damage as a result of sexual abuse; 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 such cases.

47.  In summary, I am of the view that the following are pertinent factors that I need to take into consideration in sentencing D for Charges 1 and 3:

(1) The extreme young age of the victim, Boy Y.

(2) The significant age difference between D and the victim.

(3) Charge 1 involved the victim moving his tongue towards D’s private parts with her legs spread open. Charge 3 involved the victim moving back and forth towards the naked buttocks of D who was lying face down and the victim’s face touching D’s naked buttock when he fell. Both incidents involved grossly indecent acts.

(4) The relationship between D and the victim was that of a mother and her biological son; D had taken advantage of her position as a parent to commit the offence. There was clearly a breach of trust of the very worst kind in this case.

(5) D obviously knew Boy Y was an extremely young child with no ability to comprehend what was going on or the means to ask for help, and the incident would likely never come to light or be disclosed. D undoubtedly took advantage of this.

(6) The case did not involve a mere one-off incident. The indecent conduct happened on two separate occasions.

(7) The duration of the offences (as recorded) was not long – being 4 seconds and 33 seconds respectively.

(8) Although no victim impact report is available, the sexual abuses could safely be assumed to have caused psychological trauma to the victim.

(9) D is of clear record. Moreover, D’s risk of re-offending is assessed to be low by the clinical psychologist.

48.  I note the many mitigation letter written on D’s behalf and I accept that D has done work during her period in remand to rehabilitate herself. However, D has in her mitigation submissions and her own mitigation letter repeatedly put forth excuses in justifying her conduct (albeit she has withdrawn such submissions / statements at the hearing) – as such, I am not certain as to the extent of her rehabilitation. In any event, the Court of Appeal has stated repeatedly that in dealing with this type of offences, the stress should be on the protection of children and not the rehabilitation of offenders; whether or not prevalent, the sexual abuse of children in whatever form is an egregious crime; the sentence should show the abhorrence of members of the public to offences of this nature.

49.  Taking all the relevant circumstances into consideration, I find that the appropriate starting point for Charge 1 and Charge 3 is 30 months’ imprisonment each. For both Charges 1 and 3, D took a video of the offence she committed and sent it to her husband, the victim’s father; even though the Court accepts that the videos were not meant for further distribution or commercial purposes, the danger of them leaking out cannot be ruled out. Indeed, PW1 had kept the two video clips for about 4 years before the incidents came to light. For this aggravating factor, I shall enhance the sentence for each charge by 3 months. D pleaded guilty and is granted the full 1/3 discount. There is no other reason to further reduce the sentences. Thus, for Charge 1 and Charge 3, D is sentenced to 22 months’ imprisonment each.

Charges 2, 4 and 5

50.  The maximum sentence for an offence of making child pornography upon conviction on indictment is imprisonment for 8 years.

51.  The Court of Appeal in Secretary for Justice v Man Kwong Choi and another [2008] 5 HKLRD 519 adopted the following four classification levels for the purposes of sentencing in possession of child pornography cases:

(1) Level 1: images depicting erotic posing with no sexual activity.

(2) Level 2: sexual activity between children or solo masturbation by a child.

(3) Level 3: non-penetrative sexual activity between adults and children.

(4) Level 4: penetrative sexual activity between children and adults, or sadism or bestiality.

52.  In Man Kwong Choi, the following guidelines were considered appropriate, after trial, to a first time offender who is in possession of child pornography (involving real children):

(1) Level 1: 1-6 months’ imprisonment.

(2) Level 2: up to 9 months’ imprisonment.

(3) Level 3: 6-12 months’ imprisonment.

(4) Level 4: 12-36 months’ imprisonment.

53.  Aggravating features included the age of the children depicted (where the depictions involve particularly young children, this would be an important consideration); the purpose for which the defendant possessed the depictions (where it is proved that the defendant intended to disseminate the images for commercial (or even non-commercial) gain, or intended to publish, these will be significant aggravating factors); and the number of images.

54.  In HKSAR v Ipp Tin Fan [2016] 4 HKLRD 486, the Court of Appeal confirmed the application of the Man Kwong Choi classification in cases involving the making of child pornography[1]. Moreover, the making of child pornography is treated as being more serious than mere possession of the same (see also HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354).

55.  In the present case:

(1) Charge 2 involves a 4-second Level 3 video clip showing the acts in Charge 1 (i.e., Boy Y (aged 2) sticking his tongue out at the private parts of D who had her legs spread apart);

(2) Charge 4 involves a 33-second Level 3 video clip showing the acts in Charge 3 (i.e., Boy Y (aged 2) moving back and forth towards the naked buttocks of D who was lying face down); and

(3) Charge 3 involves a 12-second Level 2 video clip showing Boy Y (aged 4) naked from the waist down. He squatted and placed his private part towards the mouth of Girl A (less than 1 year old), who was lying on the floor with her face facing Boy Y.

56.  For each offence, there is only one short video clip involved. However, Boy Y at the time of all three charges and Girl A at the time of Charge 5 were extremely young during the making of the offending video clips. Furthermore, although the videos were not meant to be distributed for commercial gain, D did send the video clips to her husband (i.e., PW1), not merely keeping them for her own viewing; PW1 kept the video clips until June 2024 when the incidents came to light – as already stated, the danger of the videos being leaked to others as a result cannot be underestimated.

57.  Taking into consideration all the circumstances (including the factors set out for Charges 1 and 3 which are also pertinent to Charges 2, 4 and 5), the relevant sentencing principles, D’s clear record, I find that the appropriate starting point is 15 months’ imprisonment each for Charges 2 and 4, and 12 months’ imprisonment for Charge 5.

58.  D is granted the full 1/3 discount for her timely plea of guilty. I do not find any other reason to further reduce her sentence. She is sentenced to 10 months’ imprisonment for Charge 2, 10 months’ imprisonment for Charge 4, and 8 months’ imprisonment for Charge 5.

Total sentence

59.  In Ipp Tin Fan, the Court of Appeal referred Chow Yuen Fai and stated that: “35. The judgment of the Court in HKSAR v Chow Yuen Fai held, as we have seen, that ‘[f]or the offence of making child pornography, the sentences ought to be served concurrently with the offences to which they are related’. The reason is that where the maker of the child pornography is himself the perpetrator of the sexual offence being recorded, the fact that he has made the film or the photograph is itself an aggravating feature of that sexual offence, requiring enhancement of the starting point for that offence. To avoid the problem of double counting, it is appropriate to order that any sentence for making the child pornography be served concurrently with the sentence for the sexual offence. Similarly, if one looks at the other aggravating features …, all of which we accept, they are all factors which go (to a greater or lesser extent) to aggravate the sentence for the sexual offence of indecent assault. Consequently, it is not appropriate to pass consecutive sentences where the perpetrator of the sexual offence in question is himself the one who films or photographs it.”

60.  The sentences of Charges 1 and 2 are, therefore, to run wholly concurrently, and the sentences of Charges 3 and 4 are to run wholly concurrently.

61.  The incident for Charges 1 and 2 and the incident for Charges 3 and 4 involved the same victim (i.e., Boy Y), but they happened on separate occasions. Charge 5 involved Boy Y as well as another victim, Girl A, and occurred 2 years after the other two incidents. Having considered totality and all the circumstances of the case, I am of the view that an imprisonment term of 30 months would be sufficient to reflect the overall criminality of D in this case. I therefore order the sentences for Charges 1-4 to be concurrent (i.e., 22 months), and the sentence for Charge 5 (i.e., 8 months) to be wholly consecutive to that, making a total sentence of 30 months’ imprisonment.

62.  D is sentenced to 30 months’ imprisonment.