HKSAR v. TSUI KAI HO

DCCC658/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 658 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two offences: one of indecent assault on another person and the other one of possession of child pornography. He has admitted the facts of both offences and I have convicted him on those.

2.  He is a 27-year-old man of previous clear record.  The facts that have been agreed show that the first offence was committed on 26 September 2010 at about 9 o’clock in the evening.  The victim, who was a boy of the age of 13, was taking a bus home, and the defendant was a passenger on that bus, and when the victim left the bus, the defendant followed him.  He then proposed to take pictures of the victim urinating for a reward of $200.  The victim ignored the defendant, walked to a store, and at that time the defendant grabbed and squeezed his penis over his trousers.  Now, matters did continue.  The victim pushed the defendant away but was still followed by him, and the defendant would not let him go until he had taken the victim’s mobile phone number.

3.  Then matters persisted because the defendant sent two texts to the victim’s mobile phone, repeating the proposal of filming him or taking photographs of him.  Eventually, the police were involved and they arranged a meeting, and the defendant was arrested at that time.

4.  The second offence was disclosed following a house search of the defendant’s residence.  A computer that he possessed was investigated.  A total of 18 files were found, of which 13 could be opened. These files depicted child pornography involving children in the range of 5 to 15 years old engaging in sexual behaviour, including penetrative sexual activities between adults and children.  Subsequently, a record of interview was taken of the defendant.

5.  I was told furthermore that there were a total of 7 videos and 116 photographs, the majority being at level 2 and 3 and a few set at level 1, and a dozen it was set at level 4, and some of the videos involved activity at levels 3 and 4.  Obviously, the child pornography is relevant to the indecent assault because it would appear the defendant was attempting to involve his own production of such pornography by his attempt to suborn the victim into this activity.

6.  Now, the defendant, as I have said, is of clear record, and I have heard mitigation about his background.  He has pleaded guilty and has shown remorse.  He has been educated partly in Canada and has also been employed as a cook.  He has involved himself in refereeing in snooker tournaments and has acted as a referee in tournaments in Hong Kong; I think, clearly, as his counsel said, not a burden to society.  And it is said by his counsel that because of this, there is little likelihood of him re-offending.

7.  I have been referred to various letters which speak as to the defendant’s good qualities.  The defendant clearly has very strong family support, and then one need not say of course that his parents have been deeply hurt by his offence. 

8.  The defendant has been involved with the Society of Rehabilitation and Crime Prevention and has had sessions of psychological counselling.  In those sessions, he was described as being open and co-operative to the interviewer.  He was mentally stable, had no psychotic symptoms and showed strong motivation to come for psychological counselling, and he went into some details to the nature of his sexual problem.  There were a total of three counselling sessions when this problem was examined, and the recommendation by the clinical psychologist was that the defendant receive further psychological assessment and counselling.

9.  Now, I also, because of the nature of these offences, obtained reports on the defendant: a psychiatric report and a psychological report.  Now, the conclusion of the psychiatric report was that the defendant’s psychiatric condition is stable, and no psychiatric intervention was required.  The psychiatric investigation identified the defendant’s problems as being psychological in their nature, and it is recommended that he receive psychological intervention. 

10.  I obtained a psychologist’s report at the same time which sets out in quite some detail the defendant’s background.  The defendant was given a thorough examination.  The defendant was described as being clear-minded and fully orientated during his interview.  He describes his personal history.  He has been born locally, the elder of two siblings.  He identified him as being what may be described as a below‑average academic performer which led him to become somewhat socially isolated.  He attended high school in Canada, enjoyed his life there, then returned to Hong Kong and took a full-time course of Chinese cuisine training for a year.  The defendant has done well at the training institute and has joined the workforce as a chef, generally described as being happy with his jobs.

11.  He described about three years ago becoming the manager of snooker clubs, which is work he enjoys despite having long working hours.

12.  The defendant also has a religious affiliation, a Christian and attends church gatherings. 

13.  The report goes into the defendant’s psychosexual history which is relevant to the conclusions reached by the psychologist, and it also described the defendant developing an interest in peeping at other young men when they were urinating, a kind of obsessive behaviour that has manifested itself in the present offences.

14.  The clinical impression of the defendant was that he had low self-esteem, had a tendency to conceal or minimise his problems.  He was described as being defensive in respect of the disclosure of his psychosexual history.  The defendant was described by the psychologist as suffering from what he described as the likelihood of sexual preoccupation and that he exhibited a sexual interest in adolescent boys and girls as young as 12 years old, and described the defendant as having a sexual interest in adolescents.  

15.  This was expanded upon.  It said Mr Tsui impresses to show sexual interest in children and adolescents aged about 12 to 18.  The indexed offences are manifestations of such interest.  The relevance of these cases is that his request of making a video of the victim’s urinating process suggests that his sexual interest has intensified and escalated from mere fantasy and the use of child pornography.  Considering the results of various risk assessment tools, the risk of sexual re‑offending is estimated to be within the range of moderate to high.  The major risk factors include relatively young age, history of sexual offending against a stranger victim, sexual preoccupation, deviant sexual interest and inadequate intimacy skills. 

16.  It does identify what he describes as a positive note that Mr Tsui has limited insight into his problems and tends to downplay their -- that although he has limited insight into his problems and tends to downplay their severity, he shows motivation to tackle his problems and shows remorse for his offences as well.  The recommendation is for psychological intervention focusing on management of his sexual interest and preoccupations, and it says that he will need to better understand the development of his sexual interest, and he will be therefore able to benefit from the psychological intervention.

17.  Now, this case has certain uniqueness in that the defendant’s interest in child pornography has been identified as going beyond the area of fantasy into the area of action, and the indecent assault itself shows some of the defendant’s problems of sexual deviancy in that the victim was of a young age, was a stranger, and the nature of the request to the victim and the assault on the victim showed both a deviant sexual interest and a sexual preoccupation.  And those are factors that I will have to take into account when I consider the appropriate level of sentencing for the defendant and the way in which the various or the way in which the tariff which has been set down for these offences, particularly the child-pornography offence, should operate in a case of this nature.

18.  First, as far as the indecent assault is concerned, it is common ground there is no actual tariff on this.  Offences are so varied in their factual background that of course a tariff is almost impossible to set.  The aggravating factors in that assault are the age of the victim, the involvement of sexual deviancy in the prosecution of the offence itself, and the fact that this was a stranger.  

19.  As far as the possession of child pornography is concerned, I have already dealt with the numbers of images and videos in the case, and that is one of the factors that was identified as being one of the considerations that should be taken into account.  The images themselves, some of them are at level 4.  Now, the images themselves appear to have been for the defendant’s personal use.  There is no question of distribution or anything like that.  The images are or appear to be of real children, and the ages described being between the range of 5 and 15 years old, and the number of images I have already given: some, a dozen at level 4 in terms of photographs, and some of the videos involving activity at level 4.

20.  The starting point for sentence where there are level‑4 photographs is between 12 and 36 months.  Of course, level‑4 cases merit the most serious treatment.  The range of custodial sentence should generally be from 12 months even for a few images to 36 months. 

21.  Now, all that sort of these photographs can warrant a sentence of imprisonment, so I have to look at the totality of the images possessed in each case.  Clearly, in the case of Man Kwong Choi, in one of the cases, there was a large number of images where a starting-point sentence of 3 years was adopted.  In the other case under consideration in that appeal where again there were more images than there are in this case, a starting point of 2 years’ imprisonment was adopted.

22.  As I have said, in this case, there is somewhat of a problem of me approaching the sentences in the cases separately although one of course should do so in that in this case, there is an overlap between fantasy and action, and the possession of the pornography has in some way assisted or empowered the defendant into committing the offence against this young person. 

23.  Now, I have broadly set out the factors which I will take into consideration in sentencing in respect of both offences.  I will of course necessarily take into account the defendant’s clear record, his previous, I think, quite a good record in terms of his employment history, etc., his evident remorse and his clear desire to receive psychological counselling and intervention.  These are important factors and, clearly, it is clearly understood the defendant will be in a position to receive that form of intervention when he serves a term of imprisonment, and the defendant is clearly aware that a term of imprisonment must be served and was aware of that when he entered the plea of guilty.  So the defendant has had, to a certain extent, the courage to own up to his problems, and that must be acknowledged.

24.  Now, turning to the starting point for sentences, the defendant will receive of course the usual one-third discount for his plea of guilty.  In view of firstly the indecent assault of the defendant, as I have said, this involves an offence on a 13‑year-old boy, which clearly was traumatic for him, and he was surrounded with an aura of sexual deviancy in the requests that were made to the child.  It is a serious offence given the young age of the child and the nature of what happened. 

25.  I will take a starting point for sentence of 15 months’ imprisonment and reduce that to 10 months’ imprisonment for the defendant’s plea of guilty. 

26.  In respect of the second offence where a starting point of between 12 and 36 months can be adopted, taking into account the number of images, which is a good number although not on quite the scale where the starting point of 3 years has been adopted, I have decided to adopt a starting point of 21 months’ imprisonment on the 2nd charge which I reduce to 14 months’ imprisonment for the defendant’s plea of guilty.

27.  Now, I have to consider the overall totality of sentence.  As I said, the offences are related, but the offences are separate in the sense of separate in time and separate in culpability.  And having regard to all the factors that I have outlined in respect of this case, I consider that the sentences should appropriately be served consecutively.  This will lead to a total overall sentence of 24 months’ imprisonment which can also be expressed as 2 years’ imprisonment, and that is the sentence I will impose.