HKSAR v. LEE TAK FAI

 DCCC455/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 455 OF 2010

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Reasons for Sentence

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1.  The defendant faced a total of 8 charges, which are the following: 1st, 2nd and 3rd charges, indecent assault committed on Boy X; 4th and 5th charges, indecent assault committed on Boy Y; 6th and 7th charges, indecent assault committed on Boy Z; 8th charge, possession of child pornography.

2.  The indecent assault charges are contrary to section 122(1) of the Crimes Ordinance, Cap.200, whereas the child pornography charge is contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap.579.

3.  On 8 July 2010, the defendant pleaded guilty before me to five of the above charges. They are the 1st, 2nd, 4th, 6th and 8th charges.

4.  He pleaded not guilty to the remaining three charges, which are the 3rd, 5th and 7th charges.

5.  Upon the defendant admitting the Summary of Facts, the prosecution asked for these three charges to be left on the court file and not to be proceeded with without the leave of the court. These charges were so dealt with.

6.  The Summary of Facts, which the defendant admitted, revealed these: through internet chat rooms, the defendant came to know Boys X, Y and Z, aged between 13 and 15. The defendant asked them to have sex with him and promised a monetary reward.

7.  Eventually between 2008 and 2009 the defendant met up with these boys and indecently assaulted them, which gave rise to the charges to which he pleaded guilty.

8.  Rewards ranging between HK$500 and HK$3,000 were given to the boys after each transaction.

1st Charge

9.  In the end of November 2009, Boy X, who was born on 4 May 1996 and was aged 13 years at that time, came to know the defendant through an internet chat room. The defendant asked Boy X for sex and promised him a monetary reward.

10.  Subsequently, the two met up on 22 December 2009. Inside a male public toilet in a shopping centre in Shamshuipo, the defendant and Boy X had intimate acts including oral sex and masturbation. Afterwards, Boy X was given HK$3,000 as a reward.

2nd Charge

11.  Less than a week later, on 28 December 2009, the defendant took Boy X to his home. Again, oral sex and masturbation took place. The defendant ejaculated. Boy X was given a reward, and this time, it was HK$2,100.

4th Charge

12.  The 4th charge, involving Boy Y, happened in this way. Boy Y was born on 17 February 1995. He came to know the defendant through an internet chat room. The defendant asked if he wanted to play sex. Boy Y initially refused and closed his internet account. However, in about November/December 2009, the defendant chatted up Boy Y on the internet again and asked if he wanted sex. Since Boy Y was in need of money, he agreed to have sex with the defendant.

13.  Around Christmas Day in 2009, the defendant took Boy Y to his home. They engaged in various sexual acts, and Boy Y felt a digital object inserted into his anus. Boy Y also masturbated for the defendant until he ejaculated. Boy Y was aged 14 at that time. Afterwards, Boy Y was given HK$1,000 as a reward.

6th Charge

14.  The events in respect of the 6th charge are as follows: boy Z was born 10 April 1994. During the summer of 2008, he came to know the defendant through an internet chat room. Not long after, the defendant proposed to have sex with him and promised him a monetary reward. Therefore, one day after school, Boy Z went to meet the defendant in a male toilet in a shopping plaza in Ma Tau Wai. The defendant performed oral sex for Boy Z, and Boy Z ejaculated into the defendant’s mouth. The defendant also inserted his finger into the anus of Boy Z. Afterwards, the defendant gave Boy Z HK$500 as a reward.

8th Charge

15.  This is the possession of child pornography charge. It related to a video clip which was stored in the defendant’s computer. The video clip depicted the defendant engaging in sexual acts with Boy X and was taken with a hidden camera while the offence referred to in the 2nd charge took place.

16.  The defendant was arrested on 2 February 2010. Under caution the defendant said, “Sir, all the boys have given consent. I did not force them. We only have transactions. Only 4 to 5 teenage boys were involved.”

17.  Later, the defendant further admitted that he came to know a number of teenage boys via a homosexual internet chat room, and he targeted those between 14 and 19.

18.  Today, I have confirmed with the prosecution that, if not because of the defendant’s own confessions, the charges in relation to Boys Y and Z would not have been discovered.

19.  The defendant who is 40 years of age has a clear record. He is the youngest son of the family. He received university education in Canada. At the time of his arrest, he was a secondary school teacher, and he had been a teacher for over 10 years. He resigned after his arrest.

20.  The defendant is single, and was living alone prior to his arrest. It was said that the defendant discovered his sexual tendency about 10 years ago. Owing to work pressure, he started seeking out male partners through the internet for his sexual gratification.

21.  In mitigation, Mr Au, for the defendant, submitted to the court a bundle consisting of 30 letters written by the defendant himself, his family members, his students, his friends, his colleagues, and his pastors. Amongst those, there was one letter signed by 151 ex-students and friends of the defendant, and another letter signed by 17 of his fellow teachers and colleagues.

22.  Two principals also wrote to mitigate on the defendant’s behalf, saying that he was an outstanding, responsible and hardworking teacher.

23.  The impression one gets after reading these letters is that the defendant had a genuine interest in his teaching job. He was a very popular teacher and was well-respected by his students, his fellow teachers and his principals. It would appear that he truly loved his job and did not mind contributing his own time, energy and money to help the students.

24.  In the letters, there was a reference to the defendant, together with another teacher, renting private premises for his students so that they could have a better environment to study, and another reference to the defendant paying for the tutorial expenses of one of his students for one year.

25.  The students all described the defendant as a friendly, caring and responsible teacher who put his students’ welfare and interest in the first place, truly wanting to help them in their studies and careers.

26.  It was said that the defendant also undertook voluntary work in elderly homes, and took his students to do the same.

27.  Mr Au emphasised that the defendant is fully cooperative and is remorseful. He pleaded guilty in order to reduce the adverse impact on the victims. It was said that because of these offences, the defendant has lost his reputation, his job and has brought disgrace to himself. Mr Au therefore asked, on behalf of the defendant, for a lenient sentence to be imposed.

28.  After hearing the defendant’s mitigation, I adjourned sentence to today in order for various reports to be prepared on the defendant. These reports I now have. Before adjourning the sentence, I also asked for victim impact statements to be obtained. However, as one of the boys is unwilling to be assessed, and another one is out of Hong Kong, I now only have one such impact statement with me and that relates to Boy Y.

29.  In brief, it was stated that based on the existing information from the boy’s mother and the social worker who is following up on the boy, there is at present no indication of any psychopathology or negative impact on Boy Y as a result of the incident. However, I note that this comment was made by the clinical psychologist without the benefit of him actually interviewing Boy Y, as the boy had defaulted the two scheduled appointments.

30.  In the report, it was said that although the boy’s mother suggested that she did not notice any negative impact on the boy as a result of the incident, the mother-son relationship was worsened and became very tense since the incident was revealed, and that, when being scolded by his mother, the boy sometimes cried and said, “Don’t you understand, I am also under a lot of stress.”

31.  Therefore, on the information available, it may be too early to say affirmatively that the incident does not have any negative impact on Boy Y. In fact, as observed in the case of HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, by the Court of Appeal, the trauma, distress and psychological harm that are caused to young children and their families from this type of offence cannot be underestimated, and that in the vast majority of cases, such can be assumed.

The defendant’s own condition

32.  The clinical psychologist’s report revealed that as the defendant does not trust the adult homosexual circle, he developed his exclusive sexual interest in teenage boys as he considered them to be “fresher” and could be manipulated and controlled easily.

33.  The defendant is described as a passive, solitary and insecure person. The clinical psychologist compiling the report suspected that he may harbour a rather strong, emotional attachment and sexual interest in prepubescent males. The assessment is that the risk of the defendant re-offending, that is, committing offences of a similar nature to the current ones, is deemed moderate to high but that he could benefit from psychological service.

34.  Insofar as his psychiatric condition is concerned, it was reported that the defendant denied being a paedophile. He has no mood problem, psychotic illness or sexual preferences disorder, and no psychiatric treatment is required. The report referred to the defendant’s admission that he targeted the teenage group as he thought teenagers would need money more than the adult group.

35.  In the background report, it was said that the defendant has reflected on his acts and expressed remorse for having entered into monetary and sexual transactions with his victims, who might be psychologically affected by his acts.

The charges

36.  The offences which the defendant admitted are serious offences as they involved sexual molestation of children.

37.  Owing to their immaturity, naivety and lack of life experience, children would readily sucuumb to temptations and would easily fall prey to those who seek to engage them in sexual activities or to abuse them in other forms. Children are particularly vulnerable in the cyber world, as it would be difficult for parents to monitor their conduct while they got chatted up in the internet chat rooms by adults who have their own ulterior motives to serve.

38.  In this case, the defendant used the chat rooms as a means to get to his young victims. He was the one who, from the start, initiated or proposed to have sex with them, and he induced them with monetary rewards.

39.  When children and teenagers are confronted with such a situation, some may simply find the offer of money difficult to resist without realising that they themselves are being abused. For others, they may be foolish enough to regard this as a quick way to earn money without caring about or giving any serious thoughts to their own well-being and welfare. That is why children need to be protected, sometimes from their own immature and foolish behaviour.

40.  The case of Boy Y well illustrated this point. The facts reveal that he initially rejected the defendant’s request for sex and closed his internet account. However, as he was later in need of money, he finally met up with the defendant and had the transaction with him during which he was indecently assaulted.

41.  On the facts before me, the defendant admitted making the offer of payment when he chatted up with the boys on the internet. He then, after each encounter with his victim, handed over HK$500 to HK$3,000 to them. I regard the making of payments by the defendant as an aggravating factor for these sums were not insignificant amounts for the teenagers, and would no doubt corrupt them.

42.  As mentioned above, insofar as the 4th charge is concerned, it was for the money offered that Boy Y met up with the defendant and had the sexual act with him. In my view, the element of corruption is obvious.

43.  This kind of offence gives rise to great abhorrence amongst members of the public. The making use of the internet to get to vulnerable teenagers and to seek to exploit and take advantage of them in order to gratify one’s own sexual desires needs to be deterred.

44.  In SJ v Huang Long Wei [2009] 3 HKLRD 136, the Court of Appeal noted that there are three crucial considerations when determining the sentence in respect of the offence of indecent assault on young children by adults. Firstly, to deter others from committing similar offences; secondly, to show the abhorrence of members of the public; and thirdly, to redress the grievance suffered by the victim and his or her relatives and friends.

45.  It was also said that in dealing with this type of offence, the courts would have regard to the protection of children as the most important consideration.

46.  Regarding a defendant’s previous good character as a mitigation in an offence of this type, the Court of Appeal observed in the case of HKSAR v Wong Ying Ho [1999] 4 HKC 825, that the previous good character of an offender could only be of minor significance. In that case, a girl aged 8 was indecently assaulted by her attending doctor, who was said to have a previous unblemished record, and which offence was said to be completely out of character.

47.  Given that the protection of children is the most important consideration in determining the sentence for this type of offence, and that a deterrent sentence is called for, it is readily understandable why an offender’s previous good character could only be of minor significance.

48.  In the present case, while I accept that the defendant was a responsible teacher who was devoted to his job, and was well-respected by his students and those who worked with him, and while I can understand the shock and disbelief they had, as expressed in most of their letters to the court, and their plea for leniency on behalf of the defendant, I cannot lose sight of the fact that in committing these very grave offences, the defendant was exploiting and corrupting young people - young people who are like those of his students to whom it was said he had shown so much care and support in school.

49.  Further, it was submitted that credit should be given to the defendant as he had not indecently assaulted any of his students. I can deal with this quickly. If the defendant had committed such offences on his students, there would undoubtedly have been an element of a breach of trust, and that would have been a further aggravating factor. The fact that he had not indecently assaulted any of his students cannot, in itself, be turned into a mitigating factor and cannot detract from the fact that the present offences are serious sexual offences committed on children.

50.  Having considered the facts of this case, the defendant’s personal background and all the matters urged upon me in mitigation, the trauma and the likely adverse impact on the boys and their families, as well as the contents of the reports concerning the defendant, including the observation that the chance of his re-offending is deemed moderate to high, I am going to adopt the following starting points:

51.  For the 1st charge; a starting point of 30 months.

52.  For the 2nd charge; a starting point of 42 months, as the defendant had a video clip of this event kept in his storage. I have viewed the clip and I notice that the face of the boy was captured.

53.  In the case of Chow Yuen Fai mentioned above, the Chief Judge of the High Court, when giving the judgement, stated that:

“the trauma, distress, and psychological harm is considerably magnified if, as in the present case, a record (by way of photographs and videos) is taken of the sexual act or acts in question.  Both the victim, and his or her family, may well be haunted for many years with the knowledge that the act or acts in question, regarded both as embarrassing and shameful in the extreme, quite apart from being illegal, are somehow recorded and with the possibility that they may even surface when the victim reaches later life.  This feature we regard as a particularly serious one.”

54.  For the 4th charge, again I adopt a starting point of 42 months as it is clear from the facts that it all started with the defendant initiating to have sex with the boy and promising payment, and that the defendant did not stop after the boy closed his account but instead, raised the topic again when he later chatted up with the boy which then led to the offence.

55.  Moreover, the Summary of Facts revealed that in addition to masturbation, the boy felt a digital object inserted into his anus.

56.  For the 6th charge, a starting point of 30 months.

57.  For the 8th charge, the possession of child pornography charge, as one video clip of Level 3, that is non-penetrative sexual activity between adults and children, is involved, a starting point of 6 months is adopted following the guidelines laid down in SJ v Man Kwong Choi and Another [2008] 5 HKLRD 519.

58.  The defendant pleaded guilty to these charges. He will be given one-third reduction for his pleas.

59.  However, for Charges 4 and 6, if not because of the defendant’s own confessions, the offences would not have come to light. I am therefore going to give him credit for that in addition to the one-third reduction for his pleas.

60.  So, for Charge 1; 30 months reduced to 20 months.

61.  For Charge 2; 42 months reduced to 28 months.

62.  For Charge 4; 42 months reduced to 23 months.

63.  For Charge 6; 30 months reduced to 16 months.

64.  For Charge 8; 6 months reduced to 4 months.

65.  These offences are a series of sexual molestation offences committed on three different boys over a period of about 1 year with payments made to them. It happened once in 2008, and three times in December 2009. One of the boys was the victim of two offences.

66.  Against such a background with the defendant repeatedly committing the offences and bearing in mind that the protection of children is of paramount importance in considering the sentence for this type of offence, I do not consider his previous good character to be of much assistance in mitigation other than that I am prepared to give him a reduction of 2 months, which will be reflected in the overall sentence passed for these offences.

67.  Having in mind a 2-month reduction for his previous good character as stated above, and having considered the totality principle, I order that 12 months of the term for Charge 2 is to run consecutively to that for Charge 1; and 6 months of the term for Charge 4 is to run consecutively to those for Charges 1 and 2; and 6 months of the term for Charge 6 is to run consecutively to those for Charges 1, 2 and 4.

68.  Lastly, the 4-month term in respect of Charge 8 is to run wholly concurrently with those for Charges 1, 2, 4 and 6 as there was a certain overlap of this offence with that of Charge 2, and that the keeping of the video-clip has already been taken into account by me when considering the sentence for Charge 2.

69.  The defendant is therefore to serve a total term of 44 months’ imprisonment.