HKSAR v. KWAN CHUNG LEE

DCCC800/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 800 OF 2011

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to three offences of indecent assault and denied one other offence of indecent assault, each of these being contrary to section 122(1) of the Crimes Ordinance, Cap.200. You pleaded guilty also to a single offence of possession of child pornography whilst denying one offence of making child pornography, contrary to sections 3(3) and 3(1) respectively of the Prevention of Child Pornography Ordinance, Cap.579.

2.  In respect of the offences to which you have pleaded guilty you went on to admit the facts and I convicted you.  The two charges you denied were ordered to be left on file and not to be proceeded with without leave of this court or the Court of Appeal.

3.  The brief facts are as follows.  At all material times the victims, being X, Y, Z and A, were students aged respectively 12, 15, 13 and 13.

Indecent assault on Girl X

4.  On an unknown day in July 2010, Y received a call from one Ar Man who invited her to a photo shoot for rewards.  If she wore tight clothes she would get $50; if she wore tight clothes without underwear, $100; and $200 if nude but with a towel.

5.  She told girl X, who expressed an interest.  On a different day, X received a call inviting her to go for a shoot and explaining the different levels of reward.

6.  She met you, who took her to your home.  X chose the second level, wearing a one-piece dress without underwear.  During the photo shoot you approached her and used your left palm to fondle her inner thigh above her knee.  X said no and you immediately desisted and continued to photograph.  She then told Y what had occurred.

The indecent assault on A

7.  On 5 November 2010, Y asked X to take Z and A to your home on 6 November 2010.  This she did, around noon.  Y said she would arrive later. 

8.  A went into the room first and was alone with you.  She wanted to choose the first level but you persuaded her to accept the second.  You asked if you could touch her and she refused.  You then provided her with a purple dress which A wore without underwear. 

9.  You left the room but then returned and asked again if you could touch her, but A refused. 

10.  During the shoot you persuaded A to pose nude for level 3 rewards.  She complied.  She hold a posture on the bed and suddenly you grabbed her from behind by the hip.  She felt your hand move along her thigh and touch her private parts.  She immediately stopped you and you complied.  However, after a while you moved your hands to her breasts and pressed them for nearly 30 seconds.  You told her that her breasts were larger than those of X and you grabbed her right breast with your left hand.  You pushed it up.  A told you to stop, and you did so.

11.  You gave her $200 and she told X and Z what had occurred.

12.  Y then went into the room alone with you.  She opted for level 2 and wore a purple dress provided by you, without underwear.

13.  In the course of the shoot you indecently assaulted her by fondling her breasts for a while with your right hand.  You ignored her requests to stop and continued to stroke in a circular motion around her breast on top of her dress.

14.  You paid her $800.  The four girls then left.

15.  On 8 November the police were informed.  You were arrested at home.  A number of computer memory cards and hard drives suspected to contain child pornography were seized. 2,292 photographs suspected to be child pornography were found.  You remained silent under caution.

16.  Only two girls, those being A and B, depicted out of the 2,292 photographs could be identified.  A was shown the photos and identified herself.  39 photographs were of her of which 11 showed her breasts, private parts or buttocks.  B’s mother confirmed she was a girl in the photograph and she was under 16 at the time.  There were 394 photographs of B, 39 of which showed her breasts or private parts.

17.  CCTV of 6 November 2010 at your address shows a male who looks like you entering your flat with three girls at 12.55 and leaving with four girls at 1432 hours.

18.  You were formally identified by X, Y and A.

19.  You are a man of hitherto clear record.  In view of the nature of the offences and the particular facts I adjourned for a probation officer’s background report and a psychological report.  Those reports are now before me.  Mr Davies indicates that you accept the contents of those reports.

20.  On your behalf, Mr Davies has entered mitigation.  He submits that the reports were generally positive and that you very much regret these foolish acts which have led to the loss of your job and your reputation.  You had been publicly humiliated, which you accept as fair.  He asked me to view the possession of the photographs as being at the lowest end of the scale, being level 1, limited in number and not depicting actual sexual activity.

21.  The more explicit photographs were of girl A and you believed girl B to be over 16; indeed, she had produced an ID card which you believed belonged to someone else.

22.  He said that the number of photographs was not huge and that there were a vast number of photographs but only a small proportion were pornographic.  He estimated that percentage at somewhere in the region of 2 per cent. 

23.  He conceded very fairly the indecent assaults were more serious although not premeditated and that you had desisted on each occasion when requested to do so.  Basically what happened was girl X had been subjected to a touch on the thigh and you desisted when she required you to do so.  Girl A had been touched on the private parts, but again you desisted when requested to do so; girl Y was touched on the breast but over a dress.

24.  Mr Davies submitted that you were generally a good man in other respects.  You are 55 years of age and you have a serious interest in photography.  From the reports it was said you were unlikely to re-offend.

25.  There is also produced letters of support from your family and friends, including your ex-wife.  I have read those letters.  Generally, they speak well of you.

26.  He also referred me to the case of Secretary for Justice v Man Kwong Choi, CAAR 8 and 9/2007 and referred me to the sentencing guidelines contained therein.

27.  He asked me to sentence you in such a way as to allow your immediate release given that you have suffered seven months on remand and you were now remorseful.

28.  I turn now to the sentence.

29.  In my opinion, these are serious offences involving indecent assaults on girls of 12, 15 and 13 in situations engineered and manipulated by yourself whereby they were lured to your premises to pose inappropriately for cash rewards.  This cannot, in my opinion, be explained in terms of a genuine interest in photography. 

30.  You are a mature man of 55, a professional, yourself the father of daughters.  This makes it even more shocking and surprising, in my opinion.  You knew full well that what you did was very wicked, it was wicked in the extreme.

31.  The psychologist’s report, which I accept, designates you as being unlikely to re-offend and not a paedophile, points out that your attitude to sex is inappropriate, and you have a tendency to minimise and excuse yourself for your acts.  It is felt that psychological intervention is necessary.

32.  There are for sure mitigating factors in that these acts themselves were not of the worst, there was no element of force, but there was certainly a very high degree of persuasion of the girls to go further than they wished to in the photo shoots.  I accept that you did desist your acts when asked to do so.

33.  Nonetheless, a mature person who takes advantage of children for their own gratification can expect and will receive condign punishment from the courts of Hong Kong.  This punishment of course must be in proportion to the actual crimes and acts that they have committed.

34.  I do accept that the photographs were at level 1 and they were not the worst either as to their content nor in terms of their number.  Although we have to take account of the circumstances, the age of the girls, and there were 50 photographs involved in this case also.  In my opinion, a prison sentence is justified for that offence.

35.  In respect of the three indecent assaults, the assault on A was by far the worst, in my opinion.  This involved three separate sexual acts.  The other two girls assaulted, one was 12 and one was 15, the acts themselves were not as serious.

36.  My approach has been to look at the overall situation and to view this as a course of conduct to decide what is the level of sentence that should be imposed, imposing individual sentences on each offence.  These will be served concurrently to arrive at the overall sentence.

37.  On Charge 1, I take as a starting point 2 years’ imprisonment reduced to 16 months; Charge 2, which I view as the most serious offence, I take a starting point of 3 years, reduced to 2 years; Charge 4, 18 months, reduced to 12 months for your plea of guilty; and Charge 6, 6 months, reduced to 4 months for your plea of guilty.  All will be served concurrently.  You will go to prison for 2 years.