HKSAR v. TSOI SHING CHEONG

HCCC 208/2019

[2019] HKCFI 2504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 208 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant, Tsoi Shing-cheong, pleaded guilty to the following four charges before a magistrate: first, criminal intimidation, contrary to section 24(a)(ii) of the Crimes Ordinance, Chapter 200; and 2nd and 3rd charges are unlawful sexual intercourse with a girl under the age of 13, contrary to section 123 of Cap 200; and the 4th charge is possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Chapter 579. The defendant was committed to the Court of First Instance of the High Court for sentence.

Summary of Facts

The admitted facts disclose that the defendant befriended the victim, I will call her X, a 12-year-old girl, in mid-November 2017 via social media. He told X he was 15 when he was in fact 26 at the time. He started grooming the girl by suggesting to have intimate acts and sexual intercourse with her.

On or about 21 November 2017, that is shortly after he befriended X, the defendant asked X to send him a photo showing her private parts. X said she was busy and asked the defendant to send her a photo showing his private parts, which the defendant did via WhatsApp. X deleted the photo after viewing it. The defendant kept urging X to send him a photo. X sent a photo showing her private parts to the defendant. The defendant asked X to send him another photo. Feeling annoyed, X blocked the defendant from WhatsApp and Facebook, which was actually suggested by the defendant. However, shortly afterwards, X unblocked the defendant and they continued chatting.

On 1 December 2017, the defendant kept texting X, so X blocked him again. The defendant then sent a fresh friend request to X on Facebook which X accepted, thinking he might have something to tell her. The defendant told her that she needed to be careful as he might post her photo. X asked the defendant not to post the photograph of her private parts online. The defendant then suggested they should have sexual intercourse.

The defendant asked X whether he could have unprotected sex with her. X refused, telling the defendant that he must wear a condom. At first, X asked the defendant to have the sexual intercourse postponed until after her examination. The defendant agreed but told X that they would have to have sexual intercourse a few more times. X decided to meet up with the defendant. Upon seeing the defendant, X noted that the defendant looked completely different from his profile photograph on Facebook.

The defendant took X to his home and he had sexual intercourse with her in his bedroom using a condom. X went to sit in the sitting room afterwards and played with her mobile phone. The defendant approached her again, touched her in her private parts and both of them went inside the bedroom again and sexual intercourse again took place. When X got home -- she told her mother what had happened -- sorry, I should add that the second sexual intercourse was also -- the defendant used a condom. When X got home, she told her mother what had happened and a report was made to the police.

The defendant was arrested on 2 December. Under caution, the defendant denied having sexual intercourse with X, saying that he only fingered X’s private parts. The defendant maintained the same version during a video‑recorded interview. The defendant admitted that he had suggested to X to exchange nude photographs. The defendant claimed that since X had called him a pervert, he then told her he might as well post their conversation and photograph online for people to judge if he was a pervert or not. It was not his intention to post nude photographs online. The defendant said he did not keep X’s nude photograph. The defendant also claimed that he did not know X’s age.

Forensic examination on the defendant’s mobile phone resulted in a photograph of X’s private parts being found. Also, the browsing history of the defendant’s mobile phone and tablet, entries relating to having sexual intercourse with 12‑year‑old girls were found. The defendant’s semen was found on X’s underpants.

The defendant admitted he threatened X with injury to her reputation, namely by making a threat of posting the photograph of her private parts online with intent to cause her to do an act which she was not legally bound to do, namely to have sexual intercourse with him. That is the 1st count.

The defendant admitted he had sexual intercourse with X twice on 1 December 2017, knowing that she was 12 years old at the time. That is the 2nd and the 3rd count.

The defendant also admitted that he had the photograph of X’s private part retained in his mobile phone. That is the 4th count. Those were the admitted facts.

Impact on the victim, X

I was provided a victim’s impact report by Ms Siu, a clinical psychologist. I will just recap her conclusion here. X manifested symptoms of post-traumatic stress disorder, including intrusive recollection of her traumatic experience, nightmares and avoidance. She harboured feelings of anger, fear, shame, and self-blame and became paranoid. There is a need for psychological treatment.

Background and mitigation

According to the antecedent statement, the defendant is now 28 years of age. He was educated up to Form 3 and had worked as a cook. He had two previous convictions of theft and was fined on each occasion. He has a father and two elder sisters.

Mr Bernard Chung, mitigating on behalf of the defendant, gave me more information about the defendant’s background. I was informed that the defendant’s mother died before the defendant came from the Mainland to Hong Kong at the age of five. He then found out his father already had a family and he had two half-sisters who were older than him. He lived with his father and the family.

I was informed that the defendant’s stepmother gave the defendant a severe beating resulting in his left eye being blinded, which made the defendant very self-conscious. The defendant was sent back to the Mainland to stay with his maternal grandmother. He could not stand the life there and returned to Hong Kong to stay with his paternal grandfather, at the age of 14. He then left home and lived on his own, supporting himself by working in a café.

Mr Chung submitted that the defendant already had a girlfriend five years younger than him at the time of the offence. He was curious about having sex with a young girl and committed the present offences. The defendant wore glasses to hide his left eye in the profile photo on Facebook. Hence, he looked different to X when X met him. Defendant claimed not to be a paedophile and is very remorseful of what he had done.

I called for a psychologist’s report to see if the defendant is a paedophile and to assess his risk of reoffending. Now, according to Ms Chung, the clinical psychologist who has prepared the report on the defendant, the defendant and the defendant’s father gave contrasting descriptions of the defendant’s childhood and background. According to the defendant’s father, the defendant was adopted in the Mainland because the father had two daughters and had no son. The defendant exhibited behavioural problems since he was young: running away from home, stealing money, etc. The family did not abandon the defendant by taking him back to the Mainland but had sent him there to be cared for by relatives when his parents could not look after him due to work.

Bearing in mind that the defendant had made very serious allegations against his stepmother, it is understandable why his version is very different from his father’s. For the purpose of sentencing, I am prepared to accept the defendant’s version of the event. However, and more importantly, the account given by the defendant to Ms Chung as to the circumstances of the present offences was markedly different from the admitted facts. The defendant claimed it was X who had initiated a conversation on sex and he only asked X for a photograph of her without specifying any part of the body. The defendant is therefore denying that he was sexually grooming X and had asked X to provide a photo of her private parts.

The defendant told Ms Chung that it was X who had later accused him of forcing her to send a photo of her private parts and he then threatened to post their conversation online if she did not have sex with him. He said he did not mention about posting X’s photo online. He claimed it was X who had asked to meet him and he also insisted that it was X who had initiated the sexual intercourse with him. He claimed he had sex with her once, not twice.

I will reiterate here what the defendant had admitted before the magistrate and reconfirmed before me:

“The defendant admitted he threatened X with injury to her reputation, namely by making a threat of posting the photograph of her private parts online, with intent to cause her to do an act which she was not legally bound to do, namely to have sexual intercourse with him. That is the 1st count. The defendant admitted he had sexual intercourse with X twice on 1 December 2017, knowing she was 12 years old at the time (the 2nd and 3rd count). The defendant also admitted that he had the photograph of X’s private parts retained in his mobile phone (the 4th count).”

These facts were clearly explained to the defendant twice and he confirmed clearly twice and he admitted to them. I am not prepared to accept what the defendant had told Ms Chung which are contrary to the admitted facts. The defendant was clearly downplaying his role and culpability in these offences when he spoke with Ms Chung.

First of all, some of the conclusions made by Ms Chung after assessment were as follows: personality-wise, the defendant was self-centred, unreliable, deceitful, irresponsible, impulsive and manipulative. He was assessed to have antisocial personality disorder. He exploited the young victim to gratify his sexual needs and he minimized the offences. He blamed X for his misdeeds. He lacked remorse and victim empathy. The possibility that the defendant had paedophile tendency cannot be ruled out at the present juncture. Given the defendant’s age, criminal history, psychological profile, victim characteristics, sexual preoccupation, distorted sexual beliefs and the nature of the present offences, his risk of reoffending was assessed to be high. Psychological treatment targeting at his antisocial personality disorder, sexual preoccupation and prevention of future reoffending is highly recommended.

Today, in mitigation, Mr Chung submitted that on his instructions the defendant did not mean to be saying that he only had sex once with the victim. It was claimed that somehow the psychologist had misunderstood the defendant. Be that as it may, I am of the view that the defendant was trying to downplay his role when he was being interviewed by the clinical psychologist.

Sentence and consideration

I will deal with the two counts of unlawful sexual intercourse with a girl under the age of 13 first. A person convicted of this offence on indictment is liable to life imprisonment. When this offence is contrasted with one of unlawful sexual intercourse with a girl under 16 but over 13, which calls for a sentence of 5 years upon conviction on indictment, one can see how serious the offence of having unlawful sexual intercourse with a girl under 13 is viewed.

This case is particularly serious in that the defendant knew full well that X, the victim, was only 12. He started grooming her via social chats and social media and eventually enticed her to send over a nude photo of her showing her private parts. He then threatened X with the posting of that nude photo online with the intent of causing X to have sexual intercourse with him. He succeeded and had sexual intercourse with X at his home twice on the same day. His despicable and selfish acts caused psychological damage to X described by the clinical psychologist in her report. A strong message needs to be sent out to the public that one must not exploit the young and have sexual intercourse with them. Our society needs to protect these young people, particularly when someone is under 13 years of age.

I have been referred to the case of Secretary for Justice v Chung Yui Hung in which the Court of Appeal considered the appropriate starting point for the offence of having unlawful sexual intercourse with a girl under 13. In that case, a teacher groomed a 12-year-old for sex through internet chat-line and when she turned up at his home upon his invitation, he pushed her onto the sofa and had unprotected sexual intercourse with her.

After his arrest, six images of another young girl’s genitalia were found on the hard disk of his computer. The defendant met that young girl through an internet chat-line and he had engaged in dialogue containing explicit sexual overtone with her. The trial judge adopted 2 years as the starting point for the unlawful-sexual-intercourse count and 6 months for the possession of child pornography. The defendant was given a total of 20 months’ imprisonment. That is 16 months for the unlawful-sexual-intercourse count and 4 months for the possession count, both to run consecutively.

Upon an application for review, the Court of Appeal held that the facts on the unlawful-sexual-intercourse count revealed a particularly grave offence. The sentence imposed on the defendant needed to contain a deterrent element. Even for a first offender, a long sentence is called for where the circumstances justify it. In that case, the Court of Appeal held that a proper starting point was 5 years, thus reversing the lower court’s 2-year starting point. Giving the defendant credit for his plea, the sentence became 3 years and 4 months. The sentence on the possession of child pornography charge remained unchanged and to run consecutively to the unlawful-sexual-intercourse count, so the total sentence became 3 years and 8 months.

Now, whilst one cannot simply compare the facts in Chung Yui Hung with the facts of this case, there are certain similarities and differences. Both defendants groomed young girls, 12, for sex. Chung had unprotected sex once with the victim while the defendant here had protected sex twice with X. Chung’s act of pushing the girl onto the sofa and had unprotected sex with her was described as one extremely close to the borderline with rape. In the present case, the defendant threatened X with the posting of the photograph showing her private parts online in order to get her to have sexual intercourse with him twice, which makes the present offence extremely serious.

Having considered all the circumstances of this case, the impact on the victim X and the high risk of the defendant reoffending, I am of the view that a starting point of 6 years is appropriate for the two counts, that is Counts 2 and 3, bearing in mind the second sexual intercourse occurred on the same day and followed closely to the first one.

For the criminal intimidation offence, a person convicted of this offence on indictment is liable to 5 years’ imprisonment. The defendant threatened X, a young girl, with the posting of a photograph he has somehow enticed her to send over to him, showing her private parts. But for the threat, X would not have met up with defendant and had sexual intercourse with him. I am of the view that a starting point of 2 years is appropriate for this offence.

For the offence of possession of child pornography, a person convicted of this offence on indictment is liable to a fine of $1 million and 5 years’ imprisonment. Now, in the case of the Secretary for Justice v Man Kwong Choi, the Court of Appeal laid down sentencing guidelines for such an offence and this case involved one photograph depicting the private parts of X which falls under level 1 of that case, that is “image or images depicting erotic posting with no sexual activities”. As for the appropriate sentence, it was said that where the number was small, a Community Service Order, probation or a fine is appropriate.

Now, bearing in mind the defendant will be sentenced to a term of imprisonment for the other offences, Community Service Order or probation would not be appropriate sentencing option. Although Mr Bernard Chung urged me to impose a concurrent sentence for this offence, submitting that defendant used that photograph to get X to have sexual intercourse with him, bearing in mind the defendant was still keeping that photograph on his mobile phone when he was arrested by the police, I am of the view that a fine of $1,000 is more appropriate than passing a concurrent sentence for this offence.

The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. I do not see any other grounds to further reduce the sentence. So with the one-third discount, the sentence for Counts 1, 2, 3 are as follows: Count 1: 16 months; Count 2: 4 years; Count 3: 4 years.

Now, I have to consider the totality. The actual criminal intimidation was not part and parcel of the unlawful-sexual-intercourse count although the defendant was using the threat to get X to have sexual intercourse with him and which I have already taken into account when deciding on the appropriate sentence for the two unlawful-sexual-intercourse offences. So having considered all the circumstances and the totality principle, I am of the view that 6 months of that 16 months imposed on Count 1 should run consecutively to the 4 years imposed on Count 2 and 3 whilst the 4 years imposed respectively on 2 and 3, Counts 2 and 3, should run concurrently.

So the actual sentence: Count 1, 16 months; Count 2, 4 years; Count 3, 4 years. I order the sentence imposed on Counts 2 and 3 to run concurrently whereas 6 months of the 16 months imposed on Count 1 is to run consecutively to the concurrent sentence of 4 years imposed on Counts 2 and 3, making a total of 4 years and 6 months’ imprisonment.