The defendant pleaded guilty to two charges of homosexual buggery with a man under 16 (Charges 1 and 2) and one charge of publishing child pornography (Charge 3) in the Eastern Magistrates’ Courts and was committed to this Court for sentence.
The buggery charges are contrary to section 118C of the Crimes Ordinance, Chapter 200, whereas the child pornography charge is contrary to section 3(2) of the Prevention of Child Pornography Ordinance, Chapter 579.
I should state at the outset that although, in our statute book, section 118C of the Crimes Ordinance still stipulates that the offence of “homosexual buggery with a man under 16” carries with it the penalty of life imprisonment, the maximum penalty of life imprisonment, in the case of HKSAR v Yeung Ho Nam [2020] 1 HKLRD 91, the Court of Appeal confirmed at paragraph 55 of the judgment that:
“...the proper sentencing approach for an offence against section 118C should be the same as for unlawful heterosexual intercourse. Constitutional principle requires the courts to view the offences in a gender neutral way. Cases which do not view the offence in this way and which assume a maximum sentence of life imprisonment no longer have relevance on the question of an appropriate starting point.”
Thus, in considering the appropriate starting points for Charges 1 and 2 in this case, I take 5 years, which is the maximum penalty for an offence of unlawful sexual intercourse with a girl under 16, pursuant to section 124 of the Crimes Ordinance, to be the applicable maximum sentence as approved in the case of Yeung.
Coming back to the history of this case, on 8 May 2020, the defendant appeared before me. Having confirmed with him that he had voluntarily entered the guilty pleas to the charges and that he admitted the Summary of Facts, I convicted the defendant of all three charges. However, as I considered that I would be assisted in this sentencing exercise with the provision of a psychological report on the defendant and an up-dated victim impact report, I adjourned sentence to today pending the preparation of the reports which are now before me.
The Facts Admitted
The Summary of Facts, which the defendant admitted, revealed these: PW1, the boy X as he was so referred to in the facts, was born in 2004. He was 14 years old at the times of the offences and was studying Form 2. The defendant was then aged 31 and was living alone. The defendant was, at the time, the owner of an Instagram account “M2M Massage” which means male-to-male massage. In late July 2018, X started to have conversations with the defendant online during which the defendant asked about X’s age and whether X would like to have a massage to which X replied that he was 14. The defendant then offered to provide massage service to X for free. X agreed.
On 29 July 2018, the defendant met up with X and brought X to his premises. Right after entry, the defendant hugged and kissed X. As instructed by the defendant, X removed all his clothes and went for a shower. When X was taking a shower, the defendant inserted his finger into X’s anus. Later, the defendant, while standing behind X, inserted his erected penis into X’s anus and masturbated X’s penis. X tried to stay away but the defendant forcibly put his penis back into X’s anus. After penetrating X for about five to 10 minutes, the defendant pulled his penis out and they left the toilet.
Then the defendant asked X to lay prone on the sofa for a massage which X did. The defendant also put a sleeping eye mask on X. After massaging X for about 15 to 20 minutes, the defendant inserted his finger into X’s anus and later when X turned around, the defendant inserted his penis into X’s anus again. X felt great pain. About five to 10 minutes later, the defendant ejaculated inside X’s anus. The defendant then performed oral sex for X and masturbated him until X ejaculated. X later disclosed that he knew he would have anal sex with the defendant before going to his premises but the defendant had promised to use a condom which the defendant never did.
The above is the subject of Charge 1.
After this first incident, X kept in touch with the defendant. On 27 August 2018, X again went to the defendant’s premises. When they were taking a shower together, the defendant inserted his penis into X’s anus. X felt great pain and took the defendant’s penis out of his anus. However, the defendant pushed X towards the basin, held X’s hands and then inserted his penis back into X’s anus. After penetrating for about five to 10 minutes, the defendant pulled it out and both of them went to the living room. Again, the defendant put a sleeping eye mask on X and started to massage him. After a while, the defendant masturbated for X, inserted his finger and then his penis into X’s anus. No condom was used. Afterwards, X performed oral sex for the defendant for about 10 to 15 minutes and the defendant later ejaculated on X’s belly. The defendant then masturbated for X until X ejaculated.
This is the subject of Charge 2.
Further, the defendant admitted that during both incidents, without X’s knowledge, he used his mobile phone to secretly photograph and film X’s naked body, private parts and their sexual acts, including penetrative activity.
A friend of X subsequently informed X that some of X’s naked photos with some depicting sexual activity were posted on a social media platform. X confronted the defendant online and the defendant later deleted all the photos of X which he had uploaded to the platform.
On 26 September 2018, X’s father checked X’s mobile phone and X disclosed that he had had anal sex with the defendant. The case was then reported to the police which led to the arrest of the defendant on 4 October 2018.
During the defendant’s video-recorded interviews conducted at the police station, he admitted having knowledge of X’s age and that he had sexual activity with X on the two occasions mentioned, including inserting his penis into X’s anus.
The defendant further disclosed that he was tested HIV-positive in early 2017 and had to attend regular medical appointments. The defendant told the police he knew that HIV might be transmitted via anal sex but he said his condition was under control.
As to X’s photos, the defendant admitted having uploaded 10 photos depicting X’s private parts and the anal sex he had with X on a social media platform on the internet. I have viewed the photos and the videos seized and although it could not be said with precision which 10 were the photos the defendant uploaded to the internet, Mr Leung accepts that some depicted penetrative activity on X. This is also the admission the defendant made as stated above.
This is the subject of Charge 3.
The Defendant’s Background, Mitigation and the Psychological Report
The defendant is now aged 33 and is single. He was born and educated up to Form 7 in Hong Kong. Prior to the present offences, he worked as a tutor in a private institution, earning about HK$14,000 per month. The defendant has got a total of eight criminal convictions previously, including theft and using and possessing a false instrument. For these offences, he was given, in 2010 and 2011, a community service order and terms of imprisonment of between 16 and 20 months.
Mr Leung for the defendant told the court that the defendant’s parents divorced when he was around one year old. The defendant was brought up by his grandparents and his parents did not care about him. According to the defendant, he changed his name to the present one because he did not want to have any association with his parents. At the age of 19, the defendant moved to live by himself.
In mitigation, while accepting that there is an age difference of 17 years between the defendant and X, Mr Leung stressed that the defendant is remorseful and fully co‑operative. Mr Leung also put emphasis on the absence of aggravating factors like grooming, breach of trust or abuse over a protracted period of time. In respect of the defendant’s HIV and his history of syphilis since 2007, Mr Leung prayed in aid the examination conducted on X in which X was not found to have been infected with HIV or any sexually transmitted disease nor did X sustain any observable injury or abnormality to his anus or anal canal as a result of the anal intercourse by the defendant.
Insofar as Charge 3 is concerned, Mr Leung pointed to the defendant’s mistaken belief that the identity of X would not be disclosed since X was wearing a mask and was anonymous. Finally a letter written by the defendant was put before me in which he expressed his remorse and his determination not to re-offend.
Let me now turn to the psychological report on the defendant. The defendant admitted to the psychologist that he was sexually attracted by X and wanted to experience having sex with young males. The defendant further told the psychologist that he enjoyed the feeling of conquest brought about by X’s compliance with his sexual advances. In respect of the absence of protective gear, the defendant disclosed that although X had requested him to use a condom, he did not do so as he yearned for the sexual excitement brought about by unprotected sex. While admitting that he had never had sex with underage males until the present offences, the defendant denied any sexual interest towards pubescent boys. As to the uploading of the photos, the defendant said he did so with the intention to share his sexual experience with other viewers and to gain their recognition regarding his sexual appeal, adding that he believed such would increase his popularity and opportunities to meet potential sexual partners.
While no psychopathology or deviant sexual interest was evident in the assessment carried out by the psychologist, it was observed that the defendant is self-centred, manipulative, lonely and self-indulgent. As regards the present offences, the defendant perceived himself to have played a passive role, subtly blaming X for initiating the meetings. It was reported that the defendant regarded X as an easy and convenient target.
In short, it was the opinion of the psychologist that the defendant minimized and rationalized the offences and displayed inadequate victim empathy with only superficial insight into his problems. Overall, his risk of sexual re-offending was assessed to be at the high end of the moderate range. Psychological treatment targeting at his sex attitude and the prevention of re-offending is recommended.
X’s Victim Impact Report
X and his mother were interviewed jointly and individually in the preparation of this up-dated report. It was observed that, during the interviews which took place almost two years after the events, X still appeared uneasy at times and his mother cried a few times when she mentioned the hurt her son had experienced.
The psychologist is of the view that X was traumatized in the process. He had regarded himself as dirty and had suicidal thoughts in the first month after the incidents. In respect of the uploading of the photos online, X described himself as being shocked and angry. X said he was also worried when he imagined that many had seen those “awful” photos, a description he used in the interview.
Despite the passage of time, X is assessed to be still suffering from post-traumatic stress disorder, including recurrent intrusion of relevant images around two to three times a month, intense distress, headache, sudden and exaggerated fearful response and problems with concentration and sleep. It is also reported that X believes himself to be at fault and repeatedly blames himself. He feels shameful and has chronic low mood with marked diminished interest in activities and being nervous about getting close to people of the defendant’s similar age. In short, it is considered that X’s perception of himself, others and the world seems to be adversely affected.
What happened has also had devastating impact on X and his family which lasts to the present. Since around December 2019, X has moved to live with his maternal grandmother. X’s mother is sad about what has happened to X and sometimes blames herself.
Further, it was reported that X’s overall self‑esteem is at the very low range and much therapeutic work is required for X and his family although X is found to be resilient and remains hopeful about his future.
Sentencing Considerations
Needless to say, despite that the maximum sentence for Charges 1 and 2 has been reduced to one of 5 years, these buggery offences to which the defendant pleaded guilty are serious offences as children are involved. Owing to their immaturity, naivety and lack of life experience, children would readily succumb 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 get chatted up on the internet by adults who have their own ulterior motives to serve.
In HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, the Court of Appeal pointed out at paragraph 25 of the judgment that in sentencing for this type of offences, the court must bear in mind the following considerations:
(1) the individual circumstances of the offender, including his risk of re-offending;
(2) the impact on the victim and the victim’s family; and
(3) the abhorrence that right-thinking members of society would regard the relevant offences, and thus the need for deterrence.
Further, if there are aggravating factors like a breach of trust, a repeated course of conduct as distinct from a one‑off incident, the fact that the accused is a sexual predator, physical harm to the victim, the keeping of a record and the failure to use a condom, the sentence would be increased. This last item about failure to use a condom is regarded “as a particularly serious aggravating feature”. The Court of Appeal added that:
“Where an accused is sexually experienced or active, the failure to use a condom gives rise to obvious health risks, risks and consequences the extent of which young children may well be ignorant.”
In respect of child pornography offences, the Court of Appeal has laid down guidelines in SJ v Man Kwong Choi [2008] 5 HKLRD 519 where for the possession of Level 4 child pornography, that is, depicting penetrative sexual activity between children and adults, or sadism or bestiality, the starting point for a first time offender after trial is one of 12, even for a few images, to 36 months. However, the court stated in the postscript of the judgment that:
“If the images had been intended for publication, distribution or sale, the sentences would have been significantly higher.”
In fact, under the Prevention of Child Pornography Ordinance, Chapter 579, the offence of possession of child pornography carries a maximum sentence of 5 years on conviction on indictment whereas that for publication of child pornography is one of 8 years.
Coming back to the facts of this case, the defendant operated an Instagram account to offer male-to-male massage service. While this is not a planned move or while there is no evidence to show that it is a planned move to lure underaged boys for sexual activity, it remains a fact that when the defendant knew of X’s age, he did not only maintain contact with X but eventually got X into having anal sex with him.
I should say that I was at one stage troubled by the Summary of Facts. In various places of the summary, it was mentioned that, on both occasions, X felt great pain and had tried to push the defendant away but in vain and that the defendant then forcibly inserted his penis into X’s anus. Given that the offences to which the defendant pleaded guilty are consensual buggeries, I had asked both counsel the relevance of these Admitted Facts. The answer I got was that this was the way the consensual anal intercourse was conducted and Mr Leung accepted that they were relevant matters.
In other words, parties agreed that I could treat the descriptions as having revealed “very rough sex”, to use the colloquial phrase, having taken place between the defendant and X. Needless to say, this aggravates the offences because in the present context, we are not talking about two adults engaging in rough sex but an adult and a boy with obvious difference in body build and an obvious age difference of 17 years in terms of maturity, the latter of which on its own, is another aggravating factor.
Apart from these, the fact that the defendant did not use a condom is, as observed by the Court of Appeal in Chow Yuen Fai, a particularly serious aggravating feature. This is even more so in the present case because the defendant has had a history of syphilis and has been diagnosed to be HIV positive. His decision not to use a condom was an utterly selfish move with no regard whatsoever to the serious health risks and consequences it might have on X. I regard this as an outrageous act and it is only fortunate that X did not get infected. In my view, the fact that X was not infected does not reduce the seriousness of this factor of not taking any preventive measure.
Another obvious matter which aggravates these offences is the filming and photographing of X in the course of sexual activities. The rationale for this has been clearly set out in the authorities and I need not repeat it here except to say that this act of the defendant again demonstrates his selfishness and his taking advantage of X.
Next, the severe impact on X and his family is yet another serious aggravating feature. I do not intend to reiterate the observations and comments made in the report. Suffice for me to say that there is a long road ahead for both X and his family.
Insofar as the defendant himself is concerned, the finding that he is on the high side of the moderate range of re‑offending is, of course, another matter which I should take into account in sentencing.
Now, I should say that given these aggravating factors, the absence of other aggravating factors mentioned by Mr Leung does not reduce the seriousness of these offences to which the defendant has pleaded guilty nor would the mere absence of aggravating factors be able, on its own, to become a mitigating factor.
Sentencing in this Case
Having considered all relevant matters, I consider it appropriate to adopt a starting point of 4½ years for each of Charges 1 and 2. The defendant pleaded guilty and he would get the full one-third reduction. Other than his plea, there is nothing in the mitigation before me which warrants a further reduction. In other words, the sentences I impose for Charges 1 and 2 are 3 years each.
As for Charge 3, given the shock and impact on X and having taken into account the facts, including the number of the photographs uploaded, I consider that a starting point of 3 years is called for. Again, I would give the full one‑third reduction to the defendant for his plea, resulting in a term of 2 years for this charge.
There are three charges. Although the first two are identical offences, they happened on different occasions and had different though similar facts. I consider that partially consecutive sentences are appropriate and I order that 6 months of the 3-year term for Charge 2 are to run consecutively to that for Charge 1, the remaining to run wholly concurrently.
As regards Charge 3, although Mr Leung submitted that this sentence should run wholly concurrently with the sentences for Charges 1 and 2, I do not agree.
This act of uploading the photos on the internet was separate and distinct from the buggery offences and from the act of taking photographs and filming there and then. If I were dealing with the offence of making child pornography which is associated with the sexual offence, I would consider it appropriate to impose sentences wholly concurrent with those for the sexual offences. To do otherwise would entail the problem of double counting as explained in the authorities.
However, Charge 3 relates to the act of uploading the photos after the buggeries, not just filming and photographing at the time. In other words, it was not just the keeping of a record. Obviously, the impact of the keeping of a record by the perpetrator of the sexual offence could not be compared with the scale of hurt and shock on X resulting from the uploading. In the circumstances and having concluded that such was a separate and distinct act which warrants additional punishment, I consider that the sentence for this charge should, in principle, run consecutively or partly consecutively to the sentences for Charges 1 and 2.
Having taken into account the totality principle, I am of the view that an overall term of 4 years should sufficiently reflect the seriousness of these three charges and the culpability of the defendant. I therefore order that 6 months of the 2-year term for Charge 3 are to run consecutively to the partially consecutive sentences for Charge 1 and 2, resulting in a total term of 4 years for these three charges.