HKSAR v. LO CHEUK HUNG

 DCCC363/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 363 OF 2010

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Reasons for Sentence

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1.  The defendant was charged with:

(1) four counts of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap.200 (Charge 1, 4, 6 and 8);

(2) three counts of making child pornography, contrary to section 3(1) of the Prevention of Child Pornography Ordinance, Cap.579 (Charge 2, 5, 7); and

(3) one count of procurement by threats to do unlawful sexual act, contrary to section 119(1) of the Crimes Ordinance, Cap.200 (Charge 3).

2.  The defendant pleaded guilty to all charges and admitted the facts. He was convicted accordingly.

The facts

3.  There are altogether five victims.

Girl X, concerning Charge 1, 2 and 3

4.  She was born in January 1995. In July 2009, X answered an advertisement for photographic model. The reward was $100 per hour, posted by the defendant on the Internet. X told the defendant she was 14 years old, and the defendant told X that there would be no physical contact or nude photos. They exchanged mobile phone numbers and made an appointment to meet up on 2 August 2009, and the defendant told X to bring along some swimwear and underwear.

5.  On 2 August 2009, the defendant took X to a hotel room, therein the defendant started to take photos of X. During the course, X was told to remove her clothes leaving with her underwear and at some stage changed to her swimwear. When X still had her swimwear on, both X and the defendant went inside the toilet, therein the defendant suddenly removed X’s swimwear and took photos of X in the nude. 39 photos depicted X’s breasts and/or private parts were found from the defendant afterwards.

6.  While inside the hotel room, the defendant indecently assaulted X both before and after X was naked, and despite X indicated her objection, the defendant inserted fingers into X’s vagina to an extent that physically hurt X’s private parts. X spent about 2 hours in the room with the defendant and she was given $500 and allowed to leave eventually.

7.  On or about 26 December 2009, the defendant contacted X and asked X to have sexual intercourse with him. When X refused, the defendant threatened to distribute X’s nude photos.

Girl A, Charge 4

8.  She was born in July 1994. A came to know the defendant through the Internet; and then acted as the defendant’s photographic model for a reward of $150 per hour. A told the defendant that she was 15 years old and she made it clear to the defendant that she did not agree to nude photos nor wear underwear.

9.  On an unknown day between August and September 2009, A met up the defendant and she was taken to a hotel room. A was wearing a short-sleeved T-shirt and a black skirt. During the course of photo-taking, the defendant took off A’s skirt without consent and after A refused to take off her T-shirt, the defendant asked A to roll up her T-shirt, which A complied.

10.  Later, upon the defendant’s request, A withdrew her arms from her sleeves while the T-shirt was still on A. The defendant used his hand to pull downward A’s T-shirt. By doing so, his hand came into contact with A’s breasts. The defendant repeated the same for about five times, each time A said, “No” and pushed him away. The defendant eventually gave $500 to A.

Girl B, Charge 5

11.  She was born in November 1993. In August 2009, through Internet B agreed to be the defendant’s photographic model for a reward of $500.

12.  In late August 2009, B met up with the defendant and told him that she was 15 years old, and the defendant took B to a hotel room. Upon the defendant’s request, B let the defendant take photographs of her wearing only her bra and underpants, as well as in the nude. The defendant took photos of B for about 30 minutes and paid B $500. 144 photos depicted B’s breasts and/or private parts were found from the defendant afterwards.

Girl C, Charge 6, 7

13.  She was born in October 1996. In August 2009 C came to know the defendant through the Internet; and agreed to act as the defendant’s photographic model for a reward of $200 per 2 hours. C told the defendant that she would turn 13 years old in October 2009.

14.  On an unknown day between 23 and 30 August 2009, C met up the defendant and was taken to a hotel room. Upon arrival the defendant gave C $200. During the course of photo-taking, C removed her clothes until she was only wearing her bra and underpants upon defendant’s repeated requests. At one stage, after C refused to take off her bra, the defendant unhooked it from behind and took it away, and at a later stage took off C’s underpants as well. 30 photos depicting C’s breasts and/or private parts were found from the defendant afterward.

15.  The defendant showed other girls’ nude photos to C to ease her. Thereafter during the course of photo-taking, the defendant squeezed and sucked C’s breasts and nipples.

16.  At a later stage they moved to the toilet. C changed into a two-piece swimsuit upon the defendant’s request. During the photo-taking inside the toilet, the defendant sprayed water on C and the defendant took off all his clothing in stages and urinated in the presence of C. More photographs of C wearing swimsuit were taken in the toilet and C said she was cold.

17.  The defendant gave C a towel, and C went to the bed and covered herself with the quilt. Still naked, the defendant first lied next to and then on top of C to indecently assault her. Despite C pushed the defendant away and said, “No”, the defendant inserted fingers into C’s vagina. The defendant continued to molest C and used his erect penis to touch C’s bellybutton, private parts and pubic hair.

Girl D, Charge 8

18.  She was born in October 1993. In December 2008 D came to know the defendant through Internet and D told the defendant that she was 15 years old. They met up in late December 2008 and became lovers on that day.

19.  In late January 2009 the defendant took D to a hotel room to take photos. During the course, the defendant took off D’s clothing, leaving her underpants. The defendant touched D’s breasts and waist with his hands and inserted his hands into D’s underpants to touch her private part.

20.  The relevant provisions of the offences committed by the defendant are as follow:

“Crimes Ordinance, Cap.200

Section 119 - Procurement by threats

(1) A person who procures another person, by threats or intimidation, to do an unlawful sexual act in Hong Kong or elsewhere shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 14 years.

Section 122 - Indecent assault

(1) Subject to subsection (3), a person who indecently assaults another person shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years.

Prevention of Child Pornography Ordinance, Cap.579

Section 3 - Offences relating to child pornography

(1) Any person who prints, makes, produces, reproduces, copies, imports or exports any child pornography commits an offence and is liable

(a) on conviction on indictment to a fine of $2 million and to imprisonment for 8 years.”

21.  The Court of Appeal in HKSAR v Chow Yuen Fai, CACC392/2008, in an appeal against sentence for homosexual buggery, indecent assault and making child pornography concerning boys aged 8 to 13, stated that, in paragraph 25:

“In sentencing for the type of offences with which we are concerned in the present case, the court must bear in mind the following considerations (some or all of these considerations will be relevant in any given case):

(1) the individual circumstances of the offender, including in particular in the present context, the 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.”

22.  In paragraph 26:

“Little needs to be said about the first consideration.  It encompasses a standard and important principle of sentencing, and is self-explanatory.  We do, however, wish to make some observations on the second and third considerations.

(1) The protection of young and vulnerable children is of course the underlying policy.”

(2) ...

(3) The trauma, distress and psychological harm that are caused to young children (and, we would underline, also to their families) from the type of offences in the present case, cannot be underestimated.  While the courts are sometimes provided with psychological reports on the victims of such crimes, we are of the view that in the vast majority of cases, this can be assumed.  A number of decisions of this court have made this very point.  We have found very helpful the observations Stock JA (now Stock VP) in HKSAR v Kong Yun Chiu [2007] 4 HKC 391.  Children in their formative years or when they first become aware of their sexuality during puberty, are extremely vulnerable to and are easily persuaded by adults.”

23.  Then to paragraph 27:

“In relation to ... indecent assault, as has often been observed, it is neither possible nor practicable to fix a tariff for these offences given the varied circumstances in which these offences can arise.”

24.  Paragraph 47:

“As reflected in the maximum sentence (the making of child pornography) offences, the making f child pornography is treated more seriously than mere possession ...  There are, however, few previous cases for this offence, perhaps even none (we were not referred to any), but some guidance can be taken from Man Kwong Choi.  The classifications of the levels of child pornography in that case apply equally to an offence committed under section 3(1) of Prevention of Child Pornography Ordinance.”

25.  In Man Kwong Choi, CAAR 8/2007, the Court of Appeal after consideration preferred a four-classification levels for child pornography:

“(1)  Level 1:  images depicting erotic posing with no sexual activity;

(2) Level 2:  sexual activity between children or solo masturbation by a child;

(3) Level 3:  non-penetrative sexual activity between adults and children; and

(4) Level 4:  penetrative sexual activity between children and adults, or sadism or bestiality.”

26.  For Level 1, the Court of Appeal at Man Kwong Choi stated that this is the least serious level. Where the numbers are large or the depictions are extremely suggestive, terms of imprisonment from 1 month to 6 months will be appropriate. I note, however, the making of child pornography is considered to be more serious than mere possession by the Court of Appeal.

27.  The defendant, aged 31, is single and lives with his family. He has a decent job and with a clear record. The defendant has been co-operated with the police. The defendant stated in his mitigation letter that he now understands the harm done to the girls and their families, and he is genuinely remorseful for what he did.

28.  After considered the facts of each charge and the age of the defendant and the victims, the number of child pornography in question, I considered the appropriate starting point for each charge to be:

(1) offences concerning Girl X, the appropriate starting point for the indecent assault to be

24 months; for making child pornography to be 9 months; and the starting point for procurement by threats to be 24 months;

(2) offences concerning Girl A, the appropriate starting point for the indecent assault to be

6 months;

(3) offences concerning Girl B, the appropriate starting point for making child pornography to be

12 months;

(4) offences concerning Girl C, the appropriate starting point for the indecent assault to be 30 months, and the one for making child pornography to be 9 months; and

(5) offences concerning Girl D, the appropriate starting point for indecent assault to be 9 months.

29.  I consider the indecent assault and the corresponding making child pornography offences are related to each other; apart from that the offences are separate incidents.

30.  Defendant entitled to one-third discount for his plea. For his clear record I allow further discount of 2 months on each charge, however, I do not consider there to be any mitigating factors called for further deduction.

31.  Taken into account of the totality consideration, I order the sentence to run partly concurrent and partly consecutive, making a total of 28 months.

Order

32.  Charge 1, sentenced to 14 months.

33.  Charge 2, sentenced to 4 months, concurrent with Charge 1.

34.  Charge 3, sentenced to 14 months, 4 months of which consecutive with other charges.

35.  Charge 4, sentenced to 2 months, consecutive with other charges.

36.  Charge 5, sentenced to 6 months, 2 months of which consecutive with other charges.

37.  Charge 6, sentenced to 18 months, concurrent with Charge 7, but 4 months of which consecutive with other charges.

38.  Charge 7, sentenced to 4 months, concurrent with other charges.

39.  Charge 8, sentenced to 4 months, 2 months of which consecutive with other charges.

40.  Making a total of 28 months’ imprisonment.