HKSAR v. NG CHEUK KI

DCCC 276/2022

[2023] HKDC 1267

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 276 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant (“D”)  pleaded guilty to 5 charges of offences: -

Charge 1	Indecent assault on X	12 September 2020
Charge 2	Indecent assault on X   (contrary to s 122(1)  of Cap 200)	On or about 20 September 2020
Charge 3	Unlawful sexual intercourse with X who was under the age 16   (contrary to s 124(1)  of Cap 200)	27 September 2020
Charge 8	Making child pornography   (contrary to s 3(1)  of Cap 579)	8 October 2020
Charge 10	Unlawful sexual intercourse with X who was under the age of 16	14 October 2020

2.  As to the rest of the charges, Charge 4, 5, 6, 7 and 9, all these charges are unlawful sexual intercourse with X, are now ordered to be left on the courts’ file, they cannot be proceeded with without the leave of the court.

Summary of facts

3.  X was born in August 2007 whilst  D was born in May 1995.

4.  In June, 2020, X was 12 years old while the D was 25 years old.

5.  In June 2020, X got acquainted with the D on a social platform called ‘Discord’. The D knew the age of X who was a Form 2 student.

6.  The two of them chatted on Instagram and later became close friends.

7.  Between 12 September 2020 and 14 October 2020, X had visited D’s residence to have sexual activities with D on a number of occasions.

8.  At the material time, X had just turned 13 years old.

Charge 1 (Indecent assault)

9.  The first incident happened on 12 September 2020.

10.  D took X to his Flat. In D’s room, X removed all her clothes and wore the blindfold given by D. X lied on D’s bed and D touched her all over her body. After that, D tried to have sexual intercourse with X but failed because she said she was in great pain. X then performed oral sex for the D. D did wear a condom at the material time.

Charge 2 (Indecent assault)

11.  On or about 20 September 2020, X attended the Flat.

12.  On D’s bed, D touched X’s breasts over her clothes. X took off all her clothes and performed oral sex for D. D used a sex toy to touch the outside of X’s vagina. D did wear a condom at the material time.

Charge 3 (Unlawful sexual intercourse with a girl under 16)

13.  On 27 September 2020, On D’s bed, D had sexual intercourse with X without wearing a condom. He ejaculated inside her vagina. After that, D used his hand to touch X all over her body and X performed oral sex on D.

Charge 8 (Making child pornography)

14.  On 8 October 2020, X attended the Flat to have sexual activities with D.

15.  With X’s consent, D used X’s phone to take two photos: -

(a)  One photo depicting X’s naked body including her breasts (classified as Level 1); and

(b)  One phot depicting X performing oral sex for D when she was blindfolded and wearing handcuffs, (classified as Level 4).

(c)  Chat records showed that the two photos were sent from X to D via Instagram on 8 October 2020 . D knew X was 12 years younger than him at the material time.

Charge 10 (Unlawful sexual intercourse with a girl under 16)

16.  The last incident happened on 14 October 2020.

17.  On D’s bed, X performed oral sex on D and D had sexual intercourse with X. Condom was used by D.

Disclosure of the incidents

18.  On 17 October 2020, X’s mother saw some contraceptive pills on X’s desk. The pills were bought by D and X had been taking them.

19.  After making enquiry with X, X’s mother made a report to the police.

Arrest

20.  On 17 October 2020, D was arrested for “unlawful sexual intercourse with an underage girl”.

House search

21.  Upon search of the Flat by the police, a number of sex toys were found with DNA of X and D on them.

Criminal record

22.  The D has a clear record.

Mitigation

23.  The D is 28 years of age, single, he has a steady job since he obtained a university degree.  

24.  The D’s father passed away in 2022. He is the only child of the family and is living with his mother.

25.  The D and X met on a Chat group during the summer in 2020 when the D was a Year 3 University student while X was a Form 2 student. Today, the defence said that X has used a chat name “fuck u” in the Discord chat group.

26.  They developed an intimate relationship at the end of the summer.

27.  The D knew the age of X. In his letter to this court, he feels deeply sorry for what he had done to X.

28.  As a result of this incident, the D suffers from depression and was admitted into hospital in April this year for 3 days as he had suicidal idea.

29.  The Church that he attends also provided 5 mitigation letters on his behalf, his mother and his current girlfriend also show support and concerns for him. They are all in Court today.

30.  In all these letters to me, I come to know that the D is a kind- hearted person and is willing to provide assistance to the children of the church members.

31.  The D has regularly donated on a monthly basis to the Médecins Sans Frontières since September 2020 and donation of blood to the Red Cross on 5 occasions.

Psychologist reports

32.  The defence has provided me with a very comprehensive psychologist report which tells me that: -

(a)  he indulged in viewing excessive pornographic materials.

(b)  he has low self-esteem due to: -

(i)  Poor support from his father.

(ii)  He is diagnosed to have ADHD resulting in poor academic achievement.

(iii)  Body weight issue.

33.  His psychologist said that his risk of reoffending is low, while the government psychologist holds a different view that his risk of reoffending is at the lower end of moderate range.

34.  Dr. Liu, the government psychiatrist, considers that he was not suffered from any major psychiatrist illness apart from the suspected paraphilic tendencies as he had repeated intercourse with X “should raise high suspicion on his pedophilic tendency”.

Sentence

35.  The maximum sentence for each charge: -

(a)  Indecent assault – 10 years

(b)  Unlawful sexual intercourse with a girl under the age of 16 – 5 years

(c)  Making of child pornography – 8 years and a fine of $2,000,000

36.  There is no sentencing guideline for the sexual offences.  However, in paragraph 9 of the judgement in HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 422, 427, the Court of Appeal pointed out that when the court dealt with offences of sexual assault on a child, the following factors need to take into consideration:

(1)  The age difference between the defendant and the victim;

(2)  The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;

(3)  Whether the defendant had used threats or inducements to make the victim succumb;

(4)  The number of occasions of committing the offences and the duration of the offences;

(5)  Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6)  Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7)  Whether the sexual abuses have caused physical or psychological trauma to the victim;

(8)  Whether the offences have impact on the family members of the victim;

(9)  Whether the defendant was involved in other inappropriate behaviors such as inviting other people to watch or take photos or videos of the offence he committed; and

(10)  Whether the defendant is psychologically imbalanced and pedophilic and the likelihood of re-offending.

37.  In the present case:

(1)  There is a huge age gap of 12 years between the D (25)  and X (13 and 1 months old);

(2)  In her video record of interview to the police, X said that D was a close friend to her. While the D said that they were in a romantic relationship;

(3)  There is no evidence to suggest that X was succumbed into the present situations or any element of corruptive influence, such as cash payment to X. The prosecution accepts that X was a willing participant in these sexual activities;

(4)  There were 2 incidents of indecent assault and 2 incidents of unlawful sexual intercourse. It covered a period of about a month from the date of the first charge to the date of Charge 10;

(5)  No condom was used in Charge 3. However, the defendant provided contraceptive pills to X;

(6)  The D took 2 pictures of X with X’s consent by using X’s phone. X sent the pictures to the D on his request. There was no evidence to suggest that those pictures had been in circulation to the public or being published. The 2 pictures are one in level 1 and one in level 4;

(7)  The mother of X informed the prosecution that X seems not to be affected by this incident and her mother’s view was not to contact X for any report;

(8)  The D has a pedophilic tendency. His risk of reoffending is between low to the lower end of moderate range.

38.  There are aggravating factors in Charge 3 and 10: -

(a)  In Charge 3: - no condom was used as there is a physical implication of the possibility of pregnancy and sexually transmitted diseases.

(b)  In both Charge 3 and 10: - the D provided contraceptive pills to X without consultation from a doctor. Clearly, the D is aware that X has started her puberty. X just turned 13 and she was too young and immature, without parental and medical guidance, to understand the impact of taking contraceptive pills on her physical health and development.

(c)  As such, I enhance the sentence of each charge in Charge 3 and 10 by 3 months.

39.  As to Charge 8, the leading sentencing authority is Secretary for Justice v Man Kwong Choi [2008] HKCA 271 that for a first time offender after trial at level 4 (even for a few images), sentence ranges from 12 to 36 months.

40.  Having considered all the mitigating factors, the reports and sentencing factors, I consider that: -

Charges	Starting point	Enhance sentence	1/3 discount
1/ Indecent assault	6 months	-	4 months
2/ Indecent assault	6 months	-	4 months
3/ Unlawful sexual intercourse	9 months	3 months	8 months
8/ Making child pornography	6 months	-	4 months
10/ Unlawful sexual intercourse	9 months	3 months	8 months

Totality

41.  I consider that an overall sentence of 12 months is sufficient to reflect the gravity of the offence and the culpability of the defendant.

42.  To this end, I order one month’ imprisonment from each charge of charge 1, 2, 8 and 10 to run consecutively to Charge 3.

43.  I further reduce the sentence by 3 months for the mitigating factors of: -

(a)  One-month deduction: - The defendant consistently made contributions/‌donations to charities.

(b)  Two months’ deduction: - As a first time offender, I accept that this matter has been taking too long (3 years)  for him to wait for its sentence.

44.  The defendant is ordered to serve a period of 9 months’ imprisonment.