HKSAR v. ZHAO HONG SHING also known as CHIU HONG SUN, CHIU WAI AND ZHAO HONG SEN

DCCC 219/2022

[2022] HKDC 1413

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 219 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 3 charges of indecent conduct towards a child under the age of 16[1] (Charge 1, 3 and 4), one charge of making child pornography[2] (Charge 2), and one charge of criminal intimidation[3] (Charge 5).

Summary of facts

2.  This case concerns what happened between the defendant and a boy, X, who was born in July 2008, in the period January to October 2021.

3.  X made the acquaintance of the defendant through a mutual friend in around October 2020. They communicated by way of WhatsApp and phone calls. X gave the defendant the nickname ‘Lemon’. X also told the defendant his age.

Incident 1

Charge 1: Indecent Conduct

4.  On a day unknown in late January 2021, the defendant met up with X in Tin Shui Wai and bicycled from there to a shopping centre at Hung Fuk Estate in Hung Shui Kiu. When there, X went into an accessible toilet for the disabled, followed by the defendant who then locked the door to the toilet.

5.  While X pulled down his pants and underpants down to his thigh area to urinate, the defendant stood on his left and touched X’s penis several times. The defendant then removed his own pants and underpants and grabbed X’s hand to touch the defendant’s penis and to masturbate him.

6.  X was unwilling to do so and tried to move his hand away. The incident lasted for about 2 to 3 minutes. The defendant did not ejaculate. X was 12 years old at the time.

7.  The defendant gave $100 each to X and their mutual friend for food after the incident.

Charge 2: Making Child Pornography

8.  During the incident, the defendant used his mobile phone to take a video. A video clip was later found in the defendant’s phone, depicting the defendant touching and masturbating X’s penis. X can be seen in the clip trying to move away the defendant’s hand, as well as covering his own face. The defendant also pulled down the face mask of X. The defendant then masturbated himself. X was heard in the clip asking the defendant to delete the video.

Incident 2

Charge 3: Indecent Conduct

9.  On a day unknown in mid-July 2021, the defendant met up with X in Hung Shui Kiu for a joyride. They eventually arrived at a public accessible toilet there.

10.  The defendant asked X to go into the toilet. When inside, the defendant sat on a stool, removed his own pants and underpants and asked X to masturbate him. When the defendant’s penis was erected, he put on a condom and asked X to perform oral sex on him. While X was doing so, the defendant held X’s head and said he will buy him a pair of shoes if X could make him feel comfortable.

11.  The defendant then masturbated until ejaculation and disposed of the condom.

12.  X was 12 years old at the time.

Incident 3

Charge 4: Indecent Conduct

13.  On or about 23 October 2021, the defendant picked up X at his school in the defendant’s light goods vehicle.

14.  After the defendant drove and parked his vehicle near another public accessible toilet in Hung Shui Kiu, he moved from the driver seat to sit next to X in the left front passenger seat.

15.  The defendant removed his own pants and asked X to perform oral sex on him. X did so. The defendant then masturbated and asked X to perform oral sex and the defendant ejaculated into X’s mouth.

16.  The defendant then removed X’s pants, masturbated and held X’s penis in his mouth until X ejaculated and the defendant swallowed the semen.

17.  The defendant bought a bicycle for X after this incident. X was 13 years old at the time.

Charge 5: Criminal Intimidation

18.  On 26 October 2021, the defendant sent the following WhatsApp messages to X: “你係唔蒲頭啦嘛 (‘So you insist on not surfacing?’)”, “你啲相同片 (‘Your photos and clip’, with an emoji showing a pondering face)”, “幫你印出嚟貼喺學校 (‘Print them out for you to post in school’, with an emoji of okay hand sign)”.

19.  The defendant was arrested on 28 October 2021. He admitted in his video recorded interview to filming Incident 1 with his mobile phone.

20.  The defendant, however, denied knowledge of Incident 2 and 3, and he claimed he did not know the age of X, just that he was studying at a secondary school.

21.  It is the prosecution’s case that the defendant had committed a series of grossly indecent acts with or towards X in charges 1, 3 and 4; that the defendant made child pornography when he filmed Incident 1 in charge 2; and that the defendant had threatened X with injury to his reputation, with intent to alarm X in charge 5 when he messaged X to threaten him to show up or else will print out the compromising photos of X and post them in X’s school.

Previous convictions

22.  The defendant has a total of 12 previous convictions. His first 3 convictions were in June 2013 for assault offences when he was 13 years and 7 months old. He was put under probation for 18 months.

23.  He was next convicted for arson and indecent conduct towards a child under 16 in December 2013. The earlier probation order was discharged and he was ordered to be detained at the Rehabilitation Centre. The defendant would have committed the offences when he was 13 years old.

24.  Slightly less than 2 years later in October 2015, the defendant was ordered to be remanded in the Training Centre for 1 charge of homosexual buggery with a man, 3 charges of indecent conduct towards a child under 16 and 1 charge of indecent assault. The defendant was 15 years and 11 months old.

25.  The defendant was next convicted of 1 charge of indecent assault and sentenced to 3 months’ imprisonment in October 2019, when he was 19 years and 11 months old.

26.  His last conviction is dated 2 November 2021, when he was jailed for 4 months for assaulting a Police officer. He was just one day short of turning 22 on the day of sentence in that case.

27.  Save for the first set of conviction for the assault charges, all convictions were recorded and dealt with at Tuen Mun Magistracy.

Background and mitigation

28.  The defendant turned 23 years old on the day he pleaded guilty to the charges in this case. He was 21 years and 2 months old at the time of the commission of charge 1, and one month short of 22 at the time of charge 4.

29.  According to the written submissions of Mr Kan, the defendant was educated up to Form 2 level. He started working when he was 15, and had worked as a café waiter and food courier. The defendant received his driving licence in March 2021 and had since started to work as a van driver, earning $20,000 per month.

30.  The defendant’s father was a mainlander and passed away in a traffic accident in 2015. The defendant lives with his 50 odd years old mother and 70 odd years old grandfather.

31.  Mr Kan told the court that the defendant is remorseful and promises not to re-offend.

Reports

Victim impact report

32.  I was told by the prosecution that X’s father did not consent to a victim impact report to be prepared on X and so there is no such report before me.

The defendant’s psychologist report

33.  A psychologist’s report was ordered to be prepared on the defendant. In her meticulously prepared report, Clinical Psychologist Ms Yeung explained that the defendant suffers from Antisocial Personality Disorder and Pedophilic Disorder, with the pedophilic focus being predominantly prepubescent boys.

34.  Given the defendant’s antisocial character, pedophilic interest, emotional identification with boys, strong sexual preoccupation, and his history of sex related convictions, Ms Yeung states the defendant’s risk of re-offending as “very high”.

35.  In view of that risk, she recommends that the defendant should receive systematic and intensive psychological treatment, focusing on modification of his criminal attitudes, enhancement of relationship skills, and the development of healthy sexuality and lifestyle.

The defendant’s letter and letters from social workers

36.  The defendant wrote and expressed his remorse towards committing the offences and his guilt towards his family for letting them down. He had used the time in remand to think about what he had been doing with his life and decided that he will devote more time to volunteer work, so as to make up for his past mistakes and to give back to society.

37.  The defendant’s father passed away in a traffic accident when the defendant was still young. He said he lacked guidance and familial love when growing up. He had been diagnosed with emotional issues and had received therapy as well as assistance from social workers. He feels that progress has been made and points out that he managed to obtain a driving licence and found work as a driver. It must be noted that charge 4 (incident 3)  was committed by the defendant in the light goods vehicle that he was driving at the time.

Sentencing

The indecent conduct charges

38.  The maximum penalty on conviction upon indictment for the offence of indecent conduct towards a child under 16 is that of imprisonment for 10 years.

39.  Mr Kan referred to the case of Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136 for sentencing considerations relevant to the indecent assault on young children charges.

40.  The 3 crucial considerations are to deter others from committing similar offences; to show the abhorrence of members of the public to offences of this nature; and to redress the grievance suffered by the victim and his friends and relatives.

41.  The Court of Appeal did not see fit to lay down any tariff sentence, but emphasized the importance of the above sentencing principles, as well as adding 3 more important factors.

42.  First is that the court cannot overlook the possibility of the victim suffering psychological damage as a result of sexual abuse, even if no psychological assessment report is available.

43.  Secondly, it is rather difficult to detect this type of offences because the young victim would normally be at a loss and be too embarrassed to complain about the molestation.

44.  Thirdly, in dealing with this type of offences, the court will regard the protection of children as the most important consideration.

45.  Mr Kan also referred to the case of HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, where the Court of Appeal set out more specifically the following considerations relevant to sentencing in similar cases.

“43. We are of the view that, in the sentencing of cases involving buggery with a man under 21 and indecent conduct with or towards a child under the age of 16 years, factors that the court has to consider include:

(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 at the time of the offence;

(3)  whether the defendant had used threats or inducements to make the victim succumb, falling prey to his licentious exploitation;

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

(5)  whether inappropriate and unnecessary violence was involved in committing the offences and whether any harm or discomfort was caused to the victim;

(6)  whether any suitable safety measures were taken in committing the offences and whether any hazard to the health and safety of the victim and the public was caused;

(7)  whether the offences have caused physical or psychological traumas to the victim;

(8)  whether the offences have impacted on the family members of the victim;

(9)  was the defendant involved in other inappropriate behaviours such as inviting/permitting other people to watch or take photos/videos; and

(10)  whether the defendant is psychologically imbalanced or paedophilic and the likelihood of re-offending.

44. It is, of course, also essential for the court to consider the mitigating factors that are favourable to the defendant before an appropriate sentence could be imposed.”

46.  In the case of Lee Hon Wah, the applicant Lee was 20 years older than the subject child of the charge. No threat or duress was involved. The Court found that the child was not an innocent child being taken advantage of, and had taken the initiative to tout for business on homosexual website and provided sex service voluntarily to make money. Given this background, the Court found that the corrupting of the child by the applicant’s payment of money was not of much severity, and that the child was even more corrupt than the applicant. The Court noted that the applicant Lee had no previous convictions, came from a good background, and had a stable job. They found no other aggravating factors and took the view that an appropriate starting point should be 18 months’ imprisonment.

47.  In the present case, although there is no report on the impact the offences had on X, it can be inferred that there is a high likelihood that someone as young as X would have suffered some degree of psychological damage as a result, as observed by the Court of Appeal in the above mentioned case of Huang Long Wei.

48.  The defendant was about 21 years old at the time of the commission of the offences. X was 12 at the time of the first 2 offences and 13 at the time of the last one. The age gap is not large but the age of X was very young.

49.  The defendant made the acquaintance of X through a mutual friend and there was no breach of trust involved in their relationship.

50.  There was no use of force or threat of use of violence in the commission of the 3 offences.

51.  It would appear that the length of time of the commission of the individual charges was relatively short, although the 3 offences took place over a period of about 9 months.

52.  Mr Kan for the defendant referred to the District Court case of HKSAR v Wong I Hang DCCC 7/2020 where there was an age gap of 11 years between the offender and the victim, and where there was an element of breach of trust involved with the offender being the godfather. The indecent conduct lasted for about an hour in relation to one of the charges and the learned deputy judge adopted a starting point of 15 months’ imprisonment.

53.  Mr Kan submitted that the criminality in the present case is much lower and warrants a starting point lower than 15 months for each of the 3 charges.

54.  Mr Kan also submitted that the 3 offences “formed a continuing incident”, and “formed part of one ongoing sexual activity on a single occasion”, and suggested that the 3 sentences should run concurrently.

55.  For the reasons set out below, I must disagree with Mr Kan on the present case being of much lower criminality and that the sentences should be made concurrent.

56.  The 3 offences took place in January, mid-July and October in 2021. There were no connections between the offences other than the fact that they involved the same offender and victim. The defendant could have stopped after he committed the first or second offence, yet he did not and continued with the third.

57.  They cannot be regarded as ‘one ongoing sexual activity on a single occasion’ by any stretch of the imagination.

58.  Save for the application of the principle of totality, which is dealt with below, I do not see how the sentences for the 3 offences could be made wholly concurrent.

59.  In relation to charge 1 in incident 1, X was told to masturbate the defendant. It lasted for about 2 to 3 minutes. The fact that the defendant gave $100 to X and their mutual friend for food afterwards is an aggravating factor, because it would have been understood by X as a fee for the sexual service, thus corrupting X.

60.  The other significant aggravating factor is the filming of the incident by the defendant.

61.  In charge 3, incident 2, in addition to masturbation, X also performed oral sex on the defendant at the latter’s request. This time, instead of giving money to X, the defendant promised to buy X new shoes while the indecent conduct was taking place. The defendant did use a condom, thus lowering the risk of transmission of diseases.

62.  In charge 4, incident 3, the defendant went to X’s school to pick him up in his work vehicle. The incident took place inside the vehicle parked at a public place. Oral sex was performed by X on the defendant, who ejaculated in X’s mouth. The defendant then performed oral sex on X until X ejaculated in the defendant’s mouth. After this incident, the defendant bought a bicycle for X.

63.  While it is true that the offences did not involve a breach of trust, there is also no suggestion that the defendant held any emotional affection towards X. It is obvious from the length of time between the commission of the offences, the payment of money, the promise and giving of gift that the defendant was using X for his personal sexual pleasure as and when he felt like it.

64.  Given the relatively small age gap between the defendant and X, yet bearing in mind the young age of X at the time of the offences, and the circumstances surrounding the 3 incidents, I find the present case as more serious than Wong I Hang.

65.  Taking all the circumstances into consideration, I find that an appropriate starting point for each of the 3 offences is 18 months’ imprisonment, before taking into account the following aggravating factors.

Aggravating factors

Specific to Charge 1

66.  The defendant took a video while committing the offence in charge 1. This is an aggravating factor.

67.  The video clearly shows X’s reluctance. The fact that X was trying to cover his face and was asking the defendant to delete his part in the video suggests that X must have felt shameful for letting the defendant do what he did to his body. One can only begin to imagine the suffering the boy must have been going through at the time of the incident.

68.  For this aggravating feature, I will enhance the starting point of charge 1 by 3 months, taking the sentence to 21 months’ imprisonment.

Common to charge 1, 3 and 4

69.  The fact that the defendant is a repeat offender is a serious aggravating factor. The present set of indecent conduct with a child under 16 is, together, his third set of convictions for similar offences. He had also been convicted of indecent assault on 2 earlier occasions.

70.  Given the relatively young age of the defendant, his criminal records are appalling.

71.  It is clear that a stronger element of deterrence must be included in the present sentences in order to try to protect other children from the defendant, and to deter the defendant from re-offending.

72.  For this aggravating factor, I will enhance the sentences in relation to the indecent conduct charges each by 3 months, taking them to 24, 21 and 21 months respectively for charge 1, 3 and 4.

73.  For the sake of clarity, this enhancement includes the aggravating factor of the defendant’s very high risk of re-offending.

74.  The defendant pleaded guilty and is granted the full one-third discount, taking the sentences after plea to 16, 14 and 14 months respectively.

Sentencing the child pornography charge

75.  The maximum sentence for an offence charged under section 3(1), on conviction upon indictment, is a fine of $2,000,000 and imprisonment for 8 years.

76.  The pornographic depiction of children covers a broad spectrum. The Court of Appeal in Secretary for Justice v Man Kwong Choi and another [2008] 5 HKLRD 519; CAAR 8 and 9/2007 adopted the following classification levels for the purpose of sentencing in possession cases:

(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.

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

77.  The Man Kwong Choi classification was held to be applicable when dealing with offences involving the making of child pornography under section 3(1)  of the Prevention of Child Pornography Ordinance in HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354; CACC 392/2008.

78.  In the case of Chow Yuen Fai, the applicant pleaded guilty to 3 counts of making child pornography involving boys aged 8 and 13 (counts 7, 12, 16). These offences took place at the same time as one of the buggery and the two of the indecent assault offences.

79.  In count 7, the applicant invited the 8 year old child (B)  and his 10 year old brother (C)  to his home. They played some computer games and then the applicant asked B to go with him alone to his bedroom. When there, the applicant was naked from the waist down, he told B to lie down on the bed and then put his penis into B’s mouth, and caressed and masturbated B.

80.  The applicant used his mobile phone to take photos and videos and later downloaded them onto his computer. There were 4 images depicting B’s penis; 1 image and 2 video clips of the applicant putting his penis into B’s mouth; 2 video clips showing the applicant masturbating and 1 of B urinating.

81.  In count 12, the applicant made the acquaintance of another victim, D, who was aged 13 in an internet discussion forum. On one occasion, the applicant went to D’s home supposedly to repair D’s computer. They were in the living room at first, but at some point the applicant left the room to make a phone call, and then returned naked. He took off D’s clothes and inserted his penis into D’s anus for over 10 seconds. He also inserted his finger and an object. They performed oral sex on each other and the applicant also masturbated D. No condom was used by the applicant.

82.  Again, the applicant used his mobile phone to take images and videos and later downloaded onto his computer. They captured what was described above.

83.  In count 16, the applicant made the acquaintance of another victim, F, aged 13, once again through the internet. They met up during a school day and went to the applicant’s home. There they played some computer games and eventually the applicant took off his trousers and asked F to perform oral sex on him and F complied.

84.  The applicant also used his phone to take images and video of F performing oral sex on the applicant.

85.  The trial judge adopted a starting point of 2 years for each of the three offences of making child pornography, and made them concurrent with the 7 years sentence (before plea)  for the buggery, and 3 years sentence (before plea)  for the indecent assault offences with which they were associated.

86.  On appeal, the Court of Appeal found that the appropriate sentences for the corresponding offences should be 6 years’ starting point in relation to the indecent assault of B and F; and 10 years’ imprisonment starting point for the buggery charge in relation to D.

87.  The Court of Appeal found that since the making pornography offences could only be viewed with the corresponding offences of buggery and indecent assault, and since for those offences, the fact that a record of the offences was made had already been taken into account when arriving at the sentences, the Court would not disturb the trial judge’s sentences and approach. The Court, however, stated that in another case, they would not have disturbed a sentence that adopted as a starting point a term of 3 years’ imprisonment for the making child pornography offences.

88.  In the case of HKSAR v Ipp Tin Fan [2016] 4 HKLRD 486; CACC 9/2016, the Court of Appeal confirmed the application of the Man Kwong Choi classification in cases involving the making of child pornography, and stated specifically at paragraph 28 that “the portrayal of digital penetration, masturbation or oral sex between an adult and a child should henceforth be classified as Level 4 conduct.”

89.  The facts concerning the making of child pornography charge in that case was of the appellant taking close-up photos of the child’s breasts and vagina, of the manipulation of her vaginal opening with his fingers, and his own erect penis next to the child’s vagina.  The appellant also made video recordings of his assault, in particular the insertion of his thumb into the child’s vagina.

90.  The Court found that the starting point should have been at least 18 months’ imprisonment, even when based on the wrong classification at level 3. Had the conduct been properly classified at Level 4, the starting point should have been even higher.

The present case

91.  In our present case, the video clip in charge 2 shows the defendant masturbating X as well as himself, and is to be classified as Level 4 material.

92.  This is the defendant’s first conviction for child pornography related offences.

93.  X was 12 at time of the making of the offending video clip and can be regarded as particularly young, which is an important consideration according to the Court of Appeal in Man Kwong Choi.

94.  There is no evidence that the defendant had intended to disseminate the video for commercial (or even non-commercial)  gain, or that he had intended to publish it. It could be heard in the clip that the defendant could have intended the recording for his own consumption in future.

95.  There is only one video clip involved.

96.  Taking into consideration all the circumstances, the lack of aggravating features, and the sentencing principles and sentences considered in the above cases, I find that an appropriate starting point for charge 2 is that of 24 months’ imprisonment.

97.  The defendant is granted the full 1/3 discount for his timely plea of guilty and sentenced to 16 months’ imprisonment.

Sentencing the criminal intimidation charge

98.  The maximum penalty for the offence of criminal intimidation on conviction upon indictment is that of 5 years’ imprisonment.

99.  Mr Kan relies on the case of HKSAR v Lam Chi Hong Patrick [2012] 2 HKLRD 1273; HCMA 496/2011 to support a starting point of 12 months’ imprisonment in the defendant’s case.

100.  In Lam Chi Hong Patrick, the 24 year old female victim got to know the appellant online. The two of them were engaged in an arrangement known as ‘compensated dating’. There were video calls between them where the victim had taken her clothes off for the defendant. When the victim later refused to visit the appellant’s home for a ‘date’, the appellant threatened to send nude photos of hers to her boyfriend unless she had sex with him for free.

101.  The appellant pleaded guilty to one charge of criminal intimidation and was sentenced by the magistrate to 10 months’ imprisonment.

102.  Lam Chi Hong Patrick was a magistracy appeal case. The trial magistrate stated that he had used the case of HKSAR v Chan Ting Yip, CACC 201/2009 as the reference point in sentencing. Despite allowing the appeal against sentence, Barnes J. quoted from the Reasons for Sentence of the magistrate and approved of his analysis.

103.  In Chan Ting Yip, the then 19 year old applicant became acquainted with the victim via the internet and they communicated through MSN and phone frequently.

104.  On a day in 2006 the applicant went to the victim’s home. The applicant had sexual intercourse with the victim despite knowing that she was only 10 years old at the time.

105.  The applicant went to the victims’ home again about one year later and they had sexual intercourse again.

106.  On a certain day towards the end of 2008, during a video call conducted via MSN, the applicant asked the victim to strip so that he could see her naked, promising he would stop disturbing her again if she complied. The victim did as asked but switched off the webcam after a minute. She did not hear further from the applicant afterwards.

107.  On 10 January 2009, at the request of the applicant, the victim recorded a voice message of herself pretending to be having sex and sent it to the applicant.

108.  Later on the same day, the applicant had another video chat with the victim and told her to strip and masturbate for him to watch. The victim claimed that her webcam was broken. The applicant said he would give her a few days to fix it, otherwise he would circulate her nude photographs on the Internet. The applicant was arrested 4 days later. He was eventually charged with and pleaded guilty to 2 counts of having unlawful intercourse with a girl under the age of 13, which carries a maximum penalty of life imprisonment, and one count of criminal intimidation.

109.  The applicant had a clear record and was 21 at the time of being sentenced. The Deputy District Judge adopted a 3 years starting point for the charge of criminal intimidation. The final total sentence was 64 months’ imprisonment for the 3 counts.

110.  On appeal, the Court of Appeal held that, on the facts of the case, the 3 year starting point adopted for the offence of criminal intimidation was not improper.

111.  The magistrate in Lam Chi Hong Patrick found the facts of Chan Ting Yip analogous, where the victim’s young age made that case more serious. On the other hand, the magistrate also found the fact that the appellant had threatened the victim to have sexual intercourse with him made Lam Chi Hong Patrick more serious than Chan Ting Yip.

112.  On appeal, Barnes J. was of the view that the starting point of 18 months was on the high side but not manifestly excessive on the facts of the case. Nevertheless, the appeal against sentence was allowed and a sentence of 8 months’ imprisonment was substituted.

113.  In our present case, Mr Kan submits that the defendant had never taken any nude picture or video of X, and did not send X any picture or video via WhatsApp, and suggested a starting point of 12 months’ imprisonment.

114.  Again, I have to disagree with Mr Kan.

115.  While it is technically true that the defendant did not take any nude photos of X, the defendant did take a video of him masturbating X, in which X’s face was shown and could be heard to have asked the defendant to delete. When X received the threatening messages via WhatsApp, he must have had that video in mind.

116.  It can also be inferred that X would have known that a screen capture of a video clip could easily have been made, meaning that there could be compromising photos of himself in the hand of the defendant.

117.  Therefore, the fact that the defendant had not sent the photos or video for X to see to back up his threat does not render the nature of the intimidation less serious.

118.  The case of Lam Chi Hong Patrick was dealt with in the magistracy summarily and was subject to the lower maximum penalty of 2 years’ imprisonment. An 18 months starting point was 75% of the maximum penalty.

119.  I find the facts in our present case far more serious than that of Lam Chi Hong Patrick and more similar to that of Chan Ting Yip. Both the victims were around 13 years old at the time of being criminally intimidated, and both had been assaulted by the person intimidating them, whom they had known for some time.

120.  The demand in Chan Ting Yip was for the victim to fix her webcam so that the applicant could watch her strip and masturbate. In our present case, the summary of facts suggests that the defendant’s demand was for X to respond to the defendant’s messages or to meet up with him. It is, however, not clear why the defendant wanted X to show up, whether it was to engage in more indecent assault or for some other purposes is not known.

121.  I find that based on all the circumstances of the case, and the finding of the Court of Appeal in the case of Chan Ting Yip in relation to sentence based on their set of facts, a proper starting point in the present case is that of 30 months’ imprisonment.

122.  The defendant is granted the full one-third discount for his guilty plea and sentenced to 20 months’ imprisonment on charge 5.

Totality

Charge 1 and 2

123.  In relation to the sentences of charge 1 and 2, I refer to the following passage in the case of the above mentioned Ipp Tin Fan.

“35. The judgment of the Court in HKSAR v Chow Yuen Fai held, as we have seen, that “[f]or the offence of making child pornography, the sentences ought to be served concurrently with the offences to which they are related”. The reason is that where the maker of the child pornography is himself the perpetrator of the sexual offence being recorded, the fact that he has made the film or the photograph is itself an aggravating feature of that sexual offence, requiring enhancement of the starting point for that offence. To avoid the problem of double counting, it is appropriate to order that any sentence for making the child pornography be served concurrently with the sentence for the sexual offence. Similarly, if one looks at the other aggravating features identified by Mr Kuan (at para 24 above), all of which we accept, they are all factors which go (to a greater or lesser extent)  to aggravate the sentence for the sexual offence of indecent assault. Consequently, it is not appropriate to pass consecutive sentences where the perpetrator of the sexual offence in question is himself the one who films or photographs it.”

124.  The sentences of charge 1 and 2 are, therefore, to be served wholly concurrently, leading to a concurrent sentence of 16 months’ imprisonment for the 2 charges.

Charge 1, 3 and 4

125.  The next step is to apply the principle of totality to the rest of the sentences.

126.  Charge 1, 3 and 4 took place on different days. Apart from the fact that they involved the same victim and offender, one offence did not have to lead to the other. The defendant had plenty of time to reflect and try to control himself between the commission of the offences.

127.  Some kind of reward was promised or given to X by the defendant each time. The offences were not spur of the moment acts of passion, they were premeditated crimes committed by an adult against a child.

128.  According to the defendant’s psychologist report, there is a very high risk of re-offending.

129.  As stressed by the Court of Appeal in Huang Long Wei, the protection of children is the most important factor when sentencing for this kind of offences.

130.  In order to deter the defendant from preying on young children, I find that 6 months of each of the sentences in charge 3 and 4 should be made consecutive to the sentence in charge 1, leading to a sentence of 28 (being 16+6+6)  months’ imprisonment for Charges 1 to 4 (with the sentence in charge 2 having been made concurrent to that of charge 1).

Charge 5

131.  I find the defendant’s act of intimidation towards a 13 year old cowardly and despicable. However, the criminal intimidation arose as a result of the defendant’s commission of the earlier sexual offences towards the same victim and forms part of the factual matrix connecting the offences, suggesting that there should be some overlapping in the sentences.

132.  I would, therefore, order that 2 months of the sentence in charge 5 to be served consecutively to the sentences of the other 4 charges, the balance to be served concurrently.

Final total sentence

133.  The final total sentence for all charges after plea is, therefore, 30 months’ imprisonment.