COURT: The defendant pleaded guilty before a magistrate of the following offences: two charges of sexual intercourse with a girl under 16, contrary to
section 124 of the Crimes Ordinance - these are Charges 1 and 4; eight charges of making child pornography, contrary to section 3(1) of the Prevention of Child Pornography Ordinance - these are Charges 2, 5, 8, 10, 11, 13, 16 and 18; six charges of criminal intimidation, contrary to section 24(a)(ii) of the Crimes Ordinance - these are Charges 3, 7, 9, 14, 17 and 20; one charge of procuring sexual intercourse by threats, contrary to section 119 of the Crimes Ordinance - and this is Charge 6; three charges of procuring sexual intercourse by false pretences, contrary to section 120 of the Crimes Ordinance - these are Charges 12, 15 and 19; and one charge of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance - this is Charge 21.
On 18 July, he pleaded guilty before me and admitted the Summary of Facts. He stands convicted of all the 21 charges.
In sentencing, I have considered the whole circumstances of the case, including nature and facts of the case, background of the defendant, and mitigation put forward on his behalf by learned defence counsel.
I was told that the defendant is now 29 years old. He has received education up to secondary 3 level. He has no previous conviction record. After leaving school, he had worked in a restaurant. At the time of the arrest, he was a plumber. He is still single and had been living with his parents.
Charges 1 to 20 relate to unlawful acts of a sexual nature which the defendant committed on nine different girls. Charge 21 concerns child pornography saved in the memory card of the defendant’s mobile phone, some of which were related to the girls mentioned.
It can hardly be said that the defendant had any love and affection towards any of the girls. Each of these girls was approached by the defendant through internet social network programs like QQ and We Chat. The internet has provided opportunities for men with improper motives to make contacts with vulnerable members of the community in a way which, in previous days, would not have been done so easily.
On some occasions, the defendant disguised himself as a female doctor. When he did so, he posted on the internet a photograph of a woman in hospital gown. He cheated some of the girls that sexual intercourse with a man would be medical treatment to their physical problem or appearance concern.
I will first outline the general sentencing considerations in relation to the offences involved in this case.
Unlawful sexual intercourse with a girl under the age of 16: the maximum sentence for the offence is 5 years’ imprisonment. The offence was created to offer protection to vulnerable young members of our community. There is no tariff for this type of offence but the Court of Appeal in cases such as Hong Kong SAR v Chan Kwong Pui [2003] 4 HKC 208, Hong Kong SAR v Lee Kin San, CACC 111/2006, and Hong Kong SAR v Lee Kwok Wai [2012] 2 HKLRD 239, identified aggravating factors which a sentencing court should take into account.
The conduct of the defendant was obviously premeditated. He used the internet social network to identify potential targets. Judging from the number of offences he committed and the way he looked for his targets, the defendant may be described as a sexual predator. As the Court of Appeal recognised, one of the perils of the misuse of the internet by an older man was that he could groom an immature girl into believing that she was more mature than she was and to give her the false confidence that she could behave and should be treated as if she were an adult. The internet is now widely available for many well-intended purposes, therefore its misuse by older men to seek and find and then groom girls who are vulnerable and immature should be deterred.
Protection of young and vulnerable children is an important consideration in sentencing. The age of individual victims is obviously an important factor. It is far too easy for an older man to prey on the innocence and/or naivety of a youngster. In the present case, the age gap between the defendant and the girls was substantial and no doubt the defendant was aware of it.
On almost all occasions, the defendant did not wear a condom during the sexual intercourse and oral sex. Failure to use a condom gave rise to obvious risk of pregnancy and disease. Young girls may well be ignorant of the extent of the risk and consequence of such irresponsible acts.
On many occasions, the sexual conduct was recorded by way either of photograph taking or video recording. These were saved in the mobile phone of the defendant and were still there when he was arrested.
Taking into account the number of offences which the defendant had committed and the number of victims he harmed, in my judgment, the risk of the defendant re-offending cannot be ignored.
Procuring sexual intercourse by threat or false pretences: the maximum sentence for the offence of procuring sexual intercourse by threat is 14 years’ imprisonment and for the offence of procuring by false pretences is 5 years’ imprisonment. There is no sentencing tariff. I have considered the case of Hong Kong SAR v Au Yeung Kwok Fu, CACC 41/2010, and Hong Kong SAR v Chow Kam Wah, CACC 456/2010, which were brought to my attention.
In my judgment, most of the factors which I have just mentioned for the offence of unlawful sexual intercourse with underage girls are also relevant for consideration of sentence for these offences. The difference in the maximum sentence between the two offences is indicative that the offence of procuring by threat is, in general circumstances, more serious than the offence of procuring by false pretence.
Criminal intimidation: as regards this offence, I note that the purpose of the defendant in committing the offence was to pressurise the girls to have sexual intercourse with him. The main threat was to put nude photograph images of the girls onto the internet. There is no evidence that the defendant did actually put the items on the internet. Indeed, Mr Poon asserted that the defendant had never actually put the items on the internet. However, the anxiety caused to the girls must have been immense as their sexual conduct had in fact been recorded. Despite psychological impact report is only available for two of the girls, the degree of distress and psychological harm to the girls can reasonably be expected and cannot be underestimated. The families of the girls must also be affected.
Some girls might have been able to cope with the situation better than the others. Nevertheless, fear and anxiety caused by the threat that the sexual acts had been recorded may not be totally evaporated with the arrest of the defendant. The photograph images and video recordings were still kept in the mobile phone of the defendant when he was arrested.
Making child pornography: the offence carries a maximum sentence of 8 years’ imprisonment. Ma CJHC, as he then was, said, in SJ v Man Kwong Choi [2008] 4 HKC 565, that “... the aim of the ordinance is principally the protection of children from being exploited and abused for the purpose of pornography. The exploitation is of the worst kind.”
His Lordship said the main aspect relevant to sentencing for this nature of offences will be one of deterrence. Two facets have to be considered; firstly, protection of the victims of child pornography and, secondly, society generally. In that case, the Court of Appeal laid down sentencing guidelines by reference to the level of seriousness in the pornography. The guidelines are for the offence of possession of child pornography which carries a lower maximum penalty of 5 years’ imprisonment. I note that his Lordship has the following observation:
“While possession of child pornography can be said, on one view, to be less serious than the production, distribution or publication of such material, its seriousness should nevertheless not be underestimated.”
Indeed, in Hong Kong SAR v Chow Yuen Fai, CACC 392/2008, his Lordship said that, “as reflected in the maximum sentence for these offences, the making of child pornography is treated more seriously than mere possession.” His Lordship then went on to say that some guidance can be taken from the case of Man Kwong Choi.
A psychological report of the defendant has been obtained. It is reported that the defendant had normal psychosexual development. It is also reported that the defendant’s previous relationship with girlfriends all turned sour because the girls minded his short height. He felt he was discriminated against for his height and a sense of grief developed. In the opinion of the clinical psychologist, the defendant is self-centred and narrow minded. His problem awareness and solving was poor. He is selfish and manipulative. He disrespects women and tends to treat them as sex objects.
There is no clinical evidence to suggest that he is suffering from any sexual deviance or major psychopathology. The motive for the present offences is opined to be explainable by his maladaptive problem solving and mood management skills. Given his interpersonal difficulties, personality problems, victim characteristics, intensity and variety of the present offences, the risk of sexual violence recidivism is assessed to be moderate. This is a factor I have to take into account in sentencing.
Now I consider the case of each victim. Victim A: the charges relating to her are Charges 1, 4 and 17. Having known each other on the internet, the defendant went to the home of A. She was alone. Not knowing how to refuse, A reluctantly allowed the defendant to have sexual intercourse with her. The defendant also instructed A to perform oral sex for him. She did as instructed and he ejaculated in her mouth. No condom was used during the sexual act. The defendant used his mobile phone to record the sexual intercourse. The clip of the video recording was still saved in his mobile phone when he was arrested.
On a subsequent day in August 2012, the defendant again went to the home of A. She was again alone. The defendant again had sexual intercourse with her without using a condom. When A later became reluctant to continue the relationship, the defendant sent a QQ message to A, threatening her that he would expose her nude photograph and video recording on the internet unless she found him a young female virgin to have sexual intercourse with, or she would have sex with him again.
The defendant kept sending messages of similar threats to A until late October.
A was only 13 years old, studying form 2, at the material time. Despite A told the defendant an older age of 14 years, no doubt the defendant was aware of the age gap between them. On the first occasion, the girl was subject to the further indignity of performing oral sex for the defendant. There was recording of the intercourse which was saved in the mobile phone of the defendant. The defendant did not use force but he did not wear a condom during the sexual intercourse and oral sex.
Psychological impact report of A is obtained. It is reported that there is salient psychological impact on the girl. She manifested various post-trauma symptoms. Her basic trust towards people is compromised. She is afraid of developing any heterosexual relationship. It is assessed that some sequel of sexual abuse might likely last into adulthood or even lifelong.
In all the circumstances, I adopt 42 months as the starting point for the first unlawful sexual intercourse charge, Charge 1, and 33 months for the second, Charge 4. A higher starting point is adopted for Charge 1 as the girl was subjected to the extra indignity of oral sex and the sexual activities were video recorded. As regards the criminal intimidation charge, Charge 17, I am of the view that a starting point of 21 months is appropriate.
Victim V Sin: the charges relating to her are Charges 2 and 3. Having failed to secure a relationship with V Sin by approaching her through QQ, the defendant, disguised as a female doctor specialising in female puberty, approached her again through QQ. V Sin expressed her concern over her height. Being made to believe that it was for medical diagnosis, V Sin followed the instruction of the defendant to take and send him 14 photograph images showing her breasts and genitals.
On a subsequent day, the defendant, in his male identity, sent to V Sin some of these pornographic photograph images. He threatened her that he would post the images onto the forum of her school and the district where she lived if she did not have sexual intercourse with him.
At the material time, V Sin was a form 1 student, 13 years of age. The photograph images are of level 1 classification, which is the least serious level. There were 14 photograph images. I have to take into account that such images had been obtained by deception and their subsequent use for illegal intimidation.
For Charge 2, the pornography charge, I adopt a starting point of 9 months. For the criminal intimation charge, Charge 3, I adopt a starting point of 21 months.
Victim X: the charges relating to her are Charges 5, 6 and 7. Through We Chat, X came to know the defendant who pretended to be a female doctor from Taiwan. Believing that it was for diagnosis purpose, X took some nude photographs showing her breasts and genitals and sent them to the defendant. On the day following her sending of the photographs, upon the request of the defendant, X also provided him with her full name and details of her school, believing that the information was for compiling of medical record.
The defendant then tried to deceive X into having sex with him by telling her that she had vaginal illnesses which could be cured by having sexual intercourse with a male. X did not believe him. He then revealed his male identity and told X that he had her pornographic photograph images. He threatened her that if she did not have sex with him, he would publish the images on the internet.
Upset and frightened, X unwillingly agreed to meet the defendant. When they met, X asked the defendant to let her go. He, however, responded by saying that if she left, he would expose her photograph images on the internet. As a result, X followed the defendant into a motel and reluctantly had sexual intercourse with him. The defendant did not wear a condom.
On the following day, the defendant again intimidated X with the same threat. He told her to have sex with him again or to refer other girls to him. As a way to get rid of the defendant, X searched the girls whom she was acquainted with and sent their QQ account numbers and photograph images to the defendant.
The more serious offence is procuring by threat, Charge 6. X was a form 2 student, 13 years of age. The defendant was aware of this fact. He must have regarded X as a vulnerable target. He proceeded to obtain by trick nude photograph images of her. Having failed to deceive the girl into having sex, he threatened her with the nude photographs. He must at least be reckless as to whether she consented to have sexual intercourse. In all the circumstances, I am of the view that a starting point of 45 months is called for.
For the offence of criminal intimidation, Charge 7, taking into account that, through the threat, another victim was introduced to the defendant, I adopt a starting point of 24 months. For the child pornography offence, Charge 5, I note that the classification is level 1 and there were 12 photograph images. I adopt a starting point of 9 months.
Victim V Zhang: the charges relating to her are Charges 8 and 9. In August 2012, she was a form 2 student, 14 years of age. She was one of the girls whom X, under threat, referred to the defendant. The defendant approached her through QQ in the guise of a female doctor from Taiwan. In response, V Zhang disclosed her personal details, including her age. The defendant told her that her height was not normal in relation to her age and that he had a special machine which would make medical diagnosis by scanning patients’ photograph images.
Believing the defendant was a female doctor and what he said about her height problem, V Zhang sent him photographs of herself, showing her face, breasts and genitals. Having received the photograph images from V Zhang, the defendant told her that she suffered from some illness which could be cured by having sexual intercourse with a young man. She did not believe and ceased contact with the defendant.
On a subsequent date, the defendant approached V Zhang in his male identity, telling her that he was in possession of her pornographic photograph images and her personal data. He threatened her that he would publish the images onto her school forum if she did not have sexual intercourse with him.
For the pornographic charge, Charge 8, having regard to the classification at level 1 and that there were 12 photograph images and also that the images had been obtained by deception and its subsequent illegal use, I adopt a starting point of 9 months. For the intimidation charge, Charge 9, I adopt a starting point of 21 months.
Victim V Wong: the charges relating to her are Charges 10 and 14. At the material time, she was a form 2 student, 13 years of age. Through QQ, she came to know the defendant who disguised himself to be a female doctor. The defendant claimed to her that he was conducting research on teenage development. By this, he managed to make V Wong send him nude photograph images of herself.
Later, having failed earlier to cheat V Wong into having sex with a young man to cure an illness which she said she was suffering, the defendant, in his male identity, approached her through QQ. He told her that someone in Taiwan has posted her naked images and personal data on the internet and he had possession of the images. He threatened her that the posting of her photograph images would not be stopped until she allowed him to have sexual intercourse with her. There were eight photograph images classified as level 1.
I adopt a starting point of 9 months for Charge 10. For the intimidation charge, Charge 14, I adopt a starting point of 21 months.
Victim Y: the charges relating to her are Charges 11, 12, 13, 15 and 16. The defendant approach her at We Chat, using the female Taiwanese doctor identity. Believing that the defendant was conducting research on puberty and that her health condition would be assessed by scanning her photograph images with a special computer, Y sent the defendant her nude photograph images showing her breasts and genitals. She also sent her personal details, including her age and school name for a file to be opened for her.
The defendant, in the female doctor identity, then told Y that she was fat because there was toxin in her body. To solve the problem, she was to either undergo an operation or have sex with a man with certain physical features. At the same time, the defendant acquainted Y by We Chat, posing himself as a man who fitted the criteria described by the doctor. Then the defendant, in the female doctor identity, encouraged Y to have sex with this man.
As a result, Y met the defendant at a motel and had sexual intercourse with him. She also performed oral sex for him and he ejaculated in her mouth. The defendant did not wear a condom during these sexual acts. Y believed these acts were medical treatment.
The defendant made a video recording which showed the breasts and genitals of Y when she was putting on her clothes, in tears. On the same day, the defendant again used the female doctor identity and requested Y to send him photograph images showing her genitals as follow-up checking. Y believed and sent three photograph images of her genitals to the defendant.
A few days later, having been persuaded by the defendant in the female doctor identify that she could carry on the treatment, Y had another sexual intercourse with the defendant. She also performed oral sex for him and he ejaculated in her mouth.
Later on the same day, the defendant, in the female doctor identity, asked Y to take and send photographs of her genitals for the purpose of medical follow-up. Y complied and sent four photograph images showing her genitals and two photograph images showing her breasts and face. The defendant committed on this girl Y two unlawful sexual intercourse procured by false pretence and three offences of making child pornography.
At the material time, Y was a form 4 student, 15 years of age. The girl was slightly older than the two other girls who had sexual intercourse with the defendant. That said, there was still a wide age difference between the defendant and her. By committing the offence, the defendant betrayed a trust which was instilled on Y by posing as a female medical doctor and exploited her belief that the sexual intercourse was a medical treatment. On both occasions she had to perform oral sex for the defendant. The defendant did not wear a condom.
After the first intercourse, video recording was taken of the girl showing her breasts and genitals. On both occasions, the girl was subjected to the added indignity of oral sex.
In my judgment, for the offence of procuring by false pretence, a starting point of 39 months is appropriate for each charge, Charge 12 and Charge 15. For the pornography offences which concerned 23 and 6 photograph images respectively, all classified at level 1, I adopt a starting point of 9 months for each of these charges.
Victim V Chen: the charge relating to her is Charge 18. At the material time, she was a form 1 student, 12 years of age. The defendant approached her by QQ, claiming to be a female doctor from Guangzhou. V Chen believed that the defendant was a female doctor.
One day, in response to the defendant’s request to send nude photographs for medical diagnosis, V Chen took and sent him 12 nude photograph images showing her face, breasts and genitals. Classification of the pornography is level 1. No further action was taken after receiving of the photographs.
In all the circumstances, I am of the view that a starting point of 6 months is appropriate.
Victim Z: the charge relating to her is Charge 19. The defendant approached her by We Chat, using the false identity of a female gynaecologist from Taiwan. Believing that the defendant was a doctor, Z consulted him about her gynaecological problem. The defendant told Z that her problem would cause her weight gain and in future she would have difficulties bearing a child.
Pretending to help Z, he instructed her to send him nude photograph images showing her breasts and genitals. Z complied. She took and sent 14 nude photograph images. She also provided information including her name, date of birth, school, address and phone number. The defendant told Z that expensive treatment was required but, as an alternative, her illness could be cured by having sexual intercourse and oral sex with a man meeting certain physical description.
The defendant then posed himself at whatsapp as a person who fitted the criteria to acquaint with Z. At the same time, he used the female doctor identity to persuade Z to have sex with this man. As a result, on or about 7 October, believing this would cure her illness, Z had sexual intercourse with the defendant and performed oral sex for him. The defendant did not wear a condom. He also used his mobile phone to record the sexual intercourse and oral sex.
The situation leading to the offence was very similar to the case involving Victim Y. This victim, Z, was older but still not yet an adult. Her age was 17, studying form 5. I am of the view that a starting point of 39 months is appropriate.
Victim V Mak: the charge relating to her is Charge 20, a charge of criminal intimidation. She was approached at We Chat by the defendant who posed as a Taiwanese female doctor specialising in puberty. When the defendant told her that she had come to Hong Kong for a conference, V Mak told him her concern over overweight and breast development. The defendant asked her to send nude photographs of her breasts and genitals for medical diagnosis.
V Mak had hesitation and asked for more information of the defendant. Then she eventually was made satisfied and she took nude photographs of herself and sent the images to the defendant. The defendant then told her that she would soon have weight gain unless she was to have sex with a male. She ignored the proposal.
On the following day, the defendant revealed to V Mak that he was in fact a male and demanded her to meet him to have sexual intercourse. He threatened her that if she did not do so, he would send her nude photograph images to a classmate with whom she had grudges.
After discussing with her father, she made a report to the police. This led to the arrest of the defendant. At the material time, V Mak was a form 5 student, 16 years of age. For Charge 20, I adopt a starting point of 21 months.
Charge 21 is for the offence of possession of child pornography. The memory card seized inside the mobile phone of the defendant contained 40 named folders of female photograph images. Examination of the images revealed child pornography, namely 155 still photograph images filed, including 84 images which have been referred to in the other charges and six video files, including two video clips which have been referred to in Charges 1 and 7.
One of the photograph images files and five of the video files are classified at level 4. All the other files are classified at level 1. One of the level 4 video clip records records the sexual act with one of the girls. I am of the view that a starting point of 24 months is appropriate.
Defendant, your counsel, Mr Poon, urged me to take into account the following factors. You previously had a clear record. You were all along co-operative and made frank admissions after the arrest. You pleaded guilty at the earliest opportunity when the case was still being dealt with by a magistrate.
You are now fully remorseful. You are determined not to offend again. Realising that you may need therapeutic assistance, you are prepared to receive counselling and attend courses. To prepare for rehabilitation, you will pursue study in accounting. The family is very supportive to you and you offer your apology to all the girls and their family.
The court also received letters written by you, your family and friends. You expressed your remorse. You told me that you had twice been deserted by your girlfriends who had a negative thinking about your height. Authors of the other letters speak well of you and express surprise that you had committed these offences. I was told that as you are short you have been looked down upon by others and this had an adverse impact on your physiological health.
You pleaded guilty and is entitled to a one-third discount. One-third is already the high watermark of the discount for pleading guilty, however, I note that by pleading guilty, nine young ladies have been spared the ordeal of testifying in court. Moreover, perusalof the case file gives an impression that presentation of the case, if a trial is required, would have been burdensome. For these reasons, I am prepared to give you a further discount of 4 months from the overall sentence. Defendant, please stand up.
For the reasons I have outlined, I sentence you as follows:
For victim A, Charge 1, 28 months; Charge 4, 22 months; Charge 17, 14 months.
For victim V Sin, Charge 2, 6 months; Charge 3, 14 months.
For victim X, Charge 5, 6 months; Charge 6, 30 months; Charge 7, 16 months.
For victim V Zhang, Charge 8, 6 months; Charge 9, 14 months.
For victim V Wong, Charge 10, 6 months; Charge 14, 14 months.
For victim Y, Charge 11, 6 months; Charge 12, 26 months; Charge 13, 6 months; Charge 15, 26 months; Charge 16, 6 months.
For Victim V Chen, Charge 18, 4 months.
For victim Z, Charge 19, 26 months.
For victim V Mak, Charge 20, 14 months.
For the offence of possession of child pornography, Charge 21, 16 months.
Within a span of 5 months between June and October in 2012, you have committed offences on 9 young girls with age ranging from 13 to 17 at the material time. You had sexual intercourse with four of them and with two of them twice. For some victims, more than one offence has been committed and the offences were of different nature.
In considering what’s an appropriate overall sentence is, I bear in mind what the Court of Appeal said in HKSAR and Ngai Yiu Ching CACC107/2011. In my judgment only a notional starting point of 12½ years is sufficient to reflect the serious nature of this case. Taking into account the discount I am to give you for the reasons I have outlined earlier, I impose on you a total sentence of 8 years.
To give effect to this, I order the sentences imposed on Charge 5 to Charge 21 to run concurrently with one another.
Two months of the sentence imposed on charge 2 to run consecutively to the aggregate of these sentences and the sentences imposed on charge 1, charge 3 and charge 4 to run consecutively to one another and also consecutively to the aggregate sentence of all the other charges.
You are to serve a total sentence of 8 years.