HKSAR v. FENG KA HO AND ANOTHER

DCCC 1573/2024

[2025] HKDC 1867

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1573 OF 2024

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REASONS FOR SENTENCE

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1.  The 1st Defendant (“D1”) and the 2nd Defendant (“D2”) pleaded guilty to the following charges:

Against D1

i) Charge 1: Making child pornography^[1] on 11^th June 2024;

Against D2

ii) Charge 2: Unlawful sexual intercourse with a girl under the age of 13 years^[2], namely Y, on 11^th June 2024;

iii) Charge 3: Unlawful sexual intercourse with a girl under the age of 13 years^[3], namely Y, on 8^th July 2024;

iv) Charge 4: Indecent conducts towards a child under the age of 16 years^[4], namely Y, on 11^th June 2024; and

v) Charge 5: Making child pornography^[5] on 4^th July 2024.

2.  Both defendants admitted to the facts and were convicted on all the charges.

Admitted Facts

Background

3.  At the material time, D1 and D2 were friend while Y and Z were both D2’s girlfriends. D1 and D2 were 19 and 16 years old respectively while Y and Z were 12 and 13 years old respectively.

4.  Y came to know D2 via Instagram in July 2023. They started dating in April 2024. D2 knew how old Y was as she expressly told him so.

5.  In mid-June 2024, Y left home and did not return. She went to Kwun Tong to look for his boyfriend, D2, and his friend (i.e., D1). The three of them then went to room 508 in Ind Hotel, Kwun Tong (“Ind Hotel”). They stayed there until around 5 July 2024. 

Charge 1 and Charge 4

6.  On 11 June 2024, Y, then aged 12, performed oral sex on D2 in the hotel room. At that time, D1 was nearby and used his iPhone to take two videos recording Y performing oral sex on D2. The videos were saved in D1’s iPhone with details as follows:

i) Video 1:

Video 1 lasts 5 seconds that shows Y with a black oversized T shirt was kneeling down and having oral sex with D2 whose pants and underwear were pulled down below his knees. Y covered her face with her hands and turned away after noticing D1 was taking video;

ii) Video 2:

Video 2 lasts 5 seconds that shows Y was kneeling down and having oral sex with D2.

Charge 1 and Charge 2

7.  After the oral sex, Y and D2 went inside the bathroom. Y lied down on the showering area and D2 had intercourse with her. Y estimated the sex last around 30 minutes. The bathroom door was closed but not locked. D2 used a condom during the intercourse. 

8.  During the intercourse, D1 entered the bathroom and used his iPhone to take three videos of Y and D2 having sex. The videos were saved in D1’s iPhone with details as follows:

i) Video 3

Video 3 lasts 11 seconds that shows D1 opened a bathroom’s door. Inside, Y and D2 were having sexual intercourse at the showering area. Y yelled and screamed “唔要啊” (“no”) with her right hand covering her face. D1 kept saying “繼續啊，繼續啊” (“keep going, keep going”);

ii) Video 4

Video 4 lasts 9 seconds that shows D2 trying to have sexual intercourse with Y at the showering area. D1 said “影樣，影樣呀喂” (“capture [her] face, capture [her] face”) while Y covered her face in both hands;

iii) Video 5

Video 5 lasts 14 seconds that shows D2 and Y having sexual intercourse in the showering area. Y covered her face in both hands. D1 said: “快啲啦，你老母，屌屄呀” (“Hurry up, you mother fucker. Fuck.”).

Charge 5

9.  While D1-D2 and Y were staying at room 508 of the Ind Hotel, two girls came and stayed with them for one to two nights, i.e., Z, who was then aged 13, and D1’s girlfriend. 

10.  On 4 July 2024, while Y and Z were showering inside the bathroom, D2 came inside and used Z’s VIVO mobile phone to take a video of them showering together. The 40 seconds video was saved in Z’s VIVO mobile phone that shows Y and Z were fully naked taking shower in private in the showering area. At one time, D2, who was taking the video, opened the glass door, approached the girls, and then closed it thereafter. D2 said “好唔好玩呀？答左我先啦” (“Having fun? Answer me first”), “濕嘅” (“It’s wet”), “喂，擰個黎啦，做咩野呀” (“Hey, turn around, what are you doing”) and D1 said “怕羞呀？” (“Feeling shy?”)

Charge 3

11.  On around 5 July 2024, D1, D2, Y, and D1’s girlfriend went to and stayed at another hotel, i.e., room 402, 4/F, the Shai Red Hotel in Yau Ma Tei (“Shai Red Hotel”). 

12.  On 8 July 2024, Y had another sexual intercourse with D2 in the hotel’s bathroom. D2 sat on the toilet and Y sat on his lap. They had sexual intercourse voluntarily. The sex lasted for around 30 minutes. D2 used and ejaculated inside a condom. 

Police’s raid on 10 July 2024

13.  The police checked with the Ind Hotel and found that room 508 was rented by D1 from 11 June to 6 July 2024.

14.  On 10 July 2024, the police conducted a raid at room 402 of the Shai Red Hotel, they found D1, D2, Y, and D1’s girlfriend therein. Y was then a reported missing person. 

D1’s arrest and caution

15.  Upon search, the police found an iPhone on D1. Videos 1 to 5 were found in the iPhone.

16.  Upon arrest and caution, D1 admitted using his mobile phone to take videos of Y and D2 having sex at room 508 of the Ind Hotel for fun.

17.  During cautioned VRIs, D1 admitted the offence, stating that D2 asked D1 to take videos for him. D1 used his own mobile phone to take the videos. They shared the same Apple ID and the videos would also be available in D2’s mobile phone. 

D2’s arrest and caution

18.  Upon search, the police found on D2 an iPhone that belonged to him and a VIVO mobile phone which belonged to Z. The police also found Video 6 inside Z’s VIVO mobile phone.

19.  Upon arrest and caution, D2 admitted having sex with Y voluntarily and claimed that he had used condom on both occasions. D2 also admitted taking Video 6 for fun.

20.  During cautioned VRIs, and in the presence of D2’s mother, D2 admitted the offences and stated he knew Y was underage and yet he had sexual intercourse with her. D2 further admitted taking video of Y and Z showering together (i.e., Video 6). Both Y and Z were his girlfriends. He did not ask for consent. 

Classification of Child Pornography

21.  Videos 1 to 5 are classified as level 4 materials (penetrative sexual activity (including portrayal of oral sex) between Y and D2); while Video 6 is classified as level 1 material (video depicting erotic posing with no sexual activities).

Victims’ impact reports

22.  Victims’ impact reports were obtained for both Y and Z. The findings of Y’s psychologist report is that she has manifestation of post-traumatic stress symptoms, and elevated levels of depression and dissociation. Y is still encountering adjustment difficulties related to the incidents. Y is reluctant to pursue further psychological services at the moment. 

23.  The assessment with Z reveals limited overt post-trauma stress symptoms at the time of the report.

D1’s mitigation

D1’s circumstances relating to the offences

24.  D1 was 19 years old at the time of Charge 1. D1 first met D2 through friends. They had only met for a few months before the present offence. D1 rented the room at the Ind Hotel as D2 said that he did not want to go home. 

25.  D1 took the videos because D2 asked him to do so. He refused this request at first because it made him feel uncomfortable and asked D2 why he could not just record himself. D2 told him that it would not be convenient to record it himself. He further added that his girlfriend Y was ok with it and that the recording would only be for a short while. It was in this context that D1 made the foolish mistake of committing the present offence. He explained that the reason he was saying the words identified in Videos 3-5 (paragraph 8 in this judgment) was because he wanted to quickly finish the process of recording as it made him feel awkward and uncomfortable.

26.  Whilst D1 appreciates the severity of the offence, the Defence submits that the number of videos (being 5 for Charge 1) on the phone was not the worst number in cases of this kind^[6]. The duration of the videos were short, ranging from 5 seconds to 14 seconds.

27.  Whilst the phone that D1 used shared the same Apple ID as D2’s mobile phone and therefore the videos would also be available on D2’s mobile phone, D1 did not send out the videos in question. There was no dissemination for gain, nor was there intention for publication, distribution or sale^[7]. This was an unsophisticated operation in which there was no commercial arrangement involved that led to the commission of Charge 1. D1 also did not look at the videos himself. The videos were not taken for his personal use – his position is that he was taking the videos upon request of D2.

D1’s personal circumstances

28.  D1 is 20 years old and is a Hong Kong Permanent Resident. He was educated to Secondary School Form 3 level. His mother and his father both work on construction sites. His father is 40 years old and his mother is 39 years old. He does not have any siblings. 

29.  Growing up from as early as the age of 4, D1’s father was physically abusive towards him – D1 had been subject regularly to his father hitting him on face, head, body, hands and feet. D1’s father was also physically abusive to D1’s mother. He had witnessed his father slapping his mother, pulling her hair and kicking her body. D1’s parents were divorced when he was 5 to 6 years old. 

30.  When D1 was around 6 to 7 years old, his father sent him back to Mainland China to live with his relatives on the paternal side. He lived in Mainland China for a few months. Throughout D1’s teenage years, his relationship with his father had been rocky and unstable, especially with the difficulties he found getting along with his father’s partners over the years.

31.  Whilst the above by no means serves as any excuse or justification for the commission for the present offence, the Defence wishes to put this forward for the Court to consider by way of his background.

32.  Prior to being detained, D1 was living with his father. However he would at times be living outside, given how unhappy he was at home.  After the case concludes, D1 plans to live with his mother.

33.  Having discussed with his mother about his future plans, his mother has offered to make arrangements for D1 to work at the construction company in which she is currently working. D1 had previous experience of working there and was earning around HK$20,000 per month. Eventually D1 wishes to return to China to stay with his maternal grandmother.

34.  Since being placed on remand, D1 has had much time to reflect upon his behaviour, which has led to commission of the present offence. He now fully appreciates the dire consequences of his actions and the worries that he has brought onto his loved ones, especially his mother, who has been regularly visiting him in this period of remand. 

Leniency in sentence

35.  Since being arrested to date, he has been placed on remand for over 15 months. D1 pleaded guilty at the earliest opportunity. He is remorseful and has saved the Court’s time and costs in avoiding a trial.  

D2’s mitigation

36.  D2 is currently 17 years old and a secondary school student. At the times of the offences, D1 and D2 were friends; the victim, Y, was 12 years old. D2 and Y became acquainted and developed a romantic relationship via social media.

D2’s personal and family background

37.  D2 is studying in Secondary 4 at Fung Kai No. 1 Secondary School, having won several awards in school and inter-school sporting events. He comes from a modest family, lives in public housing, and maintains a positive social and academic record. He has been residing with supportive family members.

D2’s plea in mitigation

38.  D2 has demonstrated deep remorse after the event, repeatedly apologizing to the victims and their families. He also fully cooperated with police investigation and recounted everything that happened in an upfront manner. His family has been playing a crucial role in monitoring D2’s future behaviour and supporting his rehabilitation.

39.  At the time of the offences, D2 was only 16 years old. He lacked social experience and had inadequate understanding of the law and sexuality. The sexual acts were consensual, and D2 used protection. The offences stemmed from adolescent naivety, curiosity, and a moment of impulsiveness rather than any premeditation, violence, threats, or exchange of benefits.

40.  During remand, D2 has sincerely reflected on his own behaviour and is committed to rehabilitation. He plans to focus on his studies and avoid re-offending. His family, school, and social workers have pledged continued oversight and support.

41.  The video concerned in Charge 5 was filmed by D2 using a VIVO mobile phone belonging to Z. This circumstance supports that D2 did not demonstrate an intention to distribute or retain the video for himself or benefit from it.

42.  D2 has not been granted bail and has remained in custody continuously since his arrest in July 2024. As a result, he has already borne significant consequences for his conduct, having effectively been deprived of his liberty for over a year. Furthermore, given the fact that he has been detained since the time of his arrest, it would have been impossible for him to distribute any child pornography material he filmed.

43.  It should also be emphasised that the impact of the said child pornography on the victims is comparatively minor. This is consistent with the available materials and case background, in particular, both Y and Z were D2’s girlfriends.

Relevant Law and Sentencing Guidelines

44.  Mr. Luk submitted to the court HKSAR v LEE Kwok Wai[8] for considerations of the principles apply to Indecent conduct towards a child under the age of 16 (Charge 4), HKSAR v LEE Hon Wah[9], for the offences of sexual assault on a child (Charges 2 and 3), and HKSAR v Chow Yuen Fai[10] and Secretary for Justice v MAN Kwong Choi[11] for child pornography (Charge 5).

D2’s Conduct and Prospects

45.  D2 has proactively cooperated with the police throughout the investigation and legal process. He has demonstrated genuine contrition and has taken full responsibility for his actions. Following the incident, he has completely severed contact with all the victims and D1. He is committed to avoiding all activities or parties that may cause him to reoffend.

46.  D2 has already suffered a heavy consequence through his long period of custody awaiting sentence. Throughout the proceedings, he has demonstrated genuine remorse for his actions and a clear determination to start anew.

Sentencing considerations

47.  D1 is 20 years old at time of sentence and 19 years old at time of offence. D2 is 17 years old at time of sentence and 16 years old at time of offence. Both are young offenders. 

48.  Section 109A(1) the Criminal Procedure Ordinance^[12] provides:

“109A. Restriction on imprisonment of persons between 16 and 21 years of age

(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.”

49.  Before sentence, I have also considered the principles laid down in Secretary for Justice v. Wong Chi Fung^[13] and Secretary for Justice v SWS^[14] which the legal principles are also applicable to young offenders under the age of 21^[15].

D1

50.  Videos 1 to 5 are classified as level 4 materials. According to the sentencing guideline laid down in Secretary for Justice v MAN Kwong Choi, the possession of such child pornography “should generally be from 12 months (even of a few images) to 36 months”^[16]. The making of child pornography is treated more seriously than mere possession^[17].

51.  I have the opportunity to look at the five videos. I accept there are only five videos, the videos are relatively short, ranging from 5 to 14 seconds, and one cannot identify Y in the videos. I also accept the videos are not for commercial gain and beside sharing it to D2, it was not for mass distribution. However, I considered there are some aggravating factors:

i) Y was 12 years old at the material time;

ii) It is obvious Y was not a willing participant in the filming. Y said no and continuously covered her face when she noticed D1 was filming;

iii) D1 continued to film after Y was trying to cover her face; and

iv) D1 has one previous criminal record of “unlawful sexual intercourse with a girl under the age of 16”.

52.  Despite D1 claimed he only committed the offence because D2 repeatedly asked him to do so, from the video seen, D1 was obviously a willing participant who also told Y to let him film her face. I reject D1’s claim. In any event, given the circumstances, if D1 is an adult, a lengthy custodial sentence is likely, whether D1 was told by D2 to film or not.

53.  Given the age of D1, Detention Centre, Rehabilitation Centre and Training Centre report is obtained. The Commissioner of Correctional Services considered D1 is more suitable for detention in a Detention Centre. 

54.  Considering the nature and seriousness nature of the offence, D1’s age, his rehabilitation, he has already been detained for over 15 months since arrest, and the recommendation from the Commissioner of Correction Services, I consider Detention Centre is an appropriate sentence for D1. Therefore, for Charge 1, I sentenced D1 to detention in a Detention Centre.

D2

55.  Charges 2 to 4 related to unlawful sexual intercourse and indecent conduct towards a child under 16. All charges relate to the same victim, Y. There is no tariff in sentencing sexual offenders involving young child. I have considered the sentencing principles laid down in HKSAR v LEE Kwok Waiand HKSAR v LEE Hon Wah. When considering the appropriate sentence for D2, I have the following considerations:

i) Y was 12 years old at the time of offence, D2 was 16 years old;

ii) D2 and Y developed a romantic relationship after meeting via social media. There is no breach of trust or any special relationship;

iii) D2 did not use any threats or inducements;

iv) There were total of 3 incidents in Charges 2-4. Both Charge 2 and Charge 3 lasted around 30 minutes;

v) No violence was involved;

vi) D2 used protection in both Charges 2 and 3;

vii) Y suffers from manifestation of post-traumatic stress symptoms, and elevated levels of depression and dissociation. Y is still encountering adjustment difficulties related to the incidents;

viii) There is no impact on the family member;

ix) D2 allowed D1 to take videos while he and Y were having sexual activities;

x) There is no evidence that D2 is psychologically imbalanced or paedophilic; and

xi) D2 has a clear record.

56.  Considering the above, if D2 is an adult, I would consider a lengthy sentence as Y was only 12 years old at the material time, the use of video and the effect on Y. 

57.  Charge 5 relates to a 40 seconds video filmed by D2 capturing naked body of Y and Z. Video 6 is classified as level 1 material. According to Man Kwong Choi, non-custodial sentence can be considered for mere possession. However, making of child pornography is treated more seriously. Further, it can be seen in the video that Y, again, was not a willing participant that she constantly covered her face during filming. Z also used her back to face the video. Also, Y was 12 years old and Z was 13 years old at the material time, so despite that Video 6 is classified as level 1, this is still a serious offence.

58.  Before sentence, I have obtained Detention Centre, Rehabilitation Centre and Training Centre report and a Young Offender Assessment Panel report. It is the recommendation from the Commissioner of Correction Services that Detention Centre is appropriate. However, the Young Offender Assessment Panel recommended Training Centre.

59.  As discussed above, D2 committed serious offences. As can be seen in both reports, D2 is in need of rehabilitation. 

60.  Considering the YOAP is a special board jointly established by the Correctional Services Department and the Social Welfare Department “to provide a co-ordinated professional view to courts in sentencing of young offenders”^[18], and D2 has limited insight, I accept the recommendation of YOAP. 

61.  Therefore, for Charge 2 – 5, D2 be sentenced to detention in a Training Centre. The sentences of Charges 2 – 5 to be run concurrently.

[1] Contrary to section 3(1) of the Prevention of Child Pornography Ordinance (Cap. 579)

[2] Contrary to section 123 of the Crimes Ordinance (Cap. 200)

[3] Contrary to section 123 of the Crimes Ordinance (Cap. 200)

[4] Contrary to section 146(1) of the Crimes Ordinance (Cap. 200)

[5] Contrary to section 3(1) of the Prevention of Child Pornography Ordinance (Cap. 579)

[6] Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519 §20

[7] Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519 §20

[8] [2012] 2 HKLRD 239

[9] [2011] 4 HKLRD 319

[10] [2010] 1 HKLRD 354

[11] [2008] 5 HKLRD 519

[12] Cap. 221

[13] (2018) 21 HKCFAR 35

[14] [2020] HKCA 788

[15] Secretary for Justice v. SHY [2020] HKCA 829

[16] Para. 17 (4)

[17] HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354

[18] Sentencing in Hong Kong 11^th Edition pages 764-765