HKSAR v. LAW YUE TING

DCCC 881/2019

[2020] HKDC 829

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 881 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of procurement of an unlawful sexual act by threats, contrary to section 119 (1) of the Crimes Ordinance[1] (charge 1), one charge of possessing a false instrument, contrary to section 75 (1) of the Crimes Ordinance (charge 3) and one charge of procurement of an unlawful sexual act by false pretences, contrary to section 120 (1) of the Crimes Ordinance (charge 4).

2.  Full particulars of the offences are set out in the amended summary of facts admitted by the defendant on 22 September 2020[2].   Before passing sentence I called for a psychological report, a background report and victim impact statements. 

Charge 1

3.  Charge 1 concerns gross indecency with a school boy, X, aged 16. 

4.  In summary in March 2016 the defendant first made acquaintance with X on Instagram at a time when X was only 15.  X and the defendant kept in touch and chatted on the internet from time to time. 

5.  The defendant claimed to be employed by the University of Hong Kong to engage in human growth studies research.  The University of Hong Kong confirmed that the defendant had never been employed to conduct any research at any time.  

6.  X and the defendant first met in a public park on 7 April 2016 by which time X had turned 16.  The defendant invited X to take part in his research project telling X he would be paid between $400-$1,000 each time he participated in the project but would need to pay back $4,750 to the defendant if he quits halfway through the project. 

7.  At around 9 a.m. on 10 April 2016 the defendant met X at the McDonalds in Cyberport.  Under the guise that X was to participate in his research project the defendant led X to a conference room in Cyberport.  When X entered the conference room he saw that video cameras had been set up inside. 

8.  Under the pretence of performing neurotherapy, the defendant instructed X to take off all his clothes.  When X declined to do so the defendant threatened X that he would need to pay back $6,000 for not agreeing to take part in the project or otherwise he would sue X.

9.  Feeling scared and threatened X reluctantly took off his clothes and laid down naked on a table.  Against X’s will the defendant masturbated X for around fifteen minutes until X ejaculated.  X then left Cyberport together with the defendant. 

10.  X would not have allowed the defendant to touch him had he known that the research project did not exist. 

11.  Afterwards the defendant continued to send WhatsApp messages to X trying to set up another meeting but X declined to meet the defendant. 

12.  On 11 February 2017 X reported the matter to the police.  The police set up a controlled meeting between X and the defendant on 25 February 2017 when X pointed out the defendant who was then arrested. 

Charge 3

13.  When the defendant was arrested he was found in possession of a false staff card bearing his name and photograph purporting to show that he was a doctor at Queen Mary Hospital. 

14.  The hospital confirmed the staff card was false.  At all material times the defendant was not a medical doctor registered with the Medical Council of Hong Kong.

15.  I have had the opportunity of viewing the card.  A photograph of the card has also been submitted to court. 

Charge 4

16.  Charge 4 concerns gross indecency with a school boy, Y, also aged 16. 

17.  In summary the defendant came to know the defendant through a common friend.  The friend told Y that the defendant claimed to be a member of an intelligence gathering agency of the U.S.A. similar to the CIA and possessed personal information about Y. 

18.  Y became scared and agreed to meet the defendant for the first time on the evening of 13 June 2019.  Y met the defendant at 11:30 p.m. at the Hung Hom MTR station.  The defendant claimed to be a member of an intelligence gathering agency of the U.S.A. similar to the CIA and was responsible for collecting confidential information on behalf of the U.S.A. government. 

19.  The defendant invited Y to join the agency and falsely claimed that he could assist Y to emigrate to the U.S.A.   At around 1:16 a.m. the next morning under the guise that a body check was required in order for Y to go to the U.S.A. the defendant led Y to the male toilet on the lower ground floor of the Empire Centre, No. 68 Mody Road in Tsim Sha Tsui.

20.  Inside the toilet, under the guise that to facilitate going to the U.S.A. a body check including a check on Y’s erectile function was required to be performed, the defendant made Y remove all his clothing.  The defendant then smelt Y’s foot and appeared to take nude photographs of Y. 

21.  The defendant then masturbated Y against Y’s will for approximately three to four minutes. Feeling disgusted Y told the defendant to stop.  Y then left the lavatory together with the defendant. 

22.  Y would not have permitted the defendant to touch his private parts and masturbate him had he known about the falsity of the defendant’s representations.

23.  Later the same day Y related the incident to a social worker at his school after which a report was made to the police.  A controlled meeting was set up for Y and the defendant to meet that evening resulting in the arrest of the defendant.

Mitigation

24.  In passing sentence, I have carefully considered the written and oral submissions of Mr Surman, including that the defendant aged 31, is the only child of the family and that prior to his arrest in 2019 he worked as an IT programmer[3].  Full particulars of the defendant’s family, education and employment are detailed in the background report[4].

25.  The defendant’s mother has attended every court hearing to show support for her son.  The mother told the probation officer that she was shocked to learn that her son was involved in the present offences and described her son as a very caring boy, especially to his maternal grandmother[5].

26.  The defendant’s employer also speaks very highly of the defendant, describing him as good team member and loyal and says that the conviction is a huge loss for the company[6].

Procurement of an unlawful sexual act by threats and false pretences

27.  The maximum sentence for procurement of an unlawful sexual act by threats is 14 years’ imprisonment and for procurement of an unlawful sexual act by false pretences is 5 years’ imprisonment.

28.  The unlawful sexual act in each charge is an act of gross indecency.  The acts are akin to acts of indecent assault.  Mr Surman refers the court to HKSAR v Lee Kwok Wai which concerned various sexual offences including indecent assault on boys under 16[7]. 

29.  There are no guidelines for sexual offences involving young children.  Sentences in similar cases are of limited assistance, the circumstances of the offences varying widely[8].

30.  In Secretary for Justice v Huang Long Wei the Court of Appeal set out the principles to follow in sentencing indecent assaults by adults on young children, the most important of which is the protection of young children[9].

31.  The sentence of the court must mark the public abhorrence of such crimes and redress the grievance suffered by the victims and their families whilst at the same time deterring others from committing similar offences.  

32.  Case law makes clear that this kind of conduct gives rise to great abhorrence on the part of the public, who look to the courts for protection of children from those who seek to gratify themselves by taking advantage of young children. 

33.  Factors that the court has to consider include the age difference between the defendant and the victim; whether the defendant had used threats or inducements to make the victims succumb, falling prey to his licentious exploitation; the number of occasions and duration of the offences; whether the offences caused physical or psychological trauma to the victim; and whether the defendant is psychologically imbalanced or paedophilic and the likelihood of re-offending.[10] 

34.  Mr Surman submits that the threat must be at the very lowest end of the scale[11].  I do not agree. Although the defendant did not threaten X or Y with violence, use any intoxicating substance or subsequently seek to ‘embarrass’ either X or Y by revealing what had happened on social media, both X and Y felt scared by what the defendant said and X also felt threatened.

35.  Accepting X and Y were not underage, what must not be overlooked is that both boys were only 16.  X had ten days earlier just passed his sixteenth birthday.  The defendant, who at the time was over ten years older than X and fourteen years older than Y, clearly took advantage of their youth and immaturity to deceive them for his own personal sexual gratification.  As observed by the clinical psychologist the defendant took pleasure in manipulating the victims by fabricating elaborate excuses to gain their trust and lure them to comply with his indecent acts[12].

36.  I note in the psychological report of Y that although Y realized that the defendant was a fraud and a pervert he dared not to take any defensive action and escape at the time because he felt doomed to lose if he were to fight against the defendant who was of strong build[13]. 

37.  One important consideration in sentencing is to redress the grievance suffered by the victim and their families.  I have read the psychological reports of both X and Y. 

38.  Clearly at the time of the offence and in the following months until the defendant was arrested X suffered much psychological distress with repeated flashbacks as particularised  in the psychological report[14].  X, who is now 20, is more capable to manage the situation and no longer experiences psychological distress or flashbacks and reports that the incident has had little impact on his social relationships, romantic relationships and sexual relationships[15]. 

39.  Y also experienced some emotional disturbances in the initial three months as particularised  in the psychological report[16]. Y has now largely put away the incident and moved on with his life and seldom thinks about or recalls the incident.  Psychological assessment of Y shows that the psychological impact on Y of the incident has been minimal and that psychological follow-up treatment is deemed not necessary[17].

Re-offending

40.  In HKSAR v Chow Yuen Fai the Court of Appeal said that the risk of re-offending is an aggravating feature as is a poor previous record[18].

41.  I take into account that the defendant’s prior convictions for indecent assault were in 2011.  Although that is now almost nine years ago this must be viewed in the context that the defendant first reoffended in April 2016[19].

42.  Over seven years having passed since that conviction no court papers have been retained by the magistracy.  Ms Poon informs the court that both the prosecution and police files have been destroyed.  The police have however prepared a brief summary of the case obtained from the crime message retained on the police computer[20].  This reveals similar acts of indecency on a schoolboy who had just turned 19. 

43.  The defendant revealed to the clinical psychologist that in 2011 he was a facilitator at a school camp when he found a participant, who was 18, sexually attractive.  The defendant having a strong desire to see and touch the victim’s penis made an excuse to examine the victim’s penis whereupon he masturbated the victim on two occasions.  The defendant regarded the victim would not be hurt if the victim did not realize the invalidity of his excuse to examine his penis[21]. 

44.  The facts as revealed by the defendant show a striking similarity to the present offences in that the defendant deceived a younger boy for his own personal sexual gratification, although the age difference between the defendant and the victim was much less than in the present offences.

45.  The probation officer reports that according to the case records the defendant’s performance during probation supervision was stable and that he attended psychological treatment as directed[22].  The defendant clearly has not benefitted from probation or psychological treatment as he continues to reoffend.   

46.  Both the psychological and background reports refer to the defendant’s remorse.  The probation officer reports that the defendant made no excuses for his conduct; attributed his wrongdoings to his weak control in sex impulse and foolishness; was confident of not breaking the law again; was prepared to attend psychological treatment to tackle his misbehaviour and apologised to the victim[23].  The clinical psychologist on the other hand is of the opinion that the defendant displayed superficial remorse and victim empathy[24].

47.  The psychological report reveals that the defendant was assessed to have traits of psychopathy, which is characterized by deceitfulness and frequent rule violations. The defendant committed the current offences to gratify his sexual desire; took pleasure in manipulating the victims; fabricated elaborate excuses to gain the victim’s trust and lure the victims to comply with his indecent acts; took advantage of the teenage victims who lacked social experience; enjoyed the sexual excitement brought by his offending behaviour; wrongly believed his offending acts were acceptable with forced consent from the victims; failed to learn a lesson from his previous conviction and showed limited insight into his problems[25].  

48.  The clinical psychologist assesses the risk of recidivism of sex offences of similar nature to be high and states that the defendant poses a danger to the public.  Psychological treatment targeting at the defendant’s psychopathy, regulation of sexual impulse, emotion coping and prevention of future reoffending is highly recommended[26].    

Sentence

49.  I am satisfied a deterrent sentence is required in this case.  

50.  Taking into account the age of X and Y; the age difference with the defendant; both X and Y were scared; the nature of the gross indecency which was committed against the will of both X and Y; X suffered much psychological distress with repeated flashbacks until the defendant was arrested; Y also experienced some emotional disturbances in the initial three months after the incident;  X and Y have no long term psychological harm; the defendant has similar previous convictions of indecent assault on a younger boy; the defendant is assessed to have traits of psychopathy and the risk of re-offending is assessed to be high, I am satisfied a starting point of 3 years imprisonment is appropriate for both charges 1 and 4.

51.  Giving the defendant full credit for his pleas of guilty reduces the sentence on each charge to 2 years’ imprisonment. 

Possession of a false instrument

52.  The maximum sentence for possessing a false instrument, contrary to section 75 (1) of the Crimes Ordinance is 14 years’ imprisonment.

53.  In his written submission Mr Surman gives no explanation as to why the defendant had the card[27].  When the court asked Mr Surman why the defendant had the card Mr Surman replied “The short answer is I cannot help you with that.”

54.  The defendant told the probation officer that he purchased the card through Taobao, an online shop, so that others would treat him as a professional because he felt uncomfortable telling others he worked at a floral school[28].  I also note that the defendant told the probation officer the reason he told X he was employed by the University of Hong Kong for human growth research was because he wanted X to believe he was a professional, which belief he exploited to conduct a body check on X[29].

55.  The defendant told the clinical psychologist that he bought the card so he could pretend to be a doctor when he visited the gym; he enjoyed the admiration from people who perceived him to be a doctor and that he regarded his act as acceptable as long as he did not take any action in the capacity of a medical officer[30].   

56.  On referring Mr Surman to the explanations for possession of the card given by the defendant to the probation officer and the clinical psychologist, the court asked the basis on which the defendant pleaded guilty to the charge.  After taking instructions Mr Surman informed the court that he had no further instructions on this charge. 

57.  I then informed Mr Surman that, without evidence, the court rejected the reasons for possession of the card given by the defendant to the probation officer and the clinical psychologist.  Mr Surman confirmed he had no further instructions on this charge. 

58.  I am satisfied the only inference to draw is that the defendant possessed the card pretending to be a doctor intending to use the card for an unlawful purpose, most likely to commit similar offences.

59.  Mr Surman refers the court to HKSAR v Tin Siu Hung where the defendant was sentenced to 6 months’ imprisonment, the maximum sentence, for falsely pretending to be a public officer[31]. Mr Surman asks that in passing sentence the court considers the similar nature of the cases together with the fact the defendant had not used the card in the commission of a criminal act[32].

60.  Although there is some similarities in that young children were deceived, the fact the maximum sentence for falsely pretending to be a public officer is only 6 months, which maximum I note the court commented was surprisingly low[33].  I do not find the case of assistance, save that I note the sentence imposed for indecent assault.

61.  I am satisfied a starting point of 18 months’ imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 12 months’ imprisonment. 

Delay

62.  Mr Surman submits that there has been an inordinate and unexplained delay in prosecuting this case resulting in angst, stress, uncertainty about proceedings and about the outcome over and above that which would normally be experienced by a defendant[34].

63.  Where there has been unreasonable delay in bringing an offender to justice this is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; whether there was a legitimate expectation the matter will not be further pursued; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[35].

64.  Ms Poon has submitted to court a chronology of the investigation and court appearances[36].  With regards to whether the defendant had attended the police station in April 2018 and March 2019 Mr Surman explains that the defendant may have mistaken the dates with the dates when he was interviewed[37].

65.  The chronology shows that after the defendant was first arrested on 25 February 2017 he was released on police bail.  Between March and October 2017 when the defendant was temporarily released from bail, police investigation included examination of the false card and the defendant’s mobile phone, tablet and computer. 

66.  After the result of the examination of the computer was obtained in December 2017 there appears to have been no further action until August 2018 when the defendant was interviewed on video about the content of his mobile phone, tablet and computer.  The defendant was again interviewed in October 2018 after which his mobile phone and tablet were submitted for further forensic examination.  The results of this examination were obtained in January 2019 after which the file was prepared for submission to the Department of Justice. 

67.  The file was submitted in April 2019.  While awaiting legal advice from the Department of Justice the defendant was arrested on 14 June 2019 in connection with charge 4. 

Post-arrest[38]

68.  The defendant first appeared in court on 17 June 2019 when the case was adjourned to 29 July 2019 for police investigation.  On 27 July 2019 the case was further adjourned to 16 September 2019 for the police to complete their enquiries.  On 16 September 2019 the police investigation had been completed and the case was adjourned to 9 October 2019 for legal advice. 

69.  There were two further adjournments for consolidation and preparation of transfer papers.  The case was transferred to the District Court on 27 November 2019. 

70.  The first appearance in the District Court was on 17 December 2019 when the defence applied for an adjournment to obtain legal advice.   The case was adjourned to 23 January 2020.  On that day counsel then representing the defendant applied for an adjournment to 5 March 2020 to peruse the prosecution papers. 

71.  With the onset of the Covid-19 virus the case was further adjourned under the General Adjournment Period until 27 April 2020.    On that day the defence applied for an adjournment to 23 June 2020.  The case was further adjourned to 29 July 2020 again on the application of the defence.  On 29 July 2020 the case was set down for plea and sentence hearing on 15 September 2020.

72.  I am satisfied there has been no unreasonable delay once the case was brought to court.  Whilst time is needed to conduct forensic examination, over two years seems to be too long, in particular considering for eight months between December 2017 and August 2018 it looks like no action was taken. 

73.  The defendant did not however take the opportunity to rehabilitate himself during this period but instead committed a similar offence.  In the circumstances although there was a long delay after the first arrest to the time of charge, I am satisfied no further discount is warranted.  

Totality

74.  Although charges 1 and 4 are of a similar nature they are separate and distinct, committed on two different boys, one in April 2016 and one in June 2019. Consecutive sentences are appropriate.

75.  Similarly, a consecutive sentence is appropriate for charge 3, possession of a false instrument committed in February 2017, which is separate and distinct from both charges 1 and 4 committed in 2016 and 2019 and which adds to the defendant’s criminal culpability.

76.  I am satisfied a total sentence of 3 years and 4 months’ imprisonment properly reflects the defendant’s criminality on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[39].

Sentence

77.  The defendant is convicted and sentenced as follows:

Charge 1 - 2 years’ imprisonment;

Charge 3 – 12 months’ imprisonment with 4 months consecutive and 8 months concurrent to charge 1; and

Charge 4 – 2 years’ imprisonment with 1 year consecutive and 1 year concurrent to charges 1 & 3

The total sentence to be served by the defendant is 3 years and 4 months’ imprisonment.