HKSAR v. ZHAO JIAXING

HCCC 75/2024

[2025] HKCFI 542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 75 OF 2024

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REASONS FOR SENTENCE

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INTRODUCTION

1.  Defendant pleaded guilty and admitted the summary of facts on 7 March 2024 in the Magistrate Court in relation to a total of nineteen charges, consisting of two charges of homosexual buggery (Charges 5 & 14), contrary to section 118C(a)  of the Crimes Ordinance, Cap. 200, two charges of attempted buggery (Charges 10 & 11)  with a man under the age of 16 years, contrary to sections 118C(a)  and 159G of the Crimes Ordinance, Cap. 200, seven charges of indecent conduct with or towards a child under the age of 16 years (Charges 2, 4, 6, 8, 12, 16 & 17), contrary to section 146(1)  of the Crimes Ordinance, Cap. 200, one charge of indecent assault (Charge 7), contrary to section 122(1)  of the Crimes Ordinance, Cap. 200, two charges of inciting a child under the age of 16 years to commit an act of gross indecency (Charge 1 & 18), contrary to section 146(1)  of the Crimes Ordinance, Cap. 200, three charges of making of child pornography (Charges 9, 15 & 19), contrary to section 3(1)  of the Prevention of Child Pornography Ordinance, Cap. 579, one charge of procuring another person under the age of 16 years to make child pornography (Charge 3), contrary to section 138A(1)(a)  of the Crimes Ordinance, Cap. 200, and one charge of procuring another to make child pornography (Charge 13), contrary to section 3(1)  of the Prevention of Child Pornography Ordinance, Cap. 579 and section 89 of the Criminal Procedure Ordinance, Cap. 221.

2.  The case was committed to CFI for sentence.

3.  Defendant appeared before me on 19 December 2024, having confirmed his pleas to all the charges and his admission to the summary of facts. The case was further adjourned for the purpose of obtaining a psychiatric and a psychological report of the defendant as well as the Victim Impact reports for the 7 victims in this case (Boy A,B,C,E,F,G&H).

FACTS

4.  This is a sickening case in which Defendant targeted underaged boys by playing with them and bought them gifts and then lured them to either go inside public toilets or go back to his home and committed the indecent conducts with or towards the victims as described in the particulars of the charges. I shall adopt the summary of facts and refer to more details of the charges when I consider the individual sentence on each charge.

DEFENDANT’S PSYCHIATRIC AND PSYCHOLOGICAL REPORTS

5.  According to the psychiatric report, defendant is impressed to have mild grade mental retardation, homosexual paedophilic tendency and personality difficulty. The report says that Defendant is bisexual and he likes post-pubertal girls of around 18 years old and pre-pubertal boys of around 10 to 13 years old. Regarding homosexual encounter, Defendant reported being sexually assaulted when he was around 8 or 9 years old by a teenage male neighbour. They have oral sex with each other and the neighbour put his penis into his anus. He informed his mother but she ignored it. He stated that he had feelings for Boy F and G whom he believed was around 11 and 10 years old respectively in 2022.

6.  The psychological report says defendant functions within the range of limited intelligence. He grew up to be a dysthymic and socially inept individual who failed to make friends and maintain employment. Mingling and molesting pre-pubescent boys served as a maladaptive means to outcome his loneliness and met his sexual needs. Risk of sexual recidivism is high. Psychological intervention is recommended.

VICTIM’S IMPACT REPORTS

7.  All the victims have refused and declined to be assessed for the purpose of obtaining victim’s impact report.

DEFENDANT’S BACKGROUND AND MITIGATION

8.  Defendant is now aged 28. He was born in Guangdong China in 1997 and he came to Hong Kong in 2011. He has a clear criminal record. He received education up to F.2 level. He had worked as a kitchen worker at McDonald’s and later as a cleaning worker earning around HK15,000 per month.

9.  According to Ms Vivien Chan, counsel for defendant, his parents divorced and his father deserted the family when he was very young. He was brought up and raised by his mother alone. His mother now aged 63 had retired due to poor health. The defendant was the sole breadwinner of the family.

10.  Ms Chan told the court that defendant was sexually abused by a male neighbour when he was in primary 3 in Guangdong. He was upset and confused and did not understand the nature of those serious acts committed on him. Defendant had to study in special school in Hong Kong as his intelligence was assessed to be below average with learning disabilities. He had been bullied by the schoolmates throughout his school life both in the mainland and in Hong Kong. He had committed suicidal a few times when he could not coup with the difficulties in life. He had tried to strangle himself when he was detained for the present case and was sent to Siu Lam Psychiatric Centre once.

11.  Defendant claimed that he was confused and under moral distortion when he committed the present offences.

12.  Defence also submitted a psychiatric report complied by Dr Li Cheuk Wing for my consideration. The findings of Dr Li is in fact very similar to the reports I have received from the government psychiatrist and psychologist. In gist, Dr Li opined that Defendant has Pedophilic disorder and he has co-occurring Persistent Depressive Disorder. He likely has mild intellectual disability given the history of studying in special school.

13.  Defendant is recommended to receive psychiatric treatment and psychological treatment by Dr Li and his suicidal risk should be monitored.

14.  Ms Chan informs the court that Defendant is now deeply remorseful and he made frank admission to the police after arrest and pleaded guilty to the charges at the earliest opportunity. During the remand period, Defendant has reflected on himself and he felt sorry for what he had done and apologized profusely for hurting the victims and their parents.

15.  Defendant also felt sorry for his mother who always loves and cares for him and he promises that he would not commit any offence in the future and pleads for the court’s mercy to impose a sentence so as to allow him to return to take care of his mother sooner.

16.  Ms Chan has submitted letters of mitigations written by the defendant, his mother and his cousin. I am not going to refer in details the content of the letters. In gist, the mother says Defendant is a filial son and had been taking care of her. She also shows support and encouragement by saying she would continue to teach and help him after he is released. The cousin said the defendant respected elders and loves his mother. Both are praying for the court’s mercy and leniency.

SENTENCING PRINCIPLES

17.  The Court of Appeal has set out principles to take into account during sentencing in relation to sexual offences involving young children (see HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239). These principles apply to the indecent conduct towards a child, indecent assault as well as the buggery charges in the present case. In Lee Kwok-wai (supra.), the applicant pleaded guilty to 12 counts of sexual offences, namely, four counts of indecent assault, six counts of homosexual buggery with a man under 21, and one count of making child pornography as well as one count of indecent conduct towards a child under 16. He was sentenced at the Court of First Instance to a total of 12 years’ imprisonment. The sentence was upheld by the Court of Appeal.

18.  The applicant in that case was 37 and the victims were six boys aged between 11 and 13. Those offences took place over two periods of time, from 2005 to 2007, and in 2010. The Court of Appeal found that the applicant was a paedophile. Although there is no tariff in sentencing sexual offenders involving young children, the court there identified the following factors as relevant in similar cases in paragraph 13:

“(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 trauma to the victim?

(8)  Whether the offences had any impact 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?

(10)  Whether the defendant is psychologically imbalanced or paedophilic and the likelihood of reoffending?”

19.  In addition to the above factors, the Court of Appeal in that authority found that the following overview should also be taken into consideration when sentencing:

“(1)  The courts have taken a serious view on paedophiles preying on young children. This is reflected in the heavy sentences imposed in recent judgments.

(2)  Deterrent sentences should target the mischief of the sexual exploitation and abuse of children. The exploitation and abuse may take the form of sexual conduct with young children and depicting children in pornographic materials. The exploitation and abuse are usually the result of inducement or coercion. Inducement often takes the form of rewarding the children with money or gifts before or after the abuse.

(3)  The trauma, distress and psychological harm that are caused to young sexual victims have been recognised. In this case, it is sadly evident and supported by a psychological report on the impact of the victim. Even if there was no such report, in the vast majority of cases, that harm can be assumed to have been inflicted.”

20.  In HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, the Court of Appeal stressed that in sentencing sexual offences against young children, the sentencing court must consider the background of the defendant, whether there is risk of re-offending, the impact of the offences on the victim and his family, and the sentence must reflect the abhorrence of the public to these offences, and thus the need for deterrence. The Court of Appeal was also of the view that it was not practical or possible to lay down tariffs or guidelines for the offences of buggery and indecent assault because the circumstances of the offences will vary from case to case.

21.  The Court of Appeal has also identified the usual aggravating factors which can be found in these types of offences:

“28. Aggravating features which can exist in certain cases include a breach of trust (for example, see HKSAR v Wong Ying Ho [1999] 4 HKC 825 (indecent assault involving a doctor))  or the risk of re-offending (sexual recidivism)  or a repeated course of conduct (as distinct from a one-off incident)  or the fact that the accused is a sexual predator or the existence of a poor previous record. Physical harm to the victim must also be identified here as an aggravating feature. We have already mentioned the keeping of a record as a seriously aggravating feature (paragraph 26(4)  above).

29. Another aggravating feature in relation to the offence of buggery deserves special mention. In the present case, as stated earlier, the Applicant did not use a condom. We view this as a particularly serious aggravating feature. Where an accused is sexually experienced or active, the failure to use a condom gives rise to obvious health risks, risks and consequences the extent of which young children may well be ignorant.”

SENTENCING CONSIDERATIONS

22.  In sentencing, I have bear in mind the facts of this case, the aggravating factors identified, the plea and the mitigation advanced on behalf of the defendant and the relevant authorities in relation to the present charges. Based on the materials before me, Defendant is a dangerous sexual offender. Even accepting that he himself was a victim of sexual abuse when he was in Primary 3, there was no excuse for him to turn round and became a sexual predator when he had difficulties in life and became depressed. Clearly, as he also confessed in his own mitigation letter that he had a distorted moral value. In my mind, a final sentence with sufficient deterrence is called for in the present case. For clarity, I group the charges into three different groups. The first group consists of the two charges of buggery (Charges 5 & 14)  and the two charges of attempted buggery (Charges 10 & 11). The second group comprises the ten charges of sexual abuse offences (Charges 1, 2, 4, 6, 7, 8, 12, 16, 17, & 18)  and the third group includes the five charges of child pornography offences (Charges 3, 9, 13, 15, & 19).

23.  Before discussing the individual sentences, I shall first state the sentencing factors that are generally relevant to all offences that I have taken into account:-

(a)  There were large age difference between the defendant, who was aged 24-25 at the time, and each of the seven victims who were aged between 9 and 13 at the time;

(b)  The way the defendant got familiar with the seven victims was akin to that of a sexual predator hunting for its prey. The defendant met the under-aged victims at public recreation sites, such as Victoria Park (for victims A, B, and C)  and the basketball court in Choi Hung Estate (for victims E, F, G, and H). He mingled with them by playing sports, hide-and-seek, or online games with them. In most cases, after becoming their friends and eventually gained their trusts, he would then lure the victims (A, B, C, F and G)  to nearby public disabled toilets by offering advantages to those boys in order to conduct the sexual acts. In so doing, Defendant clearly is taking advantage of his position as a “big brother” to these victims to commit these offences;

(c)  The defendant had regularly used inducements to make the victims succumb such that they fell prey to his licentious exploitation, such as paying for the victims to play online games and buying a tortoise for a victim;

(d)  Among the seven victims involved in this case, most of them were subject to the defendant’s licentious exploitation more than once. Remarkably, victim G was the subject of six of the charges in the present case, victim F was the subject of four and victim A was the subject of three. Each molestation ranges from around one minute to ten minutes;

(e)  In some instances, violence was involved in committing the offences which caused significant discomfort to the victims. This factor will be individually addressed below;

(f)  In no instances did the defendant wear a condom, even when he intended to, or did, penetrate his penis into the victims’ anuses. Additionally, most sexual offences were committed inside public disabled toilets with deplorable hygienic conditions, involving the victims’ bare parts touching the common parts of the toilets to varying degrees. All these exposed the victims to significantly huge health risks;

(g)  Among the five child pornography charges, the subjects of four were the sexual behaviour between the defendant and the victim. Some of these videos were taken by the defendant, and some, egregiously, were taken by other victims under the defendant's instructions. This aggravating factor will be further addressed below; and

(h)  The defendant was diagnosed with paedophilic disorder, and his risk of sexual recidivism was assessed as high in his psychological report.

24.  In the present case, as said, there was no psychological report assessing the trauma, distress, and psychological harm caused to these very young victims and/or their family members because of the present offences. However, as recognized by the Court of Appeal in HKSAR v Lee Kwok-wai [2012] 2 HKLRD 239, even if there was no such report, harm can be assumed to have been inflicted in the vast majority of cases.

25.  Furthermore, even in the defendant’s own mitigation letter, he stated that his experience of being sexually abused by a male neighbour when he was in Primary 3 somehow led to a “vicious cycle” of him now sexually abusing the seven child victims in the present case. Despite stating that he is now remorseful, he also mentioned that he had never considered the possibility that these victims, now being sexually abused by him at their extremely young ages, might act as paedophilic predators preying on young children in the future.

26.  With these general factors in mind, I now proceed to discuss the sentencing of each group of offences.

GROUP 1 OFFENCES

27.  The Group 1 offences are the most serious offences among all the charges, involving two charges of buggery (Charges 5 & 14)  and two charges of attempted buggery (Charges 10 & 11).

28.  Following the Court of Appeal decision of HKSAR v Yeung Ho-nam [2019] HKCA 384, section 118C of the Crimes Ordinance, Cap.200, is now remedially interpreted such that the offence of buggery with a man under the age of 16 but is or above the age of 13, now carries the maximum sentence to 5 years’ imprisonment (see also Yeung Chu-wing v Secretary for Justice [2019] HKCFI 1431). For the victim who is under the age of 13, the maximum sentence is still life imprisonment.

29.  Charge 5 concerns the buggery between the defendant and B, who was aged 9-10 at the time. The defendant lured B to go to a disabled toilet with game cards, ice cream from 7-Eleven, and coins totaling around HK$10. Before the buggery took place, the defendant began by rubbing his penis against B’s. According to the Summary of Facts, B felt disgusted and struggled, and indeed told the defendant he did not want to proceed, but the defendant ignored his pleas by asking him to be a “good boy”. The buggery then occurred as the defendant applied some lubricant and inserted his penis into B’s anus, without using a condom. Throughout the incident, B again expressed his discomfort and reiterated that he did not want to continue. Nevertheless, the defendant dismissed B’s demands and asked B to “be good”. The incident concluded with the defendant ejaculating into a bucket and asking B to do it again next time, while keeping it a secret.

30.  Charge 14 concerns the buggery between the defendant and G, who was aged 9 at the time. The incident took place inside a disabled toilet where G was buggered while lying on the ground. The defendant filmed the buggery and, at some point, asked G to turn his head to face the camera. The defendant penetrated G’s anus twice. The first time, which lasted about 40 seconds, saw G wincing in pain throughout the ordeal, yet the defendant kept asking G to tolerate it before he pulled out and masturbated. The second time lasted about 30 seconds and occurred after the masturbation. When the defendant attempted to penetrate G again, G shook his head and stated that he could not stand it anymore. The defendant ignored G’s refusal and penetrated G’s anus again. G appeared to be in pain before the defendant pulled out and announced that he had ejaculated. Remarkably, the buggery concluded with the defendant wiping G’s buttocks with a piece of tissue which was stained with blood. After the buggery, the defendant had asked E, who was G’s elder brother and who was waiting outside the disabled toilet the whole time, to bring him to a pharmacy to buy something to stop from continuing to bleed.

31.  Discussing the two Buggery offences (Charges 5 & 14)  first. In HKSAR v Lee Kwok-wai [2022] HKCFI 92, Toh J considered a starting point of 5 years’ imprisonment (maximum sentence)  appropriate for a charge of homosexual buggery where the defendant lured the victim to his home, forced the unwilling victim to perform oral sex, then applied lubricant, penetrated the victim’s anus with his penis, and ejaculated. In arriving at this starting point, the learned judge also considered other aggravating factors, such as the age difference, the absence of condom use, the trauma inflicted, the risk of reoffending, the defendant’s preying on an innocent victim whom he picked up on the street, and the need for a deterrent sentence. The overall sentence in Lee Kwok-wai was upheld on appeal.

32.  In HKSAR v Ho Wing-hong [2019] HKCFI 1941, DHCJ Woodcock (as she then was)  considered a starting point of 4 years and 6 months’ imprisonment appropriate for each of the two charges of buggery. For one charge, the defendant performed anal sex on X (aged 14 or 15), using lubricant but not a condom, before masturbating and ejaculating. For the other charge, the defendant lured X (aged 15)  to his home, penetrated X’s anus without wearing a condom, and ejaculated inside after 5 to 10 minutes. In arriving at this starting point, the learned judge also considered other aggravating factors, such as the victim not being treated as an equal partner to the defendant under the arrangement, the defendant offering inducements that made the young victim succumb to and comply with his sexual demands, and the fact that the victim was successfully preyed upon and exploited by the defendant. This sentence was again upheld on appeal.

33.  The present case is of course far more serious than that of Ho Wing-hong, given that it involves more than one victim who were notably younger and were not wholly willing participants as both victims expressed their unwillingness to be buggered.

34.  Further, the victims were both uncomfortable and felt pain during the horrible incidents, they both asked the defendant to stop just to be ignored. Additionally, the offences took place in public disabled toilets, where the hygienic conditions are presumably far worse than say in a residential unit. The defendant also did not use any condom when committing the buggeries, exposing the victims to serious health risks. I note that for both charges, most of the aggravating factors addressed in Lee Kwok-wai and Ho Wing-hong are present here.

35.  It is also detestable that the defendant not only filmed the entire incident related to Charge 14, but also had the audacity to ask the victim to turn his head to face the camera, in order to further his sexual gratification. The defendant penetrated the victim’s anus not once, but twice. The force he applied when buggering the victim was large enough to cause bleeding after the buggery, such that he needed to ask E to bring his brother, the victim, to a pharmacy.

36.  Taking the above into account, I consider that the facts and circumstances of the present case warrant in light of the gravity of the defendant’s conduct, as well as the extensive list of aggravating factors, I consider a starting point of 8 years' imprisonment appropriate for each of the buggery charges (Charges 5 & 14).

37.  Moving on to the two charges of Attempted buggery (Charges 10 and 11), both involve the same victim, F, who was aged 10-11 at the time. The offence in Charge 10 occurred after the defendant brought F to buy a tortoise, and then to a disabled toilet to change the water in the tortoise’s tank. Inside the disabled toilet, the defendant demanded F to remove his trousers, and F complied. He then asked F to squat down and used his penis to touch F’s buttocks. The defendant attempted to penetrate F's buttocks with his penis but was unsuccessful because F could not relax.

38.  Defendant did not successfully penetrate F’s buttocks, but in light of the fact that he used the purchase of a tortoise as an inducement to make F succumb to his licentious exploitation, that he used neither a condom nor lubricant in the course of his attempt, that the offence took place inside a disabled toilet and other aggravating factors, I consider a starting point of 3 years and 9 months’ imprisonment appropriate for Charge 10.

39.  Regarding Charge 11, it took place in the same disabled toilet. On one evening in August 2022, the defendant took F, E, and G (who were brothers to one another)  to buy some water. After buying the water, the defendant brought F and G to the disabled toilet, while E waited outside. Inside the toilet, the defendant attempted to penetrate F’s buttocks with his penis while F was standing on the toilet seat facing the wall. Despite applying some lubricant, the defendant was unable to penetrate F’s buttocks. Throughout the attempted buggery offence, the defendant instructed G to film the sexual acts using the defendant's mobile phone.

40.  It is extremely deplorable to note that, when attempting to bugger F, the defendant instructed F’s younger brother, G, to spectate the attempted buggery and to record the entire incident. It must also not be forgotten that G himself was a sexual victim of the defendant under other charges. One can only imagine the psychological impact this incident had on both F and G, with one being sexually abused knowing that his younger brother was watching, and the other witnessing his elder brother being sexually abused.

41.  Taking into account the filming of the offence, that the defendant instructed the victim’s younger brother to do the filming, that he did not use a condom, that the offence took place inside a disabled toilet, and other aggravating factors, I consider a starting point of 4 years and 3 months’ imprisonment appropriate for Charge 11.

GROUP 2 OFFENCES

42.  Moving on to the Group 2 offences, which comprises seven charges of Indecent conduct with or towards a child under the age of 16 (Charges 2, 4, 6, 8, 12, 16 & 17), two charges of Inciting a child to commit an act of gross indecency (Charges 1 & 18)  and one charge of Indecent assault (Charge 7). They involve all seven victims in the present case.

43.  In terms of the charges of indecent conduct with or towards a child under the age of 16, most offences involve the defendant rubbing his penis against the victim’s penis inside a public toilet. These are namely Charges 4, 6, 8, 12, 16, and 17, involving victims B, C, F, and G. Charge 8 further involves the defendant masturbating himself while rubbing victim B’s penis. Charge 12 additionally involves the defendant instructing F, the elder brother of victim G, to film the entire incident (the videos from which are the subject of Charge 13). What is more gruesome is that the defendant even asked F to make sure that he had captured G’s penis in the video when F was filming the sexual act. G reported pain from the offence.

44.  In HKSAR v Lee Kwok-wai [2012] 2 HKLRD 239, the Court of Appeal considered a sentence of 3 years appropriate for a charge of indecent conduct towards a child under 16 where the defendant who instructed the victim (aged 13-17)  to fondle his penis for 15 minutes after the defendant had lowered his pants.

45.  Considering the circumstances of these indecent conducts, I decide to impose a sentence of 3 years for each of these charges in 4, 6, 16 and 17. I further consider a sentence of 3 years and 3 months appropriate for Charge 8, and a sentence of 3 years and 9 months appropriate for Charge 12 to account for additional aggravating factors as stated above.

46.  Charge 2 involves the defendant rolling down A’s foreskin and touching his penis in either a brushing or grabbing motion inside a disabled toilet. Subsequently, he invited A to be buggered, but A refused. In these circumstances, I consider a sentence of 3 years appropriate for Charge 2.

47.  Regarding the charges of Inciting a child to commit an act of gross indecency (Charges 1 & 18), Charge 1 involves the defendant luring A (aged 10)  to take off his pants and touching A’s penis. He used the excuse of checking A’s foreskin to see whether his development was normal and offered incentives, such as allowing A to play games and buying him top-up cards, if A allowed the defendant to do so. Considering the circumstances of the case and the aggravating factors arising from the age difference between the defendant and the victim, the defendant taking advantage of his position to commit the offence, and the defendant’s use of inducement to make the victim succumb, , I would impose a sentence of 2 years.

48.  Similarly, Charge 18 involves the defendant inciting H (aged 10)  to expose his penis (with foreskin pushed down)  to the camera during a video call that was supposed to focus on H’s homework. He used the excuse of checking if H’s penis was infected to lure H into showing him his private parts. Additionally, the defendant screen-recorded the video call without H’s knowledge, the recording from which became the subject of Charge 19. Considering the circumstances and the aggravating factors arising from the age difference, the leverage of status or position, and the secret filming of the victim’s private parts, I consider a sentence of 2 years and 3 months appropriate for Charge 18.

49.  Finally, regarding the single charge of Indecent assault (Charge 7), the defendant invited victim E (aged 12-13)  to his home. When both of them were sitting on the sofa together, the defendant asked E to lower his trousers and show him his penis. E complied, and then the defendant rolled down E’s foreskin and looked at his penis for less than a minute before rolling it back up. They continued playing games and went to the basketball court together afterwards. I consider a sentence of 2 years appropriate for this Charge.

GROUP 3 OFFENCES

50.  Turning to the Group 3 offences, they include three charges of Making child pornography (Charges 9, 15 & 19)  and two charges of Procuring another person under the age of 16 years for making pornography (Charges 3 & 13). At this juncture, I shall note that the child pornography concerned under this group, except for the one under Charge 3, depicts the sexual acts addressed under the Group 1 and 2 offences. Specifically:-

(a)  Charge 9 concerns a video filmed by the defendant that depicts F (aged 10)  engaging in non-penetrative sexual activity with him, which was the subject of Charge 8;

(b)  Charge 15 concerns two videos filmed by the defendant that depict, respectively, the defendant attempting to penetrate his penis into G’s (aged 9)  anus and the defendant successfully penetrating his penis into G’s anus, which was the subject of Charge 14;

(c)  Charge 19 concerns a screen capture of a video call between the defendant and H (aged 10)  that depicts H exposing his private parts at the camera upon the defendant’s repeated requests, which was the subject of Charge 18; and

(d)  Charge 13 concerns three videos, filmed by F (aged 10)  under the instruction of the defendant, depicting respectively the defendant rubbing his penis against G’s (aged 9)  penis, the defendant masturbating with his penis while rubbing against G’s penis, and the defendant holding onto G’s penis while masturbating with his penis rubbing against G’s penis, which was the subject of Charge 12. Additionally, in relation to the third video under this charge, it also records the defendant specifically asking F to ensure that he had captured both G’s penis and face in the video.

51.  On the other hand, Charge 3 concerns a photo taken by A (aged 10-12), depicting a zoomed-in image of A’s penis, which was sent to the defendant via WhatsApp at Defendant’s request.

52.  In relation to the offence of making child pornography, the leading authority is Secretary for Justice v Man Kwong Choi & Anor [2008] 5 HKLRD 519. There, the Court of Appeal established four levels of child pornography, each corresponding to the relevant band of the sentencing guidelines applicable to the defendant. The classifications and their relevant bands are as follows:-

(a)  Level 1: images depicting erotic posing with no sexual activity. The sentence for such pornography can range from a community service order, probation, or fine, to 1 to 6 months’ imprisonment;

(b)  Level 2: sexual activity between children, or solo masturbation by a child. The sentence for such pornography could, depending on the number of depictions, be up to immediate imprisonment of 9 months;

(c)  Level 3: non-penetrative sexual activity between adults and children. The sentence for such pornography should, depending on the number of depictions, be imprisonment of 6 months to 12 months; and

(d)  Level 4: penetrative sexual activity between children and adults, or involving sadism or bestiality. Serious treatment is warranted for such pornography. Generally, sentences should range from 12 months (even for a few images)  to 36 months.

53.  I am mindful that the above guidelines are only applicable to “possession” of child pornography, and the Court of Appeal has made it clear that “making” of child pornography is treated more seriously than mere possession (see Man Kwong Choi at §14), as reflected in the maximum sentence for these offences. Applying the same logic, the offences of “procuring another person under the age of 16 years for making pornography” are even more serious than mere “making” of child pornography by comparing their maximum sentences.

54.  The Court of Appeal in Man Kwong Choi also noted that aggravating features would include, relevant to the present offences, the small age of the children depicted, as well as the large number of images.

55.  In the present case, both the prosecution and defence have agreed with the following classifications in relation to the five Group 3 offences:-

(a)  Charge 9 – one video, Level 3

(b)  Charge 15 – two videos, Level 4

(c)  Charge 19 – one video, Level 1

(d)  Charge 13 – three videos, Level 3

(e)  Charge 3 – one photo, Level 1

56.  In this case, I have taken into account the classification, the number of videos, the images they depicted, and the aggravating factor of the filming of the child victim at the time he was sexually abused by the defendant during the Group 1-2 offences. In the end, I consider the following starting points appropriate for each offence under Group 3:-

(a)  2 years and 9 months’ imprisonment for Charge 9 concerning the one Level 3 video;

(b)  3 years and 3 months’ imprisonment for Charge 15 concerning the two Level 4 videos;

(c)  1 year’s imprisonment for Charge 19 concerning one Level 1 video;

(d)  2 years and 9 months’ imprisonment for Charge 13 concerning the three Level 3 videos; and

(e)  9 months’ imprisonment for Charge 3 concerning the one Level 1 photo.

TOTALITY

57.  As mentioned, I have divided all the charges into three groups according to their nature and the seriousness of the charges. I should first point out that for the Group 3 offences, their sentences ought to run concurrently with the sexual offences in Groups 1 and 2, to which they are related, as the starting points for those sexual offences have already reflected the aggravating factor of the defendant filming and making video records of the grossly gruesome acts. Therefore, it is not appropriate to pass anything but concurrent sentences.

58.  To recap, the defendant is sentenced as follows:-

Charge	Starting point	After 1/3 reduction
1	2 years	16 months
2	3 years	24 months
3	9 months	6 months
4	3 years	24 months
5	8 years	64 months
6	3 years	24 months
7	2 years	16 months
8	3 years and 3 months	26 months
9	2 years and 9 months	22 months
10	3 years and 9 months	30 months
11	4 years and 3 months	34 months
12	3 years and 9 months	30 months
13	2 years and 9 months	22 months
14	8 years	64 months
15	3 years and 3 months	26 months
16	3 years	24 months
17	3 years	24 months
18	2 years and 3 months	18 months
19	1 year	8 months

59.  Each case has its own facts and there is no sentencing guideline for the first two groups of charges in this case.

60.  In Lee Kwok Wai [2012] 2 HKLRD 239, the applicant pleaded guilty to 12 counts of sexual offences involving no less than six young boys, namely, four counts of indecent assault, six counts of homosexual buggery with man under 21, one count of making child pornography and one count of indecent conduct towards a child under 16.

61.  Deputy High Court Judge Esther Toh (as she then was)  sentenced him to a total sentence of 12 years’ imprisonment. The sentence was upheld by the Court of Appeal.

62.  In Lee Kwok Wai [2024] 3 HKLRD 326, the same appellant committed four similar sexual offences on an underaged boy including buggery, indecent conduct, indecent assault and making child pornography and another count of publishing child pornography, having served the lengthy sentence of 12 years’ imprisonment and released from the prison. Toh J imposed an overall sentence of 9 years and 4 months including a 2 years consecutive sentence on the charge of publishing child pornography. The Court of Appeal held that the overall sentence of 7 years and 4 months (a notional starting point of 11 years’ imprisonment)  on the four counts of sexual offences are entirely appropriate. The Court of Appeal had stressed the following aggravating factors, namely, that firstly, the appellant is a recidivist and secondly, that the appellant, who is an acknowledged paedophile, is a continuing danger to young boys and the sentence required a significant element of personal and public deterrence.

63.  In Ho Wing Hong [2020] HKCA 193, the appellant pleaded guilty to a total of thirteen similar sexual charges, consisting of five charges of indecent conduct, four charges of making child pornography, one charge of attempted homosexual buggery, two charges of homosexual buggery and one charge of possession of child pornography. The case involves only one underaged boy and DHCJ Woodcock (as she then was)  imposed an overall sentence of 10 years and 6 months’ imprisonment (notional starting point of 15 years and 9 months’ imprisonment). The sentence was upheld by the Court of Appeal. The special aggravating feature of the case, apart from the fact that the appellant is a person with paedophilic tendencies and a high risk of reoffending, is that the victim was first abused when he was just 10 or 11 years old and continued thereafter with regularity and increased indecency.

64.  By comparison with these child sex cases, one can readily see that the present case is far more serious both in terms of the total number of offences and the numbers of underaged victims involved. The defendant is also assessed to be a man of paedophilic tendency and with a high risk of reoffending. Taking into account the aggravating factors that I have identified above, the totality principle and his plea of guilty, I consider a global starting point of 20 years’ imprisonment appropriate, resulting in an overall term of 13 years’ and 4 months’(160 months)  imprisonment after the one-third reduction on account of his pleas. To achieve this sentence, for the Group 1 offences, the sentence on Charge 5 and 14 shall run concurrently with each other (64 months)  ; charges 10 and 11 shall also run concurrently with each other but with 16 months of the sentences to run consecutively with sentences on Charges 5 and 14 (64+16=80 months). For the Group 2 offences, sentences on Charges 2, 8 and 12, are to run consecutively (24+26+30=80 months), and sentences on Charges 1, 4, 6,7,16,17 and 18 will run concurrently with the sentences on Charge 2,8 and 12. As stated above, the sentences for the Group 3 offences (Charges 3, 9, 13, 15, and 19)  shall run wholly concurrently with the remainder of the charges in Groups 1 and 2. The total sentences for the three groups of charges are therefore 160 months (80 months + 80 months)  or 13 years’ and 4 months’ imprisonment.

65.  In Ho Wing Hong, Zervos JA explained why he decided to uphold the overall sentence of 10 years and 6 months imposed by the sentencing judge.

“The grooming of a child by an adult to ultimately sexually exploit the child can take many forms. It usually commences with the adult cultivating a friendship and trust with the child by engaging in seemingly innocent and innocuous conversations and activities while the child is cajoled and steered into a sexual liaison, which is made all the worse through calculated inducements or enticements. This is such a case and that is why I do not think the total sentence will be disturbed on appeal.”

66.  The above holding equally applies to the role of defendant in the present case and only with heightened culpability as he had groomed no less than seven underaged boys in total.

67.  I have taken into account the psychological and psychiatric conditions of the defendant as described by the three reports, but I do not regard his individual circumstances warrant any exceptional mitigation. The defendant is therefore sentenced to 13 years’ and 4 months’ imprisonment for all the nineteen charges.