HKSAR v. YU CHUN SING

HCCC 34/2018

[2018] HKCFI 1218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE No. 34 OF 2018

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REASONS FOR SENTENCE

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1.  On 22 January 2018 the defendant pleaded guilty to 11 charges before a magistrate sitting at the Eastern magistracy. Having admitted the facts, the defendant was committed to the Court of First Instance for sentence.

2.  The defendant admitted to committing a total of 8 sexual offences against two boys referred to as “X” and “Y”, who were under the age of 16 at the time of the offences.  Seven of those offences were committed against X and one against Y.  The remaining three offences were offences of doing an act tending and intended to pervert the course of justice concerning Y.

3.  The defendant came to know X and Y some 6 years apart but both at a basketball court near the defendant’s home at Grandeur Terrace in Tin Shui Wai.  X was 11 years old when the defendant met him in or about September 2011.  Y was 12 years old when he met him in January 2017.  The defendant was in his 40’s when he met them. 

4.  After meeting the boys’ he befriended them, treating them to dinner and invited them to his home.  The sexual offences took place at the defendant’s home. 

Boy X

5.  Boy X was born in January 2001. The seven offences committed against him were committed over a period of just over 2 years between February 2012 to May 2014 when X was aged 11 to 13 years old. 

6.  Charges 1, 2, 3, 4 and 7 are offences of indecent assault contrary to section 122(1) of the Crimes Ordinance (“CO”) Cap 200. Charge 5 is an offence of attempted homosexual buggery with a man under the age of 16 years contrary to section 118C(a) and section 159G of the CO.  Charge 6 is indecent conduct towards a child under the age of 16 contrary to section 146(1) of the same ordinance. 

7.  The first charge of indecent assault was committed when the defendant asked X and his friend to go to his house to play a card game.  He then asked them to stay the night.  While they were sleeping on the same bed the defendant touched X’s penis under his underpants for about half an hour or an hour.  Afterwards the defendant gave him $50 and asked him not to tell other people about what had happened.  X was 11 years old at the time.

8.  The defendant and X maintained regular contact thereafter.  As to the second charge, X went to the defendant’s home late in the evening.  After X took off his clothing the defendant again touched his private parts for around half an hour.  X was given $50.  He was still 11 years old at the time.

9.  In relation to the third charge the defendant masturbated X.  He was 11 or 12 years old at the time.

10.  The 4th charge related to an occasion when the defendant performed oral sex on him and also gave him money.  Shortly after that X went to see a Doctor accompanied by the defendant as he had developed rashes on his penis.  X was 12 years old. 

11.  When X was in primary 5 at age 12 or 13 years he went to the defendant’s bedroom and took off his clothing.  The defendant applied baby oil on X’s buttocks and inner sides of his upper thighs and attempted to effect buggery on X using his penis to penetrate X anus.  He was not successful as X refused.  This was the 5^th charge.

12.  Charges 6 and 7, related to a time when X was 13 years old. X masturbated the defendant and the defendant then did fellatio on X respectively in relation to the above charges. 

13.  The offences against X came to light as in or about late November 2016. X was feeling helpless, so he disclosed the above incidents to his close friend first, then to his mother, school social worker and an outreach worker.  A report was then made to the police. 

14.  On 9 January 2017 the defendant was arrested at his home for indecent assault on X.  Under caution he said he had divorced.  At the beginning X massaged him and he offered him money.  He then suggested X masturbate him for monetary reward.  Thereafter they masturbated each other.  He admitted paying X around $200 on at least 10 occasions after they had oral sex and touched each other’s penis’. 

15.  During the course of the interview with the police officer the defendant admitted he had indecently assaulted another boy by touching his penis two days previously.  He gave Y’s full name to the police. 

Boy Y

16.  Boy Y was located by the police at the basketball court on 10 January 2017.  Upon investigation Y related that on 7 January 2017 the defendant invited him to dinner and thereafter he went to the defendant’s home to stay the night.  In the early hours of 8 January while Y was sleeping the defendant inserted his hand under Y’s shorts to touch Y’s penis however Y pushed the defendant’s hand away.  Y left the bed and sat on the chair.  However, he saw the defendant masturbating himself on the bed until he ejaculated.  The defendant asked Y to masturbate him but Y refused.  Y was sacred and wanted to leave the defendant’s house but the defendant asked him not to leave and promised not to touch him anymore.  Y went back to sleep but sneaked out of the house at about 4 am when the defendant was asleep.  On his way home Y made a complaint to his friend via whatsapp. 

17.  As to the 3 perverting the course of justice charges these were committed on 11, 12 and 24 January 2017.  On 11 January at the basketball court the defendant told Y not to tell the police about the indecent assault incident when he gave his statements to the police.  The following day Y saw the defendant outside of Y’s school, he walked back into the school but the defendant followed him and told Y not to give any statements to the police as what he told the police would be published in the media. 

18.  On 24 January whilst he was playing at the basketball court, the defendant warned Y not to recognise him at the ID parade to be held the following day otherwise he would find someone to beat him up even if the defendant was in jail.  Y called the police reporting to them that he had just been threatened by the defendant. 

19.  The indecent assault on X escalated from the defendant initially touching X’s penis, to masturbating him, having oral sex and attempted buggery and then X masturbating the defendant. 

20.  The indecent assault by the defendant on Y was the touching of Y’s penis for a couple of seconds.  He then attempted to stop Y telling the police about the offence and threatened to beat him up.  

21.  The defendant is now aged 47 years old.  He has a clear record.  He has completed secondary school education and has worked as a construction and electrical worker.  He was born in China and moved to Hong Kong in 1993 when he was aged 23 years old.  He married in 1999 and divorced in 2012.  He has a son aged 18.  I am informed that since the offences came to light the son is now estranged from him. 

22.  The court in HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239 set out the principles of sentencing in relation to sexual offenders involving young children[1]:

“There is no tariff in sentencing sexual offenders involving young children (HKSAR v. Chow Yuen Fai [2010] 1 HKC 181 and HKSAR v. Lee Hon Wah [2011] 4 HKLRD 319. However, the following factors have been regarded as relevant:

(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 have 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 re-offending?”

23.  The Court went on to say at para 14:

[14] In addition to these factors, the following overview should be considered:

“1) The courts have taken a serious view on paedophiles preying on young children. This is reflected in the heavy sentence imposed in recent judgments. While there is no sentencing tariff in this field, the court is clearly entitled to take into account the level of sentence imposed in similar cases. …………….While some older cases may indicate the imposition of a lighter sentence, guidance should be based on the more recent judgments of this court.

2) The mischief that the deterrent sentences are targeted at is the sexual exploitation and abuse of children. This may take the form of sexual conducts with young children, child prostitution 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 recognized and court has indicated that in the vast majority of cases it can make such an assumption even without victim psychological reports. Views to the contrary view have been disapproved by this court (HKSAR v. Ngai Yiu Ching (倪耀偵) [2011] 5 HKLRD 690 at paragraphs 43-46).”

24.  In the present case the defendant was sexually exploiting and abusing the two young boys.  The aggravating factors in this case is that there was a large age difference between the defendant and the boys.  In 2011 there was a 30 years’ difference, boy X was 11 years old and the defendant was 41 years old.  In 2017 boy Y was 12 and the defendant was 46 years old, a 34 years’ age difference. 

25.  In relation to X this was not a one off single incident.  There was a prolonged abuse of just over 2 years and multiple offences.  He corrupted boy X with rewards of cash.

26.  The defendant’s modus operandi was similar.  He went seeking the boys at the basketball court near his home.  He met and befriended them there and thereafter invited them to his house where he took advantage of his acquaintance by abusing them. 

27.  Y was an unwilling party.  Whilst I accept X had been a willing party after inducements, this does not take away the severity of the offences. 

28.  After the indecent assault on Y, the defendant attempted to silence him.  The defendant went so far as to try to silence Y outside the confines and safety of his school.   The consequence of this affected Y’s family as Y’s father became very concerned for Y’s safety.  Y’s grandmother was sent to observe Y whilst he played at the basketball court.  However, this unfortunately caused Y to be annoyed and embarrassed by it.  As a result, the family experienced distress and struggled in coping to show their concerns to Y in a proper way.

29.  Boy X is now 17 years old.  The victim impact report prepared by the psychologist found that the sexual abuse has resulted in various negative impacts on his emotional stability and psychosexual development.  After getting support from professional and family members he has gained better emotional stability.  Further psychological follow up is recommended to resolve his psychosexual problems. 

30.  Boy Y is now 13 years old.  The psychologist in the victim impact report found that Y experienced great fear and anxiety when he was in the defendant’s home and after he was threatened by the defendant. However, Y appears to have overcome the impact on him.  No psychological treatment is recommended.

31.  The psychological report on the defendant concludes that there is some evidence suggesting paedophilic disorder, a form of deviant sexual interest of recurrent and intense sexual arousal towards prepubescent children.  The defendant is functioning within normal range of intelligence and was able to understand the consequences of his behaviour.  His risk of sexual re-offending was estimated to be within the moderate range.  Psychological intervention was recommended to deal with his, amongst others, sexual deviancy, mood management and gambling problem.  I am informed that the defendant is agreeable to accept treatment. 

32.  In sentencing the defendant, I have had regard to the above principles in sentencing, the facts and the mitigation put forward by Ms Mohammed counsel for the defendant.  I have taken into account the principle of totality when sentencing the defendant.  I have also given credit for the defendant disclosing the indecent assault with boy Y to the police voluntarily.  The strongest and only mitigating factor is the defendant’s early pleas of guilty.  

33.  For the purposes of sentencing I intend to group the offences against boy X and Y separately.  I will then adopt a global starting point for the 11 offences and arrive at the resulting sentence after awarding the defendant a full one third discount. 

34.  I shall then pass the individual sentences for each offence and to pass concurrent and consecutive terms to reflect the resulting term of imprisonment that the defendant shall serve.

35.  For boy X the appropriate starting point for offences 1-7 had the defendant been convicted after trial would be 12 years’ imprisonment. 

36.  For boy Y the appropriate starting point for offences 8-11 is 5 year’s imprisonment. 

37.  For the 11 offences, I consider a global starting point of 13 years’ imprisonment to be appropriate.  The defendant is entitled to a one third discount for his early pleas of guilty.  Therefore the resulting term is one of 8 years 8 months’ imprisonment which is the sentence the defendant shall serve. 

38.  I now sentence the defendant individually for the offences as follows:

Charge	Offence	Date	Victim	Sentence
1	Indecent assault Touching X’s penis	6 Feb 2012 - 13 July 2012	X 11 years	SP 4 years S – 2 y 8 m
2	Indecent assault Touching X’s penis	6 Feb 2012 31 Aug 2012	X 11 years	SP- 4 years S – 2 y 8 m
3	Indecent assault Masturbated X	3 Sep 2012 12 July 2013	X 11 – 12 years	SP- 6 years S – 4 y
4	Indecent assault Oral sex on X	4 Feb 2013 11 Sept 2013	X 12 years	SP- 7 years S – 4y 8 m
5	Attempted homosexual buggery	4 Feb 2013 6 Feb 2014	X 12 – 13 years	SP- 9 years S – 6 y
6	Indecent conduct X masturbated D	1 May 2014 30 June 2014	X 13 years	SP- 6 years S –  4 y
7	Indecent assault D oral sex on X	1 May 2014 30 June 2014	X 13 years	SP – 6 years S – 4 y
				Totality 12 years
8	Indecent assault Touched Y’s penis	8 Jan 2017	Y 12 years	SP – 3 years 1/3 S – 2 years 3 months for disclosing offence S – 21 months
9	Perverting the course of justice	11 Jan 2017	Y	SP- 18 months S- 12 months
10	Perverting the course of justice	12 Jan 2017	Y	SP- 18 months S – 12 months
11	Perverting the course of justice	19 Jan 2017	Y	SP- 2 years S 1y 4 m
				Totality SP 5 years

39.  To reflect the term of 8 years 8 months:

a) 21 months in charge 8 is to run consecutive to charge 5, of 6 years’ imprisonment.

b) 11 months of charge 11 is to run consecutively to charges 5 and 8.

40.  The remainder of the terms in each charge are to run concurrently to all other terms of imprisonment.