HKSAR v. YEUNG HO NAM

HCCC285/2018

[2018] HKCFI 2664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 285 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The now 28-year-old defendant was committed from Eastern Magistracy to this court for sentence in respect of two offences of homosexual buggery with a male under 16 years of age, contrary to section 118C(a) of the Crimes Ordinance, Cap 200.

The offences involved the same victim. They occurred in August and September of 2017. At the time of the offences, the victim was approaching 14 years of age and both the victim and the defendant were homosexual.

The defendant had first come to know the victim on a website called “Instagram”. They had exchanged their mobile phone numbers and continued to communicate on WhatsApp. During those communications, the victim had told the defendant his age.

Eventually, the victim offered to be the boyfriend of the defendant for money. The defendant then told the victim that he should not sell himself as it was dangerous to do so. The victim nevertheless sent his price list for what he called “compensated dating” to the defendant, but told the defendant that he would not charge him.

Following that, the defendant and the victim agreed to meet for sexual intercourse and did so on the date of the first charge. The defendant and the victim went to the defendant’s flat and the charged act took place. It is true to say that the victim was a willing participant in the activity and indeed took an equal role in bringing about that activity.

Subsequently, over the next few weeks, both continued to communicate with each other and they eventually agreed to meet again. They did so about one month after the first charged offence and further intercourse took place in similar manner to the first occasion.

Shortly after that, the victim’s iPhone contents referring to the price list for compensated dating became known to an aunt of the victim. She took the victim to a social worker and the police were then notified. The victim told them of what had transpired between himself and the defendant. The victim was medically examined. There were no signs of injury. On both occasions the defendant had used a condom.

There is understandably little authority concerning sentencing for offences of this sort. The offence itself is relatively rare and the possible circumstances are too varied to allow for much guidance from previous cases, as said in Chow Yuen Fai.

In this case, there exists, so far as sentence is concerned, a plainly unique circumstance. The victim was himself, I accept, a co-instigator of the offences. He was apparently familiar with the sex industry. He, not surprisingly, suffered no injury and there seems, on the facts presented to the court, little likelihood of significant psychological trauma. Those facts include the view of his aunt, who chatted with him on a weekly basis, to the effect that he has not been much affected by the incident and that it will not have a big impact on him.

There were none of the aggravating factors set out in Chow Yuen Fai. There was no threat, inducement or deception offered to or directed to the victim by the defendant, though there was a material age difference between the defendant and the victim. It must be said that the defendant at no stage took advantage of the victim and had, when the victim had suggested that he date the victim for money, told the victim that he should not, and I quote, “sell his body and soul” and that it was dangerous for him to do so.

Nevertheless, the victim was at the time of these offences a mere boy and the defendant, while well aware of this, proceeded to have sexual intercourse with him on two quite separate occasions in the defendant’s flat.

In my view, there must be reflected in the sentence imposed on the defendant an element of deterrence so as to reflect the public’s expectation that underaged individuals - even foolish, underaged individuals - be protected from sexual offenders.

There is little before me which provides any indication of the defendant’s risk of re-offending, other than inferences which can be taken from the simple facts that he commenced his relationship with the victim by way of an Internet dating site and has no previous convictions.

I accept also that the defendant’s remorse is genuine. He admitted his role in the offence immediately when spoken to by the police.

That being the state of the evidence, I rate his chance of re-offending as being relatively low.

Given the role of the victim in this case, the lack of significant after-effects, the lack of grooming or inducement or other pressures placed on the victim, the use of condoms by the defendant, and the lack of any photographic activity by the defendant, I believe a much lower starting point of sentence than might otherwise have been adopted is justified in respect of each offence.

In coming to this conclusion, I am also well aware of the debate in Hong Kong, evidenced by Recommendation 20 of the Law Reform Commission in its consultation paper as to the review of sexual offences in Hong Kong involving children. That recommendation, if legislated, would equate the present offence with an offence with an underaged heterosexual victim. In other words, the offence would become gender neutral.

I take a starting point of sentence of 3 years’ imprisonment on each charge. The primary mitigation available for the defendant is his plea of guilty. His clear record is subsumed by the discount in sentence he receives for his early pleas of guilty.

Accordingly, the starting point is reduced by one-third to a sentence of 2 years’ imprisonment in respect of each charge.

In considering totality, I am of the view that there must be imposed a consecutive element in sentence. In my view, that is so, given the period elapsing between the two offences and the need to reflect the overall culpability of the defendant.

Accordingly, I order that 6 months of the sentence imposed for the second offence be served consecutively with the sentence imposed in respect of the first charged offence.

That results in the totality of sentence of 2 years 6 months’ imprisonment.