HKSAR v. IP KING YAN

DCCC 640/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 640 OF 2010

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to five charges of indecent assault, contrary to section 122 of the Crimes Ordinance, Chapter 200 and one charge of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Chapter 579.

2.  Charges 1, 2 and 5 relate to indecent assaults on boy X between April 2009 and January 2010 when X was aged between 7 and 8.  Charges 3 and 4 relate to indecent assaults on boy Y in September and December 2009, at a time when Y was 11.  Charge 6 relates to child pornography contained in a memory stick found in the defendant’s possession at the time of arrest for indecent assault on X in January. 

3.  The defendant became acquainted with X and Y at the New City Cyber Café in Kwai Chung (“the Café). The defendant would pay the internet fees for the boys and buy them food.  The first indecent assault occurred in April 2009 when the defendant took X into a toilet near the Café and inside one of the cubicles covered the boy’s eyes with one hand and put the other hand inside the boy’s shorts and caressed his penis for about five minutes.  Afterwards the defendant treated X to a meal and told him not to tell anyone what had happened (charge 1).  

4.  In September 2009 when X was sitting on the defendant’s legs playing computer games in the Café the defendant put both his hands inside the boy’s shorts and caressed his penis for about 20 seconds (charge 2).  Also in September when X was again sitting on the defendant’s legs to play computer game in the Café, Y was sitting next to the defendant when suddenly the defendant put his hand in Y’s shorts and caressed his penis for about one minute.  The defendant told Y not to tell anyone what had happened (charge 3).

5.  In December 2009 after taking Y to Disneyland the defendant brought Y to the Café. Later he took Y to the toilet near the Café and inside one of the cubicles put his hands inside the boy’s shorts and caressed his penis for about one minute. The defendant treated Y to a meal and again told him not to tell anyone what had happened (charge 4).   

6.  In January this year the defendant took X into a toilet in Kwai Chung Plaza and again inside a cubicle covered the boy’s eyes with one hand and put the other hand inside the boy’s shorts and caressed his penis for about five minutes (charge 5). 

7.  As they were leaving the cubicle a police officer, who was in the toilet, asked why they were inside the same cubicle.  The defendant said he was helping the boy to urinate.  The police officer arrested the defendant and found the memory stick containing the child pornography on a search of the defendant (charge 6). Under caution the defendant said he committed the offences because he felt sexual impulse to molest children after watching pornographic videos.

8.  There is no usual tariff for indecent assault because the circumstances of each offence can vary considerably (see HKSAR v SEE Tak-man [1998] 1 HKLRD 794).  Nevertheless the principles established in the cases are of guidance to the courts in passing sentence.  In the Secretary for Justice v HUANG Long-wei [2009] 3 HKLRD 136 the Court of Appeal set out the principles to follow in sentencing cases of this nature, the most important of which is the protection of young children.

9.  One important consideration in sentencing is to redress the grievance suffered by the victim and their families.  Whilst I have not called for victim impact statements I adopt the approach endorsed in HKSAR v CHOW Yuen-fai [2010] 1 HKLRD 35 that the trauma, distress and psychological harm caused to young children and their families from this type of offence cannot be underestimated, and that such can be assumed (see paragraph 26(c) of the judgment). 

10.  Specific reference need only be made to HKSAR v CHOW Yuen-fai, a case involving charges of indecent assault, homosexual buggery, making child pornography and possession of child pornography.  Whilst this case is far more serious than the present case, one of the indecent assault charges in that case (charge 9) is similar to charges 1 and 5 in the present case, in that the defendant also put his hands down the trousers of a young boy, aged 10, and fondled his penis for five minutes.  The Court of Appeal said the appropriate sentence after trial was three years imprisonment. 

11.  The court also said that the risk off re-offending is an aggravating feature as is a repeated course of conduct (see paragraph 28).  The psychologist’s report shows that the defendant spent considerable time each day viewing internet pornography and was particularly interested in pornographic materials depicting young boys with no secondary sexual characteristics, of whom he sexually fantasized          (see paragraphs 7 & 13 of the report).  The psychologist assessed the defendant as being of a moderate risk of sexual re-offending.

12.  The cases make 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 men like the defendant, who seek to gratify themselves by taking advantage of young children.  The sentence of the court must mark the public abhorrence of such crimes and at the same time deter others from committing similar offences. I am satisfied a deterrent sentence is required in this case.  

13.  In passing sentence I have carefully considered everything said by Mr Ho on behalf of the defendant together with the reports and letters submitted to court today. I accept as shown in the reports that the defendant has genuine remorse for his acts.  The psychologist observed the defendant’s readiness for positive change, which has already been shown by the defendant, after his arrest, seeking psychological help from the Caritas Community Support Project on Development of Sexual Health.

14.  The defendant will be given full credit for his pleas of guilty.  In deciding the proper starting points I take into account the defendant’s clear record, although he is not before the court as a true first offender but as a multiple offender.  Further I note in HKSAR v WONG Ying-ho [1999] 4 HKC 825 the Court of Appeal said that in an offence of this kind, the previous good character of an offender can only be of minor significance.  I am satisfied the following starting points are appropriate.

Charges 1, 2 and 5

15.  Charges 1 and 5 are particularly serious.  X was only 7 at the time of charge 1 and had turned 8 by the time of charge 5.   Both offences took place in a toilet where the defendant covered the eyes of X so he could not see what was happening. Not surprisingly X was scared and did not resist.  Further after his indecent acts in charge 1 the defendant treated X to a meal and told him not to tell anyone.  The courts have held that paying a child not to tell anyone is an aggravating factor in sentence (see HKSAR v KWOK Kau-Kan [2000] 2 HKLRD 1). I am satisfied the proper starting point on charges 1 and 5 is 3 years and 6 months imprisonment.  Charge 2 differed in that the indecent conduct did not take place in a toilet and lasted for a much shorter time, about 20 seconds.  I am satisfied the proper starting point on charge 2 is 2 years and 6 months imprisonment. 

Charges 3 and 4

16.  Y at the time of the offences was 11.  Like charges 1 and 5, charge 4 took place in a toilet, however the defendant did not cover the eyes of Y.  On both occasions the indecent conduct lasted about one minute and the defendant told Y not to tell anyone.  After his indecent conduct in charge 4 the defendant bought Y a meal.  I am satisfied the proper starting point on both charges 4 is 2 years and 6 months imprisonment.      

Charge 6

17.  On the memory stick was found child pornography at levels 1, 2 and 4 of the classification set out in HKSAR v MAN Kwong-choi [2008] 5 HKLRD 519.  The quantity is small, a total of 9 images and 13 videos involving young boys of various ages, mostly teenagers as can be seen on the photographs shown to the court.  Level 4 cases, even for only a few images, attract custodial sentences generally from 12 months                (see paragraph 17(4) of the judgment).  As the pornography covered three levels I am satisfied that the proper starting point is 12 months imprisonment.

Totality of sentence

18.  This was sexual molestation of two young boys over a period of 10 months, coupled with possession of child pornography, the viewing of which led to the defendant abusing the young boys.  Consecutive sentences are clearly appropriate subject to totality of sentence to be served.

19.  Considering totality of sentence I am satisfied the sentences on charges 1, 2 and 5 relating to boy X should  be served concurrently and similarly charges 3 and 4 relating to boy Y be served concurrently but wholly consecutive to the charges relating to boy X.  This makes a total sentence on the five charges of indecent assault of 4 years imprisonment.

20.  In CHOW Yuen-fai the Court of Appeal said that a part of the sentence for possession of the child pornography ought to be served consecutively, however in that case the court in view of the totality of sentence to be served (12 years and 8 months imprisonment) reflected the extremely seriousness nature of the offences before the court ordered the sentence to be served wholly concurrent.  I am satisfied the same approach is appropriate in this case, in particular as I have taken into account that the viewing of the pornography led to the commission of the indecent assault offences.  I am satisfied a term of 4 years imprisonment properly reflects the gravity of the crimes committed by the defendant. 

21.  I take into account by pleading guilty at the earliest opportunity this has the consequence that both boys have not had to relive the trauma of these events long after they occurred.  The court in HKSAR v CHOW Yuen-fai said an additional discount must only be given in exceptional cases.  In all the circumstances, in particular considering the young ages of the boys, I am satisfied an additional discount of 2 months imprisonment should be giving making a total sentence of 3 years and 10 months imprisonment.  I do this by reducing all the sentences on charges 1-5 by one month imprisonment.

22.  The defendant is sentenced as follows:

Charges 1 & 5 - 2 years and 3 months imprisonment concurrent;

Charge 2 – 1 year and 7 months concurrent to charges 1 &5;

Charges 3 & 4 – 1 year and 7 months imprisonment concurrent but consecutive to charges 1, 2 & 5; and

Charge 6 – 8 months imprisonment concurrent to charges 1-5;