COURT: The defendant pleaded guilty to a total of 20 charges concerning 11 victims, referred to as ‘Boys A to K’. The charges are as follows:
(1) seven counts of inciting a child under the age of 16 to commit an act of gross indecency, that is Counts 1, 3, 6, 11, 14, 15 and 19, I will call this ‘Group 1’ Offences;
(2) four counts of indecent conduct towards a child under the age of 16 years, Counts 4, 5, 7 and 10, I will call this ‘Group 2’ Offences;
(3) six counts of indecent assault, that is Counts 2, 8, 9, 12, 16 and 20, I will call this ‘Group 3’ Offences;
(4) two counts of doing an act tending and intended to pervert the course of public justice, that is Counts 13 and 17, I will call this ‘Group 4’ Offences; and
(5) one count of procuring another person under the age of 18 for making pornography, that is Count 18 (‘Group 5 Offence’).
The Incidents
All the incidents in the present case happened between February and May 2022. At the time, the defendant was aged 26, and was a coach for a basketball team at a secondary school in Sham Shui Po. The 11 victims were all students of that secondary school and basketball players under the defendant’s team. The 11 victims are referred to as ‘Boy A’ to ‘Boy K’ in the Summary of Facts. During the incident, their ages was between 14 and 16 years old.
I will briefly set out the factual circumstances by reference to the offence groupings.
Group 1 Offences - Inciting a child under the age of 16 to commit an act of gross indecency
During COVID-19, the defendant asked his students to work out at home. Using reasons such as a need to observe the victims’ muscle growth, the defendant asked the victims to send him photos and videos of their nude bodies, including their private parts. Two of the victims sent videos of themselves masturbating to the defendant - that is in Count 6 (Boy C) and 11 (Boy F). In some instances, the defendant asked the victims to send masturbation videos to him but the victims refused-that is in Count 15 (Boy H) and 19 (Boy J).
All of the Group 1 Offences involved the defendant repeatedly requesting the victims to send to him nude photos and/or videos of themselves over the period of the incidents. Some of the victims consistently complied, thereby sending more naked photos and videos of themselves to the defendant. For example, in Count 6, involving boy C, naked photos were sent to the defendant at his request almost every day between 2 February 2022 and 9 March 2022, usually involving several photos each time. On various dates between 6 March 2022 and 15 May 2022, again at the defendant’s request, Boy C sent ten videos of himself masturbating to the defendant.
Some other victims were less compliant resulting in less naked photos or videos sent to the defendant. For example, in Count 14, involving Boy G, despite the defendant’s continuous requests, Boy G only sent to the defendant five naked photos of himself on four occasions between 2 February 2022 and 22 March 2022.
Count 18 - Procuring another person under the age of 18 for making pornography
The facts in respect of Count 18 are similar to the Group 1 Offences, except that Boy I, the victim in this count, was just above 16 years old in between February and March 2022. At the defendant’s request, Boy I had sent photos of his naked body to the defendant every one to two days for about a month, and Boy I also sent about five videos of himself masturbating to the defendant.
Group 2 Offences - Indecent conduct towards a child under the age of 16 years
All of the four counts in the Group 2 Offences occurred at the defendant’s residential flat, each count related to a single incident.
Counts 4 and 5 involved the same victim, Boy B. In between April and May 2022, B was invited to the defendant’s flat with other students. The defendant then invited Boy B into his bedroom to give him a massage. On the first occasion, the defendant asked Boy B to take off his clothes and pull down the pants and underwear for him. The defendant started to touch Boy B’s penis, pulled back the foreskin, and helped Boy B masturbate. Boy B wanted to push the defendant away, but the defendant was pressing on him. The defendant stopped after two to three minutes. On the second occasion, again in the defendant’s flat, the defendant asked Boy B to go inside the bedroom, pulled down his trousers and underwear. The defendant then pulled Boy B’s foreskin back and helped him masturbate. The Boy B resisted and kicked the defendant, who then stopped. Boy B did not ejaculate.
Counts 7 and 10 involved Boys C and E respectively, and occurred in similar ways, where the defendant would invite the individual victims into his room for a massage, during which the defendant would touch the victims’ private parts and try to help them masturbate. Both Boys C and E resisted, and used force to get rid of the defendant.
Group 3 Offences - Indecent assault
Count 2 involved Boy A on 7 May 2022, when Boy A was about 16 years and 2 months old. The incident occurred in a similar way to the Group 2 Offences, and involved, again, the defendant inviting Boy A into his room for a massage, during which the defendant tried to masturbate Boy A, claiming that it was to assess his sports performance. This went on for about five to six minutes. Boy A then said he did not feel alright with what was happening, but he proceeded to masturbate himself in front of the defendant, and then ejaculated.
Counts 12 and 16 arose in a similar way, again starting with the defendant inviting victims, this time Boys F and H, who were around 14 and 15 years old at the time, to enter his bedroom individually for a massage. The difference between these two incidents and the Group 2 Offences was that the defendant only touched their private parts for about one second, and did not proceed to do anything else.
Counts 8 and 9 involved the same victim, Boy D, with the defendant touching his private parts through clothing for about one to two seconds each time, with Count 8 occurring on a basketball court and Count 9 occurring on the MTR.
Count 20 involved Boy K, in a changing room of a sports centre, where the defendant pulled down K’s shorts and underwear, touched K’s penis and sprayed deodorant on it. Boy K immediately ran to the toilet to clean up his private parts and put his shorts back on. At least six other teammates were present and witnessed the incident.
Group 4 Offences and the discovery of the incidents
The incidents were discovered when, on 18 May 2022, Boy A approached his mother in tears and said that he would like to quit his school basketball team. His mother then called the defendant to find out what happened, and during that phone call, the defendant apologised and said that he was sorry for hurting Boy A. Boy A’s mother then made further enquiries from Boy A, and after further prompting, Boy A described some of the incidents to his mother, after which a report to the police was made on the same day at around 11 pm.
On or about the same day, that is 18 May 2022, prior to the defendant’s arrest, the defendant separately asked Boy F and Boy H to delete the photos and/or videos that the victims had sent to him previously, with intent to pervert the course of justice. That is Counts 13 and 17. In respect of Boy H, the defendant also asked him to delete all the messages, and called him in tears and apologised to him, saying that he did not know how to face the one who reported to the police.
The defendant was then arrested on 19 May 2022, and under caution, the defendant voluntarily said that “it was my fault for having indecently assaulted” Boy A.
During the later cautioned video-recorded interview, the defendant made various confessions in respect of Boys A, B, C, F and I.
Victim Impact Reports
Victim impact reports were prepared by clinical psychologists and had been obtained from all 11 victims. I will briefly summarise the findings in respect of each victim.
Boy A
Boy A was emotionally disturbed and had difficulties concentrating after the incidents. He continued to experience flashbacks of the incidents, and post-traumatic symptoms, including avoidance and hyper-vigilance were reported. He became very sensitive to touch. He became socially withdrawn and did not want to think or talk about what happened at all despite feeling depressed. The trauma had caused adverse impacts on his trust and views towards himself and others, leading to negative self-concept and insecurity towards adult males. There remained a need for psychological treatment.
Boy B
Boy B suffered from acute stress symptoms, feeling profoundly distressed and disturbed by flashbacks, being irritable, having concentration difficulties and sleep problems. His acute stress symptoms lasted for about half a year. After disclosure of the incidents and this prosecution, Boy B’s emotional distress alleviated gradually. The need for psychological treatment was not indicated at this stage.
Boy C
At the time when Boy C was interviewed by the clinical psychologist in November 2023, it was noted that Boy C was still in a state of denial, rationalising that the offender was merely misled by his misguided beliefs and had acted with good intentions for his benefit. The clinical psychologist concluded that while Boy C’s denial, minimalisation and rationalisation coping mechanisms served to maintain his current function in general, his underlying distress might gradually surface when he was more aware of the exploitative and abusive nature of the offender’s acts. The clinical psychologist also concluded that it will be beneficial to Boy C to address the underlying emotional and psychological impact of the abuse when he was ready.
Boy D
At the time when Boy D was interviewed by the clinical psychologist in November 2023, it was noted that Boy D did not exhibit symptoms of clinical psychopathology in relation to the offence. Boy D admitted feeling an aversion to his inappropriate act of unanticipated touching of his private parts twice. Psychological defences such as denial and avoidance might underline Boy D’s subjective asymptomatic presentation for alleviating his internal distress caused by the offence. It was observed that Boy D demonstrated resilience in coping with the incidents and preserving his trust and views towards himself, others and the world.
Boy E
The abuse and subsequent legal proceedings resulted in temporary emotional distress for Boy E, characterised by anger, confusion, fear, anxiety, shame and worries about exposing his sexual abuse history and the resulting peer humiliation. However, it was concluded that there was no significant lasting impairments or symptoms indicative of post-traumatic stress disorder that warrants clinical attention and intervention. No psychological treatment was needed.
Boy F
At the time when Boy F was interviewed by the clinical psychologist in December 2023, it was noted that Boy F appeared to have not emotionally accepted the fact that the defendant has sexually exploited him, which explained the ambivalent feelings he had towards the defendant and a relative lack of psychological impact, as related in the results of the psychological tests. It was, however, observed that the sexual abuse had considerable impact on Boy F, particularly on his sense of trust towards others in inter-personal relationships and his daily functioning. Psychotherapy was offered but Boy F remained ambivalent towards receiving the service.
Boy G
At the time when Boy G was interviewed by the clinical psychologist in November 2023, it was noted that Boy G’s overall functioning remained intact, and no trauma-like symptom was reported at that stage. His views on sexuality, intimacy and relationships were not affected.
Boy H
During the time period of the incidents, the abused made him more moody, withdrawn, more irritable, and he displayed temper outbursts easily. By the time when Boy H was interviewed by the clinical psychologist in November 2023, it was noted that Boy H had little trauma and stress symptoms, though he might have a tendency to under-respond. No psychological treatment is needed.
Boy I
At the time when Boy I was interviewed by the clinical psychologist in December 2023, Boy I did not exhibit significant distress related to the offence. However, his tendency to avoid talking about the offence with others, including those he trusted, to prevent burdening them might indicate potential issues related to sharing emotions and seeking support from a broader support network.
Boy J
At the time when Boy J was interviewed by the clinical psychologist in November 2023, no significant signs of emotional or behavioural damages had been observed. No psychological treatment is needed.
Boy K
At the time when Boy K was interviewed by the clinical psychologist in November 2023, no serious or long-lasting post-traumatic responses were noted. The major impacts of the event are mainly related to the annoyance associated with the consequences of disclosure and the mild avoidance of the event, but they do not reach a level of significant clinical concern. No further psychological follow-up is needed.
The Defendant’s Background and Mitigation Submissions
The defendant is now 29 years old. He is not married. He had been a basketball coach at a high school earning $15,000 per month, and he also worked as a part-time waiter at a fast-food restaurant. His parents divorced when he was 17 years old, and his father passed away three years later due to illness. The defendant and his elder sister supported his mother financially.
The defendant has no previous criminal conviction.
The defendant’s psychiatric report noted that the defendant did not suffer from any mental illness. The psychological report noted that there was insufficient evidence indicating the presence of paedophilic interest, but the psychologist noted the defendant gained a feeling of achievement and satisfaction from inciting the victims to send him indecent photos and videos, and he touched the victims’ private parts out of sexual curiosity. The defendant displayed a distorted sexual attitude, and his offending behaviour did no harm to the victims. The defendant’s sexual re-offending risk was assessed to be on the higher end of the moderate range. The psychologist noted major salient risk factors, such as the defendant’s young age, the number of victims, the defendant’s negative emotionality, sexual pre-occupation and sexualised coping.
I have been provided with a number of mitigation letters, including a letter from the defendant himself, letters from a pastor, the defendant’s mother and elder sister, the defendant’s old teachers, employers and friends. The defendant is viewed by those around him as a caring and responsible person, who regularly involved himself in church activities and had a particular passion for basketball. They all expressed shocked when they learnt of the defendant’s conduct in these offences. In the defendant’s own letter to this court, he indicated that he was remorseful and very much regretted his misconduct.
The General Sentencing Approach
There are no sentencing guidelines for sexual offences against young persons. However, in cases of this sort, the paramount sentencing consideration is the need to protect children. As stated by the Court of Appeal in HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 at paragraph 8:
“The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.”
The Court of Appeal in Tsang Chiu Tak at paragraph 9 also set out a number of factors to be taken into account when passing sentences. There are nine of them, and I list them out one by one.
(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 in the case;
(3) whether the defendant had used threats or inducements to make the victim succumb;
(4) the number of occasions of committing the offences and the duration of the offences;
(5) whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;
(6) whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;
(7) whether the sexual abuses have caused physical or psychological trauma to the victim;
(8) whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and
(9) whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.
Sentencing Considerations
I now turn to the considerations in the present case. Before setting out the sentences in respect of each of the offences, I will start by identifying certain general factors relevant to my consideration of the appropriate individual sentences.
Six factors stand out generally in this case:
(i) Firstly, the gross breach of trust. The defendant
was obviously in a position of trust and influence over the victims, which he used to manipulate the victims into sending him indecent videos and photos and allowing themselves to be touched by the defendant. Some of the students had shown resistance and unwillingness to go along with all of what the defendant asked of them, but almost all of them complied to a certain extent with the defendant’s request, because of the trust they placed in the defendant.
(ii) Secondly, the large number of victims involved and the large number of incidents, and the repetitive and persistent nature of the defendant’s conduct over a course of approximately three months. Many of the victims reported that the defendant engaged in persistent grooming and pressurising of the victims in trying to get the victims to comply with his requests.
(iii) Thirdly, the clinical psychologist assessed the defendant’s sexual re-offending to be on the higher end of the moderate range, although there was insufficient evidence to indicate the presence of paedophilic interest.
(iv) Fourthly, the age difference between the
defendant and the victims was large, but not particularly large.
(v) Five, no violence was used on the victims.
(vi) Six, most of the victims do not suffer from any long-lasting psychological trauma, with the exception of Boy A, who continues to require psychological treatment.
Group 1 Offences
Turning firstly to the Group 1 Offences, that is the seven counts of inciting a child under the age of 16 to commit an act of gross indecency.
As already described above, the count involving the largest number of photos and videos sent to the defendant is Count 6, involving Boy C, who sent naked photos to the defendant at his request almost every day between 2 February 2022 and 9 March 2022, usually involving several photos each time. On various dates between 6 March 2022 and 15 May 2022, again at the defendant’s request, Boy C sent ten videos of himself masturbating to the defendant. The defendant’s modus operandi was the same in respect of the other counts in this group, the main difference being the number of photos sent, and some of the victims did not send videos of masturbating acts.
In terms of the indecency of the photos and videos sent to the defendant, adopting the classification levels as set out in HKSAR v Man Kwong Choi [2018] 5 HKLRD 519, the photos and videos would come within Levels 1 and 2.
There is nothing to indicate that the photos and videos were published anywhere else, nor were they sold or passed to anyone else.
Given the similarities and the repetitiveness of the defendant’s conduct within the Group 1 Offences, I do not see any usefulness in trying to distinguish between the separate counts simply on the basis of the number of photos and/or videos sent. The differences in the ages of the victims also do not provide any meaningful distinction between the counts within this Group 1. In these circumstances, in respect of each of the Group 1 Offences - that is Counts 1, 3, 6, 11, 14, 15 and 19 - I will adopt a starting point of 24 months’ imprisonment, which will be reduced to 16 months after the guilty plea discount. For the avoidance of doubt, the starting point adopted already took into the account the repetitive nature of the defendant’s conduct and the number of victims involved.
All of the sentences within the Group 1 Offences will be served concurrently.
The Group 5 Offence - Count 18 - procuring another person under the age of 18 for making pornography
The facts in respect of Count 18 are largely similar to the facts of the Group 1 Offences, the only difference being that Boy I was a few months older than 16 years old. Therefore, as a matter of consistency, I will adopt a starting point of 24 months’ imprisonment, which will be reduced to 16 months after the guilty plea discount. The sentence on Count 18 will run concurrently with the Group 1 offences.
Group 2 Offences
Turning next to the Group 2 Offences, that is the four counts of indecent conduct towards a child under the age of 16 years.
The four counts involved three victims, Boys B, C and E. The defendant’s modus operandi in respect of the four counts were also similar, as already described above.
In respect of each of the Group 2 Offences - that is Counts 4, 5, 7 and 10 - I will adopt a starting point of 4 years’ imprisonment, which will be reduced to 32 months after the guilty plea discount. For the avoidance of doubt, the starting point adopted already took into account the repetitive nature of the defendant’s conduct and the number of victims involved.
All of the sentences within the Group 2 Offences will be served concurrently. However, given that the Group 2 Offences are completely separate and distinct from the Group 1 Offences, there is no reason why the sentences with respect to these two groups of offences should be served concurrently with one another.
I will achieve this by ordering that the sentence on Count 4 be served consecutively to the sentence on Count 6. The remaining sentences in respect of the Group 2 Offences - with the exception of Count 4 as I have already indicated - will be served concurrently with the other sentences.
Group 3 Offences
Count 2 within this group is similar to the Group 2 Offences, but was charged as an indecent assault. Therefore, as a matter of consistency, I will also adopt a starting point of 4 years’ imprisonment, which will be
reduced to 32 months after the guilty plea discount. The sentence on Count 2 will run concurrently with the other sentences.
Counts 12 and 16 within this group are also similar to the Group 2 Offences, in that these incidents occurred also during occasions when the defendant invited the victims separately into his bedroom and asked the victims to remove their clothing for massage. The main difference between these two counts and the Group 2 Offences is that the touching of the private parts were of a relatively short duration, about 1 to 2 seconds. For each of Counts 12 and 16, I will adopt a starting point of 30 months’ imprisonment, which will be reduced to 20 months’ imprisonment after the guilty plea discount. These sentences on Counts 12 and 16 will be served concurrently with the other sentences.
The remaining counts in Group 3 - that is Counts 8, 9 and 20 - all involved the touching of the victims’ private parts for a very short duration in other circumstances, with Counts 8 and 9 occurring over clothing, and Count 20 occurring in the context of a changing room in front of other teammates. For each of Counts 8, 9 and 20, I will adopt a starting point of 9 months’ imprisonment, which will be reduced to 6 months after the guilty plea discount. Solely for the sake of totality, despite these offences occurring as separate incidents, I will order that the sentences on Counts 8, 9 and 20 be served concurrently with the other sentences.
Group 4 Offences
These two offences of perverting the course of justice - that is Counts 13 and 17, involved the defendant telling Boys F and H separately to delete relevant evidence of his misconduct. For each of Counts 13 and 17, I will adopt a starting point of 12 months’ imprisonment, discounted to 9 months after the guilty plea discount.
These two offences of perversion are completely separate and distinct in criminality to the other offences of sexual nature, and therefore, fully consecutive sentences are called for. To achieve this, I will order that the sentence on Count 13 be served consecutively with the sentences on Counts 4 and 6. The sentence on Count 17 will be served concurrently to the other sentences.
Conclusion
To summarise and for the sake of clarity, in order to achieve totality, only sentences in respect of Counts 4, 6 and 13 would be served fully consecutively to each other, and the sentences for all remaining counts to be served concurrently.
The sentence on Count 4 being 32 months’ imprisonment, the sentence on Count 6 being 16 months’ imprisonment, and the sentence on Count 13 being 9 months’ imprisonment, this would come to a total of 57 months’ imprisonment.
I have assessed the totality also on a global basis. 57 months’ imprisonment after plea would equate to a starting point of about 86 months’ imprisonment or around 7 years and 2 months’ imprisonment. On a global basis, I consider that the global starting point is a fair and a proportionate reflection of the defendant’s overall culpability in the present case.
Defendant, I sentence you to a total term of 4 years and 9 months’ imprisonment.