HKSAR v. T.E.

DCCC 134/2022

[2023] HKDC 1319

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 134 OF 2022

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REASONS FOR SENTENCE

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Charges

1.  The defendant pleads guilty to Charges 1 and 2 of “Indecent conduct towards a child under the age of 16 years”, contrary to section 146(1)  of the Crimes Ordinance, Cap 200 and Charge 3 of “Possession of child pornography”.

Facts provided by the prosecution

“Background

1. At all material times, D was employed as an English tutor with “Tiny Talents Professional English Learning Centre” since 1 January 2019. D was primarily based at the Tai Po Tai Wo Centre Branch (“the Centre”), and occasionally relieved at the branches in Fanling, Sheung Shui and Yuen Long.

The incident

2. Between 2:30 p.m. and 3:30 p.m. on 15 May 2021, five children, namely two girls (including X, aged 6 at the time, and Y, aged 7 at the time)  together with three boys (collectively “the Children”)  attended D’s English class at Classroom No.4 at the Centre. During class, D taught on the topic “opposite words”.

3. When teaching the meaning of “fat and thin”, D asked X if she could pull up her top to see how “thin” she was. X initially resisted, but eventually complied at D’s insistence and D’s offering of two gifts to her. D also asked X if he could see her private part and X agreed. X pulled up her top to show her abdomen and her breasts and then rolled her leggings and underwear down to her knees. D took photos of X. Y saw D taking photos of X’s abdomen and private part through D’s mobile phone. After taking photos of X, D gave X two doll keyrings as gifts and praised X for her courage: one for showing her abdomen and one for showing her whole body. D also allowed X to draw on the whiteboard as a reward.

4. D then made the same request to Y and asked Y to pull up her dress. Despite Y’s resistance, Y eventually complied by pulling up her dress up to her face. Based on the camera shutter sound, Y believed that three to five photos were taken of her abdomen, which would have revealed her breasts. Later, when Y indicated that she also wanted to draw on the whiteboard. D told Y that she could only draw on it if she let D see her private part. Y refused.

5. Photos of X and Y were taken near the door of Classroom No.4 in the presence of the rest of the Children. When the photos were taken, X and Y were standing near the door, while D sat on a chair. D did not take photos of the boys.

6. D took advantage of his position as an English tutor and disguised his inappropriate requests in the form of teaching “opposite words”.

7. At the end of the class, the respective parents picked up the Children from the Centre. While travelling home, Y told her father (“PW2”)  that D had requested Y to show her private part before Y could draw on the whiteboard. PW2 immediately returned to the Centre and reported the incident to the person-in-charge of the Centre (“PW3”). PW3 reported the case to Police.

Arrest and house search

8. D was arrested at the Centre on 15 May 2021.

9. In a consensual house search at D’s residence in Fanling on 16 May 2021, one computer (“the Computer”)  was seized by the Police. In a subsequent cautioned interview on 16 May 2021, D admitted under caution that the Computer seized from D’s residence belonged to him.

10. Upon police examination, it was found that a total of 211 image files (including 2 image files of X)  and 6 video files containing “child pornography” depicting real children under the age of 16 were stored in the Computer. The images and video files containing child pornography were classified as follows: -

Level	Category	Age
		0-5	6-10	11-16	Sub-total
1	Images depicting erotic posing with no sexual activity	-	209 (208 photos & 1 video)	1 video (which is the same video as the other Level 1 video)	209
2	Sexual activity between children or solo masturbation by a child	-	-	3 photos and 4 videos	7
3	Non-penetrative sexual activity between adults and children	-	-	-	-
4	Penetrative sexual activity (including digital penetration, masturbation and oral sex)  between children and  adults, or sadism or bestiality	-	-	1 video	1
Total		0	209	9	217

11. From the physical appearance (including facial feature and lack of secondary sexual characteristics)  of the girls in the above videos and photos, the girls were or were being depicted as children under the age of 16.

12. Out of the 211 images and 6 videos, a total of 11 images and 6 videos showed the respective girls’ facial features whereas a total of 200 images did not show any facial features.

Conclusion

13. At all material times, D committed an act of gross indecency towards X, who was under the age of 16 years (Charge 1).

14. At all material times, D committed an act of gross indecency towards Y, who was under the age of 16 years (Charge 2).

15. At all material times, D had in his possession child pornography, namely the 211 photos and 6 video clips stored in the Computer (Charge 3).”

Mitigation

2.  The defendant is 34 years old.  He is single and of clear record.  He was born in Ukraine but moved to Canada with his parents when he was 2 years old.  He was educated up to F.7 level in Israel.  He worked as a secondary school teacher for 4 years until 2016 or 2017 as well as in IT in security maintenance.  After living in Israel for about 18 years, he came to Hong Kong in September 2018 to work as an English teacher.  He began to work at the Centre from 1 January 2019.  His income prior to arrest was $21,000 per month.

3.  He had received little parental and guidance from his father, who was violent and abusive, or his mother, who was an alcoholic and suffering from psychiatric problems.  His parents passed away when he was 24 years old.  He has been suffering from psychosis since late teens but stopped taking medication in 2018.

Sentencing considerations for Charges 1 and 2

4.  I intend to call for the victims’ impact reports but am told by the prosecution that their families are not comfortable with the reports, so such reports will not be made.

5.  The Clinical Psychologist assessing D is of the opinion that the index offences are believed to be significantly related to his preoccupation with child pornography and disinhibitory effect of alcohol.  His present risk of sexual re-offending is at the higher end of the moderate range.  Intensive psychological treatment is recommended to lower his risk of re-offending.  He is currently motivated for positive change and has developed better insights into his problems.

6.  Mr Shah refers to the case of HKSAR v Lee Hon Wah [2011] 4 HKLRD 319 in which the Court of Appeal listed out a number of factors, among others, relevant to sentencing when dealing with the offence:

“(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 traumas to the victim;

(8)  whether the offences have impacted 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; and

(10)  whether the defendant is psychologically imbalanced or paedophilic and the likelihood of re-offending.” (parts above underlined for emphasis)

7.  Relevant to our case are factors (1)(D 33 whereas victims 6 - 7), (2)(D teacher of victims), (3)(inducements), (9)(permitting other young children to watch)  and (10)(the likelihood of re-offending).

8.  There are several cases cited by Mr Shah in which the indecent conduct took place in different settings.  It is clear, though, that factor (2)  – that of the relationship between the defendant the victim – weighs significantly in sentencing.

Sentencing considerations for Charge 3

9.  The Court of Appeal in Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519 set out 4 levels of severity as follows:

(1)  Level 1 – images depicting erotic posing with no sexual activity;

(2)  Level 2 – sexual activity between children or solo masturbation by a child;

(3)  Level 3 – non-penetrative sexual activity between adults and children;

(4)  Level 4 – penetrative sexual activity between children and adults, sadism or bestiality.

10.  The sentencing guidelines and aggravated features were stated as follows:

“17. We have in mind the following guidelines appropriate, after trial, to a first time offender who is in possession of child pornography (involving real children): -

(1)  Level 1

The least serious level is Level 1 (“Images depicting erotic posing with no sexual activity”). There, the effect on the children in the depictions might be said to be much less harmful than in the case of Levels 2 to 4, which, it may be assumed, will be substantially more harmful. In the case of possession of Level 1 depictions, it may be that a community service order, probation or fine is appropriate where the number is small (say 20 or less). Where the numbers are large or the depictions are extremely suggestive, terms of imprisonment from 1 month to 6 months will be appropriate.

(2)  Level 2

In the case of Level 2 (“sexual activity between children, or solo masturbation by a child”), this is already much more serious than mere posing. Here, depending on the number of depictions, an immediate custodial sentence of up to 9 months will be appropriate. Even the possession of a few depictions at this level will generally attract a custodial sentence.

(3)  Level 3

For Level 3 cases (“non-penetrative sexual activity between adults and children”), the degree of seriousness is increased even further. Again, depending on the numbers involved, sentences of between 6 and 12 months will be appropriate.

(4)  Level 4

We consider Level 4 cases (“penetrative sexual activity between children and adults” and “sadism or bestiality”)  as meriting the most serious treatment. Here, at Level 4, the range of custodial sentences should generally be from 12 months (even for a few images)  to 36 months.

18. The four levels of sentence set out in the previous paragraph provide starting points for sentence after trial. As in any other case, there may be mitigating or aggravating factors that will have to be taken into account.

19. The principal mitigating factor will be a timely plea of guilty but the usual principles of sentencing will otherwise apply.

20. Aggravating features would include the following: -

(1)  A previous record involving a similar offence (or offences)  against children.

(2)  The age of the children depicted. Where the depictions involve particularly young children, this would be an important consideration.

(3)  The purpose for which the accused possesses the depictions will also be relevant. Where it is proved that the accused intends to disseminate the images for commercial (or even non-commercial)  gain, or intends to publish, these will be significant aggravating factors.

(4)  As mentioned earlier, the number of images is relevant.”

Sentencing D

11.  For Charges 1 and 2, the aggravating factors as per Lee Hon Wah are abundant in that there was a vast difference in age between the defendant and the victim, a breach of trust by the teacher toward a pupil, an inducement by a reward, an occasion for other very young classmates to watch the act, and the risk of re-offending.  I take a starting point of 30 months.  After a one-third discount for the plea of guilty, the sentence is 20 months each.

12.  For Charge 3, the culpability is at the lower end.  I take a starting point of 1.5 months.  After a one-third discount for the plea of guilty, the sentence is 1 month.

13.  By totality, I order 3 months of Charge 2 to be served consecutively to other charges and the 1 month of Charge 3 to be served consecutively to other charges.  The total sentence is 24 months.