HKSAR v. CHU YAN-CHI

DCCC 163/2020

[2021] HKDC 257

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 163 OF 2020

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Reasons for Sentence

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1.  The defendant has pleaded guilty to the first three charges on the indictment and the 5th charge. Charges 1 and 3 involve the making of child pornography. In respect of the 2nd charge, which is an indecent assault. The 5th charge is possession of child pornography, some of which relates to the indecent assault and other items, those found on a computer.

2.  The victim in these charges is described as X. The offences themselves took place in 2016.  At that time, X was 13 years old.  The defendant is currently 39 years old, so would have been around 35 at the time.  The information I have is both the defendant and X were at the time homosexual.  They came to know each other on a WhatsApp chat group on Facebook.  The defendant was aware through these contacts of X’s age.  They appear to have formed a connection over the Internet, through social media.

3.  On 29 November 2016, the defendant invited X for a sleepover and videogame playing at his home.  X arrived at about 2 o’clock on the morning of 30 November 2016 and around noon the defendant took some 10 pornographic images of X.

4.  On the evening of 30 November, the defendant again invited X to his home.  That evening X and the defendant were involved in sexual intimacy which included intimate touching of X by the defendant, which included the showing of a pornographic video by the defendant to X and masturbation of X by the defendant.  The defendant then took a further 8 pornographic photographs of X’s private parts.

5.  X did say that the defendant had promised him pay for the pornographic photographs but no payment was ever made.

6.  Totally, 18 pornographic images were made of X on two occasions, 11 at Level 3 and 7 at Level 1.

7.  During subsequent enquiries, the police found child pornography, including the photographs of X, on the defendant’s laptop. Totally, 116 photographs and 15 videos were found.  12 photographs and 6 videos were at Level 4, 24 photographs and 1 video were at Level 3, 10 videos involved children aged between 6 and 10, 76 photographs involved children aged between 6 and 10.

8.  The defendant is now 39 years old, of clear record.  He has a record of community service which can be found in the documentary evidence I have seen.  His mitigation: he is remorseful and has been co-operative with the police throughout the enquiry.  The conclusion of the background report sought on the defendant is that the defendant has had deep reflection on his wrongdoings and expressed his remorse, he has admitted his misdeeds, he has shown readiness to accept the legal responsibility of the offence he committed.  That is the conclusion of that report.

9.  The psychological report goes somewhat deeper into the defendant’s psychological make-up.  The psychological report considers he has shown limited insight into his problems, had problems in showing remorse and victim empathy.  But perhaps more significant than that is the conclusion there is no sufficient evidence to suggest that the defendant now has any deviant sexual interest at the present moment.

10.  Considering his age, criminal history, victim characteristics and the nature of the offences, risk of recidivism of sexual offences of similar nature was assessed to be at the low end of moderate. Naturally, in the conclusions reached, the psychological treatment targeting his regulation of sexual impulse would help in prevention of future reoffending.

11.  I note that there is no victim impact report in this case.  The offence was committed some four years ago and I understand that the victim has no interest in helping compile such a report.

12.  The legal approach can be found in a number of cases.  There is actually no tariff for the 2nd offence of indecent assault. However, when considering the level of seriousness, there are certain factors the court should have regard to, that is, particularly the age difference; whether the relationship involved any breach of trust; was there any coercion in the relationship; the frequency and nature of the sexual contact; was there any harm caused to the victim or to the victim’s family.  Relevant to this case, was there any recording of the events taking place.  And finally, the likelihood of the defendant reoffending.  I considered those considerations.  Those kind of factors can be seen in HKSAR v Lee Hon Wah, that is at CACC 54/2010.  You can see also HKSAR v Yeung Ho Nam I think the case reference.  The reference is at [2020]1HKLRD 91 which sets out the sentencing in respect of sexual offences should be gender neutral.

13.  I also have to consider in this case the possession and making of child pornography.  Firstly, the court should consider concurrent sentencing, whether it is appropriate in such cases (see HKSAR v Ipp Tin Fan, CACC 9/2016).  Also that the making of child pornography is a more serious offence than the possession of such pornography.  In respect of the possession of child pornography, the guideline sentence can be found in Man Kwong Choi, that is CAAR 8/2007.

14.  The court should also consider deterrence in the protection of children.  Where the number of video or photographs at Level 4 is large, a substantial sentence is appropriate.  As a general guideline, sentences for possession of child pornography should range between 12 months for a few images to 36 months for a larger number.  The starting point for the making of child pornography will be higher (also see HKSAR v Ipp Tin Fan).

15.  In considering the overall starting point for sentence in respect of these offences, I bear in mind the need to protect young persons; secondly, the age disparity between the defendant and the victim in this case; the fact that the sexual contact was recorded and that sexual contact involved intimate touching of private parts; that the number of child pornography images in total of X is not large; that X in this case could not, as a matter of law, actively consent, but the defendant and X had formed a relationship on social media.  There is no evidence of violence in this case.

16.  Taking all those factors into consideration, I will adopt the following starting points for sentence and then I will indicate the final sentence after the deduction of one-third from those starting points.  I will deal with the 1st and 3rd charges which involve the making of child pornography.  On each of those I will take a starting point of 18 months’ imprisonment, reduce that to 12 months’ imprisonment for the defendant’s pleas of guilty.

17.  On the 2nd charge, that of indecent assault, based on the culpability of the defendant and the harm incurred, I would take a starting point for sentence of 24 months’ imprisonment.  That is aggravated by the age disparity and the fact there was a recording of the offence.  That would lead to a starting point of 30 months’ imprisonment.  I shall reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.

18.  In respect of Charge 5, possession of child pornography, I will take a starting point of 18 months’ imprisonment, reduce that to 12 months’ imprisonment for the defendant’s plea of guilty.

19.  The final calculation of sentence will be as follows.  The 1st, 2nd and 3rd offences clearly relate to the same incident or series of incidents.  It is appropriate that those sentences be served concurrently.  Finally, in order to get the correct overall totality, 6 months of the 5th charge be served consecutively to the 1st to 3rd charges, giving an overall final sentence of 26 months’ imprisonment.  That will be my order.