HKSAR v. YU HEY TSIT

HCCC 137/2025

[2026] HKCFI 4324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 137 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 15 counts of indecent assault[1] and 4 counts of making child pornography[2], admitted to the corresponding summary of facts, and was committed by Magistrate Ms. Frances Leung on 14 April 2025 to the Court of First Instance for sentence. The defendant confirmed his guilty pleas and admission to the Summary of Facts before me, and the convictions were duly recorded.

FACTS

BACKGROUND

2.  At all material times, the defendant was the Director and one of the tutors at a tutorial centre (“the centre”).  The centre was located at shop 114 on the podium of a housing estate before 15 August 2022 and had moved to shop 116 on the same podium since that day.  The defendant was born in August 1980 and was aged between 37 and 43 when he committed the offences.  All the victims were students at the centre.

3.  Boy X and his younger brother Y started lessons at the centre in around October and November 2021.  The defendant was their tutor.

4.  In August 2023, X told his family members that the defendant had touched his waist and touched and kissed his penis and lips on multiple occasions.  The matter was reported to the police.  

5.  Upon investigation, it was discovered that the defendant had indecently assaulted a total of 5 different students of the centre in the 6-year period between September 2017 and August 2023.

6.  The defendant was arrested on 25 August 2023.  Three mobile phones of his were seized.  One of them had video clips and photos of a pornographic nature of X and Y.  Upon being arrested for making child pornography, the defendant said he took the videos and photos of X and Y for memories.

7.  A total of 4 cautioned video recorded interviews were conducted and the defendant made full confessions and provided details of his commission of the offences.

Count 1: touching X’s penis over pants

8.  This was the first assault on X, and it happened on his third day of having classes at shop 114.  The defendant was sitting next to X when he suddenly touched X’s penis over his pants for about 10 seconds.  He stopped when X pushed his hand away.  X was 10 years old and the defendant was 41.

Count 2: oral sex on X

9.  After the relocation of the centre to shop 116, on an unknown day between 15 and 31 August 2022, the defendant told X to go to a private teaching area after the other students had left and the door of the centre was locked.  

10.  The defendant told X to stand and then pulled down X’s shorts, performed oral sex for about 1 minute while holding X’s hands, despite X’s attempts to resist.  He stopped after 1 minute and told X to leave.  X dressed himself and left the centre.  X was too afraid to tell his father about what happened.  The defendant admitted to performing oral sex on X on multiple occasions in the centre in his cautioned video recorded interviews.  X was around 11 years old.  The defendant was around 42.

Count 3: poked X’s anus 5 to 10 seconds

11.  On an unknown day in the afternoon between 15 August and 31 December 2022, at shop 116, X arrived early and was alone at the centre.  The defendant told him to lie face down, pulled down X’s pants and underpants, and used his finger to poke X’s anus for about 5 to 10 seconds.  X felt painful and asked him to stop. This was the only time the defendant had poked X’s anus.  X was 11.

12.  According to the defendant himself, he was sitting on a chair while X stood in front of him.  He removed X’s pants and underpants, grabbed his buttocks and moved his left index finger along the groove between the buttocks and touched the anus.

Count 4: oral sex on X for 30 seconds

13.  At about 12:30 on 23 July 2023, while X was alone at shop 116, the defendant locked the door of the centre and turned off the lights.  He placed X on a table and told him to lie down, giving him a mobile phone to play games on.  The defendant removed X’s pants and performed oral sex on him for about 30 seconds. He then told X to put away the phone, and kissed X on the lips, and kissed his nipples while holding X’s hand.  When he’s done, the defendant helped X put his pants back on, and then X left.  X was 11 years old.

Count 5: masturbating X

14.  The defendant captured the assault in count 5 in two videos, which are the subject matter of count 6, the making of child pornography.  

15.  On 9 August 2023, at shop 116, the defendant pulled down X’s pants and underpants and masturbated him.  X was 11 years old.

Count 6: child pornography of X (level 3)

16.  Two videos showing X with his pants pulled down, with shots showing X’s penis and the defendant moving his hand up and down the penis.  The defendant admitted to taking these videos.

Count 7: masturbating X

17.  This assault was captured by the defendant in a video dated 14 August 2023.  The defendant had pulled down X’s pants and underpants and moved his hand up and down X’s penis.  X was 12.  The defendant was 43.

Count 8: child pornography of X (level 3)

18.  This count is for the video that the defendant captured while assaulting X in count 7.  X can be seen lying on his back with pants pulled down.  There are shots where X’s face or penis are shown.  The defendant is seen moving his hand up and down X’s penis.  The defendant admitted to taking this video at around 12pm on 14 August 2023.

Count 9: oral sex on X

19.  The defendant took a video of this assault which forms the subject matter of count 10.

20.  At noon on 23 August 2023, the defendant locked the door of shop 116 after all the students had left and told X to go into a private teaching area.  He removed X’s pants and underpants, placed him on a table, told him to lie down, and took photos of X’s penis.

21.  The defendant then performed oral sex on X for about 1 to 2 minutes.  X told the defendant that he did not like it and asked him to stop.  The defendant did stop but continued to touch X’s penis with his hand.  X eventually put on his clothes and left the centre.  X was 12.

22.  In his video recorded interviews, the defendant admitted that he had placed X on the table behind the reception, kissed X’s penis and licked his scrotum for about 1 to 2 minutes.  The defendant claimed to have asked X if he liked the oral sex and X had nodded.

Count 10: child pornography of X (level 3)

23.  The defendant admitted to capturing the assault in count 9 in 2 photos and 2 videos.

24.  One video shows the defendant performing oral sex on X, with the penis visible.  The other shows the defendant touching X’s penis with his hand with X in his lap, half-naked and pants pulled down.  X’s penis is also visible in this video.

25.  One photo shows X’s penis, the other shows X in the defendant’s lap half-naked with his pants down, and penis visible.

Count 11: touched penis of Y directly for 1-2 minutes

26.  On an unknown day in July 2023, Y was alone in shop 116.  The defendant placed him on a desk and removed Y’s pants and underpants.  Y was very scared.  The defendant touched Y’s penis with his right palm for about 1 to 2 minutes.  The defendant stopped when Y showed that he wanted to leave.  Y put on his pants and left.  Y was 9 years old.  The defendant was almost 43.

Count 12: touched Y’s upper body and penis directly

27.  The defendant made one video of this assault, which is the subject matter of count 13.

28.  On 16 August 2023, the defendant placed Y on his back on a table, removed Y’s pants and underpants, and touched his upper body and penis.  Y was 9.

Count 13: child pornography of Y (level 3)

29.  The defendant made one video of the assault in count 12, which shows himself touching Y, who was half-naked with his pants pulled down, and with shots clearly depicting Y’s penis.

Count 14: touched Y’s penis 3 to 4 minutes

30.  At about 13:40 on 17 August 2023, while Y was alone in shop 116, the defendant locked the door of the centre and brought Y to the reception table.  They stood behind the table while the defendant pulled down Y’s pants and touched Y’s nipples with both hands underneath his T-shirt for about 20 to 30 seconds.  The defendant then touched Y’s penis for about 3 to 4 minutes.  Y was scared throughout.  The defendant stopped when Y said he needed to leave, which he did after putting on his clothes.  Y was 9.  The defendant was 43.

Count 15: masturbating Z’s penis for about 5 minutes

31.  Boy Z was another student at the centre and had been attending classes since October 2021.  The defendant was his tutor in March 2022 at the shop 114 location.  From July 2022, Z had classes with the defendant every weekday.  His classes continued at the shop 116 location in August 2022.  His last class was on 12 August 2023.

32.  On the morning of an unknown day between 1 March and 31 December 2022, while Z was having a class alone with the defendant in a classroom at shop 114, the defendant put Z in his lap and tickled him.  Z thought the defendant was playing.  The defendant then removed Z’s pants and touched his penis over his underpants for a while and then took off Z’s underpants and move his hand up and down Z’s penis for about 5 minutes.  The defendant stopped when someone entered the classroom.  Z was about 10 to 11 years old.  The defendant was about 41 or 42.

Count 16: touched Z’s penis and bit Z’s penis for about 1 second

33.  On an unknown day between 15 and 31 August 2022, while Z was supposed to be having a class at the shop 116 location, the defendant took off Z’s pants and touched Z’s penis over his underpants for a while.  He then took off the underpants and touched Z’s penis directly.  The defendant told Z to lie down on a chair and bit Z’s penis for about 1 second.  Z was scared.  He was 11 years old.

Count 17: touched Z’s penis directly for about 5 minutes

34.  On an unknown day between 14 July and 12 August 2023, when Z was at the shop 116 location, the defendant told Z to sit on his lap.  The defendant removed Z’s pants from behind and touched Z’s penis over his underpants for a while.  He then took off Z’s underpants and touched his penis for about 5 minutes.  He stopped when someone entered the room.  Z was 12 years old.  The defendant was 43.  

Count 18: touched A’s penis 1-2 minutes

35.  Boy A started his classes at the centre’s shop 114 location in September 2017.  He last attended a class in March 2023.  The defendant had all along been this tutor at the centre.

36.  The defendant admitted to the following in his video recorded interviews.  

37.  On an unknown day between 1 September 2017 and 14 August 2022, he removed A’s pants and underpants inside a classroom at the shop 114 location and touched A’s penis with his fingers for about 1 to 2 minutes.  A was under 14 years old.  The defendant was 37 to 42 years old.  

Count 19: touched B’s penis; oral sex for about 2 minutes; touched penis another 3 to 5 minutes

38.  Boy B attended classes at the centre’s shop 114 location on weekdays between October 2019 and late December 2021.  The defendant was his tutor throughout.

39.  On an unknown day between 1 November 2020 and 30 April 2021, the defendant took B to a storage room in shop 114 and sat him on a chair.  The defendant pulled down B’s pants and underpants, touched his penis with two fingers for about 3 to 5 minutes.  He then performed oral sex on B for about 2 minutes.  The defendant also touched B’s penis with his hands for another 3 to 5 minutes before he stopped and helped B put his pants back on.  B was around 7 or 8 years old.  The defendant was around 39 to 41 years old.  

PREVIOUS CONVICTIONS

40.  The defendant was of clear record.

BACKGROUND AND MITIGATION

41.  The defendant was abandoned at birth and raised by a children’s society until age three, when he was adopted by Pastor parents.  He grew up in a Christian home, educated up to Primary 4 in Hong Kong, then moved to the U.S. for two years when his father took a research post at Princeton University.  Back in Hong Kong, he continued his studies from Form 2 to Form 5 and then went to a boarding school in Canada, followed by business and marketing studies at Trinity Western University in British Columbia and Benedictine College in Kansas.

42.  The defendant returned to Hong Kong in 2004, worked for two years as a sales consultant for an English-teaching software firm, training teachers and students in local schools.  From mid-2009 to September 2011, he joined social-enterprise chocolatier and diner CBL, where he set up a corporate department and channeled profits to Benji’s Centre, a Non-Government Organization (NGO)  offering speech therapy for children from low-income families for free.  That experience shaped his master’s degree thesis on social enterprise’s economic impact, completed via distance learning; he earned his Marketing Master’s from Edinburgh Napier University in 2010, the same year he got married.

43.  He later helped another NGO draft government funding proposals and then moved on to a commercial education service provider, where he built the English department, hired tutors, and developed curricula.  After three years, he left to found his own education centre as a social enterprise serving underprivileged families and children of divorced or unemployed parents.

44.  The defendant launched his education centre in early 2019 with an experienced tutor as partner.  They set up a company, opened a bank account, and signed a lease, but after renovations were done, the partner abruptly withdrew for personal reasons and demanded a buyout.  The defendant used most of his savings to take over and ran the centre alone, teaching all classes across three rooms.

45.  His fortunes worsened with the 2019 social unrest and then the 2020 pandemic, which forced repeated closures.  Even free lessons could not draw students, and with no income, his savings steadily drained.

46.  Under mounting financial stress, the defendant lost control and committed the offences, behaviour he now calls seriously wrong and wholly out of character, which he cannot explain.  Deeply ashamed, he could not face his family.

47.  During remand, he was placed under psychiatric observation and spent about a month at Siu Lam Centre before being transferred to Stanley Prison.  He received counselling from pastors, chaplains, and church elders, many writing to the court for leniency.  Supported by family, friends, and former colleagues, he has grown in his Christian faith, used his time to read and learn new skills, designed Christmas cards and file covers for a Christian association and a school, and helped fellow inmates adjust while taking part in Bible sharing.

48.  The defendant, through his counsel Ms. Flora Cheng, urges the court to consider his sincere remorse, shown in his mitigation letter, and his early guilty plea, which saved court time and spared the victims from testifying.

49.  Ms. Cheng points out that the defendant has no prior record and this is his only fall from grace. His centre has closed, all fees refunded, and he assures the court he will never tutor again, with zero risk of reoffending.  He asks the court to weigh the many mitigation letters from family, friends, church members, former employers, and students’ parents, and pleads for mercy and a sentence allowing early reunion with his wife and son.

50.  Ms. Cheng says the defendant does not downplay his sins, but notes the case involved no violence, threats, or inducement.  Victim impact reports show Boy A and B have no significant trauma; while Boy Z has shown improvement, with reduced anxiety and nightmares.

51.  Regarding the child pornography charges, Ms. Cheng submits that the photos and clips were taken when the defendant was “acting out of mind”, and the images had never been shown to others.  Ms. Cheng relies on the Court of Appeal ruling in HKSAR v Ipp Tin Fan (27/07/2016, CACC9/2016)  [2016] 4 HKLRD 486 to suggest that the sentences should run concurrently with the related sexual offences to avoid double counting.

52.  Finally, Ms. Cheng asks the court to apply the totality principle and avoid a crushing sentence for a first-time offender who has shown genuine remorse.

THE DEFENDANT’S PSYCHOLOGIST REPORT

53.  In the very detailed report that includes tracing the growing up of the defendant, the setting up and failing of his tutorial school business, and his relationship with his wife, the most significant part is the clinical impressions of Ms. Yeung, which I summarize as follows.

54.  The defendant has normal intellectual functioning and should have no problem understanding the nature of the present offences.

55.  The defendant apparently harbours an ingrained sense of inadequacy.  Even though his parents have never demanded him to be a high-flyer, he constantly compares himself against his highly successful parents, thinking that he has not done well enough.  At the same time, the lack of warmth and emotional exchange within his family during his formative years has left his emotional needs greatly unfulfilled.  He has come to see his emotional needs as unimportant, so that he has developed a propensity to neglect or even suppress his needs, at the same time prioritizing others’ needs over his own.  Over time, the persistent subjugation of his needs has led to a lack of awareness of his inner world, which causes sense of emptiness.  His limited awareness of his needs makes it even harder for his significant others to respond appropriately to his needs, creating a vicious cycle.

56.  The defendant appears to harbor fairly strong sense of loneliness since young.  When he was young, he felt not being well understood or given sufficient attention by his family members.  Besides, the repeated changes of schools as well as peer alienation when he studied abroad had probably disrupted the development of a secure sense of belonging.  This, together with his lack of emotional expression, has contributed to his maintenance of emotional distance in most interpersonal relationships.  Even in his marriage, he seems to feel rather lonely as his wife has been too busy to spend quality time with him.  Their sex life does not seem fulfilling even though he describes it as satisfactory.  It is believed that he actually longs for affection and intimacy.

57.  The defendant’s establishment of his own tutorial school might have been driven by his yearning for autonomy.  He might see it as a chance to prove his capability and independence.  Unfortunately, his business was met with serious financial difficulties right from the start.  Though feeling very stressed and worried, he has been reluctant to seek help or give up on his business as he fears being seen as incompetent or burdensome.  He has bottled up most of his negative emotions and lacks effective means to cope with his distress.  His daily consumption of alcohol in 2022-2023 was likely a way to escape from stress.

58.  It was under these circumstances that the defendant committed the offences against his 5 students over a period of several years.

59.  As the defendant firmly denies the offences are sexual in nature, probably due to his extremely strong shame, his motives underlying the offences cannot be ascertained at this stage.

60.  Nevertheless, considering his high level of distress and loneliness, it is likely that he committed the offences for excitement to distract himself from the intense negative emotions.  Another possibility is that he might be fulfilling his needs for sexual gratification and/or intimacy through the offending behaviours.

61.  It appears that he committed the offences against his male students because they were accessible, and he could rationalize the same-sex contact as a game.

62.  While the defendant is clearly sexually attracted to women, the possibility that he has developed or is developing a sexual interest in boys cannot be ruled out at this stage, considering that he has repeatedly molested young boys over a period of several years.

63.  Clinical attention is warranted to prevent any sexual interest in prepubescent boys from further developing.  The defendant is pro-social in orientation and has no prior criminal record.

64.  On the other hand, he presents with risk factors such as chronic feelings of loneliness, possible tendency to use sex as a means of stress coping, as well as signs suggestive of pedophilic interest.

65.  While his overall risk of sexual re-offending is estimated to be average currently, this could be a slight underestimation as the defendant might not have fully revealed his psychological issues to Ms. Yeung at this stage.

66.  Although the defendant’s rationalization of the offences has prevented him from acknowledging the impact of his offending behaviours on the victim, he does show determination to prevent re-offending.  While his insight into his problems shows room for improvement, he displays genuine motivation to address his psychological issues through treatment.

VICTIM IMPACT REPORTS

67.  X and Y had emigrated, and no reports have been prepared on them.  

Z’S REPORT

68.  Z was 4 days from turning 15 at the time of the assessment.  According to the Clinical Psychologist, Z comes from a nuclear family and maintains positive relationships with his parents and sister.  His mother has always been his primary caretaker and the person he trusts most.  He has had a history of language delay and features consistent with Autistic Spectrum Disorder (ASD)  since childhood, which led his mother to arrange private tutoring at the defendant’s centre to address his academic needs.

69.  During the assessment, Z appeared extremely nervous and distressed, even experiencing nasal bleeding when recounting the past sexual abuses.  He described repeated incidents in which the defendant touched him, kissed him, pulled down his pants, performed oral sex on him, and touched his anus on nearly a weekly basis. He remembers the defendant asked if he felt comfortable and recalls feeling disgusted and revulsed.  Overwhelmed, he found it difficult to tell his mother and adopted avoidance strategies like putting on his headphones immediately after class and rushing to clean himself upon arriving home.

70.  The Clinical Psychologist assessed that the abuses had a profound and lasting impact on Z.  He reported difficulties with concentration, nightmares, unexplained fears, sadness, and hesitance to engage with male classmates or adults.  Both Z and his mother noted that it took him nearly a year to stabilize emotionally.  While his active trauma symptoms such as anxiety, fear, depression, nightmares, and flashbacks have lessened over time, and he is now less guarded around males, he continues to struggle with persistent feelings of self-blame and self-doubt.  He frequently questions whether he could have disclosed the abuse sooner or been strong enough to prevent it, and these thoughts have significantly undermined his self-worth, leaving him with a sense of uselessness.  He also harbours distressing thoughts about potentially becoming like the perpetrator in the future, experiences anxiety related to sexual topics and worries about the abuser contacting him again upon release.

71.  Z consistently relies on avoidance coping strategies to distance himself from triggers.  He refuses to discuss the incidents and wishes to erase the memories entirely.  This avoidance extends to his fear of tutorial centres, leading him to refuse participation in any such programmes and to opt for private tutoring at home with the door kept open for security.

72.  His mother feels deeply betrayed by the defendant, who had presented himself as helpful, sincere, and genuinely concerned for Z's studies, even offering free extra tutoring sessions.  She blames herself and regrets having insisted on Z continuing with the specially arranged classes despite his objections and pleas to stop.  She recalls how unhappy Z was during that period, even crying while begging to quit.  On their way home from class, Z would withdraw into his music and refuse to talk and would rush to the bathroom to bathe immediately upon arrival.  She noticed his nightmares then, though their frequency has since decreased.  She recognizes that Z still harbours a persistent fear of the tutorial centre and is committed to doing her utmost to support his recovery.

A’S REPORT

73.  A was 16 at the time of the assessment.  It is the Clinical Psychologist’s finding that A does not manifest significant symptoms of post-traumatic stress disorder.  He is adjusting adequately to his current life.  He could only recall two counts of sexual abuse incidents in the tuition centre, from Primary 3 to 5.  Apparently, A was one of the defendant’s favourite students and has formed some affectionate bonding with the defendant, which might have affected A’s recollection of abusive experiences.  Victims undergoing chronic and early sexual abusive would experience complex trauma which would have late onset of traumatic symptoms and require more time to recover.  Psychotherapy is indicated for A to provide him with a safe therapeutic relationship to process possible trauma and to recover from it with more resilience.

B’S REPORT

74.  B was 12 at the time of the assessment.  It is Clinical Psychologist Mr. Lau’s finding that B currently exhibits no trauma related symptoms, and his recognition of the defendant’s abusive behaviour indicates an age-appropriate understanding of the abuse.  However, the abuse by a trusted male adult during school age has deprived B of healthy sexual development and increased his risk of future sexual harm and re-victimization.

75.  B’s mother has been impacted deeply from the persistent emotional distress, guilt and anxiety about possible long-term effects on her son’s development that she has been experiencing.  The incident has placed a substantial emotional burden on her.  

76.  In relation to the sole count of indecent assault against B, I have reminded myself that the defendant is to be sentenced based on the evidence disclosed in the Summary of Facts and not those included by the Clinical Psychologist in his report.  This would be the same for all the other reports.

SENTENCING

INDECENT ASSAULTS

77.  The maximum sentence on conviction upon indictment for the offence of indecent assault is 10 years’ imprisonment.

78.  The principles regarding sentencing in cases of sexual offences involving young children set out in HKSAR v Lee Kwok Wai (李國偉) (09/02/2012, CACC199/2011)  [2012] 2 HKLRD 239 and HKSAR v Tsang Chiu Tak (曾昭德) (04/06/2012, CACC386/2011)  [2013] 1 HKLRD 427 are applied and the factors taken into consideration in the present case are set out below.  

79.  The defendant had taken advantage of his position as the tutor whom the boys would see regularly. Each of the offences involved a serious breach of the trust the boys had placed in the defendant.

80.  There is a huge age difference between the defendant and the boys, and they were each of very young age.

81.  The defendant had indecently assaulted 5 different victims.

82.  The offences were committed over a lengthy period and on multiple occasions.

83.  Although we do not have the victim impact reports on X and Y, it can be assumed[3] that they and their family must have suffered immensely from the whole ordeal, with 2 young children in the family becoming victims of sexual assaults committed by the same tutor of the centre that they were enrolled into.

84.  In relation to counts 5, 7, 9 and 12, the defendant had recorded the assaults with his phone.

85.  In relation to the assaults on Z (counts 15, 16, 17), the victim impact report confirmed what the defendant had done to Z had caused him and his mother significant harm.  It is also noted that Z had been diagnosed with language delay and exhibited features of Autistic Spectrum Disorder, which the defendant must have been aware of as his long-time tutor.  

86.  Lastly, according to the Clinical Psychologist Ms. Yeung’s report, “the possibility that he (the defendant)  has developed or is developing a sexual interest in boys cannot be ruled out at this stage, considering that he has repeatedly molested young boys over a period of several years”, and that “His (the defendant’s)  current risk of sexual re-offending is found to be average, although it could be a slight underestimation because he might not have fully revealed his psychological issues in this assessment yet.”

NO MITIGATING FACTOR OTHER THAN GUILTY PLEAS

87.  Despite being abandoned by his birth family, the defendant was taken in by two pious, loving and generous people as their own.  He was given opportunities that others with a similar start in life would not have had.  He did well to get to where he was when he was able to start his own tutorial centre.  

88.  What he then did against the 5 boys while running the centre is, however, inexcusable.  Whether it was because of any pedophilic tendency, or him being under stress, or plain boredom, what the defendant had chosen to do to the young boys was despicable and repulsive.  

89.  Family members and friends of the defendant had written to seek leniency on his behalf, speaking to the good character of the defendant.  I do note the difficulties that the defendant’s family, in particular his son who is in his formative years, are facing, but I find that there are no exceptional circumstances in the present case to justify a further discount other than the ‘high-water mark’ of one-third[4].

90.  The sentence must reflect the society’s abhorrence of the defendant’s conduct, as well as deter him from committing similar offences in the future, and to deter others who might be so tempted.  

91.  The individual sentences for the indecent assaults are set out in the table below, which includes the sentences for the making of child pornography charges that I am now going to deal with.

MAKING CHILD PORNOGRAPHY

92.  The maximum sentence on conviction upon indictment for the making of child pornography is a fine of $2,000,000 and imprisonment of 8 years.

93.  Based on the guideline 4-Level classification of child pornography in Secretary for Justice v Man Kwong Choi (16/7/2008, CAAR 8/2007)  [2008] 5 HKLRD 519, I find that the 2 videos in counts 6 of X; 1 video in count 8 of X; the 2 photos and 2 videos of X in count 10; and the one video of Y in count 13 are all Level 3 materials, being “non-penetrative sexual activity between adults and children”.

94.  In relation to the making of the materials, I find the very young age of the victims an aggravating feature.

95.  That being said, I do note the small quantity of materials and there being no evidence to suggest that the defendant had intended for them to be distributed or to show others, but at the same time I am mindful that they were found on the defendant’s mobile phone, thus increasing the possibility of accidental dissemination.

96.  Taking into consideration all the circumstances, I find that each of the making charges should be visited with a starting point of 18 months’ imprisonment, discounted by one-third for the defendant’s timely guilty pleas to 12 months’ imprisonment.

97.  As mentioned above, this is the table setting out all the starting points for the charges, which are adopted after considering all the aggravating and mitigating features:

Count:	IA (indecent assault)  or MCP (making child pornography):	Acts against X, Y, Z, A and B, or Quantity and Classification level of pornography:	Starting point after considering aggravating and mitigating features:	After one-third discount:
1	IA	touching X’s penis over pants	2 years	16 months
2	IA	oral sex on X	3 years	2 years
3	IA	poked X’s anus 5 to 10 seconds	3 years	2 years
4	IA	oral sex on X for 30 seconds	3 years	2 years
5	IA	Masturbating X, taking 2 videos	3 years 9 months	2 years 6 months
6	MCP	Two level 3 videos taken during count 5 (X penis being touched, face not shown)	18 months	12 months
7	IA	Masturbating X, taking video	3 years 9 months	2 years 6 months
8	MCP	One level 2 video taken during count 7 (X anus, scrotum, penis being touched, X’s face shown from an angle)	18 months	12 months
9	IA	Oral sex on X, taking videos and photos	3 years 9 months	2 years 6 months
10	MCP	2 photos 2 videos, all level 3, taken during count 9 (D’s face shown with mouth on X’s penis; X’s penis being touched with face shown)	18 months	12 months
11	IA	touched penis of Y directly for 1-2 minutes	3 years	2 years
12	IA	touched Y’s upper body and penis directly, taking video	3 years 9 months	2 years 6 months
13	MCP	One level 3 video made during count 12 (D touching Y’s penis, Y face shown but with mask on)	18 months	12 months
14	IA	touched Y’s penis 3 to 4 minutes	3 years	2 years
15	IA	masturbated Z for about 5 minutes	3 years	2 years
16	IA	touched and then bit Z’s penis for about 1 second	3 years	2 years
17	IA	touched Z’s penis directly for about 5 minutes	3 years	2 years
18	IA	touched A’s penis 1-2 minutes	3 years	2 years
19	IA	touched B’s penis; oral sex for about 2 minutes; touched penis another 3 to 5 minutes	3 years	2 years

OVERALL TOTALITY

98.  First, in relation to the Making of child pornography charges, given that each was committed during the defendant’s commission of the related assault, they are all to be served concurrently with the overall sentence of the indecent assaults.

99.  Taking a step back and looking at the overall criminality of the defendant’s conduct, the assaults being against 5 different young boys, spanning over some 6 years, and committed by someone in a position of trust, I find that an overall starting point of 9 years 6 months should be sufficient to punish and deter, but would not be so crushing as to cause the defendant not to be able to rehabilitate and later on re-integrate into society.  

100.  To achieve the overall sentence of 6 years 4 months’ imprisonment after plea, I order 4 months of the sentence in count 1 to be served consecutively to the sentences in counts 2, 3 and 4, the balance and the remaining sentences to be served concurrently.  

FINAL SENTENCE

101.  The final sentence after plea for all 19 counts is, therefore, 6 years 4 months’ imprisonment.