HKSAR v. YU CHUN HING

DCCC 535/2019

[2021] HKDC 194

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 535 OF 2019

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Reasons for Sentence

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1.  The defendant has pleaded guilty to eight counts on this indictment involving sexual offences towards underage girls. Those charges are (1), (2), (3), (6), (7), (9), (11) and (12). The charges involve six victims aged at the time between the ages of 12 to 14.

2.  The first two charges are under section 146(1) of the Crimes Ordinance and allege indecent conduct towards a child under the age of 16 years, the offences being committed on 5 May 2018, the ages of the victims in the charges being 12 and 11.  In that incident the defendant is said to have met two girls, X and Y, upon the arrangement of another girl.  Those arrangements being made through social media, through WhatsApp.  The defendant knew the ages of the girls, X being aged 12, and Y also being aged 12.  There was an agreement that they would be, what is described as, part-time girlfriends for the defendant.

3.  The acts of indecency or intimacy alleged occurred at a car park in the early hours of the morning initiated by the defendant kissing Y and touching her intimately on the breasts and buttocks and also attempting to touch X.  The facts also confirm that the victim Y performed oral sex on the defendant and the defendant further touched the bodies of both girls. 

4.  The defendant has also agreed that he at some point forced his penis into X’s mouth.  She indicated she was unwilling to continue with that activity but did involve herself in masturbation of him. The defendant rewarded the girls paying them $200 each.  The defendant was later arrested for these two offences and released further on police bail on 6 June 2018.

5.  The defendant’s mobile phone was seized and found on it were other WhatsApp messages and other involvement with other girls.

6.  The 3rd charge that the defendant has pleaded guilty to is possession of items of child pornography.  This involves another girl referred to as “Girl Z” who was aged 12 at the time of the offence.  The defendant approached this girl on another social media forum called Instagram using a false name of “Ryan”.  They communicated on WhatsApp.  There was a request that the defendant be the boyfriend of this girl.

7.  Eventually, this culminated in the victim Z sending photographs of herself which are child pornography to the defendant from late December 2017.  Between December 2017 and January 2018, she sent some 30 photographs on the defendant’s request.  The defendant’s phone was later seized.  It showed 38 photographs of child pornography all at the level what is described as level 1 taken when she was at 12 years old.

8.  The next offence that the defendant pleaded guilty to is Charge 6 involving indecent assault on another person, the indecent assault being on a girl described as “A” at the age of 14 years.

9.  The defendant is said to have approached this girl who was aged 14 at the time on Facebook, again, using the name of Ryan in early 2018.  They communicated via WhatsApp.  They met in early 2018 at a staircase in the Sau Mau Ping Estate in Kowloon and that is where the admitted acts of indecency occurred involving indecent conduct and kissing and touching intimately on her breasts and private parts through her clothing.

10.  The next set of offences for which the defendant pleaded guilty were charges 7, 9 and 11, which involve a further victim who is described as Victim B.  These offences occurred in 2017 and ’18 during which the girl was aged from 13 up to 14.  Again, contact was initiated through Instagram under the name of Ryan.  There was an agreement that the defendant acts as boyfriend and there was an exchange of romantic messages and they addressed each other as husband and wife within these romantic messages.

11.  Charge 7 occurred in December 2017 where there was kissing and fondling of her breasts over clothing.

12.  Charge 9 relates to an incident in January and February 2018 where there is further intimacy involving fondling, touching of private parts and compelling the victim to involving herself in masturbation for the defendant.

13.  Charge 11, again, with the same victim, is a charge of unlawful sexual intercourse with a girl under the age of 16.  In April 2018, the defendant admits that sexual intercourse took place with this girl.  Eventually, their involvement ended.

14.  The final charge is Charge 12 which is another charge of unlawful sexual intercourse with another victim, this victim being described as “Girl C”.  She was, on the Admitted facts, around the age of 14 at the time of the act of sexual intercourse.  They had met at a club, the intimacy taking place in the early hours in the morning, the intercourse taking place without the use of any protection.

15.  After this incident, the defendant was arrested again on 16 August 2018 and made admissions to the police.  It would seem from this there were totally six victims, aged between the ages of 12 and 14, two of whom with whom the defendant committed unlawful sexual intercourse, four of whom he indecently assaulted and one of whom he received child pornography from her.

16.  I turn to the defendant himself.  He is now aged 35.  He has a clear criminal record.  His employment history shows him to have been working as a police constable in the Hong Kong Police Force since November 2016.  He was interdicted after his arrest for the present offence.

17.  In the brief statement of his personal background, he was from Guangdong Province, he is unmarried and lived with his parents and sisters.

18.  As part of the sentencing process for the defendant I obtained background and psychological reports on him and the defendant has undergone psychological treatment since his detention.  The main conclusion from the psychologist’s report is that the defendant’s risk of sexual reoffending at this time is estimated to be at the higher end of the moderate risk range.  There are, it is said, obvious concerns for his involvement of multiple minor stranger victims in both contact and non-contact sexual offences.

19.  He was a single adult in his early 30s with a position of authority in the community at the time of the offences.  Physical coercion was reported by some of the victims.  Other significant concerns involve the use of internet under assumed identity and offences taking place in public places.

20.  It is said there are some signs of development in deviant sexual interests are noted in the indecent offences and the defendant is recommended to receive further psychological treatment as intensive psychological intervention is recommended for management of reoffending risk on issues such as general and sexual self-control, management of stress, negative emotions and maintaining intimate adult relationships.

21.  As far as the defendant’s mitigation is concerned, the essential features of the antecedent report are reiterated:  his age had been 35 years old; he served as a police constable for many years since 2016; he represented the key breadwinner to the family; his clear record; during his 12 years of service in the police force he was recognised with a number of compliment letters which I have read.

22.  He pleaded guilty at the first available opportunity and showed genuine remorse.  He has spared the victims from testifying in the witness box.  His mitigation letter shows that he has had a true and clear reflection on his offending.  Since his incarceration he has sought help from religious bodies and there is a mitigation letter from the Catholic Diocese Centre.  The defendant himself has undergone psychological treatment at the Lai Chi Kok Reception Centre and shows a determination to rehabilitate himself.

23.  Insofar as the offences themselves are concerned, it is said that in relation to all these girls there was no breach of trust or abuse of position, that the relationships in some cases were like a business deal and in other cases had a romantic element to them, that the defendant’s activities showed no threat, force, violence or duress being used during his activities with these girls.

24.  It is noted that in some of the offences the defendant, for example, in Charge 3, the defendant was described in a relationship as husband and wife during the course of the communications between the parties.  That in respect of Charge 3, the photographs, where the child pornography photographs were sent to the defendant, he kept the photographs, did not distribute it, he did not disclose these photographs to anyone else, and no threat or force was used in the obtaining of those photographs.

25.  Charge 6, I am asked to consider that the touching of the girls were over the clothes, the incident was completely quickly, there was no injury suffered by the girl.

26.  In relation to Victim B in Charges 7, 9 and 11, again, I am asked to consider the relationship between the two parties describing themselves as husband and wife, and that the activities took place during that form of relationship, that when the intercourse finally occurred in respect of Charge 11, protection was used.  And as far as Charge 12 with Victim C, I am asked to consider similar factors in mitigation.

27.  In the course of the mitigation, I have also been referred to various authorities which pertain to the approach taken by other courts to the various offences that the defendant faces. 

28.  What are the approaches that the court should take towards sentencing?  I have been referred in the course of these proceedings to the cases CACC 54/2010, Lee Hon Wah, which considers the approach that the court should take in offences of indecent conduct towards a child under the age of 16. 

29.  There are a number of common features between this and the other offences that the defendant faces, and I consider that the general approach for sentencing should be similar, and the factors which act as an aggravation of the offence or factors such as the age difference between the parties.  Here, in all these cases, there is a considerable age difference between the defendant and the girls involved.

30.  Also, the court should consider the general relationship that the defendant has with the victim as to whether there has been any taking advantage of position or status or breach of trust, whether any threats or inducements are made to the girls concerned.  In this case, two of the girls, according to the facts, felt that they were under some pressure when they consented to the activities or involved themselves in the activities.

31.  I have to consider the number of occasions and duration of the offences.  Of course, in this case there are a number of girls and a number of offences.  Whether an inappropriate or unnecessary violence was involved.  Whether the offences themselves have caused physical or psychological trauma to the victim.  Any impact these offences have on family members of the victim and whether any other inappropriate behaviour such as inviting or asking other people to watch what took place in the offences.  Does the defendant have any psychological imbalance or any paedophilic tendencies and is there any likelihood of him reoffending?

32.  I also consider the case of HKSAR v Ipp Tin Fan, which is CACC 9/2016, which discusses the concept of grooming via WhatsApp messages for the purpose of committing a sexual offence.  In that case, the court remarked upon the hallmark of grooming involved the cultivation by an adult of the trust of a child by seemingly innocent or innocuous conversation which is then steered towards more intimate discussion, ultimately designed to result in a sexual liaison.  Where there is a clear case of grooming which may be made worse by revenge and entitlement or incitement, then that is an aggravating feature of the case.

33.  This was also referred to in the case of HKSAR v Chan Hoi Tat, CACC 447/2010, where the court said it was particularly serious in that case that this was a case where it involved the grooming of a 12-year-old via the internet.  The court said in that case it is far too easy for an older man to prey on the innocence and naivety of a youngster and a deterrent sentence must be imposed to protect the young.

34.  Finally, in the case of HKSAR v Yeung Ho Nam, [2019] HKCA 384, the Court of Appeal in that case also saw as an aggravating factor the fact that sexual services were offered for money.  It was said in that case that X in that case appeared to be involved in compensated dating, voluntarily offering sexual services for money.  Although, their relationship was based on friendship, compensated dating instead of diminishing the gravity of the offence might aggravate it such as where the victim is exploited or coerced into performing or participating in sexual service or other acts.  In that case they identified there was no grooming for this a significant age difference between the parties.

35.  Taking into account the matters raised in the authorities as to the various aggravating factors that can exist in offences between adults and children, in this case there is clearly a large age difference between the parties, the defendant being in his mid-30s and the girls being underage in a range between 12 and 14 years.  That is a clear aggravating factor in sentencing.

36.  Two of the victims in the facts have said that they felt under pressure when they were involving themselves in these acts of intimacy.

37.  Another aggravating factor in this case is clearly the number of victims and the frequency of the assaults.  One of the victims has given a victim impact statement.  She is described as X.  Clearly, she has suffered trauma as a result of the sexual activity with the defendant.

38.  Another aggravating factor is the matters raised in the psychological report: the defendant’s involvement in multiple stranger victim cases; the use of social media to attract the girls; and the assumption of an identity when been in a relationship with the girls; and the fact that most of the offences took place in public places.  All these show deep-seated sexual difficulties by the defendant which make his risk of sexual offending to be at the higher end of the moderate risk.

39.  In determining the starting point for sentence in relation to these cases each set of cases must be entirely dependent on their own facts.  It is difficult for the appellate courts to lay down any general guidance as to the starting points for sentences and there is a considerable range of starting points for sentence in relation to these offences.

40.  When sentencing this defendant, I bear in mind the matters that I have already iterated as being matters that have aggravated this defendant’s conduct.  Although, the defendant was at the time a serving police officer, it does not appear from the facts that I have before me that he at any time used that role in obtaining sexual favours from these girls.  He presented himself as another personality entirely on social media in order to contact them.  So the defendant being a police officer is not, in fact, an aggravating factor in these cases.

41.  One mitigating factor that I will consider in the overall sentencing of the defendant is the fact that he has indicated an early plea and has stood by that decision which means that all these girls have been spared the ordeal of having to come to court and give evidence about their activities with the defendant.  That is a mitigating factor that I will take into account at the end of the day.

42.  Bearing in mind all those considerations, I will impose the following sentences on these charges.

43.  On Charges 1 and 2 involving indecent conduct towards children under the age of 16 of victims X and Y, I consider these to be serious offences for the reasons I have already set out.  In respect of each offence I am going to take a starting point at 24 months’ imprisonment and reduce that to 16 months’ imprisonment for the defendant’s pleas of guilty.

44.  On the 3rd charge, possession of child pornography, I take into account the guidelines set out in the case of Secretary for Justice v Man Kwong Choi, CAAR 8/2007.  I take into account the number of photographs and the level of seriousness of those photographs.  I take a starting point of 3 months’ imprisonment and reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.

45.  In respect of Charge 6, indecent assault on another person, this being the Girl A at the age of 14 years, I take a starting point of 9 months’ imprisonment and reduce that to 6 months’ imprisonment for the defendant’s plea of guilty.

46.  I now deal with the offences against the Girl B which are Charges 7, 9 and 11.

47.  Charge 7, I take a starting point of 9 months’ imprisonment and reduce that to 6 months’ imprisonment for a plea of guilty. 

48.  Charge 9, I take a starting point of 15 months’ imprisonment and reduce that to 10 months’ imprisonment for the defendant’s plea of guilty.

49.  Charge 11, the unlawful sexual intercourse, I consider this to be a serious offence.  I take a starting point of 24 months’ imprisonment and reduce that to 16 months’ imprisonment for the defendant’s plea of guilty.

50.  On Charge 12, again, unlawful sexual intercourse with a girl under age 16, I again take a starting point of 24 months’ imprisonment and reduce that to 16 months’ imprisonment for the defendant’s plea of guilty.

51.  I must consider what the overall sentence should be for this defendant taking into account the overall starting point that is appropriate for this set of offences.  As I said at the beginning of this sentence, I must take into account the number of offences and the number of offences and the ages of the girls involved.

52.  I consider that an overall starting point for this range of offences should be in the region of 72 months’ imprisonment, 6 years’ imprisonment, which after deduction for the defendant’s plea of guilty would lead to an overall sentence of 48 months’ imprisonment.

53.  I have already said that the defendant should get some benefit for the fact that the girls have not been required to give evidence in court.  I will further reduce that figure from 48 months to 46 months to represent that factor.

54.  I would achieve the final sentence of 46 months’ imprisonment for this set of offences as follows.  Charges 1 and 2 will be served concurrently to each other.  Charge 3 will be served consecutively to Charges 1 and 2.  Charge 6 will be served consecutively to Charges 1, 2 and 3.

55.  As far as Charges 7, 9 and 11, are concerned, they will be served concurrently to each other and 12 months of those sentences will be served consecutively to Charges 1, 2, 3 and 6.

56.  Finally, as far as Charge 12 is concerned, a further 10 months of that charge will be served consecutively to Charges 1, 2, 3, 6, 7, 9 and 11, the balance concurrently.

57.  The overall total sentence will be one of 46 months’ imprisonment.