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DCCC1291/2009
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1291 OF 2009
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HKSAR |
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v. |
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Yu Ping-chak |
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| Before: |
H H Judge Tallentire |
| Date: |
30 August 2010 at 10.36 am |
| Present: |
Ms Patty Lee, SPP, of the Department of Justice, for HKSAR
Mr Bruce Tse, instructed by Messrs Chan & Tsu, for the Defendant |
| Offence: |
(1) & (2) Indecent assault (猥褻侵犯) |
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Reasons for Sentence
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1. Defendant, you were convicted after trial of two offences of indecent assault, each contrary to section 122(1) and the 1st charge also contrary to section 153P(2) of the Crimes Ordinance. That is Cap.200.
2. I do not intend to repeat the facts, which are dealt with in full in my verdict.
3. Suffice it to say that the victim was a boy, 15 years and 11 months at the time of the offence, and you were 21 years of age.
4. The first offence took place in Shenzhen and involved you touching the victim’s penis as you both bathed naked in a pool at a sauna and massage centre.
5. The second was more serious and prolonged. This took place in your office when you and the victim were alone. It involved mutual masturbation, you masturbating the victim, and finally you giving the victim oral sex. There was no demonstrable coercion involved in the offence.
6. D, you are a man of hitherto clear record.
7. I adjourned the case on the last occasion for a probation officer’s background report and a psychological report. Those reports are before the court.
8. I understand that you accept the contents of those reports. Those reports confirm you to be bisexual and there is a recommendation for psychological assistance to reduce the slight risk of re-offending.
9. On your behalf, Mr Tse entered mitigation.
10. As I have said, he told me that you accepted the contents of the reports and emphasised that you were assessed neither to have paedophilic nor psychiatric problems. From the psychological report, it was clear that your problems are that you are immature and you are naïve. You are a man who fails to differentiate and understand the nature of appropriate relationships.
11. Mr Tse emphasised that whilst you have pleaded not guilty, you have expressed your respect for the verdict of the court.
12. He also referred to the fact that the victim was only a few days short of 16 at the time the offences took place, and you were but 21 years of age yourself.
13. Mr Tse asks for a lenient sentence. He produced before me a letter of support from a friend and colleague, with other supporters attaching their signature.
14. I turn now to the sentence itself.
15. I accept in this case there is a large degree of mitigation. It is far from being the worst case of its type, disturbing though it may be.
16. First of all, the victim was almost 16 years of age, only days short, and you were only 21, so this is not a case where there is a vast age difference.
17. Secondly, even after the first assault of 3 August 2009, the victim continued to keep company with you and never made any complaint either to friends or to family.
18. Thirdly, you never used any violence nor threats in the course of these offences.
19. Fourthly, the victim himself admitted in evidence that he was greedy, and the evidence is clear that his association with you was based to some extent on an expectation of obtaining luxury goods such as the Louis Vuitton wallet, iPhone and a Sony notebook. Actually, the victim presents as a mature boy for his age and he certainly gave the impression, from the evidence that he gave, that he was not being adversely affected by these offences. That is to be welcomed.
20. Also, you are a person of clear record.
21. The reports are positive and supportive. The psychological report gives the opinion that there is little chance of you re-offending.
22. Against this, one must weigh, of course, the court's duty to protect minors from exploitation by adults, especially of a sexual nature. In this case, you were well aware of the victim being marginally below the age of 16.
23. The first offence, which is a less serious, involved the taking advantage of a situation which you yourself had engineered, namely both of you were bathing naked together.
24. The second and more serious offence involved sustained and intimate sexual activity, and again had been engineered by yourself.
25. Therefore, in my opinion, only a custodial sentence is appropriate. This is to make it clear the court will protect minors from the illegal attentions of adults.
26. Despite all the mitigation that has been advanced and to which I have referred, I am of the opinion that you will have to go to prison.
27. Taking all the factors into account, the following sentences will be imposed.
28. On Charge 1, you will go to prison for 3 months.
29. On Charge 2, you will go to prison for 6 months.
30. These will be concurrent; a total of 6 months' imprisonment.
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Tallentire |
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District Judge |
Defendant's leave to appeal against convictions allowed by Court of Appeal convictions and sentence set aside. Please refer to CACC318/2010 dated 23 August 2011 |