HKSAR v. CHAN PAK KIT

DCCC 117/2021

[2021] HKDC 991

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 117 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of falsely pretending to be a public officer, contrary to section 22 (1)  of the Summary Offences Ordinance[1] (charge 1)  and one charge of indecent conduct towards a child under the age of 16 years, contrary to section 146(1)  of the Crimes Ordinance[2] (charge 2).

2.  Full particulars of the offences are set out in the summary of facts admitted by the defendant on 30 June 2021.  Sentence was adjourned for the preparation of a psychological report on the defendant. 

3.  In summary in late August 2020 X, who was 14 at the time, met the defendant via social media.  The defendant claimed to be called Wong and that he was a Senior Inspector working at Shatin Police Station.  X told the defendant that she was 14. 

4.  Between August and October X and the defendant did not chat much.  In October 2020 when X’s boyfriend was arrested, X asked the defendant about her boyfriend’s case and they started chatting again on Telegram. 

5.  The defendant repeatedly asked to meet X.  On 31 October X told the defendant that she wanted to run away from home.  In his messages the defendant again falsely pretended to be a police officer.   At around 12:30 a.m. on 1 November 2020, after the defendant offered to pick X up, X sneaked out from home when her parents were asleep. 

6.  X met the defendant in Ma On Shan Plaza from where they went to Hotel Victoria at No 196 Portland Street in Mong Kok.  After checking into Room 2 on the 8^th floor X and the defendant sat on the bed.  When the defendant asked X to take off his trousers X refused.  The defendant took off his own trousers and laid down on the bed while X remained fully clothed next to him.

7.  The defendant then asked X to perform oral sex on him and to swallow his semen.  X said she did not really want to do that but the defendant kept on asking.  When the defendant started to raise his voice X became afraid of what the defendant would do to her if she refused because they were alone in the room.

8.  X then performed oral sex on the defendant.  X felt disgusted and asked how much longer she had to do that.  The defendant replied that he would ejaculate quicker if she acted faster.  The defendant also asked X to imitate girls seen in pornography by using her hands.  X did not know what to do.  Eventually the defendant ejaculated into X’s mouth and X swallowed his semen.  Later X and the defendant fell asleep in the room. 

9.  At around 8 a.m., after having breakfast, the defendant took X home by bus.  After they alighted from the bus the defendant told X to pretend she did not know him.  The defendant then left and X went home.  Later X reported the case to the police. 

10.  CCTV captured the defendant and X entering the hotel at 1:39 a.m. and leaving together at 8:05 a.m.  The defendant had booked the room under his real name. 

11.  The defendant was arrested on 6 November 2020.  The clothing the defendant was seen wearing in the CCTV footage was seized from his home. 

12.  The defendant was not a police officer.   

Mitigation

13.  In passing sentence, I have carefully considered the written and oral submissions of Mr Midgley, including that the defendant who is 27, is single, lives with his family and runs his own business of importing fruit[3]. 

14.  I have read the letters written by the defendant’s family who are in court today to support the defendant, his friends and former employer, who variously describe the defendant as filial, kind and caring, hardworking and meticulous, helpful and caring who works very hard and takes good care of his family, shows his respect to the elderly and others, a caring and responsible man and a kind person[4].

15.  I take into account that after his mother was diagnosed with breast cancer in June 2020 the defendant always accompanied his mother to the clinic and that since his remand in custody his mother has not been able to visit him daily because of the side effects of the chemotherapy. 

16.  Mr Midgley says that the defendant is genuinely remorseful, sorry and ashamed of his behaviour[5].  

17.  I take into account that the defendant has a clear record. 

Guidelines

18.  The indecent conduct is an act of gross indecency.  This is akin to acts of indecent assault for which the maximum sentence is the same, 10 years’ imprisonment. 

19.  There are no guidelines for sexual offences involving young children.  Sentences in similar cases are of limited assistance, the circumstances of the offences varying widely[6].

20.  In Secretary for Justice v Huang Long Wei the Court of Appeal set out the principles to follow in sentencing indecent assaults by adults on young children, the most important of which is the protection of young children[7].

21.  The sentence of the court must mark the public abhorrence of such crimes and redress the grievance suffered by the victims and their families whilst at the same time deterring others from committing similar offences.  

22.  Case law makes clear that this kind of conduct gives rise to great abhorrence on the part of the public, who look to the courts for protection of children from those who seek to gratify themselves by taking advantage of young children. 

23.  Factors that the court has to consider include the age difference between the defendant and the victim; whether the defendant had used threats or inducements to make the victims succumb, falling prey to his licentious exploitation; the number of occasions and duration of the offences; whether the offences caused physical or psychological trauma to the victim; and whether the defendant is psychologically imbalanced or paedophilic and the likelihood of re-offending[8]. 

24.  Mr Midgley submits that the defendant did not use any threat or inducement to make X succumb and that there was no force or coercion[9].  In support of this submission Mr Midgley refers the court to Secretary for Justice v Wong Tsz Kin where the Court of Appeal held that a starting point of 12 months was appropriate for similar indecent acts with a girl aged 8 where there was no force or coercion[10].  Mr Midgley submits that the facts in that case which included an element of breach of trust, the respondent’s mother having care of the girl, are more serious than the present case[11].  

25.  Subsequent decisions of the Court of Appeal have clearly stated that the sentence imposed in Secretary for Justice v Wong Tsz Kin was remarkably low and overly lenient and should not be regarded as an appropriate guideline[12]. 

26.  Whilst each case is to be decided on its own facts and circumstances, some assistance can be obtained from HKSAR v Tin Siu Hung where the applicant pleaded guilty to charges of indecent assault, common assault and falsely pretending to be a public officer[13].

27.  The applicant pretended to be a police officer investigating criminal offences and approached young girls ostensibly in furtherance of criminal investigation.  In one case the applicant took an 11-year-old girl into a room in a church complex and told the girl she was suspected of having stolen something.  The applicant then indecently assaulted the girl by fondling her upper body outside her clothes and by touching her under her skirt but outside her underpants.

28.  The Court of Appeal, accepting that the circumstances were very frightening for the young girl, held that as the indecency was confined to touching the young girl over her dress and over her underpants a starting point of 3 years’ imprisonment was appropriate[14].

29.  The Court of Appeal considering the offences of falsely pretending to be a police officer, which involved young girls and were committed in the circumstances of a sexual nature, upheld starting points of 6 months’ imprisonment.  The court commented that the maximum sentence of 6 months’ imprisonment for falsely pretending to be a public officer was surprisingly low[15].

30.  I have also considered other cases of similar indecent conduct involving masturbation and oral sex with young children, including HKSAR v Ho Wing Hong[16]; Secretary for Justice v Lam Yu Wai[17]; HKSAR v Tang Kwok Hei, Joe[18]; HKSAR v Tsang Cho Kiu[19] and HKSAR v Ipp Tin Fan[20].

31.  Mr Midgley submits that the facts in HKSAR v Tin Siu Hung are more serious, in particular falsely telling a young girl aged 11 that he was a police officer and that she was accused of theft. 

32.  The defendant, who is over ten years older than X, deceived X into believing he was a police officer.  The defendant repeatedly asked to meet X over Telegram.  By continuing to falsely pretend to be a police officer and that he was helping X, this no doubt gave X the confidence to meet the defendant. 

33.  When they met for the very first time the defendant took advantage of X’s youth and immaturity for his own personal sexual gratification.  Mr Midgley accepts that the indecency is more serious than in HKSAR v Tin Siu Hung.

34.  Although the defendant did not threaten X or use violence, X was unwilling to do what the defendant asked and when the defendant raised his voice X was afraid of what would happen to her if she refused. 

35.  The defendant told the clinical psychologist that X took the initiative to meet up[21].  In his written submission and oral submission today Mr Midgley refers to the fact that X had run away from home before and willingly met with the defendant[22].  The law exists for the protection of young girls, who need protection from their own immaturity[23].  In his oral submissions made on 30 June 2021 Mr Midgley very responsibly said that X was completely blameless. 

Victim impact report

36.  One important consideration in sentencing is to redress the grievance suffered by the victim and their families.  I have read the report of X prepared by Clinical Psychologist Chloe Chan. 

37.  In summary X felt emotionally disturbed after the present incident, reporting intrusive flashbacks from time to time and occasional nightmares about the offender.  X claiming that she had very little sex knowledge and experience before the incident says she no longer has pleasant feelings in relation to sex.

38.  Prior to the incident X had started to receive psychiatric consultations both in public hospital and in a private setting.  Initial psychiatric impression suggested X might have features of rigidity and Asperger’s syndrome.

39.  X has also exhibited strange behaviour after the incident which behaviour has since stopped.  The parents observing the emotional condition of X was unstable after the incident referred X to see a private psychiatrist who has prescribed psychiatric medication.

40.  During the interview with the clinical psychologist X disclosed hearing voices and that she felt her “twin sister” was living in her body protecting her and telling her what to do, including to comply with the defendant’s demands otherwise she might be in danger. 

41.  X is currently followed up by the social worker from school, the outreaching social worker, a social worker from the Social Welfare Department and a social worker from a NGO specializing in sexual trauma. 

42.  The clinical psychologist is of the opinion that it is difficult to say what symptoms may be the direct impact of what happened to X but there is a chance that the present offences may have exacerbated whatever pre-existing unstable emotional conditions X had.

Psychological report of the defendant

43.  The psychological report reveals that to overcome loneliness and boredom the defendant became reliant on the online dating application Heymandi so that he could interact with people even during his work time[24].  The defendant told the clinical psychologist he met X on Heymandi[25]. 

44.  The defendant denied impersonating a public officer and said he told X he was an ordinary office worker.  The defendant also told the clinical psychologist that X never explicitly stated her age and that he only suspected X was under age[26]. 

45.  This is contrary to the summary of facts admitted by the defendant.  Mr Midgley explains that the defendant expressed himself badly to the clinical psychologist and that there has been a misunderstanding.  Mr Midgley confirms his instructions are that the defendant accepts the charges and does not resile from the summary of facts admitted by him on 30 June 2021.  Mr Midgley asks the court to disregard any inconsistency between the summary of facts and the content of the psychological report.

46.  Assessment of the defendant by the clinical psychologist does not indicate signs of gross psychopathology, including deviant sexual interest in underage children and the defendant is not regarded as sexually promiscuous[27].

47.  The clinical psychologist assesses the defendant’s risk of sexual re-offending lies in the lower end of the moderate range.  Despite the absence of prior convictions, sexual deviance and sexualized coping the clinical psychologist is of the opinion that the defendant’s restricted social life with persistent boredom, some sexual pre-occupation, impoverished self-regulation, negative mood, trivializing negative consequences and his relatively young age constitute major risks[28]. 

48.  The defendant having expressed genuine motivation for positive change and readiness for psychological treatment to prevent re-offending and develop a positive life, short term psychological intervention that helps enhance the defendant’s emotion regulation and stress-coping skills is recommended[29].

Sentence

49.  I am satisfied a deterrent sentence is required.  

50.  Taking into account all the circumstances, including the age of X; the age difference with the defendant; the defendant falsely pretended to be a police officer; X was unwilling to do what the defendant asked; X was afraid of what would happen to her if she refused; the nature of the gross indecency; X was emotionally disturbed after the present incident, reporting intrusive flashbacks from time to time and occasional nightmares about the offender; the defendant has a clear record and the risk of re-offending is assessed to be in the lower end of the moderate range, I am satisfied a starting point of 6 months imprisonment is appropriate for falsely pretending to be a public officer (charge 1)  and 3 years and 6 months’ imprisonment for indecent conduct towards a child under the age of 16 years (charge 2).

51.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charge 1 to 4 months’ imprisonment and on charge 2 to 2 years and 4 months’ imprisonment.

52.  Mr Midgley asks the court to take into account that the defendant has pleaded guilty at an early stage and spared X from giving evidence in court[30].   In HKSAR v Chow Yuen Fai the Court of Appeal said that where a victim is spared the ordeal of giving evidence this is to be viewed against the general principle that the one-third discount is usually to be regarded as the high watermark for discount for pleading guilty in good time and that only in exceptional cases should a discount of more than one-third be given for a timely plea[31].

Social Services and charitable work.

53.  Mr Midgley also asks the court to take into account the defendant’s participation with the Civil Aid Service Cadet Corps; his blood donations between 2013 and 2020 and his registration for voluntary bone marrow donation in 2016[32]. 

54.  In recognition of the defendant’s regular blood donations made over seven years and registering for bone marrow donation, I reduce the sentence on each charge by 1 month to 3 months’ imprisonment and 2 years and 3 months’ imprisonment respectively. 

Totality

55.  Having taken into account that the defendant falsely pretended to be a police officer in determining the appropriate starting point for indecent conduct, I am satisfied concurrent sentences are appropriate.  The defendant is convicted and sentenced to concurrent sentences of 3 months and 2 years and 3 months’ imprisonment.

[1]  Cap 228.

[2]  Cap 200.

[3]  See §§2 & 3 of the mitigation skeleton submissions.

[4]  See §23 of the mitigation skeleton submissions.

[5]  See §7 of the mitigation skeleton submissions.

[6]  See HKSAR v Lee Hon Wah & others [2011] 4 HKLRD 319 at §38.

[7]  [2009] 3 HKLRD 136.  Also cited by Mr Midgley.  Also see HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 cited by Mr Midgley.

[8]  See HKSAR v Lee Hon Wah & others [2011] 4 HKLRD 319 at §43.

[9]  See §17 of the mitigation skeleton submissions.

[10]  [1998] 4 HKC 32. 

[11]  See §§19-21 of the mitigation skeleton submissions.

[12]  See for example HKSAR v Kong Yun Chiu [2007] 4 HKC 391 and HKSAR v Sham Tat Wing, Arthur CACC 158/2010 (judgment in Chinese).  When adjourning for sentence on 30 June 2021 the court referred Mr Midgley to these cases for his consideration.  The court also requested the prosecution to prepare an agreed translation of HKSAR v Sham Tat Wing, Arthur.  Ms Yuen submitted the agreed translation on 29 July 2021.

[13]  [2006] 1 HKLRD 29.   When adjourning for sentence on 30 June 2021 the court also referred Mr Midgley to this case for his consideration.

[14]  The sentencing judge had adopted a starting point of 4 years’ imprisonment. 

[15]  See §16 of the judgment.

[16]  CACC 208/2019.

[17]  [2015] 1 HKLRD 800.

[18]  [2015] 1 HKLRD 400.

[19]  CACC 42/2014.

[20]  [2016] 4 HKLRD 486.

All cases were referred to Mr Midgley for his consideration by the court when adjourning for sentence on 30 June 2021.

[21]  See §7 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.

[22]  See §12 of the mitigation skeleton submissions.

[23]  SeeR v Taylor [1977] 1 W.L.R. 612; Attorney General’s Reference No 127 of 2004 [2005] 2 Cr App R (S)  74; Secretary for Justice v Chung Yui Hung [2007] 2 HKLRD 772; HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 and HKSAR v Lee Kwok Wah, Francis [2013] 2 HKLRD 1009.

[24]  See §6 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.

[25]  See §7 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.

[26]  See §7 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.

[27]  See §11 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.

[28]  See §12 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.

[29]  See §13 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.

[30]  See §8 of the mitigation skeleton submissions.

[31][2010] 1 HKLRD 35 at §§30-31.  Also see HKSAR v. Ngo Van Nam [2016] 5 HKLRD 1.

[32]  See §§5 & 6 of the mitigation skeleton submissions. In oral submissions on 11 August 2021 Mr Midgley accepted that the defendant’s participation with the Civil Aid Service Cadet Corps was as a student and does not amount to social services or charitable work.