HKSAR v. LI HUAI YAN

DCCC 108/2022

[2022] HKDC 1054

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 108 OF 2022

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REASONS FOR SENTENCE

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Charges

1.  The defendant is charged with two counts of homosexual buggery with man under the age of 16.  The two offences took place on consecutive days in late August 2020, more than two years ago.  At that time, the defendant was 23 years and 1 month old, while the other party, who will be addressed as “X” below, was only 13 years and 1 month old.

Facts

2.  X got acquainted with the defendant via Instagram in August 2020.  Two days later, they switched to communicate via Telegram.  The two exchanged photographs of their genitals and masturbation.  X asked the defendant if they could meet on 28 August.

3.  The two met on the appointed date, ie, 28 August 2020.  The defendant brought X to a hotel where he had booked a room for two days. 

Charge 1

4.  On 28 August 2020, inside the hotel room the defendant and X performed oral sex on each other.  The defendant also performed anal sex on X for about 20 minutes without using a condom.  With X’s consent, the defendant used his mobile phone to take photographs of their buggery activity.  The defendant finally ejaculated onto X’s chest. 

5.  X returned home but he later asked the defendant if they could meet again.

Charge 2

6.  The next day, ie, 29 August 2020, the two met again.  They went back to the same hotel room where they performed oral sex on each other.  The defendant then performed buggery on X for around 15 minutes without using a condom.  He ejaculated onto X’s chest.  The two later left the hotel.

7.  The defendant and X continued to communicate on Telegram.  The defendant sent X two photographs which he took on 28 August 2020.  One photo depicted X performing oral sex on the defendant, while the other showed the defendant penetrating X’s anus.  X consented to the defendant posting the photographs on social media but he did not know if the defendant had really done so.

8.  On 7 October 2020, X told his mother that he had buggery with the defendant in a hotel sometime ago.  The mother then made a report to the police. 

9.  On 19 November 2020, the defendant was arrested.  He admitted to the police that he had sexual activities with X out of impulse.  He knew he was wrong and asked for a chance.

10.  During interview, the defendant admitted to the police of the two offences.  He stated he had oral sex and anal sex with X.  He also used his finger to penetrate X’s anus.  He said he had asked for X’s consent to upload on Twitter some photographs of X performing oral sex on him.  The defendant said he posted the photographs on his social media account as private pictures but deleted them later.

Record

11.  The defendant was born in July 1997.  He is now 25 years and 1 month old.  When the offences took place, he was 23 years and 1 month old.  He has a clear record.

Mitigation

12.  Defence counsel says the defendant has obtained a bachelor’s degree and is now working as an assistant engineer.  His parents were divorced when he was only 4 years old.  Since then, he has been living with his mother.

13.  Counsel says the defendant saw a psychiatrist after his arrest.  That doctor opined that the defendant was not suffering from any psychiatric disorders, including paedophilia.  Basing on what the defendant told him, the doctor thought the defendant’s chance to reoffend was low. 

14.  Counsel submits letters from the defendant’s mother and his friends. All say well of the defendant and plead for leniency on the defendant’s behalf. 

15.  The defendant has also written a mitigation letter where he says he is sorry for what he has done.  He mentions he was brought up in a single-parent family and felt isolated in school without many friends because of his sexual orientation.

16.  The defendant further says in his mitigation letter that he met X online.  They found they have similar family background and social life.  X often expressed negative thoughts, so the defendant provided emotional support to him.  Gradually, they had developed a kind of affection between themselves.

17.  The defendant says he will make remedies for his mistakes and will try to be positive towards life.  He aspires to become a social worker or counsellor one day to help others in need.  He promises to turn a new leaf in life and asks for leniency.

18.  Counsel says the two offences took place on consecutive days; the sentences should, therefore, run concurrently.

19.  Counsel says the defendant was not a predator.  X was a willing party. He made himself very available on social media and actually took the initiative to ask to meet the defendant on both occasions.

20.  Counsel says the defendant cooperated with the police and frankly admitted his misdeed.  He is now genuinely remorseful and chooses to plead guilty at the earliest opportunity.  He pleads to his guilt even though X did not identify him out of the identification parade. 

21.  Counsel cites HKSAR v Yeung Ho Nam (No. 1)  [2020] 1 HKLRD 91.  In that case, the defendant was aged 27 and the other party was almost 14.  They had sexual intercourse on two occasions in the space of more than a month.  On both occasions, the defendant used a condom.  The judge imposed a 2-year sentence for the defendant’s plea on each count with 6 months of one count to run consecutively to the 2 years for the other.

22.  On appeal, the resultant term of 2½ years’ imprisonment was greatly reduced to 10 months.  The appeal judges ruled that the prescribed maximum life imprisonment for section 118C(a)  should be read down to 5 years’ imprisonment in order to be compatible with section 124 of the same ordinance.  Section 124 penalises sexual intercourse with girl under the age of 16.  The maximum penalty is only 5 years’ imprisonment.  The Court of Appeal said the law was to protect the young but not every case warranted an immediate custodial sentence.  The assessment of a just sentence must fit the particular circumstances of the case and the need for deterrence must be left to the unfettered sentencing discretion of the judge.

23.  The appeal judges thought Yeung Ho Nam was an unusual case which fell at the lower end of the scale for this kind of offence because the so-called “victim” was the instigator.  The boy there was aware of his own sexuality and sexual orientation.  He had engaged himself in compensated dating, ie, offering sexual services for money, although he had sex with the defendant out of friendship.  The Court of Appeal found that the age difference of 13 years between the parties in Yeung Ho Nam was significant but there was no grooming.  On the special facts of that case, the appeal judges adopted 12 months’ imprisonment for each count as the starting point and gave one-third discount for the defendant’s plea of guilty.  They imposed an 8-month term on each count and ordered 2 months of one count to run consecutively to the other.

24.  Defence counsel submits that the present case is very similar to the case of Yeung Ho Nam.  He points out that the defendant has a clear record and the age difference between the parties in this case is even smaller. He also says the defendant has no psychological or psychiatric problems, so he is unlikely to offend again.  Counsel says the court can be lenient with the defendant.

Sentence

25.  Both charges are laid under section 118C(a)  of the Crimes Ordinance, Cap 200.  The maximum penalty for that provision has been read down in Yeung Ho Nam from life imprisonment to 5 years in order to make it compatible with section 124 of the same ordinance.

26.  The law does not punish people of the same sex being engaged in intimate acts.  It merely aims to protect the vulnerable, including those under the age of 16 who are deemed to be too young to give consent to sexual acts.

27.  The two offences in the present case took place on consecutive days. They can be regarded as one incident.  At that time the defendant was aged 23 years and 1 month old while X was 13 years and 1 month old.  The age difference between the two was 10 years.  It was significant. 

28.  The Court of Appeal in Yeung Ho Nam imposed a lenient sentence on the defendant mainly because the boy, though nearly 14 only, had already engaged himself in compensated dating, a kind of prostitution, so he was not innocent at all.  That significant factor is absent in the present case.

29.  According to what the defendant says in his mitigation letter, X held negative thoughts to many things.  He would need counselling and was vulnerable.  X would easily fall for someone who cared for him.  The defendant says he intended to provide emotional support to X.  He might have done so but unfortunately he went beyond the line.

30.  I would accept defence counsel saying that X in the present case was not entirely innocent.  He might be quite open to sexual activity.  In fact, it was X who asked to see the defendant in the first place and again after the first offence.  Still, X was young and, therefore, needed protection.  On the other hand, the defendant was 10 years older than him.  He was the much more mature party. Yet, he failed to shape their relationship properly and let it be ridden with sexual desires.

31.  There is no evidence of grooming from the defendant.  X had, indeed, taken an active role in the building up their undue encounter which ended up in the said sexual activities in the hotel room.  However, the offences were not committed on the spur of the moment but through some arrangement.  The two made appointment on Telegram and the defendant then booked a hotel room for two days.  He certainly anticipated what was going to happen.

32.  The law is to protect those under the age of 16.  X in this case was towards the young end of the age range of 13 to 16.  The defendant at the time of the offences was 10 years older than X. 

33.  I accept there was no use of violence or tricks on the part of the defendant.  There was no grooming either.  There was no evidence that the incident caused physical or psychological trauma to X or his family members. There is also no evidence that the defendant was a paedophilic character.  The psychiatrist who had seen him said the defendant’s chance to reoffend was low.

34.  However, there are aggravating factors in this case.  The defendant did not use a condom during the sexual intercourses.  He also took photos of their sex activities during the incident.  He sent some photos to X and with X’s consent, he posted the pictures on social media although he said he deleted them subsequently.  Unlike the boy in Yeung Ho Nam, X in the present case, though not entirely innocent, had no experience of compensated dating. He was still vulnerable.

35.  In the circumstances of the case, I would adopt 21 months’ imprisonment as the starting point for each count.  The defendant pleads guilty in good time.  He is entitled to one-third discount.  On each charge, he is sentenced to 14 months’ imprisonment; both terms are to run concurrently.