At his home, the victim’s mobile telephone was taken away from him and the defendant started these traumatic acts on the victim. These acts of the defendant ultimately had caused this 15-year-old boy such trauma that he has, to this day, refused psychiatric help in order to avoid recalling these tragic events. He has been said by professional psychologists to have suicidal ideation, and he has so far refused any psychological help. All I can say is that he needs to be helped very soon, and I can only say that he is a very brave young man and the minute he decided to go to the police turned him into a hero because by speaking out and reporting the matter to the police, he had saved other young boys from falling victim.
The Facts of the Case
Once the defendant had lured the victim to his home, the defendant then undressed himself. He then pulled the victim to the bedroom, pressed him on the bed, kissed him all over and then said he wanted the victim to be his wife. Then the defendant undressed an unwilling victim, took him into the shower, and touched the victim’s penis and made the victim touch his penis. And then they returned to the bedroom and again forced an unwilling victim to do oral sex on him, and this is the subject matter of Count 2.
The defendant then proceeded to apply lubricant using his finger into the anus of the victim by penetrating his finger into the victim’s anus several times. And then without a condom, he used his penis to penetrate the victim’s anus and ejaculated, and that is the subject matter of Count 1.
He did not allow the victim to leave. He then made the victim sleep with him naked in the bed as his wife and during the night, he fondled the victim several times and when the victim tried to get up from the bed for a number of times, the victim says three times, he was pulled back down.
On the following morning, the victim was then allowed to take back his mobile telephone and allowed to leave only after the victim had given his personal contact information to the defendant. The victim upon leaving called his mother who had, over the night, called him several times on the telephone. They then reported the matter to the police.
Now, during the course of these lurid acts committed by the defendant, he took photographs and videos, and that is the subject matter of the 4th charge, and he continued to tarnish and degrade the victim by publishing this video and photos that he took by sending it on WhatsApp to a friend. Now, I have seen these files and it clearly shows the face of the victim. So not only is the victim defiled during that night, but the picture of him has been disseminated at least to one person on WhatsApp.
Now, this young boy, it is tragic for him because he is on the cusp of adulthood and to have this visited upon him when he was only going about his normal duties is something that is so traumatic for him that I certainly, as I have said, hope that he will seek psychological and psychiatric assistance very soon.
Now, the forensic pathologist examined the victim and found two mucosal splits on the victim’s rectum which is consistent with recent penetrative injuries to the rectum, including penile penetration, shortly before the examination and this victim was examined on the afternoon of 9 September 2019. And because of his brave act, the defendant was shortly after arrested by the police, put on an identification parade and he was identified by the victim. The defendant’s DNA was also found on the victim’s shorts.
The defendant is 48 years old and is a married man with a son who is 12. He has done similar offences before which was in 2011 where he was sentenced to a total of 12 years’ imprisonment for six counts of homosexual buggery, three of indecent assault and one of making child pornography and one of indecent conduct. He was released over a year before the present offence.
I am informed that after his release, he had also been taking medication to help him but it does not seem to have helped him at all.
In the case of the 1st charge of homosexual buggery with a man under the age of 16 years, the original sentence was one of life imprisonment but because of the case of Yeung Chu Wing v Secretary of Justice in 2019, it was found that there should not be a disparity between the sentence which has been laid down for unlawful sexual intercourse with a girl under 16. And so the court in that case said that the maximum sentence should be one of 5 years. And this was followed in the case of HKSAR v Yeung Ho Nam where the Court of Appeal stated that they would adopt that 5 years’ maximum cap for this type of offence.
But I must note that the case of Yeung Ho Nam was an entirely different set of facts because the victim in that case was involved in what they called compensated dating whereas in this case this was a victim who was plucked off the street. And I do consider in fact that this case is so much more serious than the case of Yeung Ho Nam that the 5-year maximum sentence hardly do justice to the victim in this case. Unfortunately, I am bound to follow this because I am bound to follow the Court of Appeal direction.
I can only say that maybe in the fullness of time, the Court of Appeal may deem it appropriate to make exceptions for different types of cases that is caught within this section 118C.
The defendant is a paedophile and, as I have said, it is difficult to assess what the defendant may do in the future. Mr Wong on his behalf had tried to persuade this court that the defendant had promised that in the future he would always try and look at the victim’s identity card to make sure that they were over 16 before committing similar offences. As I told Mr Wong, such promise as to what he may do in the future is hardly encouraging in light of the fact that he has committed similar offences in the past.
It is difficult to sentence in a case like this because no matter how many years I give the defendant will not reflect sufficiently the trauma that has been caused to this young man. But punishment is necessary and a deterrent sentence is necessary, and so I have taken into account everything that has been said on behalf of the defendant by Mr Wong who has very gallantly tried to find every point that he could possibly say in mitigation on behalf of the defendant. However, I can only see one mitigating factor in this case is that of his early plea, thus saving not only the court’s time but also saving the young man from having to come to give evidence.
However, that is balanced by the fact that this young man had reported the crime early in order for the defendant to be arrested and in order for DNA of the defendant to be found on the shorts of the victim, and therefore, as I have said, I will give the defendant the full one-third discount in this case.
So in relation to Charge 1, having considered the facts in this case and the facts in Yeung Ho Nam and what was said by the Court of Appeal there, it is clear that this is a case where as Mr Wong had pointed out that the principle as laid down in the case of HKSAR v Lee Kwok Wai in 2012 is for the court to consider the age difference between the defendant and the victim. In this case, it is a large one, the defendant being 48 and the victim being only 15.
As far as the number of occasions is concerned, well, the defendant took advantage of having the full night with the victim and committed all these various other offences during the night with the victim.
Inappropriate and unnecessary violence, well, there was some physical pressure on the victim. I would not say it was violence in the way that we expect.
There was, of course, hazard to the health and safety of the victim by the defendant not using a condom, and these offences have indeed caused the victim physical and psychological trauma because the physical being the tear to the mucosal aspect of the anus of the victim. The impact on the family members of the victim, well, Mr Wong is not saying that there was not.
And the publishing, the inappropriate behaviour of taking photos or videos is present in this case and the defendant is a paedophile as described by the psychiatrist, and as far as the likelihood of reoffending, Mr Wong has tried his best to persuade this court that he is unlikely to reoffend. However, I am not optimistic because after the last occasion when he was released from prison, he was on medication and yet he committed these offences. So I am not encouraged by that fact and therefore I would consider that the risk of reoffending is high.
So in considering the sentences to be adopted in this case, I am of the view that for Charge 1 the sentence should be 4 years’ imprisonment as a starting point. However, with the aggravating factors which I had detailed, the age difference, there was no condom used, the trauma, the risk of reoffending and this preying on an innocent victim whom he picked up on the street and the need for a deterrent sentence, I therefore would increase the sentence with those aggravating factors to 5 years. So giving the defendant one-third off, the sentence is reduced to 3 years and 4 months.
Now, in relation to Charge 2, the indecent conduct, this was, as I have said, committed on a victim who was pulled off the street. He was not only touched on his penis but he made the victim touch his penis and made the victim perform oral sex on him unwillingly. So I would impose a starting-point sentence of 6 years and reduce it to 4 years.
On the 3rd count of indecent assault which carries a maximum sentence of 10 years, I would in view of the fact that throughout the night the defendant was molesting and indecently assaulting the victim through the night and the victim tried to get up three times and he was pulled back down to the bed, so I would impose a starting-point sentence of 3½ years reduced to 2 years and 4 months for his plea.
In relation to Charge 4 which is the making of the child pornography, there were a total of 12 photo files and nine video files, and so I would impose a sentence of 2 years’ imprisonment reduced to 1 year and 4 months.
In Charge 5, for the publishing of child pornography, two photo files and three video files were sent on WhatsApp to another person and, as I have said, it is clear from those files that were sent that the victim’s face was evident and clearly shown. So I would impose a starting-point sentence of 3 years and reduce it by one-third to 2 years.
Now, I have to, as Mr Wong pointed out, consider the totality principle and I do not agree with Mr Wong to make the sentences totally concurrent for Charges 2 and 3 to Charge 1 because they are distinct and separate, and therefore I will sentence in the following way. For the Count 1, the defendant goes to prison for 3 years and 4 months. On Count 2, the defendant will go to prison for 4 years. 2 years will be consecutive to the sentence in Count 1 and 2 years will be concurrent. For the Count 3, the 2 years and 4 months’ imprisonment, 2 years will be consecutive to Counts 1 and 2. On Count 4, the sentence will be fully concurrent. And on Count 5, the 2 years’ imprisonment will be consecutive to what the defendant will serve. And so that will make a total of 9 years’ imprisonment.
I am sorry, 9 years and 4 months. Yes, 9 years and 4 months’ imprisonment. Thank you.