HKSAR v. LUK KIN TING

DCCC 3/2025

[2025] HKDC 2083

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 3 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant was convicted on his own plea and agreement to Amended Summary of Facts to the following charges:

(a) 2 charges of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Cap 200 (Charges 1 and 4);

(b) 2 charges of making child pornography, contrary to section 3(1) of the Prevention of Child Pornography Ordinance, Cap 579 (Charges 2 and 5); and

(c) a charge of procuring another person under the age of 16 for making pornography, contrary to section 138A(1)(a) of the Crimes Ordinance, Cap 200 (Charge 3).

Facts

2.  At the material time of Charges 1 to 5, X was a 12-year 8-month-old Form 1 student while the defendant was an aged 39-year 2-month-old solicitor.

3.  In around late January or early February 2024, X got acquainted with the defendant on a social media platform called “Heymandi”.

Charge 1: Unlawful sexual intercourse with a girl under the age of 13 years

4.  On 4 March 2024, X met the defendant for the first time.  At around 9 am, they met and then took public transport to the beach at Park Island, Ma Wan. There, the defendant kissed X on the lips.  After that, the defendant took X to his abode at a unit in Park Island (“the Flat”).

5.  In the Flat, the defendant and X first had some food.  When X was drinking water, the defendant started kissing X.  Then, X said she wanted to take a rest and the defendant took X to a bedroom.  In the bedroom, X lied on the bed.  The defendant asked X to take off her clothes.  X took off all her clothes.  The defendant kissed X on the lips and touched her breasts and genitals with his hands for a few minutes.  The defendant also inserted his fingers into X’s vagina.  After that, the defendant requested to have sexual intercourse with X and X agreed.  The defendant thus removed his underpants, put on a condom and had sexual intercourse with X by penetrating her vagina with his penis.  When X was naked, the defendant took 20 photographs of X that amounted to child pornography using his mobile phone (Charge 2: Making child pornography).  The said photographs were retrieved from the defendant’s mobile phone upon his arrest.

6.  Before this incident, X was a virgin.

7.  After the sexual intercourse, X slept in the Flat until around 2 pm.  X took a bath and after that they went out for food together.

8.  The defendant told X that he was 28 or 29 years old.

Charge 4: Unlawful sexual intercourse with a girl under the age of 13 years

9.  On 28 March 2024, X met the defendant for the second time.  In the morning, they met and then took the public transport to the Flat.

10.  In the Flat, X first drank one to two cans of beer out of curiosity.  The defendant then requested to have sexual intercourse with X.  X agreed and took off her clothes.  X confirmed that she knew what she was doing at the time when the defendant made the said request.  X later drank a few more cans of beer and started to feel dizzy.

11.  On the bed in the bedroom, the defendant kissed X on the lips.  Then, the defendant had sexual intercourse with X by penetrating her vagina with his penis.  At first, the defendant used a condom.  During sexual intercourse, the defendant took off the condom.  X got a bit angry and accused the defendant. However, the defendant continued to have sexual intercourse with X.  X had no idea whether the defendant ejaculated.  Apart from having sexual intercourse, X also performed oral sex on the defendant.  The defendant used his mobile phone to take pictures of X and make videos of his sexual acts with X.  In total, when X was naked, the defendant took 184 photographs and 9 video clips of X that amounted to child pornography using his mobile phone (Charge 5: Making child pornography).  The defendant sent X some of the videos later on the same day.  All the photographs and video clips were retrieved from the defendant’s mobile phone upon his arrest.

12.  After the sexual activity, X fell asleep and they took a shower together before leaving the Flat at around 2-odd pm.

Disclosure of the incidents

13.  On 4 May 2024, X’s father, Y, checked X’s mobile phone and found on the phone Telegram chat records between X and the defendant and some selfie photos of X’s naked or half-naked body.  Upon enquiry by Y, X admitted to have had sex with the defendant before.

14.  On 5 May 2024, Y made a report to the police.

Mobile phone examination of X’s phone

15.  The Telegram messages between X and the defendant found on X’s phone included:

(1) On 27 February 2024, the defendant said he would take X to Park Island on 4 March 2024.

(2) In the morning of 4 March 2024, the defendant asked X if she watched adult video and masturbated herself before. X answered yes to both questions.

(3) At about 5 pm on 4 March 2024, the defendant and X talked about the sexual acts which they engaged in earlier. The defendant said he loved and missed X.

(4) On 13 March 2024, X sent the defendant a photo with her breasts exposed.

(5) On 14 March 2024, the defendant said he missed X very much. He requested X to take more photographs depicting her breasts and send him.

(6) On 16 March 2024, the defendant asked X to take more photos and send him. The defendant also said he would like to see X masturbate herself and he asked X to film that for him later.

(7) On 17 March 2024, X sent the defendant a “limited time photo” but the photo expired. The defendant then asked X to send him the photo again and X immediately sent the defendant a photo which exposed her breasts (Charge 3 - Procuring another person under the age of 16 for making pornography - between 14 and 17 March 2024, both dates inclusive).

(8) On 23 March 2024, X said she had to get drunk. The defendant suggested that X try performing oral sex on him while she was drunk. X asked the defendant if he would wear a condom. The defendant answered that he was allergic to condoms.

(9) On 24 March 2024, X sent the defendant a photo of herself. In the photo, she was wearing a bra.

(10) On 28 March 2024, between 4:29 pm and 6:43 pm, X and the defendant talked about how scary it was when X got drunk. X asked the defendant to send her the video taken earlier that day and the defendant agreed to do so later in the evening.

Examination of the defendant’s mobile phone

16.  On 8 May 2024, the defendant was arrested by the police for unlawful sexual intercourse with a girl under 13.  His mobile phone was seized.

17.  Photos and videos of X and the defendant (including those amounting to child pornography) were extracted from the seized mobile phone.  Some screen captures of Telegram messages between the defendant and X (which matched with that found on X’s mobile phone) were also found on the defendant’s mobile phone.

18.  The classification of the child pornography retrieved from the defendant’s mobile phone are as follows:

(a) 20 photos containing child pornography made on 4 March 2024 (1 classified as Level 4 and 19 classified as Level 1) (Charge 2);

(b) 184 photographs containing child pornography made on 28 March 2024 (101 classified as Level 4, 12 classified as Level 3, and 71 classified as Level 1) (Charge 5); and

(c) 9 videos containing child pornography made on 28 March 2024 (8 classified as Level 4 and 1 classified as Level 1) (Charge 5).

Criminal record

19.  The defendant has a clear record.

Reports

20.  Before sentencing, the court has called for a victim impact report on X, a psychiatric report and a psychological report on the defendant.

Victim impact report of X

21.  Ms Chan, the clinical psychologist, assessing X had interviewed X and her father.  Ms Chan was also given brief facts of the case and the case file of X receiving the psychological service from September 2024 to July 2025.

22.  X was said to be reserved in expressing her struggles and emotions, and said she would like to erase the incident from her memory.  She had used a lot of mental energy to avoid thinking about the incident.  She had experienced intrusive images of the perpetrator when she attended sex education lessons in school and had to leave the classroom as she could not cope with the distress.

23.  When the incident was exposed, she experienced vomiting and dizziness when recalling the incident.  The same had subsided at the time of the report. X also felt embarrassed about what had happened and feared negative evaluations by others.  X expressed her wish that the perpetrator to be sentenced to imprisonment.  She denied any need for psychological services.

24.  X was observed to be experienced a significant level of avoidance related to the event.  There was a clinical level of sexual concern and preoccupation, which suggested X might be experiencing sex-related thoughts and feelings which were atypical for her developmental stage, such as fear of engaging in sexual acts.  X’s level of depression and anxiety were found to be within normal range.  No post-traumatic stress symptoms was identified and no clinical abnormalities were detected in X’s daily functioning.

25.  Ms Chan said that X was elusive when discussing her emotions.  Although no depressive or anxiety symptoms were observed, the assessment results suggested that X was preoccupied by distress relating to the sexual trauma.  Such result was said to be consistent with clinical observation with X and the clinical impressions documented by X’s treating psychologist in previous records.

26.  Ms Chan said in order to reduce the risk of X developing further delinquent behaviours, it would be beneficial for her parents to engage in family services focused on enhancing parental skills, so that X can redevelop healthy interpersonal relationships in the long run.  It is said that the same is important, especially in view of X’s current low readiness for psychological treatment.

Psychiatric report of the defendant

27.  The psychiatric report dated 11 November 2025 from Dr Lui was very brief.  Apart from setting out the self-reporting background of the defendant, he stated that regarding the index offences, the defendant thought he and X were in love and that the defendant had no history of mental problem or abuse of drug and alcohol.  Dr Lui said that he found the defendant articulate, forthcoming, of stable mood and showed no sign of mental disturbance.  He therefore forms the view that the defendant is not suffering from mental illness and there is not enough to suggest that he is paedophilic.

Psychological report of the defendant

28.  Mr Ma, the clinical psychologist, had interviewed the defendant 5 times in preparation of the report.  Assessment tools were used to assess the defendant’s sexual reoffending risk.  Phone interviews with the defendant’s mother was conducted on 2 occasions. 

29.  Mr Ma said the defendant tended to be superficial in his responses during the interview, portraying himself in a favourable light and denied experiencing any psychological issues, and that the defendant gave vague account towards his psychosexual history.  The defendant was observed to have at times difficulty in recalling details of the index offences, multiple attempts and questioning were required to elicit more information from the defendant.

30.  The defendant came from a middle-class family.  His parents divorced when he was very young.  He stayed with his mother and later relatives, and later returned to his mother.  At the age of 12, the defendant was required to live with his father.  The defendant maintained a distant relationship with his father and his mother.  The defendant achieved academically and became a solicitor after obtaining a master degree in law.  He later worked in management role at a company in the financial sector.

31.  The defendant denied any deviant sexual interest or fantasy, except those related to the current incident.  He maintained regular sex with his partner when they were in intimate relationship.  He reported to have 5 courtship experiences with adult ladies before he met X.  The defendant said he broke up with his fifth girlfriend in 2023 and remained single until he met X. He stated he had no sex since the year 2019 due to pandemic and geographical separation with the then girlfriend.

32.  The defendant’s mother, however, gave a different account.  She said that the defendant has a regular girlfriend for 10 years until present and the girlfriend joined the family gatherings.  When confronted, the defendant said he had broken up with this girlfriend in 2014 but he had maintained intermittent sexual activities with her until 2019. 

33.  The defendant’s mother, however, said she had joined the defendant and his girlfriend for a vacation trip two years ago, during which she observed affectionate behaviours such as kissing and hugging, and they also jointly owned and cared for a dog.  The defendant was said to stay overnight at the girlfriend’s flat several times a week.  The defendant’s mother said this girlfriend currently maintained regular visits to the defendant whilst he was in remand.

34.  Regarding the present offence, the defendant said after he knew X on online dating app, he thought X was 16 to 17 years old and he claimed himself more than 10 years older.  The defendant claimed X had taken a proactive role in the conversation and was the first to express romantic affection towards the defendant, and it took 2 to 3 days for him to consider before he eventually decided to initiate intimate relationship with her in mid-February 2024.

35.  The defendant was aware of the age of X being 13 years old before he had sexual intercourse with X.  He also said X had sent him sexual explicit materials before they met.  He admitted taking proactive role in his flat in initiating sexual advances towards X.

36.  After this meeting, conversation between X and the defendant continued with around half of the contents containing sexual components.  They met again for the second time and had sexual intercourse.  The defendant admitted being aroused when they had sexual activities.  He said he did not perceive X being drunk in this second meeting.

37.  He knew X was in the age of puberty and had not reached full sexual maturity due to his observation of her secondary sex characteristics.  The defendant said he took photos and videos during sexual activities as a record of their dating and intimate behaviours.  He said he conducted misdeeds as he was infatuated towards X at the time.  He understood the potential harm done to X.

38.  Mr Ma found the defendant unreliable as he said there was marked propensity for the defendant to present himself favourably.  The defendant was said to be evasive on probes on his stress and problem areas, and emphasized on his own growth and potential instead.  There were clear significant discrepancies between the defendant’s account and the account from the defendant’s mother regarding his psychosexual history and the defendant’s explanation was inconsistent with his earlier version.

39.  Mr Ma said despite the defendant’s success and achievement in his career, he appeared to have unmet need for intimacy.  The defendant lacked a stable attachment figure to learn how to develop a secure relationship with others and the acquaintance and interaction with X fulfilled his intimacy needs.  Their interaction quickly took on a sexual nature with many of their messages containing sexual innuendo.  The defendant did not intervene to stop or redirect the interaction and allowed his sexual desire to accumulate.  They met two times and each time they had sexual intercourse.  Mr Ma said that it seemed the defendant had used X’s sexual curiosity and immaturity to satisfy his own sexual and intimacy needs.  He was sexually gratified both from conducting sexual acts with X and viewing the sexually exploited photos he had taken with X.

40.  Mr Ma found, however, there is no definite evidence suggesting any major psychopathology on the defendant.  From the result from sex offence-specific actuarial risk assessment scales, risk for the defendant to commit offences of similar nature in the future fell into low range.  Nevertheless, Mr Ma warned that such findings was only based on information available and the unreliable and inconsistent information provided by the defendant. 

41.  Mr Ma concluded by saying that the commission of the present offences with X being of puberty age without full sexual maturity, the possibility of the defendant’s sexual attraction to girls on puberty could not be ruled out. Reassessment is worth considering should there be newly disclosed information on the defendant.  Mr Ma also forms the view that psychological intervention targeting his intimacy defects and skills for developing secure intimate relationship is recommended for the defendant and that the defendant will benefit from the treatment if there is more self-disclosure from the defendant.

Mitigation

42.  The defendant is now aged 40.  It was said that his formative years were characterized by instability, including his parents’ divorce when he was 4 years old, his mother’s remarriage which forced him to move and live with his father, thus causing an abrupt separation from his primary school friends, the lack of maternal attention, and punitive discipline that left him fearful of school and reluctant to share his feelings at home.

43.  It was said that the defendant had channeled all these challenges into academic and professional achievement and had demonstrated exceptional resilience and perseverance.  He obtained a Bachelor degree followed by a Juris Doctor degree and later a Master of Laws degree from New York University.  The defendant subsequently became a solicitor in 2014 and then a non-executive director of a listed company and corporate legal counsel.

44.  It was said the defendant had been remanded in custody for almost 18 months since his arrest on 8 May 2024, and that during the time in custody, he had engaged himself in reflection and personal growth.  The defendant’s parents had not abandoned the defendant, they visited the defendant regularly, totaling over 300 visits in these 18 months.  With his parents’ unfailing support and love, it is said that it has allowed the defendant to gain insight and a better understanding of the parents’ past efforts.  As a result, the defendant has repaired and deepened his relationship with his parents.

45.  Defence counsel also submitted the defendant has recorded his reflection on purpose of life and the privileges of having access to education and a high quality life in a book which contribute positively to public discourse and the community. 

46.  Upon release, the defendant said that he intends to support his parents, exercising with his mother regularly and assisting with their daily needs.  He proposes to collaborate with specialists to provide free parental skills workshops for new parents with a view to avoid children having the same experience as himself.

47.  Defence counsel submitted that the defendant has demonstrated genuine insight and is committed to rehabilitation with realistic plans for a law-abiding and constructive future, backed by strong family support. 

48.  She submitted that the defendant has a clear record and she has lodged the court a number of letters in mitigation.

49.  She also submitted that the defendant has pleaded guilty at his earliest opportunity and therefore should be entitled to one-third sentencing discount.

50.  It is also submitted that a psychological report prepared on X did not identify any post-traumatic stress symptoms during the assessment of X and no clinical abnormalities were detected in her daily functioning. 

51.  It is said that whilst the defendant accepted full responsibility for his acts, he invited the court to place weight on the expert findings and the factor of impact on X should not be treated as an aggravating factor.

52.  As for the circumstances for committing the present offence, defence counsel submitted that the defendant and X got to know each other via “Heymandi” in late January to early February 2024. It is said that “Heymandi” is actually a platform for people over the age of 18 to engage in and later they moved to communicate on Telegram. 

53.  It was said that X was sexually precocious and was the one who was driving the romantic relationship between her and the defendant, and that the defendant was a willing party, but it is not a case of grooming by the defendant.

54.  Defence counsel said X raised romantic and sexual topics before the Charge 1 incident.  After the Charge 1 incident on 4 March 2024, X continued to express affection by bringing up romantic and sexual topics, she also pursued their next meeting during which Charge 4 occurred.  Further, X herself expressed interest and willingness to drink alcohol.  She referred this court to Telegram messages between X and the defendant to support the above contention.

55.  Defence counsel also referred to X’s video-recorded interview where X confirmed that she had initiated the genuine love affair with the defendant while knowing his real age.  Further, she expressed her eagerness and willingness to have sexual intercourse with the defendant.  Her initiative to consume alcohol on the day of commission of the Charge 4 was also confirmed.

56.  Defence counsel submitted that the conversation and meetings between the defendant and X were not exclusively sexual but contained interactions relating to personal matters and authentic affection.  Further, the defendant ensured that the sexual intercourse with X were fully consensual and included the use of condom to protect the well-being of X, while he showed continuous care towards X following the two intercourses.  It is submitted that the relationship between the defendant and X was genuine and committed rather than purely sexual despite the known age difference, and there was no grooming was involved.

57.  Regarding the Charges 2 and 5, defence counsel submitted that the photos and videos regarding Charges 2 and 5 were made during the same period of consensual sexual activities in Charges 1 and 4.  X was aware of the taking of photos and videos at the material time as X had asked the defendant to send her some of the videos afterwards.  Amongst the photos and videos, 129 photos were in fact taken due to the prolonged pressing of the shutter button at specific scenes, therefore causing multiple similar photographs to be taken in one go. Further, there are two photos in Charge 5 that are in fact the same photo.  The photos and videos were merely kept by the defendant for his own viewing.  No commercial, trading or distribution was intended or involved.

58.  Regarding Charge 3, it was said that there was no implication by X that the “limited time photo” contained any pornographic content in the same thread of Telegram messages.  The content of the “limited time photo” had not been verified by X in the video-recorded interview.  There is no evidence to support that the “limited time photo” contained pornographic content or that the defendant knew the “limited time photo” contained pornographic content.

59.  As for Charges 1 and 4, unlawful sexual intercourse with a girl under the age of 13 years, defence counsel conceded that there is no sentencing tariff for this offence as both the facts of the case and the personal background of the defendant can vary immensely, therefore the sentence for each case should be considered separately based on the circumstances of the case. She referred this court to the case of HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427.

60.  She accepted that the age gap between the victim and the offender is a major sentencing consideration (see HKSAR v Lee Lo [2012] 1 HKLRD 1115).  It is submitted, however, that the current case is highly different from Lee Lo, the defendant and X were in genuine courtship despite their age difference.

61.  The court is invited to consider the case of HKSAR v Wong Ching Hung, DCCC 729/2015, HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432, and HKSAR v Chu Ho Ming, DCCC 1160/2022.

62.  For Charges 1 and 4, defence counsel invited the court to consider:

(a) There is no suggestion of any familial relationship, position of authority or breach of trust, as the initial contact arose through the adult-only platform Heymandi.

(b) Despite the large age difference of 27 years, the defendant and X had been genuinely treating each other as lovers with authentic care and affection towards each other.

(c) X was 12 years and 8 months old at the time, merely 4 months short of being 13 years old.

(d) There was no use of threat, inducement in the sense of corruption, influence or grooming.

(e) There was no use of violence and thus no injury was observed on X.

(f) There were two acts of sexual intercourse in March 2024 which was not a prolonged duration.

(g) The defendant has no prior conviction. He has pleaded guilty at the earliest opportunity, expressing genuine remorse.

(h) There is no lasting adverse effect on X from the charges, nor on her family members.

63.  Defence counsel suggested the sentencing starting point for Charges 1 and 4 to be around 24 to 28 months’ imprisonment.  She also submitted that Charges 1 and 4 bear similar facts, concern the same girl and cover a continuous timeframe.  The sentences for Charges 1 and 4 should run wholly or substantially partially concurrently.

64.  As for Charges 2 and 5, making child pornography, the maximum sentence is a fine of HK$2 million and imprisonment for 8 years. 

65.  The sentencing guidelines for “possession of child pornography” under section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579, were laid down by the Court of Appeal in Secretary for Justice v Man Kwong Choi [2008] 5 HKRD 519, paragraphs 17 and 20.

66.  Defence accepted that, as stated in HKSARvIpp Tin Fan [2016] 4 HKLRD 486, paragraphs 29 to 31, the Court of Appeal held that Charges 2 and 5 “making child pornography” should be treated more seriously than “possession of child pornography”.  It is noted that the latter offence carries a lighter maximum sentence to a fine of HK$1 million and imprisonment for 5 years.

67.  Defence submitted that the Court of Appeal in HKSARvChow Yuen Fai [2010] 1 HKLRD 354, at paragraph 55, stated that, “For the offence of making child pornography, the sentences ought to be served concurrently with the offences to which they are related.”  The same approach was followed in Ipp Tin Fan and should be adopted in the present case.  In other words, it is suggested that the sentences for Charges 2 and 5 should run concurrently with those for Charges 1 and 4 respectively.

68.  As for Charge 3, procuring another person under the age of 16 for making pornography, the maximum sentence is a fine of HK$3 million and to imprisonment for 10 years. 

69.  Defence counsel conceded that there is no sentencing guideline laid down by the Court of Appeal.  However, she referred to the case of HKSAR v Wu Chi Yin, DCCC 77/2021, and suggested this court to adopt guidelines for “possession of child pornography” for the offence in Charge 3.

70.  Defence stressed that only one photo displaying X’s breasts with no sexual activity involved, which should be classified as Level 1 as per Man Kwong Choi, was procured as a result.

71.  Defence counsel submitted that since it was originally X who initiated to send pornographic photos to the defendant, only one single photo of a low level of pornography was involved, and more importantly, Charge 3 was committed out of a genuine courtship, the sentence for Charge 3 should also run concurrently with the sentences for the other offences.  Alternatively, the single photo involved can be added into the photos and videos relating to Charges 2 and 5 by adding one photo of Level 1.

72.  As for Charges 2, 3 and 5, making reference to the Man Kwong Choi case, it is said that there are no aggravating features in the present case as the defendant does not have any similar record, X was 4 months short of being 13 years old at the time and she was not significantly younger than the age of 13.  There was no dissemination of the photos or videos for commercial use, and all the photos or videos involved X only.

73.  Defence counsel submitted following the sentencing range as stated in Man Kwong Choi, and considering the approach in Ipp Tin Fan and Wu Chi Yin, even after considering the more serious nature of Charges 2, 3 and 5 compared with “possession of child pornography”, but taking into account 129 of the photos were in fact taken due to prolonged pressing of the shutter button, and 2 photos were in fact the same photo, a global starting point for Charges 2, 3 and 5 should be in the region of 19 to 28 months’ imprisonment.

Mitigation letters

74.  The defendant in his 48 pages letter to this court did express his apology to X and her family.  He in great lengths told this court his life during remand, listing out the titles of these books that he studied, the new vocabulary that he learned, his upbringing history, his visit and experience in Afghan, Iraq and other places, and a story of the defendant and an inmate whilst he was in remand.

75.  Parents of the defendant said when the defendant was in his developmental stage, he had exhibited doubt as to social norms.  They said this was due to the failure of the divorced parents giving proper guidance and support to the defendant.  They said the defendant is now deeply remorseful as to what he had done to X and her family, and is willing to receive psychological counselling.  They support the defendant in his rehabilitation with patience.  The parents also apologized to X and her family for the misdeeds of the defendant.

76.  Letters in mitigation coming from leaders of sports club, past president of Rotary Club, Lions Club, friends, pastor, Honorary Consul for Republic of Fiji in Hong Kong, students sponsored by the defendant, all support the contention that the defendant was a kind-hearted person, friendly and always willing to help, that he had in the past participated in volunteer work, giving free legal advice, making donations to charities, sponsoring poor children in their studies and sports training.  They said that the defendant is now deeply remorseful, he has lost a lot of what he earned in the past.  They all asked this court to give the defendant a chance to rehabilitate and to contribute positively to society.

Discussion

77.  Before sentencing, this court has considered, inter alia, facts of the case, all submissions by defence counsel including the authorities cited, mitigation letters lodged, victim impact report of X, psychiatric and psychological report of the defendant.

78.  X is the only victim in this case.  According to the agreed Amended Summary of Facts, the defendant and X met two times, and on each of these two occasions, they had sexual intercourse.  On both occasions, it was the defendant who requested X to have sexual intercourse with him. 

79.  On the first occasion, it was the defendant who brought X to the Ma Wan beach near his flat where he kissed X and later brought her to his flat nearby.  There, again, it was the defendant who kissed X while she was drinking water and it was the defendant who made all sexual advances to X which ultimately ended with the sexual intercourse with X, in the course of which the defendant took photographs.

80.  On the next occasion when they met on 28 March 2024, again it was the defendant who brought X to his flat after they met. It was the defendant who requested X to have sexual intercourse with him.  Again, it was the defendant who made the sexual advances which ended with sexual intercourse with X.  During the sexual intercourse, the defendant even removed the condom which made X angry and complained, but he continued the sexual intercourse without the condom.  The defendant took videos and photographs of X during the sexual intercourse.

81.  Defence counsel, in her mitigation submission, quoted extracts from the Telegram exchanges between X and the defendant, and suggested that X was proactive in the relationship between X and the defendant. 

82.  Whilst this court noted that:

(a) X did ask the defendant if he had condom at home on 4 March 2024 at 12:34 am, a few hours before they met;

(b) X said the defendant was allergic to condom whilst he was so old (4 March 2024 at 12:42 am);

(c) X asked the defendant if he was that good (at sex) (4 March 2024 at 1:24 am); and

(d) X asked the defendant “remember to fuck me harder” (16 March 2024 at 10:39 am);

which can be interpreted as X bringing up these sex-sensitive topics.

83.  The court also noted that the defendant actually did much more than just engage in these topics with X when he said:

(a) “I have bought (condom) but I am actually allergic to condom” (4 March 2024 at 12:41 am);

(b) “(You) can seduce me” (4 March 2024 at 12:43 am);

(c) “BB, have you ever watched AV?” (4 March 2024 at 1:42 am);

(d) “What type of AV do you like to watch most?” (4 March 2024 at 1:43 am);

(e) “Will you touch yourself while watch AV?” (4 March 2024 at 1:43 am) After X replied in the affirmative, the defendant remarked “touching oneself while watching H anime must feel really good” (4 March 2024 at 1:44 am)

(f) “Good, will fuck you harder on the 26^th”, “I want to see BB touching oneself”, “Later, film and let me see” (16 March 2024 at 10:44 pm)

(g) “BB has a good figure” (17 March 2024 at 8:19 pm)

(h) On 23 March 2024, when X said that she would definitely get drunk, the defendant asked X “What do you want to get drunk with?” and then followed by “This time you should try doing blow job for me when drunk” (at 6:36 pm - 6:43 pm).

(i) “Why would someone wear condom if he rapes?” (23 March 2024 at 10:39 pm).

(j) “(I see now that) BB has got a C cup breast” (24 March 2024 at 10:28 pm).

84.  In fact, when one reads the Telegram exchanges between the defendant and X, their conversations were mostly about sexual contents, they do not resemble in any way conversation between two people in serious and genuine loving relationship.  The defendant was all the time actually directing and leading the naïve but sex-curious X into the perils of sex play. 

85.  This court disagrees that X was precocious.  She was just sex-curious. She was a virgin at the time.

86.  The conduct and behaviour of the defendant did not support any intention on his part to have a genuine serious love relationship with X.  He should have asked X not to indulge in alcohol.  Instead, he had asked if X wanted to drink Maotai, a very strong Chinese wine, well knowing she was underage.  Further, the defendant requested X to send him video of X masturbating herself or more pictures of X depicting her breasts.  From the agreed Amended Summary of Facts, the defendant admitted that he lied to X that he was 28 or 29 when he was over 39.

87.  All these above do not support the defendant having or intended to have a genuine love relationship with X, or authentic affection for that matter.

88.  Defence counsel submitted that the conversations between the defendant and X were not exclusively sexual, but contained interactions relating to personal matters and authentic affection.  From the annex 2 of defence counsel’s written submission which set out the Telegram messages between X and the defendant, there was hardly anything other than the defendant attempting to make arrangement to meet X earlier or more frequently, any exchange between the parties as to where the defendant worked, that the defendant did try to introduce X to his family, colleagues and/or good friends, and likewise X having the intent to introduce the defendant to her friends and/or family, or there had been normal leisure activities together without sex.  There was no discussions of their hobbies, work life or school life.  All topics covered were clearly not exchanges between two persons intending to develop a long and stable relationship.

89.  In fact, Mr Ma, the clinical psychologist, in his report did say that, “It appeared that he used the victim X’s sexual curiosity and immaturity to fulfil his intimacy and sexual needs through the sexual activities and the sexually exploited photos he had taken of her.”  This court shares the same view of Mr Ma.

90.  One must not forget the vast difference in age, education and life experience of X and the defendant.  The defendant here is a very well-educated solicitor with good academic qualifications, long-time professional and life exposure, whilst X is just a 12-year and 8-month-old girl coming from a working class family with hardly any exposure to the society, little life exposure, and absolutely no sex experience from the past although she is very curious about sex, and the defendant knew it.

91.  The defendant was well aware of X’s remarks about condoms before they first met, and yet he decided to bring X to Ma Wan beach, which is near his flat on Park Island.  Clearly he had the plan to bring X to his own flat for sex before this first meeting.  The Telegram messages sent by the defendant to X in the early morning of 4 March 2024 all support this contention.

92.  The defendant in his interview with Mr Ma did admit he had considered a few days before he decided to maintain intimate relationship with X, well knowing that X is much younger than a DSE student, as he had her photo before they met and he noticed that she was still in puberty stage.  Even according to his own version as stated in his psychological report, X had told him she was 13 before they met face-to-face for the first time.

93.  According to the Telegram messages, the defendant had suggested to X twice to meet earlier than scheduled, ie on 11 March 2024 and 19 March 2024. 

94.  This court finds the defendant was taking a much more proactive role than X in this relationship between them.

95.  The defendant told X he was allergic to condom, but if that was the case, why would he buy them in the first place?  And there was no evidence of his allergic reaction after he wore the condom during the first sexual intercourse with X and the first part of the second sexual intercourse with X. In any event, if he really cares for X, he would have taken precautionary measures and have protected sex with X.

96.  Further, the defendant did not relate truthful answers to the psychologist as it was said that his version of sex history were at variance with those reported by his mother and his explanation on confrontation was inconsistent with his earlier version to Mr Ma.  This court has no hesitation to accept the saying by his mother to the psychologist as being truthful, that the defendant even at the time of preparation of the psychological report by Mr Ma still has a steady girlfriend who visited him regularly when he was in remand. This again refutes, or tends to refute, the contention by the defendant that he has broken up with his girlfriend since 2019 and that he has a serious affection for X.

97.  Furthermore, if one reads the Telegram messages, one would see that:

(a) It was the defendant who suggested X to go to Park Island when they met (27 February 2024 at 12:54 am).

(b) It was the defendant who said to X “wait for me to kiss you on Monday” (27 February 2024 at 12:55 am).

(c) On 4 March 2024, the defendant tempted and lured X and said before they first met, “Love you” (at 1:23 am), after they met, again “Love you” (at 4:52 pm) and “Miss you” (at 4:55 pm).

(d) On 11 March 2024, when X asked “Which day are we meeting?” the defendant said “Is it 27, 28?”, “Or you can meet earlier?” (at 12:47 am -12:48 am).

(e) On 19 March 2024, the defendant said to X “Didn’t we schedule to meet on the 26^th?” “Or BB can meet earlier?” (at 1:44 am).

98.  The above all supports that the defendant was very active and pressing in trying to meet X.

99.  Now, this court comes to the sentencing of individual charges.

Charges 1 and 4

100.  For these charges, upon conviction on indictment, the maximum sentence is life imprisonment. 

101.  There is no sentencing tariff for these offences as conceded by defence counsel.  The facts of the case and personal background of the defendant can vary immensely. 

102.  In the case of Tsang Chiu Tak, Cheung JA (as he then was) in the judgment says that:

“8. The Court of Appeal reiterated in many recent cases that the court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.

9. The Court of Appeal pointed out that where the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:

(1) The age difference between the defendant and the victim;

(2) The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;

(3) Whether the defendant had used threats or inducements to make the victim succumb;

(4) The number of occasions of committing the offences and the duration of the offences;

(5) Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6) Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7) Whether the sexual abuses have caused physical or psychological trauma to the victim;

(8) Whether the offences have impact on the family members of the victim;

(9) Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and

(10) Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.”

103.  In the present case, the defendant was aged 39, but he represented to X that he was 28 or 29, and X was aged 12 years and 8 months at the material time.  There was a very significant difference in age and X was an underage girl.  This is an important factor in sentencing consideration.  The defendant was more than three times older than X at the material time.  The defendant had told the clinical psychologist that he was told by X that she was 13 before the first sexual intercourse.

104.  There was no trust relationship between the defendant and X as they met on an online dating app.  They exchanged Telegram messages since late January or early February 2024 until 4 March 2024 before they met each other face-to-face for the first time.  During this period before 4 March 2024, there was clearly direction by the defendant, well knowing the sex curiosity of X towards having sexual relationship with him, as evidenced in the Telegram messages exchanged between them.  The defendant was steering X towards the sexually sensitive and intimate discussions, ultimately designed to result in a sexual liaison between the two.  As said earlier, this court does not accept there was ever any intention on the part of the defendant to have a genuine serious love relationship with X.

105.  Whilst the defendant was having sexual intercourse with X, the defendant had taken photos of X in the course of sexual acts (Charge 1); and had taken photos and videos of X in the course of sexual acts (Charge 4), including 20 photos containing child pornography (1 classified as Level 4 and 9 classified as Level 1) made in the course of the 1^st charge acts (Charge 2); 184 photos containing child pornography (101 classified as Level 4, 12 classified as Level 3 and 71 classified as Level 1) and 9 videos containing child pornography (8 classified as Level 4 and 1 classified as Level 1) made in the course of the 4^th charge acts (Charge 5).

106.  The taking of photographs or the making of video recordings, depicting a victim performing sexual acts is a very serious aggravating feature because it provides a permanent record of the victim’s involvement and participation. Such a record would undoubtedly instil considerable anguish and fear in the victim, who is thereby kept, sometimes intentionally, a silent captive to her ordeal[1].

107.  In the course of sexual intercourse, during commission of the Charge 4 offence, the defendant removed the condom he was wearing, despite complaint by X, he failed to heed to her complaint and anger, and continued with the sexual intercourse without the condom.  This is a very serious aggravating feature as what the defendant did was, on the verge or borderline of rape, of a very young girl. 

108.  It is noted that in the Telegram exchanges between X and the defendant prior to this date, ie 28 March 2024, X had already requested the defendant to wear condom when he raped her.  The defendant is fully aware of X’s request to have protected sex yet he ignored this request.

109.  Though X did not suffer from post-traumatic stress disorder, she has been assessed to have been suffering from certain level of depression, sex-related thoughts or feelings atypical for her developmental stage, and a significant level of avoidance relating to the incident.

110.  The defendant is personally assessed by Mr Ma, the clinical psychologist, to have a low risk in reoffending, but only upon the proviso that those were based on the information available and on the unreliable and inconsistent information given by the defendant.  The clinical psychologist added that the possibility of the defendant’s sexual attraction to girls in puberty cannot be ruled out.  It is clear that the defendant has not been full and frank with the clinical psychologist in revealing the information asked of him by Mr Ma and therefore the weight of the findings of Mr Ma as to the risk of reoffending is limited.

111.  The way that the defendant steered X to have sex with him (though X did raise the sexual issues herself) is conduct which this court is under a duty to the public to deter, especially in view of the age of defendant and that of X.

112.  This court is aware that X is just 4 months short of 13 years old, and had she been 13 at the time of the offence, the maximum sentence imposed would be 5 years, but considering the grave circumstances under which the offences were committed, obviously, for these charges the only appropriate sentencing option is immediate imprisonment.  And considering the circumstances of the case for Charge 1, the appropriate sentencing starting point would be 3 years and 6 months’ imprisonment.

113.  The defendant’s culpability in the commission of the Charge 4 offence is much more serious by reason that he continued sexual intercourse without condom after the complaint of X and further took more videos and photos of level 4 contents.  The appropriate sentencing starting point for Charge 4 is 4 years and 6 months’ imprisonment.

114.  The defendant has pleaded guilty and is therefore entitled to a full one-third sentencing discount. 

115.  He used to be a man of clear record, but the same has been subsumed in the one-third sentencing discount.  However, from the many mitigation letters before me, the court can safely conclude that the defendant has in the past been performing charitable work via international service organization, making donations with charitable cause and helping the needy.  For this reason, the court is willing to consider him to a certain extent a man of positive good character and would therefore be willing to discount his sentence by 1 month to 27 months’ imprisonment for Charge 1 and 35 months’ imprisonment for Charge 4.

Charges 2 and 5

116.  On conviction upon indictment, a person is liable to a fine of HK$2 million and to imprisonment for 8 years. 

117.  In the case of Man Kwong Choi, the Court of Appeal has laid down sentencing guidelines for a first time offence after trial for possession of child pornography (involving real children) based on the level of depiction:

(1) Level 1: images depicting erotic posing with no sexual activity. A community service order, probation or fine was appropriate where the number of depictions was small (20 or fewer). But where the numbers were large or the depictions were extremely suggestive, custodial sentences of 1 to 6 months would be appropriate.

(2) Level 2: images depicting sexual activity between children or solo masturbation by a child. This was much more serious than mere posing and depending on the number of depictions, an immediate custodial sentence of up to 9 months was appropriate. Even the possession of a few depictions at this level would generally attract a custodial sentence.

(3) Level 3: images depicting non-penetrative sexual activity between adults and children. Depending on the number of depictions, custodial sentences of 6 to 12 months would be appropriate.

(4) Level 4: images depicting penetrative sexual activity between children and adults, or sadism or bestiality. These merited the most serious treatment and custodial sentences generally of 12 months (even for a few images) to 36 months.

118.  In HKSAR v Ipp Tin Fan, the Court of Appeal held that the present Charge 2 and 5 “making child pornography” should be treated more seriously than mere possession of the same.

119.  For Charge 2, the defendant made 20 photos of child pornography of which 1 was classified as Level 4 and 19 classified as Level 1 while he was committing the Charge 1 offence.  According to defence counsel, the 19 photos were in fact 15 photos, the other photos being duplicates as a result of the prolonged pressing of the shutter button of the phone.

120.  There is no evidence that the defendant intends to disseminate these photographs, the same were kept for his own record and sexual gratification.

121.  Considering the circumstances of the case, the court finds 15 months’ imprisonment an appropriate sentencing starting point for Charge 2.

122.  The defendant has pleaded guilty and is entitled to full one-third sentencing discount.  He is therefore sentenced to 10 months’ imprisonment.  By reason of his positive good character, the court is willing to discount his sentence further by 14 days.  He is accordingly sentenced to 9 months and 16 days’ imprisonment for Charge 2.

123.  For Charge 5, the circumstances under which the defendant committed this offence was similar to Charge 2, ie whilst he was having sexual intercourse with X. 

124.  The gravity of this offence, however, is more serious because of the nature and quantity of the child pornographic photos and videos compared to those in Charge 2.  There were 101 photos and 8 videos classified as Level 4, 12 photos classified as Level 3, 71 photos and 1 video classified as Level 1.

125.  According to defence counsel, there were in fact 30 photos classified as Level 4 because the other 71 photos were merely duplicate or similar photos as a result of the prolonged pressing of the shutter button, and only 42 photos under Level 1, the other 29 photos are again similar photos because of the prolonged pressing of the shutter button. 

126.  Again, there is no evidence that the defendant intends to disseminate these materials.  The same was kept for his own record and sexual gratification.

127.  The appropriate sentencing starting point for Charge 5 is 24 months. 

128.  The defendant has pleaded guilty and is entitled to full one-third sentencing discount.  He is therefore sentenced to 16 months’ imprisonment. Again, his sentence is discounted by 14 days by reason of his positive good character.  He is accordingly sentenced to 15 months and 16 days’ imprisonment for Charge 5.

Charge 3

129.  A person convicted of this charge is liable to a fine of HK$3 million and to imprisonment for 10 years. 

130.  As reflected in the maximum sentence for this charge, this is a more serious offence than Charge 2 and 5.  The victim in this case is less than 13 years old when this charge is directed at anyone under the age of 16.

131.  The defendant here orchestrated the making of the photo of a girl under 13 and kept it as a permanent record on his mobile phone. 

132.  During these four days period, ie between 14 March 2024 and 17 March 2024, the defendant had requested X few times to send him photos with breasts exposed and video/photo of X masturbating herself.  These would be classified respectively as Level 1 and Level 2 pornography according to the Man Kwong Choi case.  In the end, he obtained only a photo of X exposing her breasts which is Level 1.

133.  Defence stated that there is nothing to suggest that the expired photo is of a pornographic nature.  However, reading the Telegram messages exchanged between X and the defendant prior to this expired photo, one would note that the last photo sent by X to the defendant is of pornographic nature (13 March 2024 at 8:20 pm).  The same was followed by a request by the defendant for more photos from X, including photos of the breasts (14 March 2024 at 10:14 am).  On 16 March 2024, the defendant asked X to send him more photos.  The defendant said he would like to see X masturbating and asked X to film it also for him (10:44 pm).  The expired photo was sent by X the following evening, so the defendant must know or at least strongly suspect that X would send him a photo of the pornographic nature as requested.  In fact, X followed the defendant’s request to resend the photo and it was a pornographic photo of Level 1 where X’s breasts was exposed and the defendant praised X as having a good figure. Although the defendant only received one photo of Level 1, during this period of time he had made many requests towards X for photos.

134.  At the material time, as said earlier, the victim was 12-year and 8-month-old.

135.  An appropriate sentencing starting point for Charge 3 is 15 months’ imprisonment.  The defendant is sentenced to 10 months by reason of his guilty plea. Again, his sentence is discounted by 14 days by reason of his positive good character. 

136.  He is therefore sentenced to 9 months and 16 days’ imprisonment for Charge 3.

Totality principle

137.  The defendant committed these offences on X between 4 March 2024 and 28 March 2024, ie within 25 days’ period. 

138.  Charge 2 was committed by the defendant when he was in the course of committing Charge 1, and likewise Charge 5 was committed by the defendant when he was in the course of committing Charge 4.

139.  When this court sentenced the defendant on Charge 1 and Charge 4, the court had already considered and taken into account of the acts done by the defendant under Charge 2 and Charge 5.  There should not be double counting because the sentencing starting point for Charges 1 and 4 had already been enhanced.

140.  Accordingly, the sentence for Charge 2 shall run totally concurrent with the sentence for Charge 1, and likewise the sentence for Charge 5 shall run totally concurrent with the sentence for Charge 4.[2]

141.  The commission of the offences in Charges 4 and 5 obviously add to the culpability of the defendant in the commission of the offences in Charges 1 and 2.  Likewise, the commission of the Charge 3 offence add to the culpability of the defendant in the 2 other offences. 

142.  Considering the total culpability of the defendant in this case, the overall sentence for the defendant which this court considers just and proportionate to his overall culpability after discount would be 43 months’ imprisonment. 

143.  Accordingly, 6 months of the sentence for Charges 1 and 2 shall run consecutively to the sentence for Charges 4 and 5.  2 months of the sentence for Charge 3 shall run consecutively to the sentence of the 4 other charges, the rest to run concurrently.

144.  The defendant is therefore sentenced to a total of 43 months’ imprisonment for this case.