HKSAR v. CHAN YIU LEUNG

HCCC 77/2020

[2020] HKCFI 2497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 77 OF 2020

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The accused pleaded guilty to six counts of homosexual buggery with a man under the age of 16, contrary to section 118C(a) of the Crimes Ordinance, and two counts of indecent conduct towards a child under the age of 16, contrary to section 146(1) of the Crimes Ordinance. He pleaded guilty before a magistrate on 14 April this year and was committed to the Court of First Instance of the High Court for sentence.

The offences occurred at the accused’s residential home in Sheung Shui between November 2018 and May 2019.

The accused was 38 years of age at the time when he committed the offence in Charge 1, and was aged 39 at the time of the offences in Charges 2 to 8. The victims were three boys aged between 12 and 14 years. Victims Y and Z were introduced to the accused by another underage boy A, whereas victim X was introduced to the accused by Y.

It is to be noted that victim Y was assessed to have a borderline intelligence when he was assessed by an educational psychologist at the age of 10. There was a 95 per cent chance that his true Full Scale Intelligence Quotient fell between 69 and 81. His performance in the General Ability Index and Perceptual Reasoning were in the range of extremely low.

Victim Z was medically examined in May 2019 and found to have a borderline intelligence of 78.

The case was revealed when X made a report of buggery to the police on 9 May 2019. Upon his arrest on 15 May 2019, the accused admitted under caution that he had committed buggery four times out of impulse, and he was remorseful. He also admitted that a bottle of lubricant specified for anal use found in his flat was used to mess with X.

In the video-recorded interview subsequently conducted, the accused further admitted having committed the eight offences, subject of the indictment or subject to the charge for committal. The accused said he treated all of X, Y and Z as his “god-brothers”. No condom was used when he had buggery with X, Y and Z. The accused said that the boys were willing to conduct the sexual acts with him at the material time.

In respect of the buggeries with X, that is, Charges 2 and 3, the accused said he watched pornography with X together before the buggery. He ejaculated at the anus of X on one occasion, that is, Charge 3. In respect of the buggeries with Y, that is, Charges 1 and 7, the accused said he did not ejaculate in the body of Y. In respect of buggeries with Z, that is, Charges 6 and 8, the accused said he watched pornography with Z together before the buggery. On one occasion he ejaculated at Z’s anus, that is, Charge 8.

In respect of the acts of gross indecency towards X and Z, that is, Charges 4 and 5, the incident occurred on a day unknown in April 2019 involving X, Z and the accused masturbating each other and helped each other to perform oral sex in a circle-like manner. The accused admitted that on this occasion the three of them had watched pornography together on the suggestion of X before they had oral sex and masturbation for each other.

The accused is now 40 years of age with five previous convictions for possession of dangerous drug committed some years ago between 2003 and 2009. He received education in Hong Kong up to Form 5 and continued his study in England for a year, after which his parents’ business collapsed and he returned to Hong Kong to start working. He worked as a GoGoVan driver at the time of his arrest.

The accused was divorced with his former wife in 2006 and developed an intimate relationship with another female in 2015. In mitigation, defence counsel Mr Boey submitted that as a result of his breakup with that female in 2017, the accused lost faith in the opposite sex and felt more secure with persons of the same gender. Counsel submitted that the accused is not a natural-born paedophile.

Counsel agreed, on one hand, that case is aggravated by the large age difference between the accused and the victims, and no condom was used in any of the buggery offences. To this regard, counsel submitted that the accused did not have any sexual experience with a person of the same gender at the time of Charge 1, and all the victims had not suffered any sexually transmitted diseases.

On the other hand, counsel pointed out that this case is not the worst of its kind. No threats, inducement or unnecessary violence were used on the victims, and case did not involve any breach of trust. The accused is remorseful and pleaded guilty at the earliest opportunity, thereby entitling him to a one-third sentencing discount.

Also submitted in mitigation were letters written by the accused to this court and the victims, expressing his remorse and apologies to the victims and their families. For obvious reason, I directed that the prosecution is not to pass on those letters to the victims. The accused’s father and a legislative councillor also wrote to plead for leniency on his behalf. The accused’s family members were present in court today to show their continued support to the accused.

In determining the appropriate sentences, I have had regard to the following considerations as stipulated in the case of HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354: firstly, the individual circumstances of the offender, including the risk of re-offending; secondly, the impact on the victim and the victim’s family; and thirdly, the abhorrence with which right-thinking members of society would regard the relevant offences, and thus the need for deterrence.

Prior to sentencing, I called for a psychological report on the accused to assess his risk of re-offending. According to the report prepared by clinical psychologist Ms Winnie Wong, there is some evidence suggesting a development of paedophilic disorder, that is, deviant sexual interest towards underage children, during the offence period from 2018 to 2019. The accused admitted to Ms Wong that in the period between the offences, he had continued to use adult women prostitutes about once every two weeks for release of his sexual needs.

The accused’s re-offending risk for sexual offence is assessed to be moderate. Psychological intervention to follow up on sexual self-control problem, possible deviant sexual interest, management of negative emotions and deficits in maintaining adult intimate relationship is recommended. To this regard, defence counsel emphasized that the accused’s risk of re-offending could be further reduced by proper professional intervention, and the accused is willing to participate in treatment and to co-operate with authorities in the management of his case.

Victim impact reports were also obtained in respect of X and Y. No report could be prepared for Z as he was out of Hong Kong.

According to the victim impact report of X, the repeated sexual assaults by the accused had a traumatic impact on his psychological functioning. X experienced symptoms of post-traumatic stress disorder, with a negative impact on his perception of himself. The boy’s mood was also negatively affected, and he began to have suicidal thought. According to the clinical psychologist who prepared the report, what the accused had done to X was rather damaging psychologically. X is recommended to receive individual psychotherapy so as to help him reprocessing the memory of the incidents.

In mitigation, counsel pointed out that the information on the incidents as set out in paragraph 2 of the report of X is inconsistent with those in the Summary of Facts admitted by the accused in this court. For the purpose of sentence, I will totally disregard the information contained in this paragraph and sentence the accused on the basis of the facts admitted in this court.

According to the victim impact report of Y, Y was able to maintain stable mood and normal daily functioning after the incident. He was generally not distressed by the incident. Psychological intervention was not required given his stable psychological functioning.

There is no sentencing tariff for the offences of buggery and indecent conduct with or towards a child under the age of 16 years given their varied circumstances.

In considering the appropriate sentences for Charges 1, 6, 7 and 8, I bear in mind that the penalty provision in section ll8C(a) of the Crimes Ordinance ought to be read down from a maximum of life imprisonment to 5 years’ imprisonment in relation to buggery with a boy under the age of 16 but above the age of 13 to make it constitutionally compliant (see the case of Yeung Chu Wing v The Secretary for Justice [2019] 3 HKLRD 238).

In sentencing, I have considered the whole circumstances of the case, the impact on the victims, the accused’s personal circumstances and risk of re-offending, as well as matters advanced on behalf of the accused in mitigation. Due regard is also given to the case of HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 in which the Court of Appeal listed 10 factors that should be considered when dealing with sexual assault on an underage victim.

While the present case is far from being the worst type of its kind, the need to protect the young from their own immaturity and the message to the public of the court’s disapproval of sexual activities that engage the vulnerable and immature should not be overlooked.

The following consideration applies to all of the eight charges under consideration: firstly, that the offences were aggravated by the significant age difference between the accused and the victims.

Secondly, for the buggery offences, the non-use of a condom is a serious aggravating feature. Although the accused did not ejaculate inside the victim’s body on most occasions, he did not take any safety measures at all in the course of the buggery, thereby putting the victims at risk of contracting venereal disease. As noted above, the accused admitted to the psychologist that in the period between the offences, he had continued to use adult women prostitutes about every fortnight to release his sexual needs. In the circumstances, the failure to use a condom gave rise to obvious health risks. It was just a matter of luck that the victims did not contract any venereal disease as a result.

Thirdly, on the other hand, the accused pleaded guilty to the offence at the earliest possible opportunity, thereby sparing the victims the trauma of having to give live evidence. I accept that he is genuinely remorseful and will give him the full one-third sentencing discount.

I shall now come to the sentences to be imposed for individual counts. In respect of the buggery of X in Charges 2 and 3, X was 12 years of age at the time of the offences. The offences occurred in February 2019 and April 2019 respectively, being two months apart. Taking into account the age difference of 27 years, the lack of safety measures, the psychological trauma suffered by X as indicated in his victim impact report, the fact that in Charge 2, initially X expressed the wish to go home but was not allowed to go by the accused (see paragraph 8 of the Summary of Facts), and in Charge 3 the accused ejaculated in X before pulling out his penis (see paragraph 9 of the Summary of Facts), the appropriate starting point is 8 years for each of Charge 2 and Charge 3.

Having a reduction of one-third for the discount of his plea of guilty, the sentence in respect of each of Charges 2 and 3 is reduced to 5 years and 4 months, that is, 64 months.

Taking into account the principle of totality, I order that 2 months of the sentence in Charge 3 to run consecutively to the sentences in Charge 2, making a total of 5½ years for Charges 2 and 3, that is, 66 months.

In respect of the buggery of Y in Charges 1 and 7, Y was 13 years of age whereas the accused was 38 years of age at the time of Charge 1 and the accused was 39 years of age at the time of Charge 7. So the age difference between them was about 25 or 26 years. The offences were committed about five months apart in November 2018 and April 2019 respectively. And as I said earlier, the victim impact report indicated no significant after-effect on Y.

I adopt a starting point of 2 years for each of the offences in Charges 1 and 7, and with the one-third discount given, the sentence is reduced to 1 year and 4 months, that is, 16 months.

Given that the offences were five months apart, I order that 3 months in the sentence for Charge 7 to run consecutive to the sentence in Charge 1, therefore making a total of 1 year and 7 months for both Charges 1 and 7, that is, 19 months.

Taking into account the principle of totality, I order that 1 year of the sentences in Charges 1 and 7 to run consecutively to the total sentences in Charges 2 and 3. So the total sentences up to now is 6½ years for Charges 1, 2, 3 and 7.

In respect of the buggery offences against Z in Charges 6 and 8, Z was aged 14 and the accused aged 39 at the time of the offences, so there was an age difference of 25 years between them. There was no victim impact report available for Z. Nonetheless, given his age, trauma and distress are likely to be experienced by him and his family. I adopt a starting point of 2 years for each of the offences in Charges 6 and 8, and after the full one-third discount, it is reduced to 1 year and 4 months, that is, 16 months.

Taking into account that the offences were committed with one month apart, I order that 1 month of the sentence in Charge 8 to run consecutively to the sentence in Charge 6. Therefore the total sentence for Charges 6 and 8 is that of 1 year and 5 months, that is, 17 months.

And taking into account the principle of totality, I order that 1 year of the sentence in the total sentences for Charges 6 and 8 to run consecutively to the overall sentences for Charges 1, 2, 3 and 7. So up to now, the total sentences other than Charges 4 and 5 is that of 7½ years.

Now, I now come to the offences of indecent conduct towards a child against X and Z respectively in Charges 4 and 5. These two charges involve one single incident in April 2019 in which the three of the accused, X and Z performed oral sex and masturbation on each other. Taking into account the significant age difference between the accused and the victims and the indecent acts involved a total of two underage boys, I adopt a starting point of 18 months for each of the charge, of the offence in Charges 4 and 5, to run concurrently to each other.

With the one-third discount, this is reduced to 1 year. And taking into account the principle of totality, I order that the sentences for Charges 4 and 5 to run concurrently to all the other sentences or to the sentences in all the other charges. So the total terms of imprisonment to be served for all the eight charges is one of 7½ years’ imprisonment.

So, accused, please stand up. You are now sentenced to imprisonment of a total of 7½ years for the reasons that I have explained earlier.