HKSAR v. WONG CHING SHEUNG AND ANOTHER

DCCC 760/2022

[2023] HKDC 619

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 760 OF 2022

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REASONS FOR SENTENCE

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The pleas

1.  There are 2 defendants with 7 charges in this case.

2.  D1 pleaded guilty to charge 2, 4 and 6 of which are only against D1 only.  This Court order the remaining charges, 1, 3 (against D1 only), charge 5 (against both Ds)  and charge 7 (against D2 only)  are to be left in the Court file and not to be proceeded with without the leave of the Court.

3.  Charge 2 – gross indecency with X under the age of 16, contrary to s 118(H)  of the Crimes Ordinance, Cap 200.

4.  Charge 4 – Homosexual buggery with X under the age of 16, contrary to s 118C(a)  of the Crimes Ordinance, Cap 200.

5.  Charge 6 – Indecent conduct towards a child under the age of 16 years, contrary to s 146(1)  of the Crimes Ordinance, Cap 200.

Summary of facts

6.  At all material times:

6.1  X was 15 years old, a known case of mild grade mental retardation and focal epilepsy and diagnosed with Oppositional Defiant Disorder;

6.2  D1 (aged 71)  and D2 (aged 55)  are husband and wife and both reside in, Po Tin Estate, Tuen Mun, the New Territories (the “Flat”).

Incident 1 (Charges 2 and 4, against D1 only)  16 March, 2022

7.  On an unknown date in 2022, X got acquainted with D1 on Facebook, during which X informed D1 that he was 15 years old and was invited to go to the Flat to meet D1 and have fun. 

8.  On or about 16 March 2022, X followed D1’s instructions to travel by bus to Po Tin Estate Station, where D1 picked up X and brought him to the Flat.

9.  When inside the Flat, D1 asked X to take off his clothes, X complied.  D1 also took off his clothes. 

10.  Then both sat on a bed, where D1 used his right hand to try and make X’s penis hard by rubbing it.  D1 also asked X to do the same on him. 

11.  Afterwards, D1 attempted to insert X’s penis into D1’s anus, though X said no.

12.  Subsequently, D1 asked X to perform oral sex on D1, which X did. 

13.  After that, D1 grabbed X’s hand to put it on D1’s penis and asked X to masturbate him, which X did.  D1 ejaculated on X’s stomach.  Then both of them moved to the sofa where D1 helped X to masturbate. In the end, X ejaculated on the sofa (Charge 2).

14.  During the abovementioned process, D1 inserted his penis into X’s anus once.  Lubricant was used but no condom was worn (Charge 4).

15.  When X left the Flat, D1 paid X HK$300. 

Incident 2 (Charge 6, against D1 only)  20 March,2022

16.  On or about 20 March 2022, X was once again invited to have lunch with D1 before going to the Flat. 

17.  When inside the Flat, D1 took off his trousers, crouched down on top of X, grabbed X’s penis and inserted it (without wearing any condom)  into his anus for 2 to 3 times.  D1 then asked X to perform oral sex, which X did for a while.  In the end, D1 ejaculated inside X’s mouth.  D1 also asked X to ejaculate, which he complied and did on the bed. 

18.  When X left the Flat, D1 paid him HK$100.  D1 also treated X with a can of Coke on the way to the bus station.

Discovery of the incidents - 6 April, 2022

19.  The above incidents were discovered when Ms Leung, a Clinical Psychologist (PW2)  had a consultation with X on 6 April 2022, during which X disclosed that “an uncle had touched his private parts”.  The case was reported to the police. 

Arrest of the Defendants

20.  At about 9:15 am on 9 April 2022, D1 was arrested by PW3 outside a restaurant at Leung Wan Street, Tuen Mun for “Gross indecency by man with a male mentally incapacitated person”. 

21.  Under caution, D1 admitted that he and X had touched each other’s sex organ.

Cautioned Interviews

22.  A video-recorded interview was conducted with D1 on 9 April 2022.  Under caution, D1 admitted:

22.1  He has a Facebook account;

22.2  D1 admitted having talked to X on Facebook;

22.3  X told D1 that he was 15 years old;

22.4  In X’s Facebook conversation with D1, X said he was 14 years old;

On Incident 1

22.5  On 16 March 2022, D1 agreed to pay several hundred dollars to X for going to his Flat. D1 provided the bus route to X, had a meal with X before bringing X to the Flat;

22.6  Inside the Flat, D1 did not take off all his trousers whilst X did. X tried to make his penis hard but in vain. D1 then helped to rub X’s penis. D1 also let X perform oral sex on D1 (Charge 2);

22.7  D1 put lubricant on his own anus and tried to insert X’s penis into it (Charge 4);

22.8  D1 paid X HK$360;

On Incident 2 (Charge 6)

22.9  On 20 March 2022, X came to the Flat again, where X tried to insert his penis into D1’s anus but failed;

22.10  Then X performed oral sex on D1;

22.11  D1 paid X HK$400 afterwards. In addition, he also gave X a mobile phone.

Criminal Record

23.  The Defendant has 2 previous court appearances with 2 criminal convictions in 1997 for common assault and in 2001 for an offence of managing a vice establishment.

Antecedents/ Mitigation

24.  The defendant is 72 years old.  He is currently retired and lives with his wife.  His four daughters are married and living separately.

25.  X did not suffer any physical injury or trauma as a result of this offence.

26.  D1 pleaded guilty at the earliest opportunity that save X to go through the ordeal to give evidence in Court.  It also saved the Court’s time.  He had been fully cooperative with the police in the present incident. 

27.  The defence accepted that there are aggravating factors in the present case that :-

(a)  The age difference between the defendant (71)  and X (15)  at the material time.

(b)  The defendant did not use condom.

28.  On the other hand, there was no suggestion of using force or threat upon X, no video or photos were taken during the acts.  It was a voluntarily participation by X in these sexual acts for reward of money.

29.  X was approaching 16 at that time, ie he was 15 years and 4 months old at the material time.

Reports

X’s Victim Impact Report

30.  X was a known case of mild grade mental retardation and he has focal epilepsy.  He was also diagnosed having autism and oppositional defiant disorder. 

31.  At the time of consultation with the psychologist, he does not have any mood symptoms such as crying spells, appetite and sleep problem.  “he reported to have nightmare of being killed once in a while after the incidents, but failed to elaborate it”.

32.  However, there were “relatively more prominent symptoms of avoidance eg avoiding talking about the events and symptoms of arousal eg staying vigilant or alert when not necessary in response to the abusive incidents.  Yet, the overall presentation did not suggest significant post-traumatic symptom”. 

33.  However, emotional wise, he had intense fear that the “couple in the index offence would kill him as a revenge after serving the sentence”.  His fear of rating is 8 out of 10.  He “guessed that it would not be taken place in reality”.

34.  Nonetheless, the psychologist recommended that X should “keep attending the mental health specialist services to handle the residual symptoms or other mental health issues.”

Psychiatrist report – D1

35.  Dr So said that he does not suffer from mental illness. 

Psychologist report – D1

36.  The report stated that :-

The defendant was “evasive when discussing his index offence”

37.  The defendant informed the clinical psychologist Ms Na that he has erectile dysfunction problem and he was interested to know if he could cope with the problem via anal sex.

38.  In the report, he “denied” feeling of aroused or ejaculated during oral sex as stated in the brief facts.

39.  I asked the defence about this point as this is clearly contradicted to the summary of facts that he had admitted to. The defence initially took the view that the defendant had admitted to the summary of facts already. To me, the defence has a duty to clarify any things that are materially in contradiction to the summary of facts.

40.  After taking instruction by the defence, I have been informed that it should be “admitted” instead of “denied” as stated in the report.

41.  Although the defendant reported to Ms Na that he had heterosexual relationship with adult females only in the past, it was “still suspected the Mr Wong (the defendant)  had underlying tendency for paedophilic interests.”

(i)  “though his risk sexual re-offending was low, his suspected tendency for paedophilic interest and cognitive distortions were of genuine concern. … his motivation to change was doubtful at present.”

(ii)  “psychological intervention was seemed important for his problem-solving skills, suspected paedophilic interests and relapsed prevention.”

Sentence

42.  There is no doubt that the defendant has committed serious offences.

43.  The maximum sentence for individual charge :-

(a)  Charge 2 - Gross indecency – 2 years

(b)  Charge 4 - Homosexual buggery – As ruled in the case of HKSAR v Yeung Ho Nam (No1)  that the sentence of s 118c should be 5 years’ imprisonment instead of life imprisonment.

(c)  Charge 6 - indecent conduct towards a child under the age of 16 – 10 years.

44.  Both parties submitted authorities regarding the 3 charges :-

(a)  From the defence :- HKSAR v Yeung Ho Lam [2000] 1 HKLRD 91

(b)  From the prosecution: -

a. HKSAR v Chow Yuen Fai [2010] HKLRD 354

b. HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427

c. Secretary for Justice v Yu Chun Hing [2022] 1 HKLRD 97

d. HKSAR v Lee Kwok Wah Francis [2013] 2 HKLRD 1009

(c)  In respect of Chow Yuen Fai and Tsang Chui Tak, both cases were cited in the judgement of Yeung Ho Lam

45.  In all these 3 charges, there is no sentencing guidelines for these types of offences.  As stated in paragraph 27 of the judgement of Chow Yuen Fai :-

“sentencing tariffs for buggery and indecent assault were neither possible nor practicable, given their varied circumstances and references to previous sentences were often of limited assistance.”

46.  On this note, I am fully aware that the defendant does not face any charge of indecent assault.

47.  However, in paragraph 9 of the judgement in Tsang Chui Tak, The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the following factors need to take into consideration:

(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 behaviors 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 pedophilic and the likelihood of re-offending.

Sentencing principle

48.  The defence in mitigation said that X was running a business at that time. That was a business deal between D1 and X.

49.  As stated in the judgement of paragraph 8 of Tsang Chui Tak :-

“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.”

50.  In the present case, there are aggravating factors to be considered.  According to the summary of facts, at all material time, X is a known case of mild grade mental retardation person.  When he was interviewed by the psychologist, he only “managed to express his feelings and thoughts with simple words.”

51.  While on the other hand, D1 was 71 years old at that time, a matured man with a world of experience, running a business from 1996 to 2016, he must have come across different people from all walks of life.  I rule that by physically met and communicated with X, D1 must have known that X was a mentally retarted person.

The age difference

52.  There is a huge age gap between the defendant (71 years old)  and X (15 years old), that is 56 years different.  I consider that it is a serious aggravating factor.

(i)  There is also a great different of level of maturity and sex experience between the two of them. As stated in paragraph 57 of the judgement of Yu Chun Hing (who was 32 years old)  committed the offences that :-

“All the victims were of a very young age and as a consequence were particularly vulnerable and susceptible to manipulation and influence by a much older and more experienced person, such as the respondent.”

(ii)  In the two incidents, on 16 and 20 March 2022, D1 told X what to do in the flat. X was very much in a passive role.

(a)  D1 told him to take off his clothes

(b)  D1 told X to rub his penis

(c)  D1 told X to perform oral sex on him

(d)  D1 grabbed X’s hand to masturbate on him

(e)  D1 told X to ejaculate

(f)  From para 11 of the summary of facts, X refused to insert his penis into the defendant’s anus, X then performed oral sex on D1 as told by him.

53.  The reasons for D1 to commit the present offences, D1’s explanation to the psychologist was that :-

a. his wife works long hours and shifts, he was at home alone and became bore and lonely. He did not have a social group of friends to go in Hong Kong.

b. He also experienced erectile dysfunction without seeking medication. He became interested to see whether he could cope his erectile dysfunction via anal sex.

c. The defendant purposely went on to a social platform, the Facebook, from the homosexual group and found X who told him that he was 15 at that time.

d. Clearly, his sexual preference and his intention at that time was to look for a young male child from the Facebook homosexual group. This is a sickening behaviour and I consider him as a pervert.

No condom was used

54.  This is another aggravating feature.  As stated in paragraph 29 of the case of Chow Yuen Fai that :-

“another aggravating features in relation to the offence of buggery deserves special mention. …… The applicant did not use a condom. We view this as a particularly serious aggravating feature. Where an accused is sexually experienced or active, the failure to use a condom gives rise to obvious health risks, risks and consequences the extend of which young children may well be ignorant.”

Payment – corrupting influence

55.  As stated in the paragraph 62 of Yeung Ho Nam (No 1)  that :-

“62. As compensated dating involves payment for the sexual “services”, reference was also made to HKSAR v Lau Chi Cheung where Tang V-P (as he then was)  expressed the view that payment to the victim was a serious aggravating factor because of its corrupting influence.”

56.  Mr Davies for the defence told me in mitigation that there was/were other Courts considered otherwise.  I cannot speculate in which case it was said by passing and certainly would not attach weight to this piece of information without case references, it is because Tang V-P had already expressed his view in this point and that passage was also been quoted in Yeung Ho Nam (No 1)  as stated above. 

57.  Furthermore, in the case of HKSAR v Lee Kwok Wah Francis, the Court of Appeal said that paragraph 76 (7)  that ;-

“all this could prove that the applicant intended to exchange these benefits for X’s cooperation. that means what he had been doing was to corrupt the mind of the victim by material benefit.”

58.  I cannot see how the defence can go around this point of “corrupting influence.”

59.  The defendant in his age, obviously knew that he would not be able to find a sex partner at such a young age. 

60.  He purposely went on to the social platform to find one.  There was an agreement as to payment before X travelled to meet D1.

61.  According to X, on the first incident, D1 paid X $300.  On the second occasion, they have lunch before going back to D1’s flat. When X left, he paid X $100 plus a can of Coke. 

62.  While in D1’s version, he paid X $360 and $400 respectively plus a mobile phone. 

63.  The defendant knew that X only asked for certain sum and that was within a range that D1 would pay for/or he could afford as he is a retiree. 

64.  But D1 knew full well that no young male, even at 16, would ever agree to engage in this kind of sickening sexual activities as the age gap is simply huge.  D1 is as old as a grandfather to X.  Only payment can buy this kind of “sexual activities.”  This is clearly a kind of corruption.

65.  The underlying principle of the offence is to protect the young, the inexperience, naive and vulnerable children from sexual exploitation.  One has to bear in mind that X was a “known case of mild grade mental retardation person”. 

66.  At the time that X was interviewed by the psychologist, he still showed “relatively more prominent symptoms of avoidance and hyper-arousal.” He has “intense fear” that D1 and his wife “would revenge on him”.  X believed that it is unlikely to happen in reality. 

67.  X’s overall presentation “does not suggest significant mood problems and post-traumatic symptomatology after the abusive incidents amidst residual symptoms.”

68.  Nonetheless, X has that “intense fear” and “symptoms of avoidance and hyper-arousal.”  X is recommended to receive specialist treatment. 

69.  While on the other hand, the psychologist said that the defendant’s risk of re-offending is low, but “his suspected tendency for paedophilic interest and cognitive distortions were of genuine concern.  … his motivation to change was doubtful at present”.  

70.  Ms Na still suspected that the defendant had underlying tendency for paedophilic interest.  In essence, there is always a possibility that the defendant will re-offend again. 

71.  With all the above information in mind, D1 cannot expect any lenient sentence.  This Court has to send a strong message to the public that deterrence sentence is called for this kind of offences.  The sentence must carry a deterrent effect in order to prevent the defendant from committing similar offences and to reflect the seriousness of the offences committed by the defendant. 

72.  To this end, I consider the starting point for each offence: -

(a)  Charge 2: - 12 months

(b)  Charge 4: - 2 years

(c)  Charge 6: - 2 years

73.  I also increased each sentence by 6 months in view of the aggravating factors as stated above. 

74.  The final sentence for each charge :-

(a)  Charge 2: - 18 months, reduce by 1/3, it is reduced to 12 months’ imprisonment

(b)  Charge 4: - 2 years 6 months (30 months), reduce by 1/3, it is reduced to 20 months’ imprisonment

(c)  Charge 6: - 2 years 6 months (30 months), reduce by 1/3, it is reduced to 20 months’ imprisonment

Totality

(a)  Charge 2 and 4 occurred on the same day in Incident One. I order the 2 sentences to run concurrently. It arrives at a total of 20 months.

(b)  Charge 6 was a separate and distinct offence which took place 4 days after Incident One. I order 10 months to run to the 20 months of Charge 1 and 2, it arrives at a total sentence of 30 months. (20 + 10 months)

(c)  The defendant is to serve a total of 30 months’ imprisonment.