HKSAR v. LEUNG NGO HIN

DCCC 1186/2018

[2019] HKDC 1114

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1186 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two charges of unlawful sexual intercourse with a girl under the age of 16 years (charges 1 and 2) and one charge of possession of child pornography (charge 3).

SUMMARY OF FACTS

Charges 1 and 2

2.  The girl (hereinafter as “X”) with whom the defendant had intercourse was 14 years old at the time of the two offences.  She is now 16 years and 10 months old.

3.  The defendant was born in January 1999 and was around 26 years and 10 months old at the time of the offences.  He is now 29.

4.  The defendant became acquainted with X via the social communication application WeChat in September 2016.

5.  X’s mother found nude photos of X and the defendant on X’s mobile phone on 11 April 2017.  Upon inquiry, X told her mother that she had taken the photos when she had sex with the defendant.  A report was made to the Police and the defendant was arrested since X was under 16.

6.  In the subsequent video recorded interview, the defendant admitted under caution that he knew X was 14 years old at the time when he made her acquaintance via WeChat in November 2016.

7.  The defendant brought X to his home on a day between November and December 2016 and had consensual sexual intercourse without using a condom.  The defendant said he ejaculated outside X’s body.

8.  The defendant claimed that they last had sex on 6 April 2017.

Charge 3

9.  In the same period of time that they were having sexual intercourse, the defendant had taken nude photographs and videos of X with his mobile phone, which he shared with X.

10.  They also shared their nude photos with each other, but not with anyone else.

11.  The defendant was worried about X’s parents finding out about the video and photos and so he had deleted them from his phone, as well as the WeChat conversations between him and X.

12.  The defendant’s mobile phone was seized and a total of 29 videos and 38 photos were extracted.  Since their contents involve pornographic depictions of X, who was under 16 at the time, they are by definition child pornography under the Prevention of Child Pornography Ordinance, and the defendant was charged accordingly.

PREVIOUS CONVICTIONS

13.  The defendant is of previously clear record.

MITIGATION

14.  Mr Lam for the defendant provided the court with a detailed written submissions in mitigation.  Psychologist and background reports were also ordered to be prepared on the defendant to assist in sentencing.

15.  Mr Tang, who represented the defendant after the reports were readied, assisted the court with a Supplemental Mitigation.

16.  The defendant began working as a salesperson after graduating form five. He worked for 5 years with the same employer and then became a fitness centre trainee boxing coach in 2015.  He has since attained the highest coaching level and is earning on average $40,000 to $50,000 per month.

17.  The defendant’s former girlfriend, Ms Sze, was 24 when they started to be together in 2015.  They broke up before the defendant came to know X.  The reason of their break up was the defendant not spending enough time with his girlfriend.  They remained friends and Ms Sze wrote in mitigation.

18.  The defendant said in mitigation that he came to know X in about September 2016, although he had previously told the Police that he got to know her in November.

19.  The defendant said he never thought to take advantage of X and that he just enjoyed chatting with her.  He said that this was the time when his father’s brain cancer entered the final stage and the defendant was spending most of his time accompanying his father in the hospital.

20.  According to the defendant, when he was studying primary one, which would make him about 5 or 6 years old, his father was hospitalized for a year after having been diagnosed with brain cancer.  Upon his return in around 1995 or 1996, the defendant and his father began to rely on public assistance.  It would appear that the defendant’s father had been in remission until he was found to be in the final stage of brain cancer, and he passed away in October 2017.

21.  During his contact with X in this supposedly heart wrenching time, the defendant found that X was not like the usual 14 year old in the way she talked and wrote.  He found her mature and considerate, and “was able to give him all the comfort and love that he has never had before from others, be they more mature in term of age[1].”

22.  The defendant began dating X.  They met in public places.  The defendant said he did not “find any age gap or any age barrier as such in between them”, that he fell in love with X and he “trusts” X felt the same.

23.  The defendant first brought X to his home in December 2016 and they had sex the first time.  The defendant said it was not planned.  He just wanted to spend some alone time with X.  Since he did not so plan, and since “it was all out of love that he could not fight the feeling”[2], the defendant committed the offence in Charge 1 without using a condom.  He ejaculated outside X’s body.

24.  The defendant did use a condom when he committed the offence in Charge 2.  By inference, the defendant must have planned this particular sexual intercourse with X.

25.  Mr Lam for the defendant submits that the huge number of text messages (more than 20,000) between the defendant and X found on the defendant’s phone supports the defendant’s assertion that he was “truly in love” with X.

26.  The court was not shown the contents of the text messages and cannot speculate as to what one can infer from the sheer number of messages.

27.  Mr Lam submits that it was “more probable” that the defendant had fallen in love with X through their chats, which was helping the defendant to get through that difficult period of him about to lose his father to cancer.

28.  It is Mr Lam’s submission that the presence of a relationship between the defendant and X would go to mitigate the defendant having sexual intercourse with a 14 year old girl.

29.  According to the assessment of the Clinical Psychologist Mr Yeung, the defendant’s risk of sexual re-offending is assessed to be on the lower end of the moderate range at this juncture.  It is recommended that psychological interventions focusing on enhancing the defendant’s relationship skills, addressing his impulsiveness, and strengthening his consequential thinking should be considered.  The defendant has indicated his willingness to participate in psychological follow-up sessions and appeared to be motivated to change.

30.  I do not have a victim impact report because the mother of X had refused to cooperate with the Social Welfare Office.  This court fully understands why she had chosen to do so and remains fully sympathetic of their situation.

31.  On the morning of sentencing, I was told that X came to court and handed over to the prosecution a letter in mitigation.  There she speaks about how she found the defendant as a pleasant and courteous person with a sense of responsibility and that she trusts him absolutely even now.

32.  X says she had benefitted from the defendant’s positive attitude and that they had discussed about their lives in the future.  X stresses that the defendant is important to her and that in the time that they were not allowed to contact each other, she had been worrying about the defendant every day and had been crying herself to sleep.  X says she really loves the defendant, and that love knows not age differences, or gender.

33.  X feels that she is responsible for the defendant’s commission of the offences.  She says that her immaturity at that time had led to the present consequences.  She deeply regrets this incident, and that she had created trouble for so many people.  She firmly believes that the defendant is also remorseful and knows that he had done wrong.  She seeks leniency on his behalf.

SENTENCING CONSIDERATIONS

34.  The maximum sentences on conviction upon indictment for unlawful sexual intercourse with a girl under 16 is that of 5 years’ imprisonment.

35.  As for possession of child pornography, the maximum sentence is a fine of $1,000,000 and imprisonment for 5 years.

36.  For sentencing purpose, the videos and images found in the defendant’s possession are classified as follows in accordance with the guidelines laid down in the case of HKSAR v Man Kwong Choi (萬廣財) [2008] 5 HKLRD 519; CAAR 8/2007.

Level 1 materials: 9 videos and 19 photos depict erotic posing with no sexual activity.

Level 3 materials: 4 videos and 7 photos depict non-penetrative sexual activity between an adult and a child.

Level 4 materials: 15 videos and 10 photos depict penetrative sexual activity between an adult and a child, including masturbation and oral sex.

37.  The defendant is not charged with making child pornography, which is a separate offence under section 3(1) and carries a higher maximum sentence of 8 years’ imprisonment.

38.  There is no evidence that the defendant had, or intended to, distribute the material.

39.  Mr Lam referred to the ‘love relationship’ at the time of the commission of the offences between the defendant and X as a mitigating factor for the defendant engaging in a sexual relationship with X.  I have a slightly different view.

40.  If it can be proved that someone was grooming a child for sex, this will be a strong aggravating factor.  The fact that grooming or exploitation has not been proved merely means that such an aggravating factor is not present.  It is not a mitigating factor.

41.  Furthermore, whether someone is in love or not is not something easily defined.  Sending a lot of messages to the child does not necessarily reflect love.  Even if the contents of the messages are all loving words, it is still possible that the sender was merely trying to lead the child to believe that she was loved, gaining her trust and affection, hoping to lead to a sexual relationship, without the adult being ever in love with the child.

42.  The defendant left school after form 5.  He worked for 5 years as a salesperson in a large company, and then for at least one year in a large fitness centre as a coach.  The nature of the defendant’s work had always required him to be in direct contact with his clients, either customers in the store or clients he was coaching.  He had had a lot of exposures to all walks of life and could not have lacked social contacts.

43.  In any event, as I had explained above, there being no evidence of grooming only means that this aggravating factor is not present, its absence is not in itself a mitigating factor.

44.  The age gap between the defendant and X is 12 years and 8 months.  They were at very different stages in their lives.  At 14 years old, X would have been a student while the defendant had already been working for at least 6 years.

45.  The defendant was earning $40,000 to $50,000 per month, which is a very decent income.  According to the written mitigation, the defendant and his father were both on public assistance before his father had passed away.  According to his antecedent statement, the defendant is living with his uncle.

46.  Although the fact that they were allegedly engaged in a loving relationship at the time of the commission of the offence may not be a mitigating factor, the fact that they are still in love with each other maybe. I will deal with this later on.

NATURE OF THE MATERIALS

47.  Although by definition the materials in the present case are child pornography, they are not the kind that the Court of Appeal had to deal with in the Man Kwong Choi case:-

“We have been, in these reviews, provided with some of the images found in the possession of the Respondents. They are nothing short of disgusting and demonstrate a depravity that causes revulsion, and, within society, we are sure they would be regarded as simply and totally unacceptable. Words fail to describe the sense of revulsion, which is to be experienced from viewing these images. In this regard, we lay emphasis on the importance of the sentencer examining the images or, at the very least, a representative sample, so that their true nature and gravity is made apparent.”

48.  I have viewed the materials and I find that the nature of the footages and images do not invoke the kind of disgust as experienced by the Court of Appeal.  There is no apparent depravity which causes revulsion.  It would appear that there was no coercion on the part of the defendant in the making of the footages and there are no apparent signs of distress on X’s part.

49.  As Mr Lam correctly pointed out in his submissions, none of the aggravating factors identified in Man Kwong Choi are present.  The defendant has no similar records, the depictions are of one single 14 year old child; no intention to distribute, either for commercial gain or otherwise and small number of footages and images, which are actually frame captures of the footages.

STARTING POINTS

50.  Taking into consideration all the circumstances of the case, bearing in mind the need for deterrence, I will adopt a starting point of 18 months’ imprisonment in relation to charges 1 and 2.

51.  As for charge 3, I will adopt a starting point of 12 months’ imprisonment.

52.  The 3 sentences after discounting for the defendant’s timely pleas of guilty are 12 and 8 months’ imprisonment.

TOTALITY

53.  Charges 1 and 2 took place some 4 months apart.  They each involved the same parties.

54.  Taking a step back, I order that 3 months of the sentence in charge 2 be served consecutively to the sentence in charge 1, and the sentence in charge 3 be served concurrently to the sentences in charges 1 and 2.

55.  The sentence for the 3 charges is, therefore, 15 months’ imprisonment after plea.

MITIGATING FACTORS

Delay

56.  I find that there was substantial delay in the prosecution bringing this case to court and as such will grant the defendant a 1 month discount, taking the sentence to 14 months’ imprisonment.

X’S PRESENT SITUATION

57.  The letter of X is a very powerful letter in mitigation.  The contents support the possibility that X and the defendant are still very much in love with each other.

58.  X is almost 17 now.  In this day and age of the internet, young people mature far more quickly than before.  I respect X’s expression of her continued affection for the defendant.  This is an important mitigating factor.

THE DEFENDANT’S EMPLOYMENT

59.  Through the background report and the letters in mitigation, I have learned that the defendant has strong support for his rehabilitation.  The fact that the defendant’s mother is willing to invest into the uncle’s sportswear business that will be making use of the defendant’s fitness expertise is encouraging news and will no doubt play an important part in the defendant’s rehabilitation.  I find that there is still much for the defendant to offer the society.

60.  For these mitigating factors, I will grant the defendant a further 2 months’ discount.

61.  The defendant is sentenced to a final sentence of 12 months’ imprisonment.