HKSAR v. YIP KWUN TING

DCCC 35/2019

[2020] HKDC 445

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 35 OF 2019

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REASONS FOR SENTENCE

1.  The defendant faces 4 charges of "Unlawful sexual intercourse with a girl under the age of 16 years" (Charges 1 to 4) and one charge of "Possession of child pornography" (Charge 5).

2.  He pleaded guilty to Charges 1, 4 and 5.  I granted the prosecution's application to leave Charges 2 and 3 in the court file; not to be proceeded against him without leave of court.

Summary of Facts

Charges 1 and 4

3.  X is a female born in December 1997.  The defendant was born in April 1995.  They met in late 2011 and started dating in August 2012.

4.  About 10:00 p.m. on 1 November 2012, the defendant (then aged 17) met up with X (then aged 14) outside her home in Pok Fu Lam.  He took X to a guard booth located on the Ground Floor.  They then had sexual intercourse inside the guard booth.  The defendant did not use a condom and ejaculated on X's abdomen.  This is Charge 1.

5.  On 28 August 2013 (their dating anniversary), the defendant (then aged 18) asked X (then aged 15) to go to his home in Yuen Long ("the Flat").  They had sexual intercourse in the defendant's bedroom.  The defendant used a condom.  This is Charge 4.

Charge 5

6.  On 14 October 2014, the defendant was arrested for "Unlawful sexual intercourse with a girl under 16" and the Flat was searched.

7.  A notebook computer was seized from the desk in the defendant's bedroom.  It contained child pornography in the form of 123 still photos and 27 video clips.    

8.  The children depicted in all 123 photos and 27 video clips were all under 16.  The images are categorized as follows :-

(a) Level 1 (images depicting erotic posing with no sexual activity) – 109 photos and 1 video clip;

(b) Level 2 (images depicting sexual activity between children or solo masturbation by a child) – 13 photos and 1 video clip;

(c) Level 3 (images depicting non-penetrative sexual activity between adults and children, including any digital touching of genitalia) – 2 video clips; and

(d) Level 4 (images depicting penetrative sexual activity between children and adults, including digital penetration, penetration by sexual organs or other objects, masturbation or oral sex; sadism or bestiality) – 1 photo and 23 video clips.

9.  The estimated age of the children depicted in the photos and video clips were mostly between 11 to 16 years old; with only a few between 6 to 10 years old.  In respect of the Level 4 video clips, 2 show that the child was tied up and subjected to violence; 22 show that no condom was used during penetrative sexual activity; and buggery was involved in 5.

10.  Forensic examination of the notebook computer was conducted.  The analysis of its operating systems, files creation history, various browser records and software download history tends to suggest that the defendant used that notebook computer to download and store the child pornography contained in it.

11.  The defendant was not arrested for "Possession of child pornography" until 24 March 2017, almost 2.5 years after his initial arrest.

Admissions

12.  Regarding Charges 1 and 4, in his video recorded interview conducted on 14 October 2014, the defendant admitted that he resided at the Flat with his parents.  He met X through a friend in 2011.  They became a couple on 28 August 2012 and broke up in July 2014.

Mitigation & Sentence

13.  The defendant turned 25 recently and has a clear record.  He is the only child in his family.  The defendant received his bachelor's degree with a major in Psychology in March 2018 from an American university, and made the Dean's List in 3 semesters.  He has just completed his master's degree in Environmental and Public Health Management at a local university.  He is also proficient in the electric bass and ukulele.  He teaches those 2 musical instruments on a part-time basis with pay.

14.  In mitigation, Defence counsel Mr. Li submitted that the defendant and X were a genuine teenage couple.  He was 2 years and 8 months older than X.  No exploitation of position or power by the defendant was involved.  No threats or violence were used either.  Although X was unable to give an effective consent at law, she agreed to engage in intimate acts with the defendant.  Mr. Li explained that X and the defendant broke up because X had an argument with the defendant's mother.  As a result, X revealed to her parents about her relationship with the defendant.  The Police was alerted then.

15.  Regarding Charge 5, Mr. Li submitted that the defendant simply downloaded those photographs and video clips from the internet when his relationship with X was very turbulent.  He attempted to commit suicide twice in July and October 2014.  Mr. Li stressed that the defendant has no peculiar interest in child pornography and that he is not a paedophile.  There is no evidence that he disseminated or shared such data with anyone.

16.  Finally, Mr. Li submitted there is serious delay in the present case.  The defendant was first arrested in October 2014.  He was not charged with the present offences until December 2018, some 4 years later.  Between October 2014 and now, the defendant has obtained 2 academic degrees, reformed himself and made himself a useful member of his community in various aspects.  A promising future awaits him.

17.  A bundle of mitigation letters and certificates was placed before me; their contents are duly noted.  They all show how good the defendant is in various aspects.

18.  I will deal with the issue of "delay" first.  Prosecuting counsel Mr. Cheng has helpfully prepared a Chronology of Events for my reference.  I need not go into the details, suffice it to say that the Police took much time to examine and analyze the data stored in the defendant's notebook computer.  And indeed it took 4 years to complete the investigation and to obtain legal advice from the Department of Justice twice.  Mr. Cheng explained that the Cyber Security and Technology Crime Bureau of the Police Force has been seriously overloaded with work in the past few years.  The 2014 Occupy Central Movement reached its peak of investigation in 2015.  Then there was the Mongkok Riot in 2016.  The police work in both incidents involved a tremendous amount of electronic data.

19.  What Mr. Cheng said may well be undeniable facts.  I would also accept that the Police has been overloaded with work in the past few years.  I do not wish to put the blame on anyone on the prosecution side; however, it is no doubt an unreasonable and unjustifiable delay when it took 4 years to bring the defendant to court.  In my view, the investigation of the present case is straightforward.  Heavy workload and backlogs cannot be used as a generic excuse. 

20.  I should, for the sake of completeness, mention that this case reached the District Court on 29 January 2019.  It was brought up for mention on 19 March, 21 May, 30 July and 10 September 2019 for various reasons (such as disclosure of materials by the prosecution, discussion between parties, on-going legal advice by defence counsel).  On 10 September 2019, the trial date on 1 June 2020 was fixed (with 7 days reserved).  Upon reaching an agreement with the prosecution, the defendant entered his pleas on 1 June 2020.

21.  Both Charges 1 and 4 are absolute liability offences[1]. The legislative intent is to impose statutory protection on those of young age such as X.  The defendant and X might well have been in love, but the law simply does not allow them to get intimate with each other.  The message sent by the legislature cannot be clearer.

22.  At law, I cannot take into consideration of X's consent or willingness to have sexual intercourse with the defendant.  On the other hand, I note that there is no evidence showing that their intimate acts have any detrimental effect on X.  What the defendant did is wrong.  He and X were both too young to have any sexual experience.  The legislature thinks young girls like X cannot protect themselves, so the law steps in.

23.  I note that 24 out of the total of 150 items of child pornography found in the defendant's notebook computer belong to Level 4.  I have viewed the photo albums of sample images selected from all 4 levels submitted by the prosecution.  The majority are mere depiction of nudity and sexual activities with no aggravating features.  The children depicted do not appear to be of extreme youth.

24.  For Charge 5, I am aware of the sentencing principles laid down by the Court of Appeal in HKSAR v Choy Ka Leung CACC 365/2012.  I am also aware that for Level 4 depiction of child pornography, an immediate custodial sentence in the range of 12 to 36 months[2] is warranted.

25.  I adjourned the sentence to obtain a Community Service Report.  The comments in the report are positive.  The Probation Officer wrote "He attained significant achievement[s] and regained his self-confidence through his study.  He also served the society and church fellowship by doing volunteer service during leisure time[3]."

26.  In terms of "delay" being a strong mitigating factor, the present case bear some similarities with Secretary for Justice v Chan Chi Tao [2020] HKCA 296 (CAAR 6/2018; Chinese judgment).

27.  Had the defendant in the present case been brought to court in a timely fashion, it is highly likely that he would have been under 21 at the time of sentencing. Hence, section 109A of the Criminal Procedure Ordinance (Cap.221) would apply, and imprisonment would have been the last resort, unless the court is of the opinion that no other method of dealing with him is appropriate.

28.  At present, my hands are tied. Sentencing options which are created for the benefit of young offenders such as Rehabilitation Centre, Detention Centre and Training Centre are no longer available for my consideration because of the defendant's age being over 21.

29.  I find that the defendant most probably committed the present offences as a misguided and curious teenager. He does not pose as a threat to females or children in the society.

30.  Since his initial arrest in October 2014, the defendant did not give up himself.  He has behaved well and studied hard.  He tried to contribute to his community in various aspects.  He obtained 2 academic degrees and is planning to pursue his doctorate.  His lecturer speaks favourably of him[4].  All his achievements show that he has rehabilitated himself and transformed to become an upstanding member of the society.

31.  As the Court of Appeal put it in Chan Chi Tao[5], by sentencing the defendant to imprisonment now, it would not only declare his effort in rehabilitating himself futile, but would also destroy his future and everything he has built up in the past 5 odd years.  It would be devastating and catastrophic to him and his family as well.

32.  Based on the reasons stated above, I consider that a Community Service Order to be the appropriate and just punishment for the defendant at this moment.

[Requirements of Community Service Order explained. The defendant understood and is willing to comply.]

I sentence the defendant to 200 hours of Community Service for each charge.