HKSAR v. HO YING SUM

HCCC 270/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 270 OF 2014

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

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COURT: The defendant has pleaded guilty to two counts of indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance, Chapter 200.

The first offence took place on 6 October 2013 in the defendant’s home and the second offence took place on 8 October 2013, also in the defendant’s home.

The victim in both counts is a boy aged under 16. The facts disclose that the victim, ‘X’, was born on 6 May 1999; therefore, he was not yet 15 at the time of the offence. ‘X’ lived with his parents and some time in 2013, ‘X’ came to know the defendant through an internet website called www.tt1069.com. This website is a gay website and it has got social networking functions and visitors to the website can exchange instant messages, homosexual videos, photographs and literature.

Subsequently, ‘X’ and the defendant corresponded using their WhatsApp instant messaging service which was available on their mobile telephones. Via this WhatsApp service, ‘X’ had sent to the defendant a photograph of himself with him dressed in his school uniform and the defendant also sent to ‘X’ a photograph of his penis.

On 6 October 2013, the defendant invited ‘X’ to his residence and, at the defendant’s residence, they removed all their clothing, they hugged and petted and caressed each other and then ‘X’ performed oral sex on the defendant which lasted approximately five to 10 minutes. The defendant did not ejaculate but he did not wear a condom. After the sexual intimacy, there was a conversation and then ‘X’ left the defendant’s premises and returned home.

On 8 October 2013, ‘X’ proposed to meet the defendant and arrangements were therefore made for ‘X’ to go to the defendant’s home again. A similar thing happened; they both removed their closing and after hugging and petting each other, ‘X’ then performed oral sex on the accused and the accused also used his mouth to make contact with ‘X’s penis, testicles and his thighs. Again, no condom was used and the accused did not ejaculate.

It is also admitted in the facts that before the commission of these offences, ‘X’ had told the accused that he was 15 years old and attending form 3 at school. It is also admitted in the facts that in the early 1980s, the accused had contracted syphilis and had undergone treatment but, at the time of the offence, he was cleared of that already.

After the defendant’s arrest, swabs were taken from ‘X’ which proved that ‘X’ had Chlamydia tachomatis, but ‘X’ was found to be not suffering from any form of syphilis or HIV/AIDS.

This is not an easy case to sentence. I have not had the advantage of seeing the victim ‘X’ and making my own assessment as to how far it would have been apparent to the defendant that, as Mr Mitchell put it, the victim was ‘psychologically damaged’, so I would give the defendant the benefit of the doubt, that it would not have been immediately apparent to him that victim was psychologically damaged, for want of a better word.

However, the defendant is a man of 63 and therefore should have been alert to the fact that the boy, being only 15 years old, he should not take advantage of him. The mental health report relating to ‘X’, which I have read, shows a young boy who is a very confused teenager, which is perhaps normal for a lot of teenagers but, added to that, it is also clear from the report that he is confused about his sexuality and inclinations and acceptance by society and, more importantly, by himself, of his inclinations.

The sexual abuse in this case, however, must have contributed to the victim’s depression and suicidal tendencies and instability, though by how much, it is impossible to tell. As Dr Fung, the clinical psychologist, noted in her report, it is difficult to ascertain how truthful ‘X’ was when disclosing personal information about himself and he had told different versions of his story to different people. It is clear that ‘X’ will require more psychological counselling and assistance in the future.

I am, however, impressed by the fact that ‘X’s parents have been very supportive and this may be the only way that the victim will come to accept himself and grow into a stable young man.

As has been noted by counsel and also by the court, there is no special guideline for this type of offence and each case must turn on its own particular facts.

In mitigation, Miss See had said everything she could possibly say on behalf of the defendant. It is disclosed that the defendant is aged 63, lives alone and been on social security allowance since 2008. To the defendant’s credit, he has a clear record.

This case is less serious than other cases because there is no breach of trust in this case as the relationship between the defendant and ‘X’ was merely friends who had met on the internet. As Miss See pointed out, after the first meeting, it was ‘X’ who requested to have a second meeting. There were no threats or inducements in this case and no physical harm or violence was caused to ‘X’.

According to the WhatsApp messages, as Miss See pointed out, the contact between ‘X’ and the defendant on the WhatsApp messages lasted a few days in October 2013. However, as Mr Mitchell pointed out, the WhatsApp messages were only exchanged after the defendant and ‘X’ had come to know each other on the internet website. That would be some time before the beginning of the WhatsApp messages in October 2013.

This court is grateful to Mr Mitchell for submitting three cases to assist this court with regards to sentencing. In the first case of Hong Kong SAR v Chow Yuen Fai, CACC 392/2008, it is in fact, as Miss See pointed out, a case which is more serious than the present case before me.

As was said by the Court of Appeal in that case - although at that time, the Court of Appeal was referring to the buggery charges and the child pornography charges in that case, however, I consider that what they said was also apt in relation to the present case - where the Court of Appeal said: “The protection of young and vulnerable children is the underlying policy in this type of offence”.

And as the Court of Appeal stressed again, at page 15 of the case at paragraph 26(3), that:

“The trauma, distress and psychological harm that are caused to young children and, we would underline, also to their families, from the type of offences in the present case cannot be underestimated.”

Of course, again, I do take into account that the Court of Appeal there was dealing with a case which involved more serious charges than the present.

Stock JA, as he then was, in Hong Kong SAR v Kong Yun Chiu [2007] Volume 4 HKC 391, had made the observation that:

“It is too easy for those who would prey on the naivety and trust to succeed, for children are by nature trusting, and the deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly.”

He went on to say that:

“The trauma caused to a child by an indecent assault and the long-time(term?) adverse impact is difficult to calculate but trauma may safely be assumed in the vast majority of cases, perhaps all.”

The second case that Mr Mitchell cited to this court is the case of Hong Kong SAR v Li Hanhua & Another, CACC 54/2010. Again, the facts in that case are much more serious than the present one but I refer to it really for what the Court of Appeal said at paragraph 43 of the report. There, the Court of Appeal listed out factors that the court should take into account when considering sentences in cases involving abuse of children.

One of them is the age difference between the defendant and the victim. Another factor is the number of occasions of committing the offences and the duration of the offences. Another factor is whether any suitable safety measures were taken in committing the offences and whether any hazard to the health and safety of the victim and the public was caused. Another factor is whether the offences have caused physical or psychological trauma to the victim, also whether the offences have impacted on the family members of the victim. So all these have to be taken into consideration apart from the other factors listed out by the Court of Appeal, which I do not need to relate here as it is not relevant to the present offences before me.

As I have said, it is clear that young children have to be protected from abusers and also from themselves. The defendant knew full well that ‘X’ was below 16, in fact only 15 as ‘X’ told him, and he could see for himself that ‘X’ was still in school as he came to the defendant’s home in his school uniform and had told the defendant that he was in form 3. As a 60-year-old man, the defendant should have known better than to take advantage of ‘X’.

The sentence should not only punish the defendant but, hopefully, deter others from acting in a similar manner. So in view of all that I have said, I consider that a 21-month starting point for each count is appropriate.

Giving the defendant the one-third off for his plea, the sentence on the 1st count would be 14 months’ imprisonment. On the 2nd count, similarly, he is sentenced to 21 months’ imprisonment reduced to 14 months because of his plea.

Taking into account the totality principle, I will make 10 months of the 14 months in Count 2 consecutive to the 14 months in Count 1. Therefore, the defendant will go to prison for a total of 24 months.