HKSAR v. KEUNG HOI HANG JAMES

DCCC 263/2024

[2025] HKDC 983

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 263 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Keung is charged before me with 7 charges on a Charge Sheet.

2.  Charges 1, 2, 5 relate to the offences of Indecent conduct with or towards a child under the age of 16 years, contrary to section 146(1)  of the Crimes Ordinance, Cap 200.

3.  Charges 3 and 7 relate to the offences of Unlawful sexual intercourse with a girl under the age of 16 years, contrary to section 124(1)  of the Crimes Ordinance, Cap 200.

4.  Charge 4 relates to the offence of Procuring another person under the age of 16 for making pornography, contrary to section 138A(1)(a)  of the Crimes Ordinance, Cap 200.

5.  Charge 6 relates to the offence of Making child pornography, contrary to section 3(1)  of the Prevention of Child Pornography Ordinance, Cap 579.

6.  Mr Keung pleaded guilty to Charges 1, 3, 4, 6 and 7.  He pleaded not guilty to Charges 2 and 5.  Before the facts were read out for Mr Keung’s agreement, prosecution offered no evidence against him on Charge 5.  I thereupon formally acquitted Mr Keung of Charge 5.  Prosecution also asked that Charge 2 be left on court file not to be proceeded with without the leave of this court or the Court of Appeal.  I so ordered.

7.  Particulars of Charge 1 are that he, on a day unknown in September 2021, at a flat in Causeway Bay, in Hong Kong, committed an act of gross indecency with or towards X, a girl of the age of 14 years.

8.  Particulars of Charge 3 are that he, on 2 February 2022, at a flat in Wan Chai, in Hong Kong, had unlawful sexual intercourse with X, a girl of the age of 15 years.

9.  Particulars of Charge 4 are that he, on a day unknown between August 2021 and August 2022, in Hong Kong, procured girl X who was under the age of 16 for making pornography, namely one video clip in which X was visually depicted as being engaged in explicit sexual conduct.

10.  Particulars of Charge 6 are that he, on a day unknown between February 2022 and August 2022, at a flat in Wan Chai, in Hong Kong, made child pornography of girl X which was depicted in one photograph by his mobile phone.

11.  Particulars of Charge 7 are that he, on a day unknown in August 2022, at a flat in Wan Chai, in Hong Kong, had unlawful sexual intercourse with X, a girl of the age of 15 years.

Facts admitted by Mr Keung

12.  X, a girl, was born in January 2007 while Mr Keung was born in January 2004.  At all material times, X either resided with her mother in a flat in Causeway Bay (“Flat A”)  or with the godmother of her mother in a flat in Wan Chai (“Flat B”).  Mr Keung and X studied in the same secondary school and were boyfriend and girlfriend.  During their romantic relationship between 8 August 2021 and late August 2022, Mr Keung had sexual activities with X on a number of occasions.

Charge 1 – Indecent conduct with or towards a child under 16

13.  On a day in September 2021, when X was 14 years old, in a bedroom of Flat A, she performed oral sex on Mr Keung and masturbated him for the first time.  At the request of Mr Keung, X performed oral sex on Mr Keung till he ejaculated into her mouth.

Charge 3 – Unlawful sexial interecourse with a girl under 16

14.  On 2 February 2022, when X was 15 years old, on a bed in Flat B, Mr Keung requested to have sexual intercourse with X.  X agreed so Mr Keung went down to buy condom.  When he returned, he wore a condom and had sexual intercourse with X for the first time.

Charge 4 – Procuring another person under the age of 16 for making pornography

15.  During their relationship between 8 August 2021 and late August 2022, Mr Keung had requested X to send him video capturing X’s solo masturbation.  Mr Keung indicated to X he would send her his video of solo masturbation.  X thus agreed and made one video clip capturing her inserting her own finger(s)  into her vagina.  After Mr Keung sent X his video, on a day in 2022, X sent Mr Keung the said video clip via a messaging application on mobile.

Charge 6 – Making Child pornography

16.  On a day between February and August 2022 when X was 15, Mr Keung took a (level 4)  photo of X when she was performing oral sex on him and masturbating him in Flat B.  X was not wearing any clothes and her breasts were depicted in the photo.

Charge 7 – Unlawful sexual intercourse with a girl under 16

17.  On a day in mid-August 2022 when X was 15 years old, in Flat B, Mr Keung had sexual intercourse with her for the last time.  No condom was worn.  Before the sexual intercourse, X also performed oral sex on Mr Keung and masturbated for him as usual.

Disclosure of offences

18.  In around late August 2022, X and Mr Keung broke up.  In October 2022, a report was made to the police after X complained to her mother about X’s conduct.

Arrest and caution

19.  On 14 October 2022, Mr Keung was arrested.  In four VRIs, Mr Keung stated the following:-

(a)  He and X were dating schoolmates;

(b)  In relation to the unlawful sexual intercourse (Charges 3 & 7):

(i)  He used to have sex with X two to three times a week;

(ii)  They had sex at X’s home in Wan Chai and Causeway Bay;

(iii)  He knew X was 15 years old when he first had sex with her; and

(iv)  From around June 2022 onwards, he did not wear a condom while having sex with X;

(c)  In relation to the oral sex and masturbation (Charge 1):

(i)  He had requested X to masturbate him and perform oral sex on him at her home;

(ii)  X used to perform such acts on him two to three times a week; he had never worn a condom and usually ejaculated into her mouth; and

(iii)  He knew X was only 15 at that time;

(d)  In relation to the request for video capturing solo masturbation (Charge 4):

(i)  Out of curiousity, he requested X to send him video capturing X performing solo masturbation;

(ii)  Before X sent him the video, he sent X one or two similar videos of his; then, his phone received a video of less than 10 minutes from X (15 at the time)  capturing her sitting on a bed without lower garment and inserting one or two fingers into her private parts; and

(iii)  He had never published the said video of X and it had been deleted by him;

(e)  In relation to the filming of the sexual activity (Charge 6):

(i)  On less than 5 occasions, he had taken photo or video of X when the two of them were having sex (including oral sex and masturbation)  at X’s home in Wan Chai; he never asked for X’s permission to do so;

(ii)  The first occasion took place at least six months after August 2021; X being naked was masturbating him and performing oral sex on him; during the latter sexual act, he took out his phone and took one photo of X with it; the photo included in its depiction X’s breasts; X noticed the phone but she just lowered her head and did not say anything; and

(iii)  At X’s request, he had deleted all photos or videos of X.

Criminal record

20.  Mr Keung has a previous clear record.

Antecedents

21.  Mr Keung is aged 21 (17-18 at the time of the offences), received education to Associate Degree level.  At the time of arrest, he was a full-time student.  Mr Keung has two sisters.  Mr Keung lives with his parents in private housing in Causeway Bay.

Mitigation

22.  Mr Victor Chiu of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Keung.  The following is a summary of the mitigation submissions.

23.  Mr Keung’s two sisters (46 and 38)  are much older than him and they live apart from him and the parents.  Mr Keung’s father (70)  is a retiree and his mother (67)  is a security guard.  Mother is in court to give him support.

24.  Mr Keung completed his secondary education in July 2023 after which he took up a two-year Associate Degree course in Business at a local institution. He is now in Year 2.  Because of his not-so-good performance thus far, he needs to do a Year 3 after this summer.  However, he is planning to take an alternative route ie do a top-up course this summer.  If his results for the 2^nd semester for 2024/2025 (due out mid-June)  and the top-up course are both good, then he can skip Year 3 and go directly into Year 2 of the full Degree course.

25.  Mr Keung’s arrest date was 14 October 2022.  Since August 2023 and until end of 2024, he has been participating in volunteer work.

26.  Mr Keung pleaded guilty in a timely manner and he is entitled to the one-third discount.

27.  Mr Keung is a person of clear record.  It was submitted that he also has a positive good character: he has taken part in volunteer work serving the community since he was a secondary school student; and he continues to do volunteer work after starting to study at the local tiertiary institution.

28.  During the period when the offences were committed, Mr Keung (studying F5 to F6)  and X were schoolmates and were in a relationship.  The difference in their ages being 3 years is small.

29.  In HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427, the Court of Appeal stated that when the court dealt with offences of sexual assault on a child, the following factors should be taken into consideration:-

(a)  The age difference between the defendant and the victim;

(b)  The relationship between the defendant and the victim and whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust;

(c)  Whether the defendant had used threats or inducements to make the victim succumb;

(d)  The number of occasions of committing the offences and the duration of the offences;

(e)  Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(f)  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;

(g)  Whether the sexual abuses have caused physical or psychological trauma to the victim;

(h)  Whether the offences have impact on the family members of the victim;

(i)  Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and

(j)  Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.

30.  In HKSAR v Lee Hon Wah & Anor [2011] 4 HKLRD 319, the Court of Appeal stated at para 40 that:

“It is possible that the offences are committed by two young people, of little age difference, in agreement and in private. It is also possible that it does not involve any threat and inducement, not to mention any exploitation, corruption and deprivation on one party by the other. In the course of the offence, both parties might have taken adequate preventive and safety measures and that no health and safety risks to the other party or the public will be caused. In these circumstances, it should be open to the court to exercise leniency.”

31.  It was submitted that although the making of child pornography and procuring another person under the age of 16 for making pornography are more serious than mere possession, guidance could still be taken from Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519, where the Court of Appeal considered the sentence for a first-time offender after trial for possession of child pornography based on the level of depiction as follows:-

(a)  Level 1 – a community service order, probation or fine was appropriate with a number of depictions where the number of depictions was small (20 or fewer)  but where the numbers were large or the depictions were extremely suggestive, custodial sentences of 1 to 6 months’ imprisonment would be appropriate;

(b)  Level 2 – this was more serious than mere posing and depending on the number of depictions, an immediate custodial sentence of up to 9 months was appropriate;

(c)  Level 3 – depending on the number of depictions, custodial sentences of 6 to 12 months would be appropriate; and

(d)  Level 4 – these merited the most serious treatment and custodial sentences generally of 12 months (even for a few images)  to 36 months would be appropriate.

32.  It was submitted that, in this case, the following factors stand out:

(a)  The age difference being 3 years is small;

(b)  The two young persons were dating schoolmates;

(c)  No threats or inducements were used;

(d)  The offences lasted for no more than one year;

(e)  No inappropriate or unnecessary violence was used to cause harm or discomfort;

(f)  A condom was used under Charge 3 though no condom was used under Charge 7; and

(g)  Mr Keung is not psychologically imbalanced or paedophilic.

33.  It was submitted that the offences were committed by Mr Keung out of his immaturity and out of his failure to control his impulses and his sexual curiosity.

34.  Regarding Charge 4, it involves one video of Level 2.

35.  As to Charge 6, it involves one photograph.  Mr Chiu agrees it belongs to Level 4.

36.  As the offences were committed by two young people, of small age difference, in agreement and in private, and given Mr Keung’s previous clear record and his positive good character, it was submitted that it would be open to the court to exercise leniency.

37.  Mr Chiu invites the court to call for Probation Order and Community Service Order Suitability Reports before sentence.

Prosecution delay

38.  On 14 October 2022, Mr Keung (studying F6)  was arrested.  He made full confessions to all the offences.  He was not prosecuted until 31 January 2024. Mr Chiu submitted there was delay in prosecution.

39.  Between 2022 and now, Mr Keung completed secondary education and has embarked on Associate Degree studies.  He worked hard and has made improvement in his academic performance.  He continued to take part in volunteer work.  He has made good use of the interim period in rehabilitation.

40.  Mr Keung is 21 and in Year 2 of his studies.  He needs one more year to complete.  He plans to take the full Degree course if his current results are good.

41.  Mr Chiu submitted on behalf of Mr Keung 3 mitigation letters written in Chinese (with English translation)  by Mr Keung, his father, and his mother, and one mitigation letter written in English by the principal of his secondary school.  The contents are generally that Mr Keung committed the offences out of youthful ignorance and he is regretful for what he has done; that he apologizes to the victim and her family; that he promises not to re-offend; he wishes to continue with and complete his current studies which is wholly funded by his mother working as a security guard; that whilst in secondary school, he participated in the school’s volunteering programme and his work was recognized with a Silver Award.  The letter writers asked for leniency so Mr Keung may reform himself and finish his studies.

42.  Mr Chiu asked the court to consider non-custodial sentence or that the custodial sentence be suspended so that Mr Keung could continue with his studies.

43.  Upon receipt of the 4 reports after an adjournment (see below), Mr Chiu has the following further submissions.

44.  The three reports on Mr Keung have been explained to him and he agreed to the contents.  Mr Chiu then reiterated certain favourable parts of the three reports to the court, emphasizing that the risk of sexual re-offending is assessed to be on the low range, and that Community Service Order is recommended.

45.  Mr Keung has heard the clangs of prison gates and pledged not to re-offend.

46.  On how the photo subject to Charge 6 (together with other videos and/or photos)  was leaked to another person (see below), the court indicated to Mr Chiu that the court would not accept Mr Keung’s version without evidence from the witness box.  After taking instructions, Mr Chiu replied that Mr Keung would not give evidence on the subject.

Victim Impact Report

47.  Prosecution produced a Victim Impact Report drawn up by a Clinical Psychologist who recorded what she was told by X during an interview:

“… she expressed major distress upon discovering that [Mr Keung] had secretly filmed her during their sexual activities. After the first discovery of such non-consenual photography during their courtship, she recalled having reiterated her unwillingness to be recorded and requested [Mr Keung] to delete all photos and videos. When a friend later revealed having seen her nude images, she felt shocked and disappointed when her privacy was violated again.”

48.  The Clinical Psychologist concluded as follows:

“Findings from the current assessment suggested that [X] is experiencing significant adjustment difficulties related to the direct and indirect sequelae of the index incidents. These incidents have significantly worsened her premorbid emotional instability and interpersonal difficulties, contributing to the current pattern of maladaptive coping and heightened emotional distress.”

Reports on Mr Keung

49.  The court called for three reports on Mr Keung before sentence, namely Community Service Order suitability report, Detention Centre suitability report and Psychologist’s report.

50.  They came back with the following conclusions and recommendations.

Community Service Order suitability report

51.  The Probation Officer has the following conclusions and recommendations:

“This was [Mr Keung]’s first legal transgression, and he pleaded guilty to admit his guilt. He learnt a valuable lesson from this court experience, demonstrating a cooperative and remorseful attitude throughout the enquiry. Given his clean criminal record, guilty plea, remorseful attitude, the absence of coercion or harm towards X, his prompt deletion of the photos and footages out of respect for X’s wishes, acceptance of legal consequences, and the deterrent effect of this court experience, along with his commitments to fulfill the requirements of a CSO, it is worthwhile to provide him the opportunity to make amends through unpaid voluntary work. Therefore, it is recommended that he be assigned a medium duration of community service under a CSO.”

Detention Centre Suitability report

52.  The Medical Officer has confirmed that Mr Keung is medically unfit for detention in a Detention Centre because of poor exercise tolerance.  The Rehabilitation Unit Officer therefore considered him unsuitable for detention in a Detention Centre.

Psychologist’s report

53.  Clinical Psychologist concluded the following:

“[Mr] Keung displayed adequate psychosocial adjustment within his home and school setting throughout childhood and adolescence. No major psychopathology or indications of deviant sexual interests have been identified in this assessment. [Mr] Keung’s risk of reoffending sexually is assessed to be low. He has gained experience from previous errors and shows a readiness to evaluate possible outcomes before taking action. Counseling focused (sic) on stress management and social problem-solving skills is recommended to support his rehabilitation.”

Sentence

54.  Tha maximum penalty for an offence of Indecent conduct with or towards a child under 16 is 10 years’ imprisonment: Charge 1 refers.

55.  The maximum penalty for an offence of Unlawful sexual intercourse with a girl under 16 is 5 years’ imprisonment: Charges 3 and 7 refer.

56.  The maximum penalty for an offence of Procuring another person under 16 for making pornography is a fine of $3m and 10 years’ imprisonment: Charge 4 refers.

57.  The maximum penalty for an offence of Making child pornography is a fine of $2m and 8 years’ imprisonment: Charge 6 refers.

58.  Whilst it may be said that the sexual acts between Mr Keung and X were consensual and that special considerations may apply because of the romantic relationship and the small age difference between the two young persons as envisaged in the cases of Tsang Chiu Tak and Lee Hon Wah (both supra), these considerations should not apply in the case of Charge 6 ie relating to the offence of Making child pornography because what was done was without the consent of X (see the above interview extract of X with the Clinical Psychologist).

59.  X was rightly distressed when she first discovered the non-consensual photography.  She told Mr Keung to delete the images.  However, the second injury upon X occurred when she later discovered that a friend had seen her nude images.

60.  In HKSAR v Ipp Tin Fan [2016] 4 HKLRD 486, it was held that the making of child pornography under s 3(1)  of the Prevention of Child Pornography Ordinance, Cap 579, should be treated more seriously than mere possession under s 3(3).

61.  Under Man Kwong Choi (supra), possession of even a few Level 4 images could call for an immediate custodial sentence of 12 months’ duration. Here, Mr Keung made (not merely possessed)  one Level 4 photo of X (then aged 15)  when she was engaged in sexual acts with Mr Keung.  At that time, X was naked and her breasts were exposed.

62.  I am of the view that this level of criminality must call for an immediate custodial sentence and therefore Community Service Order (“CSO”)  is inappropriate.

63.  For Charge 6, I adjudge a starting point of 6 months’ imprisonment to be appropriate.

64.  Although the other charges of which Mr Keung stands convicted might be said to deserve CSO as sentences, it would be wrong in principle if I were to mix CSO and imprisonment sentences for the same defendant in a single case.  In the premises, I will sentence Mr Keung to nominal concurrent sentences for the other charges.

65.  For those other charges, I will adopt a nominal starting point of 6 weeks’ imprisonment.

66.  Mr Chiu argued delay in prosecution as a mitigating ground.  With respect, what has to be shown is undue/unreasonable delay in prosecution coupled with either additional stress suffered or rehabilitation attempt(s)  made by the defendant.

67.  I have read the Chronology of Events prepared by the prosecution.  From arrest (14 October 2022)  to charge (31 January 2024), a period of 15 ½ months have elapsed.  Initial investigation before legal advice took 8 months.  This is on the long side but not unduly long considering the offences period itself spanned 12 months[1]. Legal advice then took under 4 months to be completed.  That is not long. Further investigation took about 3 months before re-arrest[2] and charge took place.

68.  I am not satisfied there had been undue delay in prosecution.

69.  Mr Keung pleaded guilty in good time, earning for himself the customary 1/3 sentencing discount.  I note Mr Keung has a previous clear record.  For this fact, I shall give him an additional sentencing discount of one month (in the case of Charge 6)  and one week (in the case of all other charges)  respectively.

70.  There are no other mitigating factors of weight to justify any other sentencing discount.  In this connection, I do not find positive good character in Mr Keung.  The volunteer work while Mr Keung was in secondary school was not substantial.  The substantial volunteer work after his initial arrest and while he was studying in a tertiary institution was too artificial and tactical and fringes on stupidity as the photographs attached to the mitigation submissions show him being engaged in such volunteer work in the company of children of both sexes.  Mr Keung or those advising him should know better.

(Mr Keung, please stand)

71.  For Charge 1, the sentence is 3 weeks’ imprisonment.

72.  For Charge 3, the sentence is 3 weeks’ imprisonment.

73.  For Charge 4, the sentence is 3 weeks’ imprisonment.

74.  For Charge 6, the sentence is 3 months’ imprisonment.

75.  For Charge 7, the sentence is 3 weeks’ imprisonment.

76.  I order that all sentences are to be served concurrently.