HKSAR v. LEUNG PAK LONG

DCCC 167/2024

[2024] HKDC 1368

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 167 OF 2024

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The Defendant (“D”)  pleaded guilty to 15 charges.

2.  I prepare a table with the information related to the charges and level of obscenity:-

Charge	Offence	Date	No of video / photo	Level
1	Homosexual buggery with a man under the age of 16	Day unknown in April 2022
2	Making child pornography	26 April 2022	3 videos	2
3		29 April 2022	9 photos	2
4		Day unknown in April 2022	1 photo	2
5		5 May 2022	1 video & 15 photos	14 photos & 1 video Level 2 1 photo Level 1
6		9 May 2022	1 photo	1
7	Homosexual buggery with a man under the age of 16	9 May 2022
8		11 May 2022	2 photos	2
9	Making child pornography	4 June 2022	1 video	2
10		25 July 2022	1 video	2
11	Homosexual buggery with a man under the age of 16	Day unknown between about April 2022
12	Making child pornography	Day unknown between April and August 2022	1 photo	1
13		Day unknown between April and August 2022	1 photo	1
14		Day unknown between April and August 2022	1 photo	2
15	Possession of child pornography	10 August 2023	1 video	4

Summary of facts

Background

3.  At the material time, X was 14 years old while the D was 15 years old.

4.  They met through Instagram in April 2022. X told D his age.

Charge 1

5.  In late April 2022, X and D met for the first time.

6.  The D brought X to his home. When inside his room, the D told X he would like to engage in sexual activities with him.

7.  Despite the fact that X refused. The D continued and asked X to perform oral sex on him. X did, but felt ashamed and scared.

8.  Later on, the D buggered X by first inserting his fingers followed by his penis. X felt very painful, he cried and screamed. The D ignored him and continued until he told X that he had ejaculated inside him. X continued to cry and lied on the bed.

9.  During which, X found out the D had taken a video during the course of sexual act. X told the D not to film him. The D disregarded X request and continued to film X and sent the videos to X.

10.  When X returned home, he could not sleep as he did not expect to have sex with X for the first time they met.

The rest of the charges

11.  Subsequently to the first incident, the D and X had sexual intercourse, including masturbation, oral sex and buggery. It was always the D buggered X. X never buggered the D.

12.  It is necessary to bring forward the complaint by X so as to understand the rest of the charges.

13.  In August 2022, the D scolded X for locking into his Instagram account. D wanted to break up the relationship, but X begged the D to continue the relationship.

14.  Eventually, they broke up. X wanted to committed suicide.

15.  In mid to late June 2022, X heard from a schoolmate that D sent X video to another boy who subsequently became the D’s lover.

16.  That boy showed the video to X’s schoolmate and said that X was captured in the video. (The prosecution agreed that it was hearing evidence.)

17.  In 2023, X started to seek counselling from psychologist on a monthly basis. The psychologist referred the matter to social worker and subsequently reported to the police.

18.  The D was arrested in August 2023 and admitted under caution that “X is my boyfriend, I did it.” On the same day of the arrest, the police seized the D’s iPhone and iPad,

19.  Upon examination of his iPhone, it was found to contain:-

(a)  17 pornographic photos and

(b)  2 pornographic videos depicting a child.

20.  While the iPad was found to contain:-

(a)  14 pornographic photos and

(b)  5 pornographic videos.

21.  When shown the videos and pictures to X, he confirmed that the D had buggered him as stated in charge 7 and 11. The rest of the photos showed oral sex from X to D or X in masturbation.

Charge 15

22.  The video in charge 15 involved a young child and an adult man. They were other people, not X or the D. The video last for 3:20 minutes.

Mitigation

23.  The D was 14 and 9 months old at the time of offence.

24.  There are numerous letters before me, I have read them all. They all tell me the positive side of the D, especially the headmaster and teacher said that the D excelled and performed well in his studies.

25.  The D is very regretful in committing these present offences. When he heard his counsel explaining the report of X to him, he bursted into tears and would like to extend his apologies to X.

26.  His family, relatives and friends are all here today to provide the mental support to him.

27.  I called reports before sentencing

The victim impact report

28.  In this report, X told the psychologist that he did not expect sexual conducts to be taken place on their first meeting. He regretted for not to do more to resist the D’s sexual advances. This experience gave him great sense of helplessness, mistrust, fear and shame. He felt his body was filthy. He experience crying spell and sleep disturbances.

29.  During the time he was emotionally attached to the D, he felt being used as a sex tool.

30.  In August 2022, the D insisted to end the relationship with X in order to rekindle the relationship with the D’s ex partner.

31.  X suffered badly with suicidal ideas and depression. His school performance declined.

32.  At the end of 2022, X mental state improve slightly.

33.  In January, 2023, their common friend told X that the D planned to take revenge on him. X developed full blown of depression with anxiety with flashback of unpleasant memory of the repeated buggery, indecent conversations and the humiliating remarks from the D.

34.  When X learns that the D had moved to a school closer to his school, X mental state declined further. At this stage, it was beyond X to copy any further, he was referred to clinical psychologist for help.

35.  In June 2023, X was completely collapsed when he was told that the sex video was uploaded onto the internet. He was stopped by teacher when he attempted to jump from height in school. X was admitted into child psychiatric ward for 2 weeks.

36.  The assessment report told me that : -

“The multiple sexual trauma had brought serious emotional disturbance and traumatic symptoms to X. His psychological well-being, academic performance, and daily functioning were also impaired. X was diagnosed of depressive disorder, with symptoms of bipolar disorder and PTSD.”

The Psychologist report of the D

37.  I was told that the D depended on X for comfort and condolences for the sudden death of his father. He admitted to have sexual relationship with X to satisfy his sexual curiosity. The filming of their sexual encounters was for memory purpose.

38.  His risk of sexual recidivism was measured to be low.

39.  The Psychiatrist report said that the D is not suffering from mental illness

Detention and Training reports

40.  The D is assessed to be medically unfit to be detained in the detention centre. The Medical officer confirmed that the D is medically fit for detention in the training centre.

Sentence

41.  The maximum sentence for:-

(1)  Homosexual buggery with man under the age of 16 is life imprisonment;
(2)  Possession of child pornography		8 years’ imprisonment and a fine of $1,000,000 on conviction on indictment.
(3)  Making of child pornography

42.  In the present case:-

(1)  The age gap between X and the D is about 10 months.

(2)  At the time of the offences, from April to August 2022, they were 14 (X)  and 15 (D).

(3)  The 15 charges covered a period of about 4 to 5 months.

(4)  There were 7 videos and 31 photos, most of them are in level 2 obscenity with one Video in charge 15 that was level 4 obscenity.

(5)  The persons appeared in charge 15 were neither the D nor X.

(6)  The impact of this incident on X was traumatic and long lasting. It affects his inter-personal relationship in terms of intimacy and trust. He could not focus in his studies and his academic performance had deteriorated.

(7)  In all the buggery charges, the D did not use condoms. As the D had sexual experience before, there was a risk that X might contracted sexual diseases.

(8)  All the incidents only involved the D and X without 3^rd party.

(9)  There is no evidence to suggest that the D had used violence or threat of violence.

43.  The Defence in mitigation has urged me to take a lenient approach in this matter. I think otherwise as this is not a minor matter, in fact, the D has committed very serious offences. He took video against the will of X. He engaged in buggery activists with X when he was in great pain and discomfort.

44.  X is now left with a traumatic experience and has previous suicidal ideas. That also affects his school life and academic performance.

45.  The Defence agrees with me that the current sentence cannot be just tipped to one side, I have to address the consequences of the incidents experienced by X.

46.  X was still a young boy in his puberty at the time of the offence. This episode was totally beyond him to cope with.

47.  The Defence told me in mitigation to send the D to training centre.

48.  Taking all the matters and mitigating factors into consideration, I accept the recommendation as stated in the report, I impose a training centre order for all the charges.