A A
B B
DCCC 117/2021
[2021] HKDC 991
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 117 OF 2021
E ____________ E
HKSAR
F v F
CHAN PAK KIT
G G
_________
H H
Before: HH Judge Dufton
Date: 11 August 2021
I I
Present: Ms Angel Yuen, SPP (Ag.), of the Department of Justice,
for HKSAR
J J
Mr Jonathan Midgley of Haldanes, for the defendant
Offences: (1) Falsely pretending to be a public officer
K K
(假冒公職人員)
(2) Indecent conduct towards a child under the age of 16
L L
years
(向年齡在 16 歲以下的兒童作出猥褻行為)
M M
REASONS FOR SENTENCE
N N
1. The defendant pleads guilty to one charge of falsely
O O
pretending to be a public officer, contrary to section 22 (1) of the
P Summary Offences Ordinance 1 (charge 1) and one charge of indecent P
conduct towards a child under the age of 16 years, contrary to section
Q Q
2
146(1) of the Crimes Ordinance (charge 2).
R R
S S
T 1
T
Cap 228.
2
Cap 200.
U U
V V
-2-
A A
B B
2. Full particulars of the offences are set out in the summary of
C facts admitted by the defendant on 30 June 2021. Sentence was C
adjourned for the preparation of a psychological report on the defendant.
D D
3. In summary in late August 2020 X, who was 14 at the time,
E E
met the defendant via social media. The defendant claimed to be called
F Wong and that he was a Senior Inspector working at Shatin Police Station. F
X told the defendant that she was 14.
G G
H 4. Between August and October X and the defendant did not H
chat much. In October 2020 when X’s boyfriend was arrested, X asked
I I
the defendant about her boyfriend’s case and they started chatting again
J on Telegram. J
K K
5. The defendant repeatedly asked to meet X. On 31 October
L
X told the defendant that she wanted to run away from home. In his L
messages the defendant again falsely pretended to be a police officer. At
M M
around 12:30 a.m. on 1 November 2020, after the defendant offered to
N pick X up, X sneaked out from home when her parents were asleep. N
O 6. X met the defendant in Ma On Shan Plaza from where they O
went to Hotel Victoria at No 196 Portland Street in Mong Kok. After
P P
checking into Room 2 on the 8th floor X and the defendant sat on the bed.
Q When the defendant asked X to take off his trousers X refused. The Q
defendant took off his own trousers and laid down on the bed while X
R R
remained fully clothed next to him.
S S
7. The defendant then asked X to perform oral sex on him and
T T
to swallow his semen. X said she did not really want to do that but the
U U
V V
-3-
A A
B B
defendant kept on asking. When the defendant started to raise his voice
C X became afraid of what the defendant would do to her if she refused C
because they were alone in the room.
D D
8. X then performed oral sex on the defendant. X felt disgusted
E E
and asked how much longer she had to do that. The defendant replied
F that he would ejaculate quicker if she acted faster. The defendant also F
asked X to imitate girls seen in pornography by using her hands. X did
G G
not know what to do. Eventually the defendant ejaculated into X’s mouth
H and X swallowed his semen. Later X and the defendant fell asleep in the H
room.
I I
J 9. At around 8 a.m., after having breakfast, the defendant took J
X home by bus. After they alighted from the bus the defendant told X to
K K
pretend she did not know him. The defendant then left and X went home.
L Later X reported the case to the police. L
M M
10. CCTV captured the defendant and X entering the hotel at
N 1:39 a.m. and leaving together at 8:05 a.m. The defendant had booked N
the room under his real name.
O O
11. The defendant was arrested on 6 November 2020. The
P P
clothing the defendant was seen wearing in the CCTV footage was seized
Q from his home. Q
R R
12. The defendant was not a police officer.
S S
T T
U U
V V
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A A
B B
Mitigation
C C
13. In passing sentence, I have carefully considered the written
D and oral submissions of Mr Midgley, including that the defendant who is D
27, is single, lives with his family and runs his own business of importing
E E
3
fruit .
F F
14. I have read the letters written by the defendant’s family who
G G
are in court today to support the defendant, his friends and former
H employer, who variously describe the defendant as filial, kind and caring, H
hardworking and meticulous, helpful and caring who works very hard and
I I
takes good care of his family, shows his respect to the elderly and others,
J a caring and responsible man and a kind person4. J
K K
15. I take into account that after his mother was diagnosed with
L
breast cancer in June 2020 the defendant always accompanied his mother L
to the clinic and that since his remand in custody his mother has not been
M M
able to visit him daily because of the side effects of the chemotherapy.
N N
16. Mr Midgley says that the defendant is genuinely remorseful,
O sorry and ashamed of his behaviour 5. O
P P
17. I take into account that the defendant has a clear record.
Q Q
R R
S S
3
See §§2 & 3 of the mitigation skeleton submissions.
T 4
T
See §23 of the mitigation skeleton submissions.
5
See §7 of the mitigation skeleton submissions.
U U
V V
-5-
A A
B B
Guidelines
C C
18. The indecent conduct is an act of gross indecency. This is
D akin to acts of indecent assault for which the maximum sentence is the D
same, 10 years’ imprisonment.
E E
F 19. There are no guidelines for sexual offences involving young F
children. Sentences in similar cases are of limited assistance, the
G G
circumstances of the offences varying widely6.
H H
20. In Secretary for Justice v Huang Long Wei the Court of
I Appeal set out the principles to follow in sentencing indecent assaults by I
adults on young children, the most important of which is the protection of
J J
7
young children .
K K
21. The sentence of the court must mark the public abhorrence
L L
of such crimes and redress the grievance suffered by the victims and their
M families whilst at the same time deterring others from committing similar M
offences.
N N
O 22. Case law makes clear that this kind of conduct gives rise to O
great abhorrence on the part of the public, who look to the courts for
P P
protection of children from those who seek to gratify themselves by
Q taking advantage of young children. Q
R 23. Factors that the court has to consider include the age R
difference between the defendant and the victim; whether the defendant
S S
6
T See HKSAR v Lee Hon Wah & others [2011] 4 HKLRD 319 at §38. T
7
[2009] 3 HKLRD 136. Also cited by Mr Midgley. Also see HKSAR v Tsang Chiu Tak [2013] 1
HKLRD 427 cited by Mr Midgley.
U U
V V
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A A
B B
had used threats or inducements to make the victims succumb, falling
C prey to his licentious exploitation; the number of occasions and duration C
of the offences; whether the offences caused physical or psychological
D D
trauma to the victim; and whether the defendant is psychologically
E imbalanced or paedophilic and the likelihood of re-offending8. E
F 24. Mr Midgley submits that the defendant did not use any threat F
or inducement to make X succumb and that there was no force or
G G
9
coercion . In support of this submission Mr Midgley refers the court to
H Secretary for Justice v Wong Tsz Kin where the Court of Appeal held that H
a starting point of 12 months was appropriate for similar indecent acts
I I
10
with a girl aged 8 where there was no force or coercion . Mr Midgley
J J
submits that the facts in that case which included an element of breach of
K
trust, the respondent’s mother having care of the girl, are more serious K
11
than the present case .
L L
25. Subsequent decisions of the Court of Appeal have clearly
M M
stated that the sentence imposed in Secretary for Justice v Wong Tsz Kin
N was remarkably low and overly lenient and should not be regarded as an N
appropriate guideline12.
O O
P P
Q 8 Q
See HKSAR v Lee Hon Wah & others [2011] 4 HKLRD 319 at §43.
9
See §17 of the mitigation skeleton submissions.
R 10
R
[1998] 4 HKC 32.
11
See §§19-21 of the mitigation skeleton submissions.
S S
12
See for example HKSAR v Kong Yun Chiu [2007] 4 HKC 391 and HKSAR v Sham Tat Wing,
Arthur CACC 158/2010 (judgment in Chinese). When adjourning for sentence on 30 June 2021
T the court referred Mr Midgley to these cases for his consideration. The court also requested the T
prosecution to prepare an agreed translation of HKSAR v Sham Tat Wing, Arthur. Ms Yuen
submitted the agreed translation on 29 July 2021.
U U
V V
-7-
A A
B B
26. Whilst each case is to be decided on its own facts and
C circumstances, some assistance can be obtained from HKSAR v Tin Siu C
Hung where the applicant pleaded guilty to charges of indecent assault,
D D
common assault and falsely pretending to be a public officer13.
E E
27. The applicant pretended to be a police officer investigating
F criminal offences and approached young girls ostensibly in furtherance of F
criminal investigation. In one case the applicant took an 11-year-old girl
G G
into a room in a church complex and told the girl she was suspected of
H having stolen something. The applicant then indecently assaulted the girl H
by fondling her upper body outside her clothes and by touching her under
I I
her skirt but outside her underpants.
J J
28. The Court of Appeal, accepting that the circumstances were
K K
very frightening for the young girl, held that as the indecency was
L confined to touching the young girl over her dress and over her L
underpants a starting point of 3 years’ imprisonment was appropriate14.
M M
N 29. The Court of Appeal considering the offences of falsely N
pretending to be a police officer, which involved young girls and were
O O
committed in the circumstances of a sexual nature, upheld starting points
P of 6 months’ imprisonment. The court commented that the maximum P
sentence of 6 months’ imprisonment for falsely pretending to be a public
Q Q
officer was surprisingly low15.
R R
S S
13
[2006] 1 HKLRD 29. When adjourning for sentence on 30 June 2021 the court also referred Mr
Midgley to this case for his consideration.
T 14
T
The sentencing judge had adopted a starting point of 4 years’ imprisonment.
15
See §16 of the judgment.
U U
V V
-8-
A A
B B
30. I have also considered other cases of similar indecent
C conduct involving masturbation and oral sex with young children, C
16
including HKSAR v Ho Wing Hong ; Secretary for Justice v Lam Yu
D D
Wai17; HKSAR v Tang Kwok Hei, Joe18; HKSAR v Tsang Cho Kiu19 and
E HKSAR v Ipp Tin Fan20. E
F 31. Mr Midgley submits that the facts in HKSAR v Tin Siu Hung F
are more serious, in particular falsely telling a young girl aged 11 that he
G G
was a police officer and that she was accused of theft.
H H
32. The defendant, who is over ten years older than X, deceived
I I
X into believing he was a police officer. The defendant repeatedly asked
J to meet X over Telegram. By continuing to falsely pretend to be a police J
officer and that he was helping X, this no doubt gave X the confidence to
K K
meet the defendant.
L L
33. When they met for the very first time the defendant took
M M
advantage of X’s youth and immaturity for his own personal sexual
N gratification. Mr Midgley accepts that the indecency is more serious than N
in HKSAR v Tin Siu Hung.
O O
P P
Q Q
16
CACC 208/2019.
R R
17
[2015] 1 HKLRD 800.
18
[2015] 1 HKLRD 400.
S S
19
CACC 42/2014.
20
T [2016] 4 HKLRD 486. T
All cases were referred to Mr Midgley for his consideration by the court when adjourning for
sentence on 30 June 2021.
U U
V V
-9-
A A
B B
34. Although the defendant did not threaten X or use violence, X
C was unwilling to do what the defendant asked and when the defendant C
raised his voice X was afraid of what would happen to her if she refused.
D D
35. The defendant told the clinical psychologist that X took the
E E
21
initiative to meet up . In his written submission and oral submission
F today Mr Midgley refers to the fact that X had run away from home F
before and willingly met with the defendant 22. The law exists for the
G G
protection of young girls, who need protection from their own
H immaturity23. In his oral submissions made on 30 June 2021 Mr Midgley H
very responsibly said that X was completely blameless.
I I
J Victim impact report J
K K
36. One important consideration in sentencing is to redress the
L
grievance suffered by the victim and their families. I have read the report L
of X prepared by Clinical Psychologist Chloe Chan.
M M
37. In summary X felt emotionally disturbed after the present
N N
incident, reporting intrusive flashbacks from time to time and occasional
O nightmares about the offender. X claiming that she had very little sex O
knowledge and experience before the incident says she no longer has
P P
pleasant feelings in relation to sex.
Q Q
R R
21
S See §7 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist. S
22
See §12 of the mitigation skeleton submissions.
T 23
See R v Taylor [1977] 1 W.L.R. 612; Attorney General’s Reference No 127 of 2004 [2005] 2 Cr T
App R (S) 74; Secretary for Justice v Chung Yui Hung [2007] 2 HKLRD 772; HKSAR v Tsang
Chiu Tak [2013] 1 HKLRD 427 and HKSAR v Lee Kwok Wah, Francis [2013] 2 HKLRD 1009.
U U
V V
- 10 -
A A
B B
38. Prior to the incident X had started to receive psychiatric
C consultations both in public hospital and in a private setting. Initial C
psychiatric impression suggested X might have features of rigidity and
D D
Asperger’s syndrome.
E E
39. X has also exhibited strange behaviour after the incident
F which behaviour has since stopped. The parents observing the emotional F
condition of X was unstable after the incident referred X to see a private
G G
psychiatrist who has prescribed psychiatric medication.
H H
40. During the interview with the clinical psychologist X
I I
disclosed hearing voices and that she felt her “twin sister” was living in
J her body protecting her and telling her what to do, including to comply J
with the defendant’s demands otherwise she might be in danger.
K K
L
41. X is currently followed up by the social worker from school, L
the outreaching social worker, a social worker from the Social Welfare
M M
Department and a social worker from a NGO specializing in sexual
N trauma. N
O 42. The clinical psychologist is of the opinion that it is difficult O
to say what symptoms may be the direct impact of what happened to X
P P
but there is a chance that the present offences may have exacerbated
Q whatever pre-existing unstable emotional conditions X had. Q
R R
Psychological report of the defendant
S S
43. The psychological report reveals that to overcome loneliness
T and boredom the defendant became reliant on the online dating T
application Heymandi so that he could interact with people even during
U U
V V
- 11 -
A A
B B
his work time24. The defendant told the clinical psychologist he met X on
C Heymandi25. C
D 44. The defendant denied impersonating a public officer and D
said he told X he was an ordinary office worker. The defendant also told
E E
the clinical psychologist that X never explicitly stated her age and that he
F only suspected X was under age 26. F
G G
45. This is contrary to the summary of facts admitted by the
H defendant. Mr Midgley explains that the defendant expressed himself H
badly to the clinical psychologist and that there has been a
I I
misunderstanding. Mr Midgley confirms his instructions are that the
J defendant accepts the charges and does not resile from the summary of J
facts admitted by him on 30 June 2021. Mr Midgley asks the court to
K K
disregard any inconsistency between the summary of facts and the
L content of the psychological report. L
M M
46. Assessment of the defendant by the clinical psychologist
N does not indicate signs of gross psychopathology, including deviant N
sexual interest in underage children and the defendant is not regarded as
O O
sexually promiscuous 27.
P P
47. The clinical psychologist assesses the defendant’s risk of
Q sexual re-offending lies in the lower end of the moderate range. Despite Q
the absence of prior convictions, sexual deviance and sexualized coping
R R
S 24 S
See §6 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.
25
See §7 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.
T 26
T
See §7 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.
27
See §11 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.
U U
V V
- 12 -
A A
B B
the clinical psychologist is of the opinion that the defendant’s restricted
C social life with persistent boredom, some sexual pre-occupation, C
impoverished self-regulation, negative mood, trivializing negative
D D
consequences and his relatively young age constitute major risks 28.
E E
48. The defendant having expressed genuine motivation for
F positive change and readiness for psychological treatment to prevent re- F
offending and develop a positive life, short term psychological
G G
intervention that helps enhance the defendant’s emotion regulation and
H stress-coping skills is recommended29. H
I I
Sentence
J J
49. I am satisfied a deterrent sentence is required.
K K
50. Taking into account all the circumstances, including the age
L L
of X; the age difference with the defendant; the defendant falsely
M pretended to be a police officer; X was unwilling to do what the M
defendant asked; X was afraid of what would happen to her if she refused;
N N
the nature of the gross indecency; X was emotionally disturbed after the
O present incident, reporting intrusive flashbacks from time to time and O
occasional nightmares about the offender; the defendant has a clear
P P
record and the risk of re-offending is assessed to be in the lower end of
Q the moderate range, I am satisfied a starting point of 6 months Q
imprisonment is appropriate for falsely pretending to be a public officer
R R
(charge 1) and 3 years and 6 months’ imprisonment for indecent conduct
S towards a child under the age of 16 years (charge 2). S
T 28
T
See §12 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.
29
See §13 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.
U U
V V
- 13 -
A A
B B
51. Giving the defendant full credit for his pleas of guilty
C reduces the sentence on charge 1 to 4 months’ imprisonment and on C
charge 2 to 2 years and 4 months’ imprisonment.
D D
52. Mr Midgley asks the court to take into account that the
E E
defendant has pleaded guilty at an early stage and spared X from giving
F evidence in court30. In HKSAR v Chow Yuen Fai the Court of Appeal F
said that where a victim is spared the ordeal of giving evidence this is to
G G
be viewed against the general principle that the one-third discount is
H usually to be regarded as the high watermark for discount for pleading H
guilty in good time and that only in exceptional cases should a discount
I I
31
of more than one-third be given for a timely plea .
J J
Social Services and charitable work.
K K
L
53. Mr Midgley also asks the court to take into account the L
defendant’s participation with the Civil Aid Service Cadet Corps; his
M M
blood donations between 2013 and 2020 and his registration for voluntary
N bone marrow donation in 201632. N
O 54. In recognition of the defendant’s regular blood donations O
made over seven years and registering for bone marrow donation, I
P P
reduce the sentence on each charge by 1 month to 3 months’
Q imprisonment and 2 years and 3 months’ imprisonment respectively. Q
R R
30
S See §8 of the mitigation skeleton submissions. S
31
[2010] 1 HKLRD 35 at §§30-31. Also see HKSAR v. Ngo Van Nam [2016] 5 HKLRD 1.
T 32
See §§5 & 6 of the mitigation skeleton submissions. In oral submissions on 11 August 2021 Mr T
Midgley accepted that the defendant’s participation with the Civil Aid Service Cadet Corps was
as a student and does not amount to social services or charitable work.
U U
V V
- 14 -
A A
B B
Totality
C C
55. Having taken into account that the defendant falsely
D pretended to be a police officer in determining the appropriate starting D
point for indecent conduct, I am satisfied concurrent sentences are
E E
appropriate. The defendant is convicted and sentenced to concurrent
F sentences of 3 months and 2 years and 3 months’ imprisonment. F
G G
H H
I I
(D. J. DUFTON)
J District Judge J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 117/2021
[2021] HKDC 991
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 117 OF 2021
E ____________ E
HKSAR
F v F
CHAN PAK KIT
G G
_________
H H
Before: HH Judge Dufton
Date: 11 August 2021
I I
Present: Ms Angel Yuen, SPP (Ag.), of the Department of Justice,
for HKSAR
J J
Mr Jonathan Midgley of Haldanes, for the defendant
Offences: (1) Falsely pretending to be a public officer
K K
(假冒公職人員)
(2) Indecent conduct towards a child under the age of 16
L L
years
(向年齡在 16 歲以下的兒童作出猥褻行為)
M M
REASONS FOR SENTENCE
N N
1. The defendant pleads guilty to one charge of falsely
O O
pretending to be a public officer, contrary to section 22 (1) of the
P Summary Offences Ordinance 1 (charge 1) and one charge of indecent P
conduct towards a child under the age of 16 years, contrary to section
Q Q
2
146(1) of the Crimes Ordinance (charge 2).
R R
S S
T 1
T
Cap 228.
2
Cap 200.
U U
V V
-2-
A A
B B
2. Full particulars of the offences are set out in the summary of
C facts admitted by the defendant on 30 June 2021. Sentence was C
adjourned for the preparation of a psychological report on the defendant.
D D
3. In summary in late August 2020 X, who was 14 at the time,
E E
met the defendant via social media. The defendant claimed to be called
F Wong and that he was a Senior Inspector working at Shatin Police Station. F
X told the defendant that she was 14.
G G
H 4. Between August and October X and the defendant did not H
chat much. In October 2020 when X’s boyfriend was arrested, X asked
I I
the defendant about her boyfriend’s case and they started chatting again
J on Telegram. J
K K
5. The defendant repeatedly asked to meet X. On 31 October
L
X told the defendant that she wanted to run away from home. In his L
messages the defendant again falsely pretended to be a police officer. At
M M
around 12:30 a.m. on 1 November 2020, after the defendant offered to
N pick X up, X sneaked out from home when her parents were asleep. N
O 6. X met the defendant in Ma On Shan Plaza from where they O
went to Hotel Victoria at No 196 Portland Street in Mong Kok. After
P P
checking into Room 2 on the 8th floor X and the defendant sat on the bed.
Q When the defendant asked X to take off his trousers X refused. The Q
defendant took off his own trousers and laid down on the bed while X
R R
remained fully clothed next to him.
S S
7. The defendant then asked X to perform oral sex on him and
T T
to swallow his semen. X said she did not really want to do that but the
U U
V V
-3-
A A
B B
defendant kept on asking. When the defendant started to raise his voice
C X became afraid of what the defendant would do to her if she refused C
because they were alone in the room.
D D
8. X then performed oral sex on the defendant. X felt disgusted
E E
and asked how much longer she had to do that. The defendant replied
F that he would ejaculate quicker if she acted faster. The defendant also F
asked X to imitate girls seen in pornography by using her hands. X did
G G
not know what to do. Eventually the defendant ejaculated into X’s mouth
H and X swallowed his semen. Later X and the defendant fell asleep in the H
room.
I I
J 9. At around 8 a.m., after having breakfast, the defendant took J
X home by bus. After they alighted from the bus the defendant told X to
K K
pretend she did not know him. The defendant then left and X went home.
L Later X reported the case to the police. L
M M
10. CCTV captured the defendant and X entering the hotel at
N 1:39 a.m. and leaving together at 8:05 a.m. The defendant had booked N
the room under his real name.
O O
11. The defendant was arrested on 6 November 2020. The
P P
clothing the defendant was seen wearing in the CCTV footage was seized
Q from his home. Q
R R
12. The defendant was not a police officer.
S S
T T
U U
V V
-4-
A A
B B
Mitigation
C C
13. In passing sentence, I have carefully considered the written
D and oral submissions of Mr Midgley, including that the defendant who is D
27, is single, lives with his family and runs his own business of importing
E E
3
fruit .
F F
14. I have read the letters written by the defendant’s family who
G G
are in court today to support the defendant, his friends and former
H employer, who variously describe the defendant as filial, kind and caring, H
hardworking and meticulous, helpful and caring who works very hard and
I I
takes good care of his family, shows his respect to the elderly and others,
J a caring and responsible man and a kind person4. J
K K
15. I take into account that after his mother was diagnosed with
L
breast cancer in June 2020 the defendant always accompanied his mother L
to the clinic and that since his remand in custody his mother has not been
M M
able to visit him daily because of the side effects of the chemotherapy.
N N
16. Mr Midgley says that the defendant is genuinely remorseful,
O sorry and ashamed of his behaviour 5. O
P P
17. I take into account that the defendant has a clear record.
Q Q
R R
S S
3
See §§2 & 3 of the mitigation skeleton submissions.
T 4
T
See §23 of the mitigation skeleton submissions.
5
See §7 of the mitigation skeleton submissions.
U U
V V
-5-
A A
B B
Guidelines
C C
18. The indecent conduct is an act of gross indecency. This is
D akin to acts of indecent assault for which the maximum sentence is the D
same, 10 years’ imprisonment.
E E
F 19. There are no guidelines for sexual offences involving young F
children. Sentences in similar cases are of limited assistance, the
G G
circumstances of the offences varying widely6.
H H
20. In Secretary for Justice v Huang Long Wei the Court of
I Appeal set out the principles to follow in sentencing indecent assaults by I
adults on young children, the most important of which is the protection of
J J
7
young children .
K K
21. The sentence of the court must mark the public abhorrence
L L
of such crimes and redress the grievance suffered by the victims and their
M families whilst at the same time deterring others from committing similar M
offences.
N N
O 22. Case law makes clear that this kind of conduct gives rise to O
great abhorrence on the part of the public, who look to the courts for
P P
protection of children from those who seek to gratify themselves by
Q taking advantage of young children. Q
R 23. Factors that the court has to consider include the age R
difference between the defendant and the victim; whether the defendant
S S
6
T See HKSAR v Lee Hon Wah & others [2011] 4 HKLRD 319 at §38. T
7
[2009] 3 HKLRD 136. Also cited by Mr Midgley. Also see HKSAR v Tsang Chiu Tak [2013] 1
HKLRD 427 cited by Mr Midgley.
U U
V V
-6-
A A
B B
had used threats or inducements to make the victims succumb, falling
C prey to his licentious exploitation; the number of occasions and duration C
of the offences; whether the offences caused physical or psychological
D D
trauma to the victim; and whether the defendant is psychologically
E imbalanced or paedophilic and the likelihood of re-offending8. E
F 24. Mr Midgley submits that the defendant did not use any threat F
or inducement to make X succumb and that there was no force or
G G
9
coercion . In support of this submission Mr Midgley refers the court to
H Secretary for Justice v Wong Tsz Kin where the Court of Appeal held that H
a starting point of 12 months was appropriate for similar indecent acts
I I
10
with a girl aged 8 where there was no force or coercion . Mr Midgley
J J
submits that the facts in that case which included an element of breach of
K
trust, the respondent’s mother having care of the girl, are more serious K
11
than the present case .
L L
25. Subsequent decisions of the Court of Appeal have clearly
M M
stated that the sentence imposed in Secretary for Justice v Wong Tsz Kin
N was remarkably low and overly lenient and should not be regarded as an N
appropriate guideline12.
O O
P P
Q 8 Q
See HKSAR v Lee Hon Wah & others [2011] 4 HKLRD 319 at §43.
9
See §17 of the mitigation skeleton submissions.
R 10
R
[1998] 4 HKC 32.
11
See §§19-21 of the mitigation skeleton submissions.
S S
12
See for example HKSAR v Kong Yun Chiu [2007] 4 HKC 391 and HKSAR v Sham Tat Wing,
Arthur CACC 158/2010 (judgment in Chinese). When adjourning for sentence on 30 June 2021
T the court referred Mr Midgley to these cases for his consideration. The court also requested the T
prosecution to prepare an agreed translation of HKSAR v Sham Tat Wing, Arthur. Ms Yuen
submitted the agreed translation on 29 July 2021.
U U
V V
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A A
B B
26. Whilst each case is to be decided on its own facts and
C circumstances, some assistance can be obtained from HKSAR v Tin Siu C
Hung where the applicant pleaded guilty to charges of indecent assault,
D D
common assault and falsely pretending to be a public officer13.
E E
27. The applicant pretended to be a police officer investigating
F criminal offences and approached young girls ostensibly in furtherance of F
criminal investigation. In one case the applicant took an 11-year-old girl
G G
into a room in a church complex and told the girl she was suspected of
H having stolen something. The applicant then indecently assaulted the girl H
by fondling her upper body outside her clothes and by touching her under
I I
her skirt but outside her underpants.
J J
28. The Court of Appeal, accepting that the circumstances were
K K
very frightening for the young girl, held that as the indecency was
L confined to touching the young girl over her dress and over her L
underpants a starting point of 3 years’ imprisonment was appropriate14.
M M
N 29. The Court of Appeal considering the offences of falsely N
pretending to be a police officer, which involved young girls and were
O O
committed in the circumstances of a sexual nature, upheld starting points
P of 6 months’ imprisonment. The court commented that the maximum P
sentence of 6 months’ imprisonment for falsely pretending to be a public
Q Q
officer was surprisingly low15.
R R
S S
13
[2006] 1 HKLRD 29. When adjourning for sentence on 30 June 2021 the court also referred Mr
Midgley to this case for his consideration.
T 14
T
The sentencing judge had adopted a starting point of 4 years’ imprisonment.
15
See §16 of the judgment.
U U
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A A
B B
30. I have also considered other cases of similar indecent
C conduct involving masturbation and oral sex with young children, C
16
including HKSAR v Ho Wing Hong ; Secretary for Justice v Lam Yu
D D
Wai17; HKSAR v Tang Kwok Hei, Joe18; HKSAR v Tsang Cho Kiu19 and
E HKSAR v Ipp Tin Fan20. E
F 31. Mr Midgley submits that the facts in HKSAR v Tin Siu Hung F
are more serious, in particular falsely telling a young girl aged 11 that he
G G
was a police officer and that she was accused of theft.
H H
32. The defendant, who is over ten years older than X, deceived
I I
X into believing he was a police officer. The defendant repeatedly asked
J to meet X over Telegram. By continuing to falsely pretend to be a police J
officer and that he was helping X, this no doubt gave X the confidence to
K K
meet the defendant.
L L
33. When they met for the very first time the defendant took
M M
advantage of X’s youth and immaturity for his own personal sexual
N gratification. Mr Midgley accepts that the indecency is more serious than N
in HKSAR v Tin Siu Hung.
O O
P P
Q Q
16
CACC 208/2019.
R R
17
[2015] 1 HKLRD 800.
18
[2015] 1 HKLRD 400.
S S
19
CACC 42/2014.
20
T [2016] 4 HKLRD 486. T
All cases were referred to Mr Midgley for his consideration by the court when adjourning for
sentence on 30 June 2021.
U U
V V
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A A
B B
34. Although the defendant did not threaten X or use violence, X
C was unwilling to do what the defendant asked and when the defendant C
raised his voice X was afraid of what would happen to her if she refused.
D D
35. The defendant told the clinical psychologist that X took the
E E
21
initiative to meet up . In his written submission and oral submission
F today Mr Midgley refers to the fact that X had run away from home F
before and willingly met with the defendant 22. The law exists for the
G G
protection of young girls, who need protection from their own
H immaturity23. In his oral submissions made on 30 June 2021 Mr Midgley H
very responsibly said that X was completely blameless.
I I
J Victim impact report J
K K
36. One important consideration in sentencing is to redress the
L
grievance suffered by the victim and their families. I have read the report L
of X prepared by Clinical Psychologist Chloe Chan.
M M
37. In summary X felt emotionally disturbed after the present
N N
incident, reporting intrusive flashbacks from time to time and occasional
O nightmares about the offender. X claiming that she had very little sex O
knowledge and experience before the incident says she no longer has
P P
pleasant feelings in relation to sex.
Q Q
R R
21
S See §7 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist. S
22
See §12 of the mitigation skeleton submissions.
T 23
See R v Taylor [1977] 1 W.L.R. 612; Attorney General’s Reference No 127 of 2004 [2005] 2 Cr T
App R (S) 74; Secretary for Justice v Chung Yui Hung [2007] 2 HKLRD 772; HKSAR v Tsang
Chiu Tak [2013] 1 HKLRD 427 and HKSAR v Lee Kwok Wah, Francis [2013] 2 HKLRD 1009.
U U
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A A
B B
38. Prior to the incident X had started to receive psychiatric
C consultations both in public hospital and in a private setting. Initial C
psychiatric impression suggested X might have features of rigidity and
D D
Asperger’s syndrome.
E E
39. X has also exhibited strange behaviour after the incident
F which behaviour has since stopped. The parents observing the emotional F
condition of X was unstable after the incident referred X to see a private
G G
psychiatrist who has prescribed psychiatric medication.
H H
40. During the interview with the clinical psychologist X
I I
disclosed hearing voices and that she felt her “twin sister” was living in
J her body protecting her and telling her what to do, including to comply J
with the defendant’s demands otherwise she might be in danger.
K K
L
41. X is currently followed up by the social worker from school, L
the outreaching social worker, a social worker from the Social Welfare
M M
Department and a social worker from a NGO specializing in sexual
N trauma. N
O 42. The clinical psychologist is of the opinion that it is difficult O
to say what symptoms may be the direct impact of what happened to X
P P
but there is a chance that the present offences may have exacerbated
Q whatever pre-existing unstable emotional conditions X had. Q
R R
Psychological report of the defendant
S S
43. The psychological report reveals that to overcome loneliness
T and boredom the defendant became reliant on the online dating T
application Heymandi so that he could interact with people even during
U U
V V
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A A
B B
his work time24. The defendant told the clinical psychologist he met X on
C Heymandi25. C
D 44. The defendant denied impersonating a public officer and D
said he told X he was an ordinary office worker. The defendant also told
E E
the clinical psychologist that X never explicitly stated her age and that he
F only suspected X was under age 26. F
G G
45. This is contrary to the summary of facts admitted by the
H defendant. Mr Midgley explains that the defendant expressed himself H
badly to the clinical psychologist and that there has been a
I I
misunderstanding. Mr Midgley confirms his instructions are that the
J defendant accepts the charges and does not resile from the summary of J
facts admitted by him on 30 June 2021. Mr Midgley asks the court to
K K
disregard any inconsistency between the summary of facts and the
L content of the psychological report. L
M M
46. Assessment of the defendant by the clinical psychologist
N does not indicate signs of gross psychopathology, including deviant N
sexual interest in underage children and the defendant is not regarded as
O O
sexually promiscuous 27.
P P
47. The clinical psychologist assesses the defendant’s risk of
Q sexual re-offending lies in the lower end of the moderate range. Despite Q
the absence of prior convictions, sexual deviance and sexualized coping
R R
S 24 S
See §6 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.
25
See §7 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.
T 26
T
See §7 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.
27
See §11 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.
U U
V V
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A A
B B
the clinical psychologist is of the opinion that the defendant’s restricted
C social life with persistent boredom, some sexual pre-occupation, C
impoverished self-regulation, negative mood, trivializing negative
D D
consequences and his relatively young age constitute major risks 28.
E E
48. The defendant having expressed genuine motivation for
F positive change and readiness for psychological treatment to prevent re- F
offending and develop a positive life, short term psychological
G G
intervention that helps enhance the defendant’s emotion regulation and
H stress-coping skills is recommended29. H
I I
Sentence
J J
49. I am satisfied a deterrent sentence is required.
K K
50. Taking into account all the circumstances, including the age
L L
of X; the age difference with the defendant; the defendant falsely
M pretended to be a police officer; X was unwilling to do what the M
defendant asked; X was afraid of what would happen to her if she refused;
N N
the nature of the gross indecency; X was emotionally disturbed after the
O present incident, reporting intrusive flashbacks from time to time and O
occasional nightmares about the offender; the defendant has a clear
P P
record and the risk of re-offending is assessed to be in the lower end of
Q the moderate range, I am satisfied a starting point of 6 months Q
imprisonment is appropriate for falsely pretending to be a public officer
R R
(charge 1) and 3 years and 6 months’ imprisonment for indecent conduct
S towards a child under the age of 16 years (charge 2). S
T 28
T
See §12 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.
29
See §13 of the psychological report of Yvonne K.S. Lee, Clinical Psychologist.
U U
V V
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A A
B B
51. Giving the defendant full credit for his pleas of guilty
C reduces the sentence on charge 1 to 4 months’ imprisonment and on C
charge 2 to 2 years and 4 months’ imprisonment.
D D
52. Mr Midgley asks the court to take into account that the
E E
defendant has pleaded guilty at an early stage and spared X from giving
F evidence in court30. In HKSAR v Chow Yuen Fai the Court of Appeal F
said that where a victim is spared the ordeal of giving evidence this is to
G G
be viewed against the general principle that the one-third discount is
H usually to be regarded as the high watermark for discount for pleading H
guilty in good time and that only in exceptional cases should a discount
I I
31
of more than one-third be given for a timely plea .
J J
Social Services and charitable work.
K K
L
53. Mr Midgley also asks the court to take into account the L
defendant’s participation with the Civil Aid Service Cadet Corps; his
M M
blood donations between 2013 and 2020 and his registration for voluntary
N bone marrow donation in 201632. N
O 54. In recognition of the defendant’s regular blood donations O
made over seven years and registering for bone marrow donation, I
P P
reduce the sentence on each charge by 1 month to 3 months’
Q imprisonment and 2 years and 3 months’ imprisonment respectively. Q
R R
30
S See §8 of the mitigation skeleton submissions. S
31
[2010] 1 HKLRD 35 at §§30-31. Also see HKSAR v. Ngo Van Nam [2016] 5 HKLRD 1.
T 32
See §§5 & 6 of the mitigation skeleton submissions. In oral submissions on 11 August 2021 Mr T
Midgley accepted that the defendant’s participation with the Civil Aid Service Cadet Corps was
as a student and does not amount to social services or charitable work.
U U
V V
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A A
B B
Totality
C C
55. Having taken into account that the defendant falsely
D pretended to be a police officer in determining the appropriate starting D
point for indecent conduct, I am satisfied concurrent sentences are
E E
appropriate. The defendant is convicted and sentenced to concurrent
F sentences of 3 months and 2 years and 3 months’ imprisonment. F
G G
H H
I I
(D. J. DUFTON)
J District Judge J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V