HKSAR v. L T C

HCCC 316/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 316 OF 2016

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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 five counts of unlawful sexual intercourse with a girl under 16 and three counts of indecent assault. The Summary of Facts reveals the following.

At all material times, the defendant was a science teacher to one secondary school in New Territories.

In July 2015, the defendant asked one of his students, “X”, out for a movie. X was studying Form 3 at the time. They had become boyfriend and girlfriend since May 2015.

Inside the cinema, the defendant inserted his hand into X’s jeans and underpants before he was stopped by X. He then put his hand over X’s breast and nipple. Again, it was stopped by X.

After the defendant retrieved his hand, he nevertheless carried on by touching X’s breast over her upper garment again. X was so shocked that she pushed the defendant away.

After the incident, X suggested to end their relationship. X was 15 at the time of the incident.

In the same month, that is July 2015, the defendant started to invite another student, “Y”, to his house. Nothing untoward happened on her first visit.

In August 2015, the defendant invited Y to go to his home again. Inside his home, the defendant started to kiss Y and subsequently inserted his hand into Y’s upper clothing and touched her breast. The defendant went on to remove Y’s pants. After removing her pants, the defendant inserted his fingers into Y’s vagina. That is done despite the fact that Y put up resistance in not letting the defendant to remove her pants. Y felt uncomfortable and eventually the defendant stopped.

On 12 September 2015, the defendant invited Y to his home again. On this occasion, the defendant asked Y to give him her “first time”. The defendant then undressed Y and had sexual intercourse with Y. Y was frightened and scared at the time. She, however, did not put up any resistance and was described as a voluntary party in the Summary of Facts. Y was 15 at the time.

Way back in March 2014, the defendant asked another of his students, “Z”, out for a meal. After the meal, the defendant took Z back to his home. They hugged and kissed and allegedly became lovers.

In April 2014, on one occasion, the defendant took Z to one guesthouse at Lamma Island. The defendant touched Z’s breast and private parts. On the next day, Z brought over a condom and they had sexual intercourse.

On another weekend in April 2014, the two went to another guesthouse at Lantau Island. Inside the guesthouse, they had sexual intercourse.

In May 2014, they had sexual intercourse at Z’s home.

In March 2015, they had sexual intercourse at the defendant’s home. On each occasion, either the defendant or Z would take contraceptive precautions. Z was 14 and 15 at all material times.

The defendant was born and raised in Hong Kong. He received higher education. At all material times, he was the teacher of the three girls.

In the course of mitigation, mitigation letters had been submitted by families and friends. They all asked for leniency from this court. I understand their request. However, this is a very serious case and I have a duty to perform.

Looking at the chronology of events and the proximity in timing, it seems rather clear to me that the defendant was going after his students to satisfy his sexual gratification. I say this because the defendant had his last sexual intercourse with Z in March 2015, and yet in May 2015, he was going after X. When X refused to be touched in July, the defendant then went after Y, one after the other.

The defendant, instead of giving guidance to his teenage students when they were going through their rather fragile emotional or psychological development stage, he decided to exploit it. As pointed out by the psychologist, the defendant utilised the trust and respect of his students for his personal gratification. It was concluded by the psychologist:

“Together with his poor boundary between teacher and students and carefree attitudes towards intimacy and sex, he appeared to exploit his students to gratify his sex and intimacy needs in the index offences.”

The Court of Appeal has reiterated time and again that the court has a duty to protect children from sexual abuse. In that light, it is necessary for the court to pass deterrent sentences to deter others from committing similar offences. The Court of Appeal has also pointed out a number of factors that it needs to take into account. They are:

(1) The age difference between the defendant and the victim.

(2) The relationship between the defendant and the victim, including the position and status of the defendant and whether there was a breach of trust.

(3) Whether there was any threats or inducements used.

(4) The number of occasions of committing the offences and the duration of the offences.

(5) Any violence used.

(6) Any safety measures taken by the defendant.

(7) Whether the sexual abuses have caused physical or psychological trauma to the victim.

(8) Whether the offences have impact on the family members of the victim.

(9) Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take pictures or videos.

(10) Whether the defendant is psychologically imbalanced and paedophile and his likelihood of reoffending.

When sentencing the defendant, I bear all these factors in mind.

As I have pointed out, the defendant was the teacher of the three victims. The defendant clearly abused the status and trust that his students placed on him. This, in my view, is the most serious aggravating feature in this case. On the other hand, the only mitigating feature in this case, in my view, is the defendant’s plea.

Let us turn firstly to the case involving X.

Although the defendant’s act of indecency toward X happened only once, it was clear that X was not prepared to be molested by the defendant. X tried to stop the defendant at once when the defendant inserted his hand into her jeans and her underpants. She tried again when the defendant touched her breast. The defendant did not stop, he carried on by touching X’s breast again, albeit over her upper garment. This was, in my view, blatant and humiliating acts committed by the defendant toward young ladies.

After reading X’s psychological report, it is beyond dispute that X was deeply disturbed by the present incident. She felt she was deceived by the defendant. She was emotionally distressed and in tears during her interview with the psychologist. She suffered a great deal because of this incident.

For this count, ie, Count 9, given the seriousness of the offence, the proper starting point, in my view, should be one of 30 months’ imprisonment. Because of the defendant’s plea, the sentence is reduced to one of 20 months.

As to the indecent assault on Y, this took place in August 2015, less than one month after X’s assault. On this occasion, it is incorrect to say that Y consented to the assault for Y did put up resistance by not letting the defendant taking off her pants. Unfortunately, she failed to do so.

For this count, ie, Count 10, given the extent of the assault, namely by touching Y’s breast as well as inserting fingers into her vagina, 36 months will be adopted as the starting point. The sentence will be reduced to one of 24 months for his plea.

As to the unlawful sexual intercourse count, ie, Count 11, at the defendant’s home in September 2015, although Y was a voluntary party, it was clear from her psychological report that she was confused and felt very guilty about the incident. One can understand her reaction for she was only a 15-year-old young girl. But it seems clear to me that the defendant had grossly abused his position. It is therefore no surprise that she felt shameful and stupid.

Psychological report from Y indicated that Y had been suffering from psychological disturbances. She blamed herself for not protecting herself and trusting the defendant. The psychologist also concluded that significant long-term psychological damage had been inflicted on Y. In short, Y had suffered greatly as a result.

Given the above, 48 months will be adopted as the starting point for this count. Again, the sentence is reduced to one of 32 months for the defendant’s pleas.

Although the two offences took place on separate occasions, however, after careful consideration of the totality principle and the overall criminality of the case, 8 months of Count 10, in my view, should be ordered to run consecutively to the 32 months imposed on Count 11, thus making a total of 40 months.

As to Z, her situation differs slightly from the others for she was truly a willing party. She had put in mitigation letter on behalf of the defendant. It is clear from Z’s psychological report that she did not perceive herself as being exploited or manipulated. She saw her relationship with the defendant as a genuine one. Instead, Z attributed the entire responsibility to the other victims and believed that it was the others who seduced the defendant.

Given the above and all the other factors such as the use of contraceptive measures discussed by the Court of Appeal, etc, 30 months is adopted as the starting point for each of the unlawful sexual intercourse with Z. Each of the sentences is reduced to 20 months after his plea.

As to the indecent assault count, ie, Count 1, a starting point of 12 months is adopted. The sentence is reduced to one of 8 months for the defendant’s plea.

Having considered the totality principle and the overall criminality, it is ordered that 1 month of Counts 1, 3, 6, and 8 is to run consecutively to each other and to the 20 months imposed on Count 2.

In summary, for Counts 1, 2, 3, 6 and 8, the defendant will serve a total of 24 months’ imprisonment.

Theoretically, the sexual assaults on X, Y and Z are separate incidents and they should be treated separately. However, given the overall seriousness of the case, it is ordered that the 10 months imposed on Count 9 and the 10 months imposed on Counts 1, 2, 3, 6 and 8 together are to run consecutively to each other and to the 40 months imposed on Counts 10 and 11.

In conclusion, the defendant will serve a total of 60 months’ imprisonment.