HKSAR v. LAI WAI SING AND ANOTHER

DCCC143/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 143 OF 2012

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Reasons for Sentence

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1. There are two defendants in this case. D1 has pleaded guilty to three charges, namely, doing an act preparatory to or for the purpose of trafficking in a substance he believed to be a dangerous drug (Charge 1); indecent assault (Charge 2); and procuring a person under 18 for making pornography (Charge 3). D2 has pleaded guilty to two charges, making child pornography (Charge 4); and indecent assault (Charge 5).

Facts admitted by the defendants

2. The victim, X, was born on 29 July 1995.  In mid June 2011 X came to know D1 in Mongkok.  X gave her mobile telephone number to D1.  On the following day D1 called X and asked if she wanted to try taking “Ice”.  X agreed, and they went to a motel to take the drugs.  Inside the motel room, X knew that D1 wanted to have sex with her when D1 molested her waist, hands and shoulders.  X kept saying “no” and resisted.  D1 then stopped his assault and provided X with “Ice” and paraphernalia including plastic bottles, straws, foil papers and lighters.  X inhaled the “Ice” inside the room. 

3. A few days later D1 called X and asked if she wanted to work as a nude model of pornography for $2,000.  X agreed.  On 28 June last year D1 called X and offered her the job as a nude model.  X accepted the offer.  At about 9 pm X met D2 and D1 in Mongkok and they went to another motel together.  X and D2 entered one of the motel rooms while D1 waited outside.

4. Inside the room D2 asked to see X’s identity card.  X lied that she had already attained 16.  D2 asked X to take off her clothes and pose for photographs and video recording.  X complied and became completely nude.  D2 then took pictures and films of her breasts and private parts.  During the photo shoot and recording D2 molested X’s legs, breasts and private parts.  The whole session lasted for about an hour.  X left the motel to meet D2(D1?) and was paid $1,500.

5. On 28 June of last year X was 15 years and 11 months old.

6. Acting on information, police raided D2’s home on 25 July last year.  Detective Sergeant 50312 (PW2) checked the computer inside the premises in D2’s presence and found computer files of pornographic images and movies of X.  PW2 extracted the files from the computer and copied them onto two DVD discs.  The discs were seized as exhibits.  It was confirmed that there were 135 photographs and 28 films of X of pornographic nature.

7. D2 was arrested.  Under caution D2 admitted that he possessed the files.  In a video recorded interview D2 admitted that the pornographic pictures and movies in his computer were made by him.  A pimp known as “Sing”, later identified as D1, introduced models to him for shooting pornography in hotel rooms in Mongkok over 10 times.  He paid $4,000 on each occasion. 

8. Two pornographic pictures of X were shown to D2.  He admitted that D1 had introduced X to him and told him that she was over 16.  When D2 met X, he did ask X whether she was over 16 and X confirmed that she was.  He was then misled to believe in what X said.  He checked X’s identity card, he knew that she was born in l995 but he failed to check her date of birth carefully.  He had touched X’s breasts and private parts when directing her to pose. 

9. Police accompanied X to Mongkok for street identification.  D1 was identified and arrested on 2 August last year. 

10. In a video recorded interview D1 admitted that he met X in Mongkok and they exchanged telephone numbers.  He had provided “Ice” to X twice.  The first time was when he went to the motel with X and provided her with inhaling paraphernalia.  He helped her to undress and caressed her breasts briefly but was soon pushed away by X.  He had no recollection about the second occasion when he provided drugs to X. 

11. He had a customer, later identified as D2, since February 2011.  He has arranged eight prostitutes to D2 for making pornography and received 4,000 on each occasion.  On 28 June last year he had called X to ask her to work as a nude model of pornography.  X agreed.  D1, X and D2 met in Mongkok and went to a hotel room where he received $4,000 from D2.  He then paid $1,500 to X.  He had checked X’s identity card and knew that she was born in 1995 but he did not check her date of birth.

12. The pornographic photos and films of X all fall into level one category in Secretary of Justice v Man Kwong Choi [2008] 5 HKLRD 519. 

Background and mitigation

13. D1 is aged 33.  He is married with two young daughters.  He was educated to Form 3 level and worked as a part-time dim sum worker.  His parents who are in their 60s live in China.

14. He has one previous conviction for soliciting for an immoral purpose.  In the background report he explained that he was a heavy gambler and owed $30,000.  He had committed the present offences as a result of the stress from loan sharks.

15. He was a good father and husband and misses his family.  He explained that it was X who called him to ask for a loan and drugs before they went to the motel.  It was by coincidence that he met X and D2 that he was able to pair them together. 

16. Counsel informed me that D1 now withdraws his allegation that it was X who initiated contact with him and he also admitted that he has been pimping for D2 for several months.

17. Counsel submitted that D1 was remorseful.  The girl was just under 16.  He urged the court to consider D1’s background and be as lenient to him as possible. 

18. D2 is now 45 years old.  He is a university graduate and is married.

19. Three reports were called for; psychiatric, psychological and medical reports.  According to the reports, there is nothing wrong with D2 physically or psychologically.  However, he is an introvert and tends to keep things to himself.

20. He and his wife have been trying to get pregnant but failed.  He has been having problems with having sex with his wife.  He described his sex life as insipid and explained that his wife does not understand him.  To solve his problems he has been viewing pornographic material on the internet for some time.  However, this failed to satisfy him and he began to take nude photographs of girls through the introduction of D1. The previous girls were all 16.

21. Counsel submitted that D2 was remorseful.  He was a good and responsible teacher and a number of letters were produced in mitigation to testify to this fact.  His wife and father-in-law have forgiven him.  And according to the psychological report, D2 now has some insight in his problems and the risk of re-offending is not high.  He was misled by X about her age.  He will now lose his job and a substantial pension.  He will never be able to teach again.  Counsel submitted that this is already very severe punishment.

22. I have considered the facts of this case, the defendant’s background, mitigation and relevant authorities very carefully. The authorities are very clear about the principles of sentencing in cases involving children.  Children and women are to be protected by the courts.  The sentencing consideration is one of deterrence.

23. D1 has pleaded guilty to all charges and that is some indication of remorse.  However, he has been trying to minimize his role in the whole incident all along.  His financial problems are no explanation for his commission of Charges 1 and 2.  He obviously knew that it was a criminal offence to be intimate with a girl under 16 or to make pornographic movies and take photographs of her.  That was why he asked her for her age and identity card.  However, he was never serious in confirming her age.  Whether X had asked for the drugs or not, he knew he was corrupting the young by his behaviour.

24. The drugs involved in Charge 1 were “Ice”.  If the drugs had been found, the sentence for trafficking up to 10 grammes of “Ice” would be 3 to 7 years.  I know that actual trafficking and the present charge are under the same section with the same penalty. 

25. Two cases have been cited by counsel.  One of them is a District Court judgment and is not an authority.  In both cases the substance was found and examined by the government chemist.  The substances in both cases were found not to be drugs.  The power(powder?) in Ye Wing Leung, CACC159/1997, was found to be adulterants for heroin.  The substance in HKSAR v Fabio Lucas(?) was found not even to be an adulterant.

26. In the present case the defendant had actually provided the drugs to X, both of them believed it to be “Ice”.  According to D1, he deducted $500 from X’s prostitution proceeds to pay for the drugs.  This was real trafficking and not social trafficking.  Not only did D1 provide the drugs, he provided the venue and the paraphernalia for inhaling the drugs.

27. I understand that the amount of the substances found in the two cases cited were much larger than the quantity that we are dealing with in the present case.  However, this is not a mathematical calculation.  Each case has to be decided on its own facts.

28. In all the circumstances, I adopt a starting point of 18 months for Charge 1.  D1 has pleaded guilty, he is entitled to a full discount.  The sentence for Charge 1 is reduced to 12 months.

29. As for Charge 2, D1 did not just fondle X over her clothes, he actually got her completely naked.  However, I must give him credit for not pursuing the matter when X indicated her refusal.  I adopt a starting point of 9 months.  After discount for his guilty plea, the sentence is reduced to 6 months.  Since the victim has been spared the considerable ordeal of giving evidence in court, I give a further discount of 1 month.  The sentence for Charge 2 is reduced to 5 months.

30. Charges 1 and 2 happened on the same occasion. I order that the sentence for these two charges to be served concurrently.

31. For Charge 3, the maximum penalty is $3 million fine and 10 years’ imprisonment.  In other words, this is even more serious than making child pornography.  There are also some aggravating features.  D1 was pimping for gain to pay for or feed his own gambling habit.  He thought that X was a drug addict and he was assisting her to feed her habit.  D1 was never serious about confirming X’s age.  Even if she were 16, it is still a criminal offence for D1 to procure her for D2 to make child pornography.

32. In those circumstances I adopt a starting point of 18 months.  I give D1 full credit for his guilty plea.  The sentence for this charge is reduced to 12 months.  Again I give further credit to the victim being spared from giving evidence in court.  The sentence is reduced to 11 months.  This charge was committed after the first two charges, technically, the sentences should be consecutive.  However, I have to take into consideration the principle of totality.  I order that 6 months of this sentence to be served consecutively to Charges 1 and 2, that makes a total sentence of 18 months.

33. D1 has also pleaded guilty to all the charges he faced and that is an indication of remorse.  However, he has been trying to put the blame on everybody and everything else apart from himself.  He blamed his wife for their insipid sex life and for not understanding him.  At first he resorted to the internet.  Every type of perversion is available on the internet, even that could not excite him after a while.  In the circumstances it is difficult to see how his wife ever had a hope of satisfying his needs. D1 is anxious about losing his job and pension.  The risk was obvious, he chose to take that risk.  He is the author of his own wrong.

34. It appears from the psychological report that D2 does not think that there would be anything wrong if the girl had been 16.  It may not be criminal but D2 is a teacher, he has no qualms about paying a young girl for sexual gratification and corrupting the young.  He is wholly unsuitable as a teacher in any event. 

35. A number of letters have been submitted by D2’s present and former colleagues and students.  They all testified that D1(D2?) was a good, caring and responsible teacher.  Some of them stated that this was a one-off incident which was a momentary lapse of judgment.  The authors of these letters obviously do not know D2 very well.  D2 appears to have two sides, a respectable side that he presents to the public and a dark side he reserves for his private time.  I do not think that any of these students and colleagues would ever have suspected that D2 would regularly view pornography or that he would pay prostitutes for sexual gratification.  

36. Further, according to his own admission, this was not the first time D1 had provided a prostitute to him.  There were over 10 previous occasions.  At least Charge 4 was not committed on a spur of the moment.  D2 had to rent a motel room, take his camera equipment to the motel and call D1 to arrange for a girl for him.  If he was in any way unsatisfied with X or suspected that she may have been underage, he could have refused to accept her and asked D1 for another girl. 

37. For Charge 4, I adopt a starting point of 12 months.  I give him full credit for his guilty plea.  The sentence for this charge is reduced to 8 months.

38. For Charge 5, I adopt a starting point of 9 months.  After discount for his guilty plea, the sentence is reduced to 6 months.

39. This is D2’s first conviction, the victim has been spared from giving evidence, I allow a further discount of 1 month for both charges.  Both charges are part and parcel of the same incident.  I order that both sentences are to be served concurrently, that is a total of 7 months.