HKSAR v. TSE WING TAI

DCCC1154/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1154 OF 2008

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Reasons for Sentence

1.  The defendant appeared before me charged with two counts.  One is indecent assault and one is the unlawful sexual intercourse with a girl under the age of 13 years.  The victim, PW1, in each case is the same girl, aged about 12 years and 7 months at the time of the commission of the offences. 

2.  The defendant, aged 22 years, has pleaded guilty to both matters and agreed  the facts put to him.

3.  Shortly, they are that PW1 came to know the defendant through or via an online game on about 1 November last year.  She had told him, inter alia, she was 12 years old. 

4.  On the afternoon of 3 November the defendant contacted PW1 and asked if anyone was at home.  PW1 said there was not, she was alone.  The defendant attended  the flat and chatted with PW1, during the course of which he kissed her, removed her upper clothing and molested her breasts for some 10 to 20 minutes.  PW1 consented to this.  That is the 1st charge.

5.  On 8 November 2008, the defendant again contacted PW1.  She was home alone.  The defendant again attended PW1’s flat.  He kissed PW1, removed his own and PW1’s clothing and had sexual intercourse with her for 10-odd minutes, ejaculating on the bedsheet.  No condom was used.  PW1’s mother returned and discovered them.  That is Charge 2.

6.  A previous criminal record of the defendant was produced and agreed by him.  It showed two previous matters which are unrelated. 

7.  Mitigation had followed where I was asked to get background, psychological and psychiatric reports, which I did call for.  It was indicated that the defendant wished to produce a letter of his own to the court as well as letters he had received from PW1 whilst in prison.  Translations would be available on the next occasion.

8.  Today the reports are forthcoming.  They have been read over to and agreed by the defendant.  I have read them also.

9.  Further mitigation has followed in which I am reminded that the defendant is from a broken home, his family having divorced.  He had lived with his uncle and aunt.  He had been put in a foster home for a period, and without the proper guidance and care of his family this led to the commission of this offence.  He had started to watch pornographic material and got interested in girls, and that is borne out by the reports as well. 

10.  It was repeated to me that he had pleaded guilty at the first instance and he had saved the court’s time and, more importantly, the girl some embarrassment of coming to give evidence.  It is stressed that there was no force used and the defendant is deeply remorseful for his actions.

11.  As well, I have been supplied with the promised translations of the various letters, which I have read.  They are from the defendant himself, his aunt, and a series of letters from PW1, the victim.  They are fairly graphic letters containing also illustrations, and the last of them was written, according to the date, on 22 December last.

12.  I have also been supplied with a case to assist with respect to sentence, that being HKSAR v Lau Chi Cheung, CACC427/2007.  I am acquainted with that case and will refer to it shortly.

13.  These are extremely serious offences.  It is true there is no evidence the defendant groomed PW1 for sexual intercourse, although he did commit the indecent assault a matter of days before he had sexual intercourse with her.  Further, it must be remembered that the defendant had checked firstly on both occasions to see if PW1 was home alone, and she was. 

14.  Children do need to be protected from those who seek to engage them in sexual activity.  Young girls have to be protected from their own foolishness.  In this era of the internet it is difficult to protect such children.  PW1, at 12 years and 7 months, is very vulnerable.  It is the case that men in those sorts of circumstances take advantage of this naivety for their sexual gratification.  As well, of course here in respect of the second matter, it was unprotected sexual intercourse.

15.  I here refer to the case of Lau Chi Cheung which I have mentioned previously, where the relative ages of PW1 and the defendant in that case were about the same as is here.  The court in that case reduced a starting point of 3 years for one count of sexual intercourse with a girl under 13 years.  It was reduced to a period of 2 years starting point.  With his plea of guilty in that case and other factors taken into account, the defendant was sentenced to 13 months’ imprisonment. 

16.  I must bear in mind in that case it was only one charge and not two charges, as is here.  In that case, it had been considered an element of aggravation in that a large sum of money, $2,200, was paid to the young girl.  It was a corrupting influence the court held.  Such is not the case here.

17.  In all the circumstances here, I am of the view that for the 1st charge a starting point of 12 months is appropriate.  For the 2nd charge, a starting point of 18 months is the appropriate one.  As indicated, the defendant has pleaded guilty and will get the full discount for that. 

18.  Accordingly, with respect to the 1st charge, he will be convicted and sentenced to 8 months’ imprisonment.  With respect to the 2nd charge, he will be convicted and sentenced to 12 months' imprisonment.

19.  To my mind, these are separate and distinct matters.  The defendant has committed the second offence some five days after the first matter, and it was a more serious matter. 

20.  Taking totality into account, I will make 6 months of the second sentence concurrent with and 6 months of the second sentence consecutive to the 1st charge.  That makes a total head sentence of 14 months' imprisonment, which I deem covers the totality of the criminality here taking everything into account.