HKSAR v. LAI WING TAT

HCCC 227/2019
HCCC 228/2019
HCCC 352/2019

[2020] HKCFI 214

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 227, 228 & 352 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: In HCCC 228/2019, the defendant pleaded guilty to two charges of unlawful sexual intercourse with a girl under 13. In 352/2019, he pleaded guilty to two charges of unlawful sexual intercourse with a girl under 16. The girls in the two cases are, respectively, Y and Z. In HCCC 227/2019, he faced one charge of rape and an alternative of unlawful sexual intercourse with a girl under 13. His plea to the alternative was accepted on the first day of trial. That girl is X.

I will recite briefly facts of the various cases:

In September 2017, Z escaped from her dormitory and started living with the defendant. She was 13 and he was 24. They had protected consensual sexual intercourse. In November, she had turned 14 and they had unprotected sex. In December, Z realized that she had become pregnant and related the matter to a social worker. She gave birth to a baby boy in August 2018. For this matter, defendant was arrested on 9 October 2018. The baby is now under the care of a foster family.

The defendant had unprotected sex with Y when Y stayed overnight at his home on two separate occasions in February 2018. Y was then 12 years of age. A few months later, Y was afraid that she would become pregnant and related the matters to the social worker at school.

On 19 May 2018, defendant went to collect X at the early hours, but instead of joining their mutual friends, they went off to buy beer and stayed in a park. After the defendant had drunk some beer, he held X and told her he liked her. Despite X telling him that she did not like him, he had unprotected sex with her, although he stopped abruptly on hearing some noises. X was a virgin at that time. X only reported the matter to the police two weeks later after her medical check-up.

The defendant was arrested on 14 June 2018 for having sexual intercourse with Y and X, after an attempt to flee upon police interception.

Impact on the Victims

Z, who had given birth to a child to whom the defendant was the biological father, declined to be seen by a clinical psychologist. No victim impact report is available. It is not difficult to gauge the long-term impact upon her who gave birth at such an early stage of her life when she herself has not yet even reached full maturity.

X’s victim impact report shows that she has low self-esteem in the social and academic domain and her functioning was significantly disrupted during the period when she was expected to testify in court. Clinical psychologist opined that she is still suffering from the psychological aftermaths of the assault that warrants psychological intervention.

For Y, she blamed herself for the sleepovers at the defendant’s place which rendered her a victim of the sexual abuse. However, as time goes by and her worries about pregnancy subsided, no subjective symptoms or distress warranting psychological intervention was observed.

Defendant’s Background and Mitigation

The defendant is now aged 27. His parents, who were substance abusers, were separated since he was at a tender age. He was an underachiever at school and mingled with dubious peers after he ceased schooling.

He has been in trouble with the law before. He has five previous convictions with one similar in 2014 for a charge of unlawful sexual intercourse with a girl under 13. He was sentenced to 14 months’ imprisonment upon a plea of guilty by His Honour Judge Yau.

I have called for that case file before me in an attempt to understand more about that case. He was just under 21 and the girl was 12 years and 10 months old. He got acquainted with the girl on the day in question, took her to a flat and had unprotected sex with her. The judge in sentencing the defendant said that there was no evidence that he was psychologically imbalanced or paedophilic or that he was likely to re-offend, therefore a starting point of 21 months was adopted. Yet, the defendant did not learn his lesson after his incarceration. He claimed that Z was his girlfriend at that time and they had sex twice in 2017 and got her pregnant. He then had casual sex with Y and X.

It is clear that the defendant’s sexual problem is not limited to a need for casual relationships but rather a preference of underage girls. According to the psychologist and psychiatric report, defendant is not diagnosed with any mental illness. He was preoccupied with sex and harboured biased perception that it would be lawful for him to have sex with anyone, regardless of their ages, as long as they gave consent. Despite the fact that he had served a term of imprisonment in 2014 for having sexual intercourse with underage girl, he still claimed that in relation to the three girls in the present cases, he had no knowledge of their ages and had sex with X and Y on their initiations.

It is clear that what the defendant was doing when interviewed by the clinical psychologist was simply trying to downplay or diminish his role. He exploited the young victims to gratify his sexual needs and he minimized the offences. He blamed X and Y for their mature looks and initiations for his misdeeds. He lacked remorse and victim empathy.

The psychologist opined that whilst there is insufficient evidence to assess whether he has paedophilic disorder, his risk of re-offending was assessed to be very high. Psychological treatment focusing on his intimacy skills, personality problem and distorted view on sexuality is highly recommended.

Today in mitigation, it was submitted that the defendant has deeply reflected upon his wrongdoing and will check the age of the girls before plunging into having sex with them in the future. Counsel also urged for a lenient sentence on his plea and that the age gap between him and the girls in the present cases is not too great and that he would try his best to win back custody of the child with Z and become a responsible father.

Sentencing Considerations

In sentencing the defendant, I have taken into account mitigation forwarded by counsel and contents of the reports and his guilty pleas.

The legislation makes provision for a life sentence where the victim is aged less than 13 and a 5-year maximum where the victim is under the age of 16. A loud and clear message needs to be sent out to the public that one must not exploit the young and have sexual intercourse with them. Our society needs to protect these young people, particularly when they are under the age of 13.

In the case of Secretary for Justice v Chung Yui Hung, the Court of Appeal was concerned with a teacher grooming a 12‑year‑old for sex through internet chat-line and had unprotected sexual intercourse with her. Upon an application for review, the Court of Appeal held that the facts on the unlawful-sexual-intercourse count revealed a particularly grave offence. The sentence imposed needed to contain a deterrent element. Even for a first offender, a long sentence is called for where the circumstances justify it. In that case, the Court of Appeal held that a proper starting point for the unlawful-sexual-intercourse charge would be 5 years.

Whilst the present case lacks the aggravating feature of grooming the underage for sex, these cases contain the aggravating features of more than one victim, unprotected sex and pregnancy resulting therefrom. Furthermore, given his past conviction of a similar offence, commission of the present offences show that the re-offending has become a reality rather than just a risk.

I will deal with the cases in chronological order.

HCCC 352/2019 which happened in September and November of 2017:

For Charge 1, that is unlawful sexual intercourse with Z under the age of 16 with protected sex, I adopt a starting point of 2½ years.

For Charge 2, unlawful sexual intercourse with Z under 16 with pregnancy resulting, I adopt a starting point of 4 years.

Reduced on a plea to as follows: Charge 1 is 20 months and Charge 2 is 32 months.

Taking into account totality, I ordered 4 months out of the 1st charge to run consecutively to the sentence of 32 months in Charge 2, making a total of 3 years’ imprisonment.

For HCCC 228/2019 which happened in February 2018:

Charge 1, unlawful sexual intercourse with Y under 13, unprotected sex, starting point: 4 years.

Charge 2, unlawful sexual intercourse with Y under 13, also unprotected sex, 4 years starting point.

Each of those charges reduced on a plea to 32 months’ imprisonment, and taking into account totality, I order 4 months out of the 1st charge to run consecutively to the sentence in respect of Charge 2, again making a total of 3 years’ imprisonment.

In respect of HCCC 227/2019 which happened in May 2018, the sole charge is unlawful sexual intercourse with X under 13. I am of the view that the defendant’s act of pushing X onto the bench in the park at the small hours of the morning and had unprotected sex with her was one close to borderline with rape. I adopt 6 years as the starting point.

I was thinking long and hard as to whether he is entitled to the one-third discount as his plea to the lesser charge was only accepted by the prosecution on the first day of trial after he made attempt to change language of trial last minute, and failing which he made attempt to sack his counsel and to have the trial re-fixed. However, the fact remains that he has always indicated that he would plead to the lesser charge. I am of the view that he is still entitled to all one-third discount. So for that, he is sentenced to 4 years’ imprisonment.

On the overall culpability of the defendant, I adjudge that a starting point of 13½ years for all the offences is appropriate. And given his one-third discount, he is sentenced to 9 years’ imprisonment. To reach the 9 years’ imprisonment, I order 30 months out of the cases of 352 and 228 each to run consecutively to the 4 years in 227, which means that 4 years plus 30 months plus 30 months, making a total of 9 years’ imprisonment. And that is the sentence I pass.