HKSAR v. SIM WAI LEUNG HENRY SANTOSO

DCCC 795/2019

[2020] HKDC 236

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 795 OF 2019

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REASONS FOR SENTENCE

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INTRODUCTION

1.  The defendant is convicted upon his own guilty plea of the first three charges of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance and the 4^th charge of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance.

2.  The complainant in the first three charges is X who was born on 5 June 2006.  The respective dates of offence for the first three charges are around 8, 23 and 25 April 2019 when X was 12 years and 10 months old.  The defendant was born on 2 May 2002 and was more than 16 years and 11 months old at the time of the offences. All those three offences took place in the defendant’s home at Tin Yuet Estate, Tin Shui Wai.

FACTS

3.  Girl X is a secondary school student born on 5 June 2006.  In early April 2019, she became acquainted with the defendant through a social media online platform.  The two of them became lovers soon afterwards.

4.  On or about 8 April 2019, the defendant took X to his home where no one else was present.  They started kissing.  Then the defendant undressed X and had sexual intercourse with X.  He eventually ejaculated outside X’s body.

5.  On or about 23 April 2019, X went to the defendant’s home.  X took off her upper clothes upon request.  The defendant removed X’s pants and underpants.  He made X perform oral sex for him.  Later on he put on a condom and had sexual intercourse with X.

6.  On or about 25 April 2019, X went to the defendant’s home again.  She took off her upper clothes upon request.  The defendant removed X’s pants and underpants.  Later on he put on a condom and had sexual intercourse with X.

7.  On 22 June 2019, X’s mother checked X’s mobile phone and discovered that X had sent photos of X’s private part to the defendant.  Upon enquiry, X admitted that she had had sexual intercourse with the defendant for three times.  The case was therefore reported.  X said the defendant knew that she was 12 years old at all material times, and that the three sexual intercourse with the defendant were all consensual.

8.  The defendant was arrested on 4 July 2019.  Forty-three photographs and eight video clips containing child pornography were found from the defendant’s mobile phone. The defendant admitted that those photographs and video clips were sent by X upon his request and the girl in those photographs and video clips was X.  It was subsequently found that the aforesaid photographs and video clips are respectively classified as Level 1 and Level 2 child pornography in the sentencing guideline laid down in SJ v Man Kwong Choi [2008] 5 HKLRD 519.

THE DEFENDANT’S BACKGROUND

9.  The defendant was born on 2 May 2002.  He is now 17 years and 11 months old.  He does not have any previous criminal record.  He received education up to Form 4 level.  He came from a single-parent family brought up by his mother.  His father passed away in 2006.  After he quitted school in 2018, he started working as a kitchen worker.  Prior to his arrest in early July 2019, he worked as a hair salon apprentice.

MITIGATION

10.  Ms Ma relied on her written mitigation dated 14 April 2020.  Amongst various matters, it was submitted that the age difference between the defendant and X being 4 years and 1 month was not substantial, that the defendant was not playing the role as a predator, that he did not force, bribe or intimidate X into having sex with him, and it was not a breach of trust situation.

11.  Regarding the 1^st charge, Ms Ma submitted that although the defendant had sexual intercourse with X without wearing a condom, he did not ejaculate inside X.

12.  Regarding the 4^th charge, Ms Ma submitted that the defendant never distributed or published the subject photographs and video clips to others.

13.  Ms Ma referred this court to the following judgments:-

· SJ v Huang Long Wei [2009] 3 HKLRD 136

· SJ v Chung Yui Hung CAAR 11/2006

· HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432

· 香港特別行政區訴李曉羿DCCC 409/2019

· SJ v Man Kwong Choi [2008] 5 HKLRD 519

SENTENCE

14.  In HKSAR v Tsang Chiu Tak CACC 386 of 2011, the Court of Appeal said:-

“8. The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.

9. The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:

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

(2) The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;

(3) Whether the defendant had used threats or inducements to make the victim succumb;

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

(5) Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6) Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(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 photos or videos of the offence he committed; and

(10) Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.”

15.  In HKSAR v Wong Chin Ching DCCC 850/2014, the defendant was convicted upon his own plea of two charges of unlawful sexual intercourse with a girl under the age of 13 years.  At the time of the offences, the girl was approximately one month short of her 13^th birthday whilst the offender was 17 years old.  The two of them came to know each other through a social media website and the sexual intercourse on both occasions were consensual and with condom.  The sentencing judge adopted a starting point of 21 months’ imprisonment for each charge.

16.  Having carefully considered the facts of the present case, mitigation advanced by Ms Ma and various judgments mentioned above, I will adopt a starting point of 13½ months for each of the first three charges, and a starting point of 6 months for the 4^th charge.

17.  I give 1/3 discount for each of the charges for the defendant’s timely indication of guilty plea.  His clear record is subsumed in the aforesaid 1/3 discount[1].  There being no further valid mitigating factors justifying further reduction in sentence, the sentence for each of the first three charges is reduced to 9 months’ imprisonment, and that for the 4^th charge is reduced to 4 months’ imprisonment.

18.  On totality regarding the first three charges, I consider it appropriate to adopt an overall starting point of 18 months’ imprisonment reduced to 12 months’ imprisonment by virtue of the defendant’s timely indication of guilty plea.  To achieve that, I order 3 months’ imprisonment in the 1^st charge to run consecutively with the 9 months’ imprisonment in the 3^rd charge.

19.  The photographs and video clips which formed the subject matter in the 4^th charge were sent to the defendant upon his request.  In addition to the aforesaid 12 months’ imprisonment resulting from the first three charges, I order 2 months’ imprisonment in the 4^th charge to run consecutively with the 9 months’ imprisonment in the 3^rd charge.  The sentence in the 2^nd charge is to run concurrently with other charges.  The total sentence for the present four charges is therefore 14 months’ imprisonment.