HKSAR v. WONG DAWA NORBU CHING SHAN

DCCC 70/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 70 OF 2013

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Reasons for Sentence

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Charge and facts

1.  The defendant pleads guilty to a charge of procurement of unlawful sexual act by threats, contrary to s 119 of the Crimes Ordinance, Cap 200. 

2.  Girl X (“X”) was born on 31 July 1996.  In late July 2012 (and for the purpose of the present sentence should be treated as 31 July 2012 as a version more favourable to the defence) she visited a social networking site called “Badoo” with a user name “Shadow”.  The defendant offered her money for sex.  Initially she refused but wanting money for her 16^th birthday she agreed to have sexual intercourse with the defendant for $1,200.  She anticipated that no photos would be taken. She met up with the defendant at Sham Shui Po MTR Station.  The defendant took her to Kwai Lam Inn, a guesthouse in Kweilin Street.  They had oral sex and sexual intercourse in which he wore a condom. The defendant left first. 

3.  A few days later, they negotiated the fee down to $300 on Badoo.  He paid $300 into a bank account to her order. 

4.  X held a Facebook account with her user name “絕對專一 (Absolutely Faithful)”.  On 13 August 2012, she received a message from a user named “Peter Parker” which posted a nude picture of her taken at Kwai Lam Inn.  The defendant implied to her that unless she had sex with him he would upload her nude photo on “Youtube”.  She was scared of these threats and as a result agreed to have sex with him. Pursuant to his arrangement, on 20 August 2012 she met him at the Sham Shui Po MTR Station.  He took her to Kwai Lam Inn where they had oral sex and sexual intercourse in which he wore a condom.  When she complained of pain, he stopped.  Afterwards she went home. 

5.  On 3 September he messaged her again on Facebook.  She made it clear that he had forced her to have sex with him and was unhappy.  She asked if he wanted to push her to death.  He threatened to put her photos on “Youporn” and “www.chinesegirlphoto.com” so everybody could see.  He also made reference to her boyfriend. 

6.  On 4 September he messaged her again and threatened to put her photo on Facebook and send the photo to her boyfriend forthwith.  The defendant demanded satisfaction from X in a 2-hour duration.  It was said to be the last time they would meet and then say goodbye for ever. 

7.  On 6, 7, 12, 14, 17, 18 and 19 September he sent her more messages asking for sex.  On 17 September he had also referred to the Facebook account of her boyfriend.  As a result of the threats to distribute the nude photos of her unless she would have sex with him, she agreed to meet him at Sham Shui Po MTR station on 21 September. 

8.  She was so upset by his threats, recited on 9 days in the period between 3 and 19 September that she had left a message on Facebook indicating that she wanted to die.  Her class teacher discovered the message and approached her.  She looked so down that he feared she might commit suicide.  A social worker of the school was consulted.  She told them what had been going on.  They made a report to the police with her mother on 17 September. 

9.  On 21 September, under police surveillance she went to meet up with the defendant at the Sham Shui Po MTR station as appointed.  He was arrested with a mobile phone and a condom. 

10.  He admitted the aforesaid matters and also his having used the mobile phone to take nude pictures of X when they first had sex at Kwai Lam Inn. 

Personal background and mitigation

11.  He is 41 years of age.  He has a clear record.  He was born in Hong Kong.  He spent his childhood and early adulthood in India where his maternal and paternal grandparents were as well as the family of his wife.  Both he and his wife have a mixed Indian Chinese ethnic background. 

12.  After returning to Hong Kong he had worked as a clerk and set up his own business. These did not prove promising and since March 2007, he has been working as a sales manager in the same trading company.  The employer’s letter commended him as an honest, well-behaved, responsible and hardworking employee.  The company expressly intends to re-employ him after his term of imprisonment. There is a letter from an organization known as “International Human Rights Channel” which stated that he had performed several charity works for it as a volunteer.  A supplemental letter dated 5 June 2013 from the organization explained that he had spent a lot of time (though exact hours not indicated) to help it run various voluntary programs for the promotion of ethnic minority groups’ interest in Hong Kong. 

13.  He lives with his wife and 3 sons aged between 7 and 11.  His wife has a busy full-time job and earns more than he.  She put her job and her children above him.  His emotional and physical needs were often ignored.    

14.  As shown in the extracts from Badoo provided by the defence, the site expressly purported to serve people aged 18 or above and X was looking for a male friend aged between 18 and 21.  His counsel submits that she had held herself out as aged 18 or above in joining the site and he had no idea that she was only 16 when they first had sex.  She had even told him that at the age of 13 she had had sex with her boyfriend and once had undergone an abortion.  She expressly needed money to celebrate her birthday.  I accept that he had not groomed her as she was sexually mature and proactive in seeking to trade her body for cash. 

Sentencing considerations

15.  There are no sentencing guidelines.  His counsel in mitigation has cited the following 2 cases as comparison:

(1) HKSAR v LAM Yat Tung (林日東)CACC 131/2007, a judgment in Chinese with a translation provided by his counsel:

The defendant came to know the victim, aged 15 and a F. 2 student at all material times of the offences, on ICQ. When apprised of her need for money to pay her tuition fee, he arranged to meet her at the railway station. He took her to the staircase of a public housing block where he kissed her, touched her breasts and private parts for 10 to 15 minutes. He gave her $200. These constituted the 1^st charge, indecent assault.

On the ICQ she continued to have contact with him. She asked for a mobile phone. He offered to give her a mobile phone and $1,000 if they would have sex. She refused but he threatened to tell her family of their sexual encounter. When she agreed and they met up, he took her to a guesthouse and took nude photos of her against her will. He managed to have sex intercourse with her. He gave her $100, the balance and the mobile phone to come later. These constituted the 2^nd charge, procurement of sex by threats.

On a later occasion, he made another request for sex. She refused but he threatened to tell her family of their sexual encounters and distribute her nude photos on the internet. He managed to have sex intercourse with her. These constituted the 4^th charge, procurement of sex by threats.

Yeung JA (as he then was) stigmatized the defendant’s exploitation of the victim’s immaturity and her fear of exposure of the nude photos. The procurement was akin to rape (at para 52). The defendant’s appeal against sentence was dismissed as the Court of Appeal regarded the overall starting point of 5 years as a light sentence.

(2) HKSAR v CHAN Hoi Tat (陳凱達) CACC 447/2010:

The defendant, aged 24, came to know the victim, aged 12 and a Primary 6 student in 2003, on the internet. The 5 offences took place in between 2003 and 2005, as the case may be. In 2003, he asked her for nude photos. He eventually received two nude photos with one showing her face. These constituted the 1^st charge, possession of child pornography.

In early 2004, he threatened to publish her nude photos in the media and on the internet and send them to her father’s office if she would not meet him. These constituted the 2^nd charge, criminal intimidation.

When they met up, he took her to a place which looked like his home. He undressed her and forced her to masturbate him and perform oral sex on him. He took some 10 photos of her naked body on the bed. He kissed her body, including her lower parts. These constituted the 3^rd charge, indecent assault.

In July 2005, he threatened to publish her nude photos in the media and on the internet and send them to her father’s office if she would not meet him. These constituted the 4^th charge, criminal intimidation.

In August 2005, when they met up, he took her to an hourly hotel. He forced her to masturbate him and perform oral sex on him. He rubbed his penis against her thighs from behind in a form of simulated sex. He took some 10 photos of her naked body. He kissed her body, including her lower parts. These constituted the 5^th charge, indecent assault.

The Court of Appeal approved an overall starting point of 5 years.

Sentencing this defendant

16.  The defendant was a mature man of the world, old enough to be her father.  The mere difference in age spoke aloud of exploitation, which was actually demonstrated by his secret taking of her nude photos, the reduction in fee from $1,200 to $300 and the reference to expose the nude photos to her boyfriend to fortify his threat.  It was a one-off procurement of sexual act which took place on 20 August 2012 but he had, on 9 separate days in the period between 3 and 19 September, continued to threaten to distribute the photos on the internet and send them to her boyfriend. 

17.  Notwithstanding her sexual maturity and mercenary motive at the beginning, she had just turned 16 when the matter rapidly developed out of her depth.  She has remained socially immature and devoid of counsel until her message accidentally reached her teacher.  There was no basis to doubt her expressed suicidal ideation as it drew close to the appointment of 21 September.  Notwithstanding her premature initiation into sex and her past follies, this Court does not regard her any less a vulnerable person to be protected.  The defendant was fully culpable for pushing her to the cliff. 

18.  I take 4 years as the starting point.  I give a one-third discount because of the guilty plea.  His voluntary work should give him a further discount which I pitch at 2 months.  There are no other mitigating factors.  The sentence is 2 years and 6 months.