HKSAR v. HO KA PO, TONY

DCCC 1169/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1169 OF 2012

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REASONS FOR SENTENCE

1.  I convicted the defendant after trial of offences of procuring unlawful sexual intercourse with a Mme X by false pretences on 26 July 2012 and a charge of procuring unlawful sexual intercourse with the same lady by threats or intimidation four days later.

2.  At trial, it was not disputed that the defendant had sexual intercourse with the Mme X on the two occasions referred to in the charges. The defence case, which I rejected, was that the sexual intercourse was consensual, that Mme X did not take part in sexual intercourse with the defendant as a result of any deception, threat or intimidation.

3.  At the time of the alleged offences, Madame X, PW1, was a domestic helper employed by Mme Wong Sin Yee, PW2, at her home in Lam Tin Kwun Tong.

4.  PW1 was born and brought up in Java, Indonesia. She was 27 years of age at the date of the alleged offences and had been working as a domestic helper since June 2011.

5.  PW1’s employment in Hong Kong was arranged by Win Dragon Employment Agency in Fo Tan, Shatin . At that agency she and her employer dealt with a Madame Choi.

6.  In May 2012 PW1 was experiencing stabbing pains in her back. PW2 took her twice to see her family doctor but her condition did not improve much. On 20 July 2012 PW1 experienced severe back pain and fainted. PW2 brought her round by applying some oil to her nose. PW2 then rang Mme Choi and told her that PW1 was ill.

7.  On 24 July Mme Choi telephoned PW1 and PW2 and said that she had made arrangements for PW1 to see a friend of hers for treatment. Mme Choi told her that she may be suffering from some form of spell and had been cast as “Tame Head”. Mme Choi told her that previously there had been a domestic helper who had been cast as a “Tame Head” in Indonesia and that there were some metal nails inside her stomach. Mme Choi told her to ring her mother to ask if PW1 had been cast as a “Tame Head” by others. PW1 said that her mother told her that she did not know but that her mother said she would pray for her.

8.  PW1 was taken to see the defendant by Mme Choi at his office in Mong Kok. The premises are used as an employment agency for domestic helpers. PW1 took along some apples to give to the defendant as instructed by Mme Choi who told her that they were to be used to worship a god.

9.  Mme Choi acted as interpreter. Mme Choi told the defendant that PW1 had back pain and was perhaps cast as “Tame Head” by others. The defendant said he would cure her. PW1 could understand what the defendant said. The defendant told her that she was very lucky and perhaps she would be very successful or make a lot of money. The defendant said that he would massage her back but required her to remove her bra. The defendant told Mme Choi to go out for a while whilst he treated PW1. Mme Choi told her that PW1 need not be afraid, she only had to take off her bra and the defendant would cure her.

10.  After Mme Choi left the defendant switched off the lights and told PW1 to lie face down on a carpet which he laid on the floor. The defendant massaged her back after lifting up the back of her T-shirt. The defendant then covered her back with plastic film and hit on her back with a hair dryer. The defendant told her that she had to obey his instructions or she would not be cured.

11.  The defendant then told her to turn over and take off her T-shirt. The defendant then took off her pants and underwear. The defendant told her that she should obey his instructions otherwise she would not recover. She was then instructed to sit on a wooden stool with the defendant sitting behind her. He pulled her two hands back and told her to hold his penis which she did. At that stage the defendant’s trousers and underwear were round his thighs.

12.  The defendant told her not to tell Mme Choi about what occurred or she would have trouble living in Hong Kong and her daughter in Indonesia would have a traffic accident. The defendant then embraced her and kissed her and inserted a finger into her vagina. He told her to pray to a gold Buddhist figure which was on a nearby shelf. The defendant said that this figure was his master and he should grab the defendant’s penis and by doing so she would get well very quickly.

13.  The defendant later told her to lie on the carpet and he kissed her lips and vagina and inserted his penis into her vagina. It lasted for about a minute. The defendant did not wear a condom and did not ejaculate. The defendant then asked her to stand up, suck his penis and swallow his semen. PW1 did so for a while and then told him she could not do it any longer. The defendant said that she had to continue but she refused. At that point the office telephone rang and the defendant answered and then told her to put on her clothes as Mme Choi was waiting downstairs. Mme Choi came up to the office and the three of then left. Mme Choi caught a bus nearby and the defendant took her to the MTR station at Prince Edward and told her not to tell anyone what had happened.

14.  PW1 did not tell PW2 about what happened as she dared not do so.

15.  PW1 received calls from the defendant and Mme Choi but ignored them.

16.  On 30 July PW1 got a call from Mme Choi asking about her back pain . PW1 said that she told her it had improved a bit. Mme Choi told her she should go and see the defendant at once. PW1 later went to see the defendant. PW1 bought 4 apples to take to the defendant for him to pray as instructed by Mme Choi.

17.  After enquiring about her condition the defendant switched off the lights, laid down the carpet and told her to take off her bra. The defendant told her she should not be afraid as he was there to help her and she should trust him. PW1 said she was scared and confused. PW1 said that he also told her that she should do as he told her otherwise she would have trouble. PW1 said that on this occasion she was again fondled by and had sexual intercourse with the defendant . PW1 said that when she left the defendant again told her not to tell anyone or she would have trouble.

18.  PW1 received further calls from Mme Choi asking her to go back to see the defendant but she told her it was not necessary as her condition had improved.

19.  Later PW2 told her that she had received a phone call from Mme Choi asking for PW1 to go back to see the defendant but PW1 told PW2 that she did not want to go again. PW1 got further calls from Mme Choi pestering her to go back to see the defendant but she refused and hung up the phone.

20.  On 8 August PW1 got a call from Mme Choi scolding her for not going back to see the defendant and they had a dispute over the phone. PW1 told Mme Choi that the defendant had indecently assaulted her. Mme Choi told her not to tell her employer or the police and that even if she did they would not believe her.

21.  PW1 said that at about 6.00pm that evening PW2 came home from work and told her that her son had told her that PW1 had been crying and quarreling on the phone with Mme Choi. PW1 then told PW2 about what had happened at the defendant’s office on the 26 and 30 July. PW1 and PW2 later went to make a report to the police.

22.  The defendant said nothing when interviewed by the police . He elected not to give evidence and called no witnesses.

Background of Defendant

23.  The defendant has two matters recorded on his record dating back to the mid-1970’s for dissimilar offences which I disregarded.

24.  He is 56 years of age married with no children. He was born in Hong Kong and educated to Form 3 level. He has been running an employment agency since 2000 from which he earned HKD10,000 per month. His wife is a cooking teacher.

25.  The defendant suffers from diabetes and hypertension for which he has regular medical check-ups.

Sentencing considerations

26.  The defendant is a controlling and manipulative person who cynically exploited the vulnerable, insecure, anxious and naïve victim. PW1 came for a very different background and culture. She was working in Hong Kong far away from her home and family. On neither occasion did the defendant wear a condom. Preying on such a vulnerable person is a serious matter.

27.  The victim dared not report the matter or her employer or anyone else because of the defendant’s threats. She was pressured by Mme Choi into returning to see the defendant a second time when she was intimidated and threatened into having sexual intercourse with the defendant.

28.  It was only when Mme Choi was putting pressure on the defendant to return and see the defendant for a third time, did she eventually break down crying and told the employer what had happened.

29.  I note that the maximum sentence on the first charge is 5 years imprisonment and 14 years on the second charge.

30.  In the defendant’s favour, I noted that much of the prosecution case was not challenged. The defendant did not dispute having sexual intercourse with the victim on the two occasions charged.

31.  In all the circumstances, I propose to take a starting point of 3 years for each offence and order that one year on the second charge should run consecutive the sentence on Charge 1. The defendant will therefore go to prison for 4 years.