|
DCCC974/2011
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 974 OF 2011
------------------
------------------
|
Coram :
|
Deputy District Judge Don So in Court
|
|
Date of sentence: 8 February 2012
|
|
Present :
|
Ms. Winsome CHAN, Senior Public Prosecutor, for HKSAR
Mr. Oliver DAVIES instructed by M/S. Wong & Co., for Defendant
|
|
Offence :
|
Procuring another person for an unlawful sexual act by false pretences(以虛假藉口促致另一人作非法的性行為)
|
Reasons For Sentence
Background
1. The defendant was charged with a single count of procuring another person for unlawful sexual intercourse by false pretence, contrary to section 120(1) of the Crimes Ordinance, Cap. 200. The defendant was convicted after trial.
2. At the material time, the victim was a 16½ years old student. She just turned 17 at trial. She gave evidence in court. The defendant did not give evidence.
Mitigation
3. The defendant is 37 years old, married, having a daughter of 4 years old. He is a driver by occupation. He has one criminal record which took place a long time ago and which nature is different from the present case.
4. I understand that the psychologist assessed the defendant’s chance of re-offending being low to moderate. I have also considered the defence many mitigation letters.
Facts found
5. I have detailed the finding of facts in the verdict. Still, briefly here, the defendant initially lied to the girl that he was going to pay her if she could help fix the car. With the girl on board, the defendant tested the girl by touching her, where she withdrew immediately.
6. The defendant drove her off to some remote location. He came up with some lies to get the girl to undress herself totally, saying that he needed her garments to stop some kind of gas leakage.
7. He dropped the girl’s garments outside the car, came back to the car and lied that all the doors were accidentally locked. The girl was scared and wanted to leave. The girl asked to borrow defendant’s mobile phone so that she could call home, but the defendant refused saying “No battery”. “No battery” was a lie too. Now, the girl was nude and was isolated from the rest of the world. This is exactly what the defendant wanted.
8. The defendant lied to the girl to make her tremble in the car in an attempt to lower the windows. The girl was nude bumping inside the car. She was even asked to bump on the defendant, which she did.
9. Those were not enough though. The defendant further lied that in order for him to resume strength to drive her to bring her home, he needed to ejaculate, to release some toxic bodily substance. Along with these, the defendant lied that he was going to pay her.
10. The toxic lie and money lie worked to get her to masturbate him. But, the defendant still could not ejaculate. He asked for intercourse but the girl refused saying that she is still a virgin and she did not want the money anymore, she just wanted to go home.
11. Knowing that the bodily toxic/harmful substance theory was still in her mind and how badly she wanted to go home, the defendant reiterated to her that intercourse was the only way to go home.
12. It worked. The girl believed that it was the only way for the defendant to release the harmful bodily substance, so that he could resume his strength to drive her home. The girl agreed to sex. At this stage, sex had nothing to do with car repair. The girl knew it.
13. After his ejaculation, the defendant drove her to a West Rail Station and dumped her there. He did not pay her.
Au Yeung Kwok-fu (CACC 41/2010), 1 February 2012, a Chinese judgement
14. The Court of Appeal has very recently upheld a starting point of 3 ½ years imprisonment for a Chinese exorcist, who successfully deceived an 18 years old fashion model that by having sex with him, she could have better fortune in her career. In addition, the Appeal Court, having taken into account the fact that the intercourse effected the girl pregnancy and regrettably an abortion and the fact that there were 9 incidents of intercourse etc, re-sentenced the defendant to a total of 5 years imprisonment for all 9 charges.
15. I would adopt a similar 3 ½ years starting point but further have it adjusted upward to reflect the aggravating factors in this case. Still, I would not go the ultimate 5 years of the Au Yeung case.
16. In this case, the defendant initially used “car repair” as an excuse to deceive her onto the car. Subsequently, the defendant used money tricks (lies too) and other lies to dupe her into various obscene acts and eventually to intercourse. The incident lasted for 3 hours in the driving compartment. Towards the later part of the incident, the girl was virtually imprisoned.
17. The sex was un-protected: no condom was used. Despite the fact that there was no symptom shown on the evidence, unprotected sex is always prone to sexually transmitted disease. Besides, at the material time, there was no guarantee that the girl would not get pregnant: defendant’s sperms were still there in her vulvae when she was medically examined. The defendant was thus taking the risk of her pregnancy at her prejudice. The defendant might want to practice coitus interruptus but this contraceptive measure is well known for its unreliability.
18. I conclude that the above factors already justify a likewise 3 ½ years imprisonment starting point.
Aggravating factors to increase from 3 ½ years
19. It is common sense that younger the girl was, graver would be the offence; more vulnerable the victim was, more culpable should be the defendant. Unlike the Au Yeung case where the victim was 18 years old and was a working lady, here the victim was 16 ½ years old and was a girl in school uniform. These features make this case worse than the Au Yeung case. This whole case was where the defendant picked an obviously young school girl and therefore easily tempted and deceived being on a street for his ultimate sexual gratification. I do not believe that the defendant would try it on any mother-like pedestrian.
20. Moreover, the girl already told the defendant that she is a virgin. She said that she did not want to give it to him. She said that it would be miserable of her if she did it. The defendant insisted though, saying that he would not go too deep to preserve her hymen. I think that there was simply no guarantee that he could do the job. The defendant was thus deliberately risking something which the girl had expressed she treasured, for his own benefit and at the prejudice of the girl. This is a second aggravating factor.
21. In my mind, these 2 factors work to increase the sentence by one year from 3 ½ years starting point to 4 ½ years imprisonment. In doing this, I have borne in mind that the maximum punishment for this type of offence is 5 years imprisonment. I have also noted that the sentence of rape offence simpliciter (which is always more serious than the present case) is 5 years imprisonment. I understand that 4 ½ is closed to 5, but I conclude that the features in this case justify it.
22. The defendant pleaded not guilty. I could not see anything in mitigation where I can reduce the sentence.
Sentence
23. The defendant is sentenced to 4 ½ years imprisonment.
|
(Don SO)
Deputy District Judge |
Please refer to CACC60/2012 for the relevant appeal(s) to the Court of Appeal. |