HKSAR v. CHUI CHE HUNG, HENRY

HCCC369/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 369 OF 2009

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:  The 61-year-old defendant pleaded guilty before me to three counts of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200, (the Ordinance), being Counts 1, 3 and 6 on the indictment; to one count of unlawful sexual intercourse with a girl under the age of 16 years, contrary to section 124(1) of the Ordinance, being Count 2; to two counts of buggery with a girl under the age of 21, contrary to section 118D of the Ordinance, being Counts 5 and 10; and to one count of attempted buggery with a girl under the age of 21 years, contrary to section 118D and section 159G of the Ordinance, being Count 7.

     These offences spanned a three-and-a-half month period from early January to mid-April 2009.  Two of the three victims of the offences were, at the time, 14 years of age and the remaining victim was aged 15.

     The offences came about as a result of the defendant arranging to meet the victims through the Internet.  He had organised a message on a website which advertised that he was prepared to pay $300 to young women in return for them simply meeting with him and sharing a meal.  Each victim came to know of this offer and, directly or indirectly, contacted the defendant to accept it.  He told them his name was William.  It is convenient to deal with the offences under the following headings. 

The Indecent Assaults (Counts 1, 3 and 6)

     The victim of these offences was a 15-year-old girl who was to be PW3 at trial. 

The 1st count

     PW3 through an Internet discussion forum, came to know of the defendant’s offer to pay $300 to meet and share a meal with young women.  She provided a photograph of herself and some personal particulars and lunch was arranged with the defendant on 3 January 2009. 

     At lunch, PW3 told the defendant she was only 15 years old.  The defendant suggested that if she allowed him to hug and kiss her he would pay her $500 more.  After some persuasion, PW3 agreed and the defendant took her to a room in a building in Nathan Road.  The defendant asked PW3 to strip down to her underwear and she did so.  The defendant viewed her for several minutes and she then re-clothed herself.  The defendant then kissed her and touched her body over her clothes.  PW3 then left after being paid a total of $800.

The 3rd count

     After the first incident the defendant contacted PW3 again.  They met on 14 February 2009 and went to the room in Nathan Road.  On this occasion the defendant stripped PW3 naked and touched her breasts and private parts for about 20 minutes.  After that, PW3 got dressed.  The defendant gave her $800 and they left the premises.

The 6th count

     On 27 February 2009 the defendant and PW3 met again and went to the same room.  On this occasion PW3 had her clothing removed by the defendant who also removed his own clothes except for his underpants.  He rubbed PW3’s private parts with his penis and otherwise touched and kissed her.  After this occasion, he paid PW3 $1,000.

     So far as the indecent assault offences are concerned they show a gradual escalation in seriousness.  As aggravating factors, I take into account the disparity in the defendant’s and PW3’s ages and the corrupting effect of the defendant’s payment of increasing amounts of cash to PW3 for the activities he involved her in.

     In my view, deterrent sentences are appropriate for those who lure young girls into this sort of activity through the Internet.  Young females seem peculiarly vulnerable to the sort of Internet predation which the facts of this case exemplify and must be protected by the courts from people such as the defendant.

     On Count 1, I take a starting point of sentence of 3 months’ imprisonment.  That is reduced to a sentence of 2 months’ imprisonment on the basis of the defendant’s plea of guilty. 

     On Count 3, to reflect its somewhat greater seriousness, I take a starting point of sentence of 6 months’ imprisonment.  That is reduced to a sentence of 4 months’ imprisonment to reflect the defendant’s plea of guilty.

     On Count 6, which I regard as the more serious offence, I take a starting point of 12 months’ imprisonment.  That is reduced to a sentence of 8 months’ imprisonment to reflect the defendant’s plea. 

     I propose to give the defendant also some credit for his good character in respect of these as well as the other offences but I will do so at the point of time when totality of sentence is considered.  That is perhaps a less conventional approach but more convenient given the range of sentences to be imposed on the defendant.

Unlawful sexual intercourse with a girl under 16 years of age (count2)

     This offence involved a different victim who was to be PW4 at trial.  She was aged 14 at the time of the offence.  She also had seen on the Internet that the defendant was offering $300 to girls who were prepared to share a meal with him.  She contacted the defendant, and after providing him with photographs of herself, a date was arranged in mid-January 2009. 

     PW4 and the defendant had dinner together during which she told the defendant she was 16 years of age.  After dinner and after some persuasion PW4 agreed to go with the defendant to the room in Nathan Road.  There the defendant undressed PW4 and himself and had intercourse with her.  He used a condom.  Afterwards, the defendant gave PW4 $1,500.

     Again, I take into account as aggravating factors the age differential between the defendant and his victim and the corrupting effect of the payments of money to the young victim for her sexual services.  Those factors considerably enhance the culpability of the defendant together with his use of the Internet to attract victims such as PW4.  I bear in mind that PW4 told the defendant she was over 16 years of age and that a condom was used. 

     In my judgment, the appropriate starting point is 2 years’ imprisonment.  That is reduced to 16 months’ imprisonment to reflect the defendant’s plea of guilty.

Buggery with a girl under 21 years of age (count5) 

     The victim of this offence was a 14-year-old girl who was to be PW5 at trial.  She was introduced to the defendant by a girlfriend, PW6, who had learned of the defendant’s offer to pay girls for eating meals with him through the Internet.  Both PW6 and PW5 went to dinner together with the defendant and afterwards received payment. 

    On 21 February 2009 PW5 and PW6 went with the defendant to the room in Nathan Road where the defendant gave PW6 $200 as a reward for introducing PW5 to him and PW6 then left.  In the room PW5 and the defendant negotiated a price for what the defendant referred to as “further intimacy”.  They then undressed and after various sexual acts the defendant penetrated PW5’s anus with his penis.  No condom was used.  Afterwards, the defendant gave PW5 $2,500 and she left. 

    I take into account that PW5 had told the defendant that she was over 16 years of age but in my view this is nevertheless a serious offence.  I take into account the same aggravating factors of disparity of age and the corrupting influence on the victim of the monetary payments made to her by the defendant and the fact that the defendant had also gained initial access to this victim through his Internet message.  Further, on this occasion he had refused to wear a condom.  Given his history of sexual activity, I view that as an aggravating factor.

     I am told that the policy of the Prosecutions Division of the Department of Justice is to not prosecute cases such as the present where the victim is over the age of 16.  I do not think that policy greatly impacts on this case.  The victim was 14, demonstrably immature and vulnerable and apparently participated in these activities for money to replace her lost mobile phone. 

     The courts have regarded this sort of offence as very serious.  That follows from the maximum sentence of life imprisonment which attaches to the offence - see HKSAR v Chan Kwong Pui [2003] 4 HKC 208, at paragraph 20.

    I take a starting point of sentence of 4 years’ imprisonment.  That is reduced to 2 years 8 months’ imprisonment to reflect the defendant’s plea of guilty.

Attempted buggery of a girl under 21 age (count7)

    The victim of this offence was PW3 who was also the victim of the offences of indecent assault, which I have dealt with in Counts 1, 3 and 6.  On this occasion, following those earlier incidents, PW3 contacted the defendant and they arranged to go to the room in Nathan Road.  The defendant removed their clothing and they lay on the bed together.  The defendant, without a condom, tried to insert his penis into PW3’s anus but stopped when she shouted.  Subsequently the defendant paid PW3 $1,000 before they left the room.

     I take into account that the defendant stopped his attempt immediately PW3 told him to do so and that, consequently, there was no penetration.  Nevertheless the same aggravating factors apply, that is, the disparity of age, the payment of monies, the use of the Internet and the lack of a condom and the age and immaturity of the victim.  I take a starting point of sentence of 3 years’ imprisonment.  That is reduced to a sentence of 2 years’ imprisonment to reflect the defendant’s plea of guilty.

 Buggery with a girl under 21 years of age (count10)

     On this occasion the victim was PW4, the 14-year-old victim of the 2nd count which I have dealt with earlier.  In mid-April 2009 PW4 and the defendant met again and went to his room in Nathan Road.  Once there they removed their clothes and after performing various sexual activities involving PW4 masturbating the defendant, the defendant put his penis into PW4’s anus.  He withdrew when she cried out in pain.  Again, no condom was worn. 

     I take into account the same aggravating factors I have referred to in dealing with the offence, the subject of Count 5, and take a starting point of sentence of 4 years’ imprisonment.  That is reduced to 2 years 8 months’ imprisonment to reflect the defendant’s plea of guilty.

 Totality

    These offences form part of a systemic pattern whereby the defendant took sexual advantage of young girls for his own gratification over a period of three-and-a-half months.  He displayed all the characteristics of an Internet predator.  The message that was posted on the Internet by or on behalf of the defendant was, in my view, designed to entrap young women into the activities the subject of the charges.

     There was more than a meal involved and I am satisfied that that was always the intention of the defendant.  Each of these three young girls was, quite bluntly, stupid and immature.  Nevertheless, young girls are entitled to be protected by these courts from people such as the defendant and deterrent sentences are required.  In my judgment, given the type and timeframe of the offences and the defendant’s targeting of immature young girls, a total sentence of 5 years’ imprisonment would have been appropriate.

    However, I think some allowance should be made for the defendant’s undoubted previous positive good character and I reduce that total sentence to one of 4 years 8 months’ imprisonment.  I note that in HKSAR v Lau Chi Cheung CACC427/2007, the Court of Appeal thought it appropriate to allow a reduction of sentence of similar degree to reflect that appellant’s positive good character. 

     To achieve that totality of sentence I order that the sentences imposed in respect of Counts 5 and 7 be served consecutively to each other but that all other sentences imposed be served wholly concurrently.  That results in a total sentence of 4 years 8 months’ imprisonment. 

    I might add that for the purposes of sentencing in this case I have ignored the facts concerning the finding of a pinhole camera in the room in Nathan Road where the defendant went with these young girls to commit these offences.  There is no evidence before me that that camera was used in respect of any one of the offences with which I have dealt.