HKSAR v. LAU CHI CHEUNG

CACC 427/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 427 OF 2007

(ON APPEAL FROM DCCC NO. 638 OF 2007)

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J U D G M E N T

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Hon Tang VP:

1.  The applicant was convicted on his own plea of unlawful sexual intercourse with a girl under 13 contrary to section 123 of the Crimes Ordinance, Cap. 200.  The girl was 12 years 7 months and 18 days old on 19 May 2007, the date of the offence.  The applicant was 22 years old at the time.  He was sentenced to imprisonment for 22 months by HH Judge Mackintosh.  The learned judge adopted a starting point of 3 years, deducted one-third for the plea and a further 2 months to reflect the applicant’s positive good character.

2.  At the time of the offence, the applicant was a college student in California.  He was in Hong Kong on vacation.

3.  For the purpose of his plea, the applicant admitted certain facts.  The relevant facts are set out in full below.

“Prior to May 2007, X and the Defendant had come into contact through internet chat programs, and also by mobile phone messaging.  The Defendant had told X that he was in LA (Los Angeles) but would be coming to Hong Kong soon.

Recorded messages on X’s computer dated 21^st April 2007 show the Defendant, identifying himself as Ngo Cheung Lam Tin-Hoover@LA, asking X her age, and X replying ‘12’, the Defendant saying he is 19.

Conversation about sex continues, in which X said she had had sex with a previous boyfriend, and later they arrange to have sex the following month.

On 18.05.2007, the Defendant contacted X by MSN.  X agreed to meet him at Langham Place Hotel in the morning of 19.05.2007.

X took a taxi from Tai Po at 8 a.m. on 19^th May 2007, arriving at Langham Place Hotel, where the Defendant met her, paid the taxi fare, and took her to Room 2921.

X and the Defendant took off their clothes, lay on the bed and had sexual intercourse, the Defendant withdrawing before ejaculating on a towel.  No condom was used.

X replaced her clothes, and returned home by taxi, after the Defendant gave her $2,200.00, of which $200.00 was to cover the taxi fare.

X’s brother was suspicious that she had $2,000.00 on her, and told their mother, who, after questioning X, made a report to the police.

At 3:05 a.m. on 20^th May 2007, the Defendant was arrested at Room 2921 of Langham Place Hotel.  He initially admitted that X had visited his room, but denied sexual intercourse.

A forensic pathologist who examined X found no physical damage.”

4.  In sentencing the applicant, the learned judge said:

“2. Children need to be protected from those who seek to engage them in sexual activity. Sometimes they need protection from their own foolishness. They can be immature, naïve, impressionable and easily led. They may indulge in childish or inappropriate fantasies which can be used by mature men who wish to have sex with them and in the era of the internet, it is more difficult then ever to protect such children. Parents often do not realise just how much at risk their children may be to predators who can locate them in chat rooms on the internet and encourage them to engage in sexual banter and bragging for their own ends, including for the ultimate purpose of obtaining sexual intercourse.

3.  A girl of 12½ is very vulnerable.  She is likely to be at an age when consciousness of her own sexuality, and the influence of that sexuality upon her, is growing; and experience in these courts shows that it is a time when some men seek to take advantage of the naivety of such girls to gratify their own sexual desires.”

I agree.  The offence is serious and carries a maximum sentence of life imprisonment.

5.  However, when one comes to sentence, one has to take into account all the circumstances, including, for example, the attributes of the girl as well as the man.  A man who has unlawful sexual intercourse with a girl the day before her 13^th birthday is likely to receive a lower sentence than the man who had unlawful sexual intercourse with a girl who is substantially younger.  Indeed, the younger the girl, one would expect the sentence to be heavier.  Also, the age of the man is relevant.  Here, the applicant is 22 years old, a student and not a mature man.  As Deputy Judge McMahon (as he then was) said in HKSAR v Lai Yip Sing [2001] 2 HKLRD 601 at 606:

“15.   … One of the important factors to take into account is any marked difference in age between the offender and the victim.”

6.  On the other hand, there may be aggravating circumstances, e.g. if the man had groomed the girl for sexual intercourse.  A helpful explanation for the meaning of that expression can be found in Re A-G’s Reference No. 127 of 2004, where the head note reads:

“One of the purposes of the legislation was to recognise that the young needed protection from their own immaturity. One of the perils of the misuse of the internet by an older man was that he could groom an immature girl into believing that she was more mature than she was, and to give her the false confidence that she could behave and should be treated as if she were an adult. The internet was now widely available for all sorts of innocent, valuable and educational purposes. Its misuse by older men to seek and find and then groom girls who were vulnerable and immature, should be deterred. The Court agreed with the observation in A-G’s Reference No 39 of 2003 (Michael Anthony Wheeler) [2004] 1 Cr App R (S) 79 (p.468), that it was an area in which the Court needed to deliver a clear message of disapproval.”

7.  The learned judge said that the defendant had groomed the girl for sexual intercourse.  Here there is no evidence that the applicant had used the internet to groom the girl into believing that she was more mature than she was, or to give her the false confidence that she could behave and should be treated as if she were an adult.  Indeed, from extracts of messages sent by her it is quite clear that the girl was sexually precocious.  For example, in relation to two other men, she had asked for the size of the penis of one man and to see a photograph of it and in relation to the other man she asked to see his penis and that man sent her a photograph.  From the extracts sent to the applicant, one can see that if there was “grooming” in this case, it was of the mild kind.  Nevertheless I accept that young girls have to be protected from their own foolishness, and in the circumstances of this case I agree that a community service order is completely out of the question.  Even so, the question is what is the correct sentence for this offence.

8.  The learned judge referred to the case of Secretary for Justice v Chung Yui Hung [2007] 2 HKLRD 771.  Where a starting point of 5 years was considered by the Court of Appeal to be appropriate.  However, as the learned judge recognised, the particular aggravation of that case was that the conduct of the offence was “extremely close to the borderline with rape”.  There, the girl in question was also 12 years and 8 months, but the defendant was 38 and a teacher.  He was sentenced to 16 months’ imprisonment for unlawful sexual intercourse with a girl under 13 on his plea from a starting point of 2 years.  He was also sentenced to 4 months for possession of images of a female child’s genitalia on the hard disk of his computer, from a starting point of 6 months for his plea.  On the Secretary for Justice’s application for review, his total sentence was increased to 3 years and 8 months.  There the Court of Appeal also took into account that the defendant had groomed the girl for sexual intercourse, citing Re A-G’s Reference No. 127 of 2004.  There was nothing in the report to show that in that case the girl was sexually precocious or that she had gone to meet the defendant with sex on her mind.  This is what the Court of Appeal said in the judgment:

  “4.   Shortly after the respondent had arrived, he pushed X onto the sofa.  He removed her shorts and underpants before having intercourse with her without the use of a condom.  The respondent ejaculated inside her.  During this time, X had tried to tell the respondent to stop but the respondent was kissing her on the mouth and he was pressing onto her hands.  The respondent then left.

  5.  X immediately told two friends about what had happened to her.  She was concerned that she might become pregnant.  Later, X’s mother returned and X told her that she had been ‘molested’. X was taken to hospital where she was examined. …”

So as the learned judge recognised:

“19.   … it was manifestly a more serious case than the present one where there is no element of unwillingness by the girl and where the disparity in age is numerically smaller and in terms of the defendant’s maturity perhaps smaller still.”

9.  He said for that reason, he had deemed a lower starting point to be appropriate.

10.  Here, the evidence show that the girl was sexually precocious.  The learned judge recognised that when he said:

“4. … (she had) taken part in sexually explicit conversations through MSN or in chat rooms with males who were strangers to her in which she expressed a willingness to engage in sexual activities and boasted that she had already been engaged in such activities. …”

11.  But the learned judge went on to say:

“… Whether her claims of sexual experience were true is, in the end, irrelevant.  There is no evidence other than her own claim that what she was saying to you, and apparently to others, was true. …”

12.  Mr Lawrence Lok submitted that the learned judge was wrong in not placing reliance on the admission made by the victim, that she had told the applicant that she had previous sexual experience as stated in the agreed summary of facts.

13.  There is no evidence that what the girl claimed was untrue.  According to Ms Sin, the medical evidence was neutral.  I find it difficult to understand why in the absence of evidence to the contrary, the court should not proceed on the basis that she indeed had sexual experience.

14.  Mr Lok also submitted that how the victim had conveyed her sexual experience and how she portrayed herself to the applicant was relevant in assessing and evaluating the seriousness of the offence and circumstances of the offending.  Mr Lok submitted that in this case, the applicant was dealing with a girl who was sexually precocious and clearly promiscuous and was indicating, if not encouraging, sexual relations with him.

15.  Mr Lok further submitted that the applicant was not a person who initiated the sexual discussion, and he did not manipulate the victim to have sexual intercourse with him.  It was the girl who first raised the question of sexual intercourse.  As Mr Lok put it, when confronted with a situation where the victim had expressed her willingness to have sex with him whilst they were chatting on the internet, the applicant succumbed to temptation.  As Mr Lok put it, the applicant was wrong in failing to control his sexual urges, but it was not a case where the applicant had deliberately groomed the victim to have sexual intercourse with him.  There is force in this submission.  However, it is important that men should know that they must resist such temptation.

16.  Another aggravating factor identified by the learned judge was the payment of $2,200.  This is a large sum for a young girl and its corrupting influence is obvious.  In paragraph 9 of the Reasons for Sentence he said:

“9. The fact is that you paid for sexual intercourse with this 12 year old girl.  In effect she prostituted herself for you.  You handed the money to her as a payment for what had occurred.  That was an act which was highly likely to corrupt her.  Furthermore, you had unprotected sex with this young girl.  I am told that you did not regard yourself as being at risk to transmitting any venereal disease to her.  You claim your only other sexual partner is a lady in respect of whom you are yourself the only sexual partner.  I find it impossible to place any reliance on this unverifiable aspect of what you say, particularly given the fact that you were found in the hotel room where you were arrested in the company of two other females, one aged 15 and the other aged 16.”

17.  So far as the payment to the victim is concerned, Mr Lok submitted that the $2,200 was paid after the act of sexual intercourse, and there was no prior agreement as to payment.  With respect, I agree with Ms Sin for the respondent that there is a sufficient element of corruption by the mere fact of a large money payment.  Mr Lok complained that the learned judge had failed to inform him that material mitigation submissions regarding such payments would be disregarded.  I do not find it necessary to decide this question since I regard the mere fact that a large sum of money was paid is a serious aggravating factor, because of its corrupting influence.  The applicant was a college student in the US and was staying in an expensive hotel.  $2,200 is a large sum of money.  It does not matter that payment was not agreed beforehand.  The possibility of financial advantage to the girl was real, indeed mentioned in the internet exchanges by the applicant.  The fact that $2,000 of it was supposed to be a loan is unimportant.  There was no real expectation of repayment.

18.  Mr Lok, SC, further complained that the learned judge was not entitled to infer from the fact that there were two other girls in the hotel room when he was arrested, and they were aged 15 and 16, that the defendant had other sexual partners.  I agree.  Whilst the learned judge rightly took into account the risk of infection, because the applicant did not use a condom.  On the other hand, the applicant ejaculated outside her, a point in his favour. 

19.  In Chung Yui Hung, the court referred to R v Cheung Hon Ki, unreported, CACC 28 of 1996, dated 19 June 1996 and said:

  “18. … We do not propose to make reference to this case other than to say that the sentence imposed on that occasion provides no assistance whatever in a case of the gravity of the present offence.  It is unfortunate that the Judge made any reference to it.  We can indicate in this regard that we are satisfied that R v Cheung Hon Ki should not be relied upon as providing any guidance for the sentencing of offenders of this kind.”

20.  But that does not mean that Cheung Hon Ki cannot provide helpful guidance in suitable cases.  Nor can I gather from Chung Yui Hung any indication that the sentence that was passed by Deputy Judge Beeson (as she then was) and affirmed by the Court of Appeal was in any way inadequate having regard to the facts of that case.  There a man of good character aged 30 pleaded guilty before Judge Beeson on two charges of unlawful sexual intercourse with a girl under 13.  The learned judge sentenced him to imprisonment for 18 months, by way of concurrent terms of that duration.  Only one girl was involved and she was 12 years and 11 months’ old at the time.  There was no evidence that the girl was sexually precocious.  She came to know the offender through a line telephone game.  She had quarrelled with her mother and ran away from home, and to the offender’s home, where the offence took place.  She was in a particularly vulnerable position having run away from home and no doubt needed shelter.  A person who took advantage of runaway children can expect little sympathy from the court.  The appeal against sentence was dismissed and they said:

“13.   We have given anxious thought to this matter. But in all the circumstances, we are ultimately of the opinion that the judge was entitled to sentence the applicant as she did.”

I believe Cheung Hon Ki provides useful guidance for this case.

21.  Mr Lok also relies on Lai Yip Sing where a 24 years old man’s sentence of 3 months for sexual intercourse with a girl of 14 by a magistrate was upheld.  But here we are concerned with a girl under 13 and hence a much more serious offence.

22.  Ms Mary Sin suggested that although there was no medical evidence that the girl had suffered any lasting effect from the offence, she had been receiving treatment.  However, the medical report produced by Ms Sin showed that she was known to the mental health service since December 2006 because of “oppositional behaviour”, thus, her involvement with the mental health service predated the offence.  According to the report, she was indifferent to the incident.  That being the case, I am not surprised that no reference was made to this at trial, and I see no reason why it should, in any way, affect our judgment.

23.  Ms Sin has supplied to us in court an up-to-date psychiatric report dated 18 April 2008.  The evidence shows that:

“Her mood was neutral with reactive affect and social smile.  Her speech was relevant and coherent.  She denied any psychotic symptoms or suicidal ideation.  She denied nightmares or flashback related to the index incidents.  Her mother reported her mood to be stable and enjoyed chatting with friends over phone.”

So it appeared, fortunately from this latest report, that at least up to date, she does not seem to suffer from any lasting adverse effect from the incident.

24.  Ms Sin has referred us to A-G’s Reference No 31 of 1996 where the English Court of Appeal increased the sentence to 3½ years on a plea where the victim, was a boy of 13.  But there the offender was 50 years old.

25.  In R v Christopher James Polley [1997] 1 Cr App R (S) 144, the defendant was a man of 45.  He had his sentence reduced to 2½ years from 3½ years.  The girl was 12 years old.  The offender was described as a man of low/average intelligence.  In sexual offences, I do not regard low or average intelligence, as opposed to sub-normal intelligence, to be an important mitigating factor.  In Polley the defendant was considerably older than the girl.  Here, as the learned judge said the disparity in age is numerically small, (10 years) and

“… in terms of the defendant’s maturity perhaps smaller still.”

Polley was much older than the applicant.  The girl was possibly younger than our victim.  There was no evidence that she was sexually precocious.

26.  So we come to consider whether the choice of a starting point of 3 years by the learned judge was appropriate.  In my opinion, having regard to the circumstances of this case, the starting point of 3 years was excessive.  However, I cannot agree with Mr Lok that a sentence which would have resulted in the immediate discharge of the applicant to be justified.  This is an extremely serious offence.  The defendant, though young, was 22 at the time.  The girl was 12 years 7 months and 18 days old.  It is true that the girl appeared to have been sexually precocious.  But in this case, there was a serious aggravating factor of the payment of a substantial amount of money.  I have already said that there was no evidence that payment was agreed beforehand.  But as I have also said, it had been discussed prior to the incident.  I believe the fact of payment to be a very serious aggravating factor.  So in all the circumstances of this case, I believe the appropriate starting point should be 2 years.

27.  Mr Lok also submitted that the usual one-third reduction for a plea was insufficient.  Here, by pleading guilty the applicant had saved the girl from the embarrassment and trauma of giving evidence.  However, as Ms Sin said the learned judge had effectively given the applicant further discount for his positive good record.  One-third is the conventional discount.  It has the advantage of certainty though in a suitable case, one might discount the sentence further.  In this case if the usual discount of one-third were applied, the applicant’s sentence would be reduced to 16 months.  The learned judge in this case had given the defendant an extra 2 months’ deduction for his positive good character.  We would do the same, but given the further mitigating circumstances, which have been urged upon us and disclosed to the court today, I would reduce the sentence by a further month.  So the result of this is that I would substitute a sentence of 13 months.

Hon Fung J:

28.  I agree with the judgment of Tang VP.