SECRETARY FOR JUSTICE v. CHUNG YUI HUNG

CAAR 11/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION for review NO. 11 OF 2006

(ON review FROM DCCC NO. 448 of 2006)

____________________

____________________

___________________

J U D G M E N T

___________________

Stuart-Moore, VP (giving the judgment of the Court):

1.  On 5 October 2006, District Judge D Lok sentenced the respondent to a total of 20 months’ imprisonment for offences of unlawful sexual intercourse with a girl under the age of thirteen, contrary to section 123 of the Crimes Ordinance, Cap. 200 (charge 1), and possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap. 579 (charge 2).  Thereafter, the Secretary for Justice (the applicant) sought leave for a review of sentence pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, on the principal basis that the sentence was manifestly inadequate.  Leave was granted on 24 October 2006.

The facts

2.  The facts were straightforward.  ‘X’, as the victim identified in the 1^st charge was described, was a Form One student aged twelve years and 8 months.  The respondent, aged thirty-eight, was therefore three times her age.  They came to know each other through a chat-line on the internet (ICQ).

3.  On 12 December 2005, X was alone at her home when she called the respondent to meet her there.  This was their first meeting.

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.  Some days after this, the respondent was identified by X on CCTV tapes taken from her building.

6.  In the police investigation which followed, the police laid a trap to catch the respondent by setting up an ICQ account by reason of which the respondent was led to believe that he could meet a girl called “Amy” aged fifteen.  This would be a meeting, as the respondent was led to believe, for the purpose of having sex with the girl.  The respondent was duly arrested on 25 January 2006 after he had told a female detective who was posing as “Amy” that he had brought a condom with him.  When searched, he was found to be in possession of two condoms and two mobile telephones.  The prepaid SIM card inside one of the telephones had the number used by X to contact him.

7.  When the respondent was interviewed, he admitted having had sex with X but he said that, having met X, he believed that she was fifteen at the time.  However, the police obtained from X’s computer a printout of the ICQ communications between the respondent and X which revealed that X had told the respondent only eight days before the offence that she was aged twelve.  The printouts were shown to the respondent who then claimed that he had forgotten X’s age.

8.  DNA comparisons, between samples taken from the respondent and those found on high and low vaginal swabs taken from X, provided strong support for the proposition which, in the event was not denied, that the respondent was the culprit responsible for this offence.

9.  The 2^nd charge came to light on the day after the respondent’s arrest.  On 26 January 2006, his residence in Tin Shui Wai was searched and a desktop computer was seized.  The computer’s hard disc was found to contain saved images in a file named “ally2k5”.  Six of the images showed the genitalia of a female child with whom the respondent had also engaged in dialogue containing explicit sexual overtones.

Mitigation

10.  The judge was invited to treat the respondent as someone who was extremely remorseful about the harm he had done to X and to his own family consisting of his wife and two daughters aged five and one respectively, for the suffering he had brought upon all of them.  The respondent was well educated.  He had a degree and had been teaching physical education in a secondary school until he tendered his resignation following his arrest.

11.  It was the respondent’s case that he had resorted to the “excitement” he derived from casual relationships because he had been unable to cope with the stress he was under at work and the disapproval of his parents-in-law towards himself.  Students and ex-colleagues spoke highly of the respondent in letters submitted in mitigation.

Sentencing

12.  Prior to sentencing, the judge had been provided with a psychological report and a probation officer’s report.  In the light of these, it is curious that the judge remarked:

“… the defendant is not suffering from any psychological disorder or paedophilia.”

The report prepared by Ms Candy Hui, a clinical psychologist, had merely referred to the respondent’s denial of having “any sexual interest towards children” or having “deviant sexual interest”.  Ms Hui continued that “major psychopathology” was not suggested and concluded that:

“To prevent re-offending, psychological intervention for improving his stress management skills and preventing deterioration of his sexual problem was recommended.”

13.  It seems absolutely clear to us, upon the facts which were presented to the court, that the respondent’s sexual problem related not only to a need for casual relationships with strangers but also to underage girls.

14.  The judge correctly acknowledged the gravity with which offences of the kind in the 1^st charge are viewed by pointing out that the legislation makes provision for a life sentence where the victim is aged less than thirteen whereas a 5-year maximum is available where the victim is under the age of sixteen.  In his review of the seriousness of this particular case, the judge also noted a number of aggravating features, saying:

“12.   In the present case, the Girl had told the Defendant her actual age.  Even though the Defendant claimed that he forgot her actual age when he had sexual intercourse with the Girl, he knew full well that the Girl was an underage girl, which means at least under the age of 16. Obviously, the Defendant, being a teacher himself, should have been more alert about the age of the young girl before he had sexual intercourse with her. Further, there is a huge age gap between the Defendant and the Girl. Again, the Defendant, because of his profession, should have known that young girls can be immature and they need special protection in this regard, and yet the Defendant exploited his position as someone much more mature than the Girl.

13.     This is not a case of a misguided romantic story. The previous exchanges between the Defendant and the Girl, and the Defendant had sex with the Girl the first time they met, suggest that the Defendant just wanted to have sex with the Girl. The fact that the Defendant carried two mobile phones also shows that there was some planning by the Defendant in committing the offence.  On the other hand, the Defendant has a good background …”  (Review bundle p. 21)

15.  In regard to the 2^nd charge, the judge said:

“… the prosecution shows the court the ICQ conversation record between the Defendant and purportedly a young girl living in Sydney. They talked about sex and sizes of the sex organs in the exchanges, and the Defendant asked the girl to show her nude pictures. The exchanges were so vulgar that it is very difficult to imagine that the Defendant, being a teacher himself, would have engaged in such kind of conversation with a young girl. It was under such circumstances that the Defendant obtained the photographs involved in Charge 2.” (Review bundle pp. 21-22)

16.  With these, and other considerations in mind, the judge adopted a starting point of 2 years’ imprisonment on the 1^st charge which he reduced to 16 months’ imprisonment to reflect the respondent’s guilty plea.  On the 2^nd charge, having cited the guidelines taken from R v Oliver [2003] 2 Cr App R 64, the judge took a 6-month starting point and reduced this to 4 months, again to reflect the plea.  No complaint is made in these proceedings about the sentence imposed on the 2^nd charge.  This was ordered to run consecutively, making 20 months in all.

The application

17.  Mr Zervos SC, for the applicant, made it clear to us that this application was solely directed at what, he suggested, was the manifestly inadequate level of sentencing on the 1^st charge.  Mr Zervos submitted that the judge had paid insufficient heed to legislative intent insofar as the penalty for an offence committed in circumstances such as these was concerned.  As such, he contended, there had been insufficient regard to the public interest in cases of this kind and the real need for deterrence.  Emphasis, in this respect, was placed upon the considerable disparity between the ages of the respondent and X, his child victim, as well as the fact that the respondent had engaged in an act of unprotected sex.  No one, it was submitted, could have been more aware than the respondent, a teacher by profession and the father of two young daughters, of the vulnerability of young girls and the need for their protection against the advances of mature men.  In this case, the respondent had even been told by X that she was only twelve and yet he groomed her over the internet for the sole purpose of having sex with her.  Bearing these matters in mind, Mr Zervos argued that this case called for a sentence which would properly reflect the abhorrence felt by right-minded members of the public towards conduct of this kind.

18.  Mr Zervos also submitted that the judge had fallen into error by treating R v Cheung Hon-ki, CACC 28/1996 as effectively a ‘tariff’ case or in some way a yardstick for sentence.  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, perhaps, unfortunate that the judge, without prompting from counsel, 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.

19.  In reply to Mr Zervos’ arguments, it was submitted by Mr Wong Ting-kwong on behalf of the respondent that the judge had properly taken into account the various factors he had been told about and had reached a sentence which, albeit a lenient one, met the justice of the case.  In particular, the respondent’s plea of guilty had made it unnecessary for X to testify at court.  Mr Wong also demonstrated that the judge was well aware of all the factors upon which Mr Zervos had relied when Mr Zervos argued that the sentence had failed to reflect the aggravating circumstances of the offence covered by the 1^st charge.

20.  We have no doubt that the facts which have been presented to us on the 1^st charge revealed a particularly grave offence.  It will always be serious when the victim is under thirteen years of age but, whilst sometimes the offender may be genuinely unaware of his victim’s age, the respondent in this case had been put on notice of her exact age.

21.  We consider that despite the respondent’s previously clear record, the sentence imposed upon him needed to contain a deterrent element.  In our opinion, it did not do so.  What appears to have happened, with respect, is that the particularly serious aspects of this offence, whilst noted by the judge, were given insufficient weight, perhaps because they were in some degree masked by issues raised in mitigation relating to the better side of the respondent’s nature.

22.  In reality, this was a case which came extremely close to the borderline with rape and it was associated with the many aggravating factors to which we have referred.  Whilst a very long sentence for an offence of this kind will generally be reserved for those who have similar past convictions, this does not, in our view, mean that a substantial sentence is not sometimes called for in the case of a first offender where the circumstances justify it.  The internet provides opportunities for men of a like mind to the respondent to make contact with children in a way which in days gone by could not be done.  The way the respondent manipulated X to have sex with him is behaviour which the courts owe a duty to the public to make every effort to deter.  With respect, we do not consider that this was done in the present case.

23.  We are satisfied that the sentence on the 1^st charge imposed by the judge was manifestly inadequate.  In saying this, we have in mind, in the context of an offence of unlawful sexual intercourse with a girl aged between 13 and 16, the sentiments expressed by the English Court of Appeal in Attorney General’s Reference No. 127 of 2004 (David Michael Briggs) [2005] 2 Cr App R (S) 74 at page 469 where, reading from the headnote, it was held that:

“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 Attorney General’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.”

Conclusion

24.  This application will, for the reasons we have set out, be allowed.  We consider that a proper starting point on the 1^st charge after trial would have been 5 years’ imprisonment.  We appreciate that X was only 4 months short of her 13^th birthday and that, had she achieved the age of 13 when this offence was committed, the maximum sentence which could have been imposed for an offence of unlawful sexual intercourse with a girl under the age of 16, contrary to section 124 of the Crimes Ordinance, would have been 5 years’ imprisonment.  Nevertheless, having regard to the facts of this case, we consider that such a starting point is appropriate.  Giving credit for the respondent’s plea of guilty, this must be reduced to 3 years and 4 months’ imprisonment.

25.  The sentence on the 2^nd charge will remain unaltered and, as the judge in the court below was right to order, this will be served consecutively.

26.  In the result, therefore, the respondent’s sentence is increased from 1 year and 8 months to 3 years and 8 months’ imprisonment.  We have kept in mind Mr Wong’s ‘double-jeopardy’ argument but we do not consider that it would be appropriate in this case to make any further downward adjustment in sentence beyond the usual one-third reduction for the plea of guilty.

27.  We add one further comment which we have made before but it needs emphasising.  In Hong Kong, where there is no register for offenders of this kind, there is a greater risk that the respondent may be able to return to a job which involves teaching young people.  We again recommend that the creation of such a register is given serious consideration.