HKSAR v. TANG TSZ PING

DCCC 987/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 987 OF 2012

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Reasons for Sentence

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1.  On 5 December the defendant pleaded guilty to one count of unlawful sexual intercourse with a girl under 13 and was convicted accordingly. In view of the nature of the offence I called for a psychologist’s report on the defendant and a victim’s assessment report. The sentence was eventually adjourned to 14 January.

Brief facts

2.  The victim, X, was born on 8 January 2000 in Mainland China.  She was 12 years and 5 months old at the material time and was studying in a primary school.  The defendant was aged 19 and worked as a cook at the material time. 

3.  Through an online game, the victim came to know the defendant in early June 2012.  After a few online chats, they met on 11 June 2012.  They even addressed each other as husband and wife.  On 13 June, the victim went to school and later hung out with her friends.  As she had no money to go home, the victim called the defendant for help.  They then met in Jordan area at about 1 am on 14 June.  After some drinks, the defendant took the victim back to his home in Fu Cheong Estate, Shamshuipo.  They arrived at the defendant’s residence at about 3 am.  The defendant lived with his mother but she was asleep when they returned home.  Inside his room, the defendant kissed, undressed and touched the victim.  The victim said “No” twice when she was being kissed and touched.  The victim tried to stop the defendant from removing her clothes.  The defendant did not use a condom and eventually had sexual intercourse with the victim which lasted for about 5 minutes.  The defendant ejaculated on the belly of the victim.  They slept until about 10 am.  The defendant gave the victim $100 to take a taxi back home and even walked the victim to take a taxi.  The victim did not attend morning classes, and when she returned to school in the afternoon, the victim told the social worker about the incident.  A report was made.

4.  On 15 June, the victim was examined by a forensic pathologist and it was confirmed that the victim had recent sexual intercourse but there was no recent injury.

5.  On 4 July 2012, the defendant was arrested and under caution he admitted that he had consensual sexual intercourse with the victim.  In the record of interview, the defendant made the same admission.  He did not take any preventive measures.  He did not see the victim after the incident.

6.  The victim positively identified the defendant in the identification parade held on 30 July 2012.

Mitigation

7.  It was submitted that this was an isolated incident and the defendant committed the offence at the age of 19 years old plus.  The defendant has a good work ethic and has returned to work as a chef since November last.  The defendant thought the victim was 17 years old, and even the victim said she did not tell the defendant her real age.  It was further submitted that the defendant and the victim started their courtship and were affected by undue infatuation.  The defendant did not have any premeditated plan to have sex with the victim.  The defendant is not suffering from any major psychological problems and it was stressed that the defendant would be benefited from proper mentoring and supervision.  The victim did not suffer any psychological adverse impact or trauma.  The early plea of the defendant indicated that the defendant was remorseful.  This was not a breach of trust situation and the age gap between them is only 7 years.  The defendant did not take advantage of the victim.  There is no sentencing authority in this kind of offence.

Sentence

8.  This was another typical case where the culprit made use of the internet platform to make acquaintance with friends of the opposite sex and groom the latter for sexual activities.  A clear message of disapproval should be sent.  The facts of this case to some extent revealed the victim’s failure to realise the danger that she would face when approached by strangers.  The victim assessment report stated that there was no significant disruption and impairment in the victim’s psychological well-being at the present stage.  The victim did not consider the defendant as an important part of her life.  It was the opinion of Dr Leung, the clinical psychologist, that due to limited parental attention and supervision of the victim, the victim was at risk of undesirable peer influences.  This incident does not have any negative impact on the victim’s psychological well-being.

9.  The legislative intent of the offence provision is paternal and is aimed at protecting the vulnerable and young members of the community.  This is so even though the victim might take a casual view about sex and have some kind of erroneous attitude towards having courtship or relationship with males.  Here the defendant did not use a condom and he ejaculated outside the victim.  He gave $100 to the victim for taxi fare and there was no evidence to suggest that the money was used to groom the victim for sex.  In HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432, the applicant came into contact with the underage girl through internet chat and phone messaging.  The girl was asked to go to a hotel where sexual intercourse took place.  The girl was given $2,000 plus $200 taxi fare.  No condom was used and the applicant ejaculated outside her.  The Court of Appeal reduced the starting point from 3 years to 2 years and eventually sentenced the applicant to 13 months.

10.  The defendant in the present case is now 20 years old and had two triad related convictions back in February 2009.  The defendant was released from the Rehabilitation Centre in early 2009.  He attended to Form 4 level and worked as a chef.  He got a job as a chef with a daily wage of $450.  His parents divorced some 10 years ago and he now lived with his mother.  His mother came to court to support the defendant.

11.  The defendant’s psychological report said that the defendant was co-operative and forthcoming.  The defendant’s father was irresponsible and an absent figure.  Psychosexually, the defendant had a normal development and had no sexual deviance.  It was reported that the defendant’s characters were not too bad and has a potential for normal and healthy development if proper mentoring with guidance and supervision was given.  The defendant claimed that he did not know the victim was underaged and they had consensual intercourse.

12.  It is well-accepted that as a matter of public policy, as I mentioned earlier on, the law is to protect those vulnerable members of society from being abused or exploited.  The victim was about 12½ years old while the defendant was nearly 20 years old at the material time. The age differential between the victim and the defendant is not big.  From the facts of the case, it was the victim who called the defendant in the early hours and did not want to go back home.  The defendant took the victim to his home where the offence took place.  The defendant did not use any preventive measures.  He did not groom the victim to have sex with him.  It seems that the victim, who took a lax attitude towards sexual relationship, did not suffer from any impairment on her psychological well-being.

13.  I take the view that a custodial sentence is inevitable to reflect the culpability of the present offence and to send a clear message to society that underaged girls or boys should be protected, despite the latter’s personal attitude towards this kind of crime; and that those who take advantage of these vulnerable members of society should face dire consequences when committing this kind of offence.  I note that the defendant had been sent to Rehabilitation Centre back in 2009.  Taking all factors into account, I adopt a starting point of 12 months.  With the discount for the guilty plea, I reduce the sentence to 8 months.  However, having considered the personal circumstances of the defendant and, prima facie, the negligible impact on the victim, I would further reduce the sentence by 2 months.  I hope the defendant would learn a big lesson from this incident and treasure the leniency that the court shows.  Accordingly, I sentence the defendant to 6 months’ imprisonment.