HKSAR v. TSANG KUI MAN

DCCC823/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 823 OF 2012

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Reasons for Sentence

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1.   The defendant was convicted upon his own plea of two charges.  The 1^st Charge was for the offence of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Chapter 200.  The 2^nd Charge was for the offence of unlawful sexual intercourse with a girl under the age of 16 years, contrary to section 124(1) of the Crimes Ordinance, Chapter 200.  Particulars of each offence were fully set out in the Charge Sheet.

Facts

2.   The victim was born on 11 August 1998.  At all material times, she was a Form 2 student.  In 2011, she enrolled to study in a tutorial centre in which the defendant was one of the tutors.  On 1 August 2011, the victim and the defendant became lovers.

3.   On 6 August 2011 when the victim was still under the age of 13, she returned to the tutorial centre.  Later in the afternoon, the defendant invited the victim to his home.  Inside his home, when the victim was watching a film, the defendant suddenly kissed her.  He took her into his bedroom, and had sexual intercourse with her for about 30 minutes without using contraceptive measures.  He ejaculated outside the victim (Charge 1).

4.   In September 2011, the victim stopped her tutorial lessons but continued going to the defendant’s tutorial centre.  In October 2011, she felt unwell in her private part.  Her mother sent her for medical examination.

5.   On an unknown day in mid-May 2012 when the victim was 13 years old, the victim went to the tutorial centre after school.  At about 8 to 9 p.m., the victim and the defendant were alone inside the centre.  The defendant sat on a chair, and the victim sat on his thighs.  They then had sexual intercourse without using contraceptive measures.  The defendant ejaculated outside the victim (Charge 2). 

6.   On 25 May 2012, the victim’s mother suspected that the victim was having a relationship with someone.  She made enquiry with the victim.  The victim revealed that she was in a relationship with her tutor and they had sexual intercourse.  A report was made to the police.

7.   The defendant was arrested on 28 May 2012.  In a subsequent video recorded interview, he admitted that he set up the tutorial centre.  He said that he handled the registration of the victim but he did not pay attention to the content of the registration form. He further said that he and the victim were lovers between 1 August 2011 and 11 August 2011 when the victim ceased to be his student.  They had not disclosed to each other their age.  He had kissed the victim at his home when they were lovers but did not have sexual intercourse with the victim.  He had no body contact with the victim in the tutorial centre.  He had given two smart phones to the victim as gifts before. He got married on 11 March 2012.

Criminal record

8.   The defendant has a clear criminal record.

Personal and family background

9.   The defendant is 43 years old.  He was born in the mainland and migrated to Hong Kong in 1981.  He received education up to Form 5. He initially worked as a junior accounting clerk. He became a tutor in 1993 and set up his own tutorial centre in 2006.  He is married.  His wife is 30 years old and works in a travel agency.  The defendant lives with his wife, mother, younger brother and the son of his younger sister.  His father has already passed away.  His younger sister lives apart.

Impact of the offences on the victim

10.   According to the assessment made by a clinical psychologist, the offences have a negative impact on the psychological well-being of the victim.  The victim now has a low self-esteem.  She considers she has a defect that can never be remedied.  She feels shameful and fearful of rejection by others.  She losses interests in opposite sex.  Flashbacks of the sexual activities with the defendant haunt her.  She has a low mood and has a hard time getting into sleep.  She feels angry with the defendant for lying to her about his age and family background. Psychological tests indicate that the victim displays symptoms of anxiety and depression.  She always feels depressed or anxious, and feels frightened for no reason.  She has sleep disturbance and recurring thoughts of past unhappy events.  She also displayed prominent post-traumatic stress symptoms.  She has intrusive thoughts about the incidents.  She has difficulties in concentration, and she avoids activities, places or people that may arouse recollection of the incident.  She has a negative self-regard especially in her social and academic areas.

11.   The clinical psychologist has also interviewed the victim’s father and finds that he was extremely angry with the defendant.  He also has a strong guilty feeling and blames himself for not protecting her good enough. 

12.   The clinical psychologist recommends further psychological follow-up treatment service to the victim and her father.

Psychiatric and psychological reports on the defendant

13.   According to the assessment made by a psychiatrist, the defendant is not suffering from any formal psychiatric disorder.

14.   According to the assessment made by a clinical psychologist, the defendant is a man of pro-social orientation with low self-esteem.  He has been feeling lonely and stressful over the past decade due to his overzealous involvement in his work as a tutor.  He has developed fairly strong emotional identification with his students, so that the teacher-student boundary has become progressively unclear.  The offences were related to his projection of intimacy needs onto the victim as they became acquainted with each other.  The risk of sexual re-offending is deemed low at this stage, but the possibility of developing paedophilic tendency cannot be ruled out.  Psychological intervention is recommended.

Mitigation

15.   The learned counsel for the defendant points out that the defendant is a hardworking man who dedicated everything to his family, his business and his students.  He submits that the offences were only a one-off incident due to the pressure of work, and that it is highly unlikely for the defendant to reoffend.  The defendant had tried to break up the relationship, but unfortunately he went back into it.  He is remorseful and regrets what he has done.  Although the offences have an impact on the victim, the report does not show that the impact will be permanent and the victim may get over it with counselling.  The defendant is genuinely remorseful and sincerely apologizes to the victim and her family members.  Counsel submits a file of documents to show that the defendant has performed tremendous amount of voluntary work for a number of agencies which showed that he cared for young people.  Counsel submits mitigation letters from the defendant, his wife, his mother and students.

Reasons for sentence

16.   The offences committed by the defendant are serious offences.  The maximum sentence for the 1^st Charge is life imprisonment, and that for the 2^nd Charge is imprisonment for 5 years.  There is no sentencing guideline because facts of each case vary considerably.

17.   The sentencing principles are however clear.  Under-aged girls are vulnerable because they are naïve and trustful towards others especially to those in a position of trust and authority.  The courts must protect them to ensure that their immaturity is not taken advantage of by older man.  In order to protect them, the sentence to be imposed must be severe enough to deter not only the defendant before court but also others from committing the offence.  It must also show the abhorrence of the society to crimes of this nature, and redress the grievances suffered by the victim, her friends and relatives.  To achieve these sentencing purposes, a custodial sentence is usually called for unless there are exceptional circumstances in the case or extremely strong mitigating factors that extenuate the offence. HKSAR v Chan Ching Ho [2000] 3 HKLRD 476; HKSAR v Kong Yun Chiu (CACC315/2006); HKSAR v Tsang Chiu Tak (CACC386/2011).

18.   In Tsang Chiu Tak, the Court of Appeal reiterated the factors that needed to be taken into account in sentencing when dealing with offences of sexual assault on a child.  These factors include:

(1) The age difference between the defendant and the victim;

(2) The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;

(3) Whether the defendant had used threats or inducements to make the victim succumb;

(4) The number of occasions of committing the offences and the duration of the offences;

(5) Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6) Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7) Whether the sexual abuses have caused physical or psychological trauma to the victim;

(8) Whether the offences have impact on the family members of the victim;

(9) Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and

(10) Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.”

19.   In the present case, the defendant is older than the victim for nearly 29 years. He was 41 years old at the time of the offences, which was more than 3 times the age of the victim.  In his statement to the police after arrest, the defendant claimed that the victim did not disclose her age to him.  However, it is very difficult for this Court to accept his allegation because the defendant himself handled the student registration of the victim.  In any event, the fact that the victim was a Form 2 student at the time of the 1^st offence must have put him on notice that she was a girl of very tender age.  If he did not seek to find out her true age when he could easily refer to her student registration, he was just turning a blind eye.  The fact that the girl was under the age of 13 years, albeit by just 5 days, and that the defendant knew or deemed to have known her age are severe aggravating features in this case.

20.   According to the psychological report, the defendant reported that the victim was one of the students of his tutorial centre but she was not taught by him.  However, he set up and operated the tutorial centre, and he was also one of the tutors in the centre.  To the victim, no doubt he was not only a teacher but his position was also just like that of a principal in a school.  There is no doubt whatsoever that, even if the defendant did not teach the victim directly, he occupied a position of trust and authority vis-à-vis the victim.  He should have protected the victim rather than harming her.  Furthermore, even though the victim had stopped receiving tuition in the defendant’s tutorial centre at the time of the 2^nd offence, the defendant is still occupying the same position of trust and authority because students always pay the same respect and trust to their former teachers and principals.  The defendant had clearly breached the trust reposed in him by the victim. 

21.   In addition, the victim reported to the psychologist that she felt angry with the defendant because she lied to her about her age and background.  Prosecutor informs me that the victim in her statement to the police said that the defendant had told her that he was only 24 years old and was single.  The defendant through counsel denies that he had ever told the victim his age, but he did tell her that he was single.  I do not think it is necessary to resolve the dispute.  The background report reveals, and the defendant accepts its correctness, that the defendant had a steady girlfriend since 2008 with whom he had sexual intercourse 2 to 3 times per week.  Even on the version given by the defendant, by telling the victim that he was single, he was not revealing the true position of his background, and he had misled the victim into believing that he was her true boyfriend, and this must play a part when she agreed to have sex with him.

22.   According to the psychological report, the defendant was a dedicated man to his work and cared for his students, and the work stress on him was enormous. He had asked his wife to work in his tutorial centre to help but she declined to do so. Sense of loneliness and emptiness appeared at time.  It was said that when the victim offered to and did help him in the work of the tutorial centre, he was able to obtain sense of intimacy and emotional support from the companionship with the victim that caused him to commit the offences.  However, this can only explain why he committed the offence but hardly mitigates the offences.  The defendant just could not use the victim to satisfy his emotional needs, especially when he knew full well that he would not have any long term relationship with the victim.  Not only have they had a huge age difference, the defendant had a steady girlfriend at the time of the 1^st offence and a wife at the time of the 2^nd offence.   In fact, the defendant committed the 2^nd offence just two months after he had got married. That was clearly outrageous and highly immoral, a great insult to his wife, and an affront to the common decency.

23.   Another aggravating feature in this case is that the defendant did not use contraceptive measures when he committed the two offences.  He had not done anything to prevent transmitting any venereal disease to the victim or getting her pregnant.

24.  The offences have caused psychological trauma to the victim.  In the opinion of this Court, the trauma is quite substantial.  While it is true that there is no suggestion of permanent damage to the victim at this stage, it is simply because it is not possible to give a definite prediction at this stage.  In any event, there is no reason why a girl of 13 or 14 years old who should live happily at this stage of her life has to go through this painful process of recovery, if she can recover at all. 

25.  The offences have also caused psychological trauma to the victim’s father who felt aggrieved and guilty for not taking care of the victim better.

26.   In the statement given to the police, the defendant admitted that he had given two phones to the victim as gifts.  However, there is no evidence to show that the provision of gifts was used to induce the victim to have sex with the defendant.  I shall therefore ignore this factor. 

27.   In light of the psychiatric and psychological report on the defendant, I shall sentence him on the basis that the chance of re-offending is low.

28.   Having all these factors in mind, I have no doubt that a custodial sentence is the only viable sentencing option.  Learned defence counsel accepts that a custodial sentence is inevitable.

29.   As far as quantum is concerned, I have studied the case of Secretary for Justice v Chung Yui Hung (CAAR11/2006) which is referred to me by the prosecutor.  That case also involved unlawful sexual intercourse with a 12 years old girl.  The Court of Appeal considered the appropriate starting point to be 5 years’ imprisonment.  However, this case is not helpful because the defendant there committed the offence in circumstances close to rape, but the present case is not that serious.

30.   Having considered the facts of this case, and particularly in light of the aggravating factors I have referred to, I adopt 3½ years’ imprisonment as the starting point for the 1^st Charge and 2½ years’ imprisonment for the 2^nd Charge.

31.   As far as mitigating factors are concerned, the defendant has pleaded guilty and saved the girl from reliving the trauma in Court.  He is clearly entitled to have his sentence reduced by one-third.

32.   The defendant has to close his tutorial centre when these offences came to light. He has lost his career, but this is his own making and has no mitigating effect.  I have considered all the mitigating letters and considered carefully the submission that the defendant has done a lot of charitable voluntary work. The documents produced in fact reveal that the voluntary work performed by the defendant was actually done by him after these offences have come to light.  It is not certain whether he did the work just for the sake of preparing his mitigation.  In any event, he did perform such work and it had been said that he had been devoting time and effort to his students at times without reward. I shall give him an extra two months discount off the sentence for the 1^st Charge and one month for the 2^nd Charge.

33.   There is no other mitigating factor that reduces the sentences further.

34.   For these reasons, the defendant is sentenced to 26 months’ imprisonment for the 1^st Charge, and 19 months’ imprisonment for the 2^nd Charge.

35.   These two offences were committed on different dates.  While a consecutive sentence might be called for, the question of totality has to be considered.  It will not be right to order the two sentences to run wholly concurrently because that will not reflect the true criminalities of the offences.  On the other hand, if the sentences are to run wholly consecutively, the overall term will be too long. 

36.   I am of the view that an overall sentence of 32 months’ imprisonment is appropriate.  For this reason, I order 6 months of the sentence for the 2^nd Charge to run consecutively to the sentence for the 1^st Charge.