HKSAR v. CHU HO MING

DCCC 1160/2022

[2023] HKDC 575

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1160 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of “unlawful sexual intercourse with a girl under the age of 13 years”, contrary to section 123 of the Crimes Ordinance, Cap 200.

2.  Full particulars of the offence are set out in the summary of facts admitted by the defendant.  The gist of the facts are as follows:

The facts

3.  This case concerns one victim, a girl X (hereinafter called “X”), who was 12 years old at the material time.  On 23 May 2022, X got acquainted with the defendant, a 28 year-old male, via “Tantan”, an online dating application.  Subsequently, they chatted via “Instagram”.

4.  At the material time, X lived with her mother in a flat in Fanling, New Territories (hereinafter called “the Flat”).  At around 9:50 am on 29 May 2022, X’s mother temporarily left the Flat for grocery shopping.

5.  At around 2 pm on the same day, X’s mother returned to the Flat.  Believing that X was inside the master bedroom, she asked X who was inside the master bedroom and what she was doing inside.  X replied saying she was naked.  X’s mother asked why X was naked.

6.  X’s mother later found out that the defendant was squatting behind the curtain inside the master bedroom with his lower body naked.

7.  She then reported the case to the Police.  X was thereafter sent to hospital for examination.  Police later attended the Flat and arrested the defendant.  The defendant remained silent under caution at the scene.

8.  In a video-recorded interview conducted with X on 31 May 2022, X stated that on 29 May 2022, X and the defendant met up in a bus terminus in Fanling, and around 15 minutes later, they returned to the Flat.

9.  At around 12 pm on the same day, the defendant suddenly asked X to go to the master bedroom.  X eventually went to the master bedroom.  The defendant immediately closed the door and pushed X’s back.  X fell to the bed with her back facing the ceiling.  The defendant climbed to the bed, pressed on X’s back with one hand, and pressed on X’s left hand with another.  The defendant then touched X’s hands, breasts and neck.

10.  The defendant took off X’s clothes and touched X’s breasts with his left hand for around 10 minutes.  He touched X’s private parts and took off her denim shorts with his hand.  He also touched X’s private parts for 5-6 minutes then took off her underpants.

11.  The defendant also asked X to touch his penis over his underpants, and then the defendant took off his underpants and later tried to insert his penis into X’s vagina.  The defendant moved for around 5 minutes without wearing a condom.  At around 1:40 pm, X went to the toilet to clean up her private parts.

12.  Forensic analysis revealed that the DNA obtained from the sperm fraction of the seminal staining on the set of duplicate vulval swabs of X could have originated from the defendant; and the DNA obtained from the sperm fractions of the seminal staining on the set of duplicate low vaginal swabs and high vaginal swabs was each a mixture from at least two sources with one of them being predominant.  The major source could have been the defendant, while the other could have been X.

13.  Examination of X’s phone by the Police revealed Instagram conversations between the defendant and X indicating that they had agreed to have sexual intercourse at X’s home on 29 May 2022.  They had agreed not to use condom and only to take birth-control pills before sex.

14.  The defendant admitted that at the material time, he had unlawful sexual intercourse at the Flat with X, a girl under the age of 13 years.

Criminal record and background of the defendant

15.  Mr John Reading, counsel for the defendant told this court that the defendant is currently 28 years of age.  He is single and prior to his arrest in respect of this matter resided with his parents.  He has remained in custody since his arrest.

16.  The defendant graduated from the Hang Seng Management College [now the Hang Seng University of Hong Kong] in 2016 with the degree of Bachelor of Business Administration in Accounting.  He was on the Dean’s list for the first 2 years of his studies.

17.  In 2017-2018 he travelled to Japan to study Japanese.  During his studies of the Japanese language he was required to engage in speaking the language in a public speaking forum and was awarded with a certificate.  He passed a Japanese proficiency test in 2019.

18.  He was previously employed in the Sogo Department Store, with the intention of being able to use his Japanese in the workplace, but was eventually terminated due to the economic downturn exacerbated by Covid.  He was also employed in management positions at Sugi Bee Garden, and before his arrest, in Mos Burger.

19.  It is his intention to study for his MBA and then, utilizing his Japanese language skills, to introduce Japanese products to the Hong Kong Market.  These plans have been placed on hold since his arrest and pending the outcome of this case.

20.  I was told that even though the defendant has been remanded and thus not required to work, he has undertaken some courses, including the Grace International Seminary Course [Completion Certificate dated 16 September 2022] and the Life Planning Course provided by the Christian Prison Pastoral Association [Completion Certificate dated 6 April 2023].  In October 2021 he also registered as an organ doner.

21.  The defendant has been teaching himself Korean whilst in custody, and he has also been teaching Japanese to some of his fellow prisoners.

22.  The defendant is not a person of previous good character.  On 21 December 2021, having earlier pleaded guilty, the defendant was sentenced to 6 months’ imprisonment suspended for 2 years, on charges of unlawful sexual intercourse with a girl under 16.  Thus the current offence was committed within 2 years of his sentence on the earlier matter which was his only previous conviction.

23.  Mr Reading informed this court that in the previous conviction, the victim was 15 years and 11 months of age at the date of that offence.  The defendant had made contact with her through social media, but had not confirmed her age.

24.  Mitigation letters were also submitted to this court for reference.  The defendant apologized for what he had done to X and her family.  He also apologized to his own family for letting them down so badly.

Mitigation

25.  In mitigation, Mr Reading told this court that prior to the defendant’s arrest, and despite his previous matter, the defendant continued to use social media, although he did learn one lesson from his previous case, and that was if interacting with a female, to always ask how old they were.

26.  On this occasion, the defendant did ask X her age, and she indicated that she was 18.

27.  Mr Reading further submitted that in relation to paragraph 13 of the summary of facts, it was during these social media exchanges that the defendant and X discussed having sex.  In the course of these online exchanges X indicated that she had not had sex for over 2 months, and on one occasion X wrote something indicating sexual intercourse with her.

28.  They also discussed each others’ appearances and actually exchanged photographs.  X said that she was 163 centimeters tall.  The defendant observed on one occasion that she looked younger than 18 but perhaps 15 or 16, however he accepted that she was 18.

29.  Mr Reading stressed that as to X’s age, whilst the defendant said that she looked younger than 18, he believed that she was that age, not only because she said so, but also because of the maturity of her language and the conversations regarding her sexual experience.  The defendant accepted that he was foolish not to confirm her age, and was truly shocked when he was made aware that she was actually only one month short of her 13^th birthday.

30.  X was not protected during sexual intercourse in that the defendant did not wear a condom.  This was a topic that they had discussed online, and then when they met in person ie the defendant asked X to use the “morning after pill” and he understood that she had agreed.  Nevertheless, the defendant understands the protection provided is not only for protection against pregnancy.

31.  Mr Reading submitted that the defendant by his plea and through his letter of apology, has indicated his remorse.  Although X consented to having sex with him, he accepted that she was only 12 years and 11 months at the time that they engaged in sexual intercourse, that he was the adult, and she deserves the law’s protection.

32.  In terms of sentence, Mr Reading referred this court to the case of HKSAR v Ho Siu Wai DCCC No 739 of 2013.  In that case, the court not only reviewed previous sentences for the offence of Unlawful Sexual Intercourse with a girl under 13, but also summarized the principles to be applied in sentencing for this type of offence.  In Ho Siu Wai, the court adopted a starting point of 2 years’ imprisonment.

33.  Mr Reading also referred this court to the following 2 cases:-

R v Cheung Hon Ki CACC No 28 of 1996;

HKSAR v Lau Chi Cheung[2008] 4 HKLRD 432

34.  In the case of Cheung Hon Ki, the Court of Appeal refused to interfere with concurrent sentences of 18 months’ imprisonment imposed in the District Court for two offences contrary to section 123.  In that case the appellant was 30 years of age, and like the victim in the present case, the victim in that case was 12 years and 11 months.

35.  In the case of Lau Chi Keung, the Court of Appeal reduced the starting point in respect of a single count of the offence from 3 years imprisonment to 2 years, and the consequential sentence allowing the customary discount for the plea of guilty and additional reduction for other mitigating factors, reduced the sentence from 22 months to 13 months’ imprisonment.

36.  In that case the victim and the offender had communicated online, and the sentencing Judge had regarded the conversations to be indicative of the offender grooming the victim, who was aged 12 years and 7 months at the time, which the judge considered to be an aggravating factor.  The Court of Appeal took into account the explicit language used by the victim, in which she boasted of her previous sexual experience and her willingness to engage in such activities which negated the perception of grooming.  The facts are somewhat similar to the facts in the present case in which X did write of her previous sexual experience and of her willingness to have sex with the defendant.  The defendant in that case was 22 years of age.

37.  Mr Reading submitted that in the present case, the victim was 12 years old and the defendant had just turned 28, although the victim was only one month short of her 13^th birthday.  The defendant believed X was 18, but when he saw her photo and saw her in person he thought she looked younger and bearing in mind his previous matter, he should have confirmed her age and was stupid in failing to do so.

38.  It is submitted that the defendant accepted the fact that X claimed to have previous sexual experience is not particularly compelling as mitigation, but it does indicate that the one act in which the defendant and X engaged was wholly consensual, and also indicates that this was not a case in which X had been groomed, which would have been an aggravating factor.

39.  Mr Reading accepted that the aggravating factors are the youth of the victim and that the defendant had unprotected sex with her.

40.  Mr Reading further submitted that the mitigating factors are as follows:-

•  X was just one month short of her 13^th birthday.

•  The defendant comes from a good family and worked hard to achieve his business qualification and his language proficiency.

•  Whilst there is an age difference of about 15 years between the defendant and X, the difference is not extreme.

•  The defendant is remorseful as demonstrated by his pleas of guilty, he has submitted a written apology to the victim and her family and he has also asked us to apologize to her in court on 3 May.

41.  Mr Reading invited this court to consider to adopt the starting point in the region of 2 years’ imprisonment and if activated the suspended sentence, also take into account of the totality principle.

Sentencing considerations

42.  The offence of unlawful intercourse with a girl under 13 carries a maximum sentence of imprisonment for life.  There is no sentencing tariff for this offence as both the facts of the case and the personal background of the defendant can vary immensely.  Therefore, previous cases on sentencing appeal relating to similar offences, whilst helpful, are of reference value only.

43.  In HKSAR v Chan Kwong Pui [2003] 4 HKC 208 and in HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432, age difference between the offender and victim is no doubt a significant factor for sentencing.

44.  In the case of HKSAR v Lau Chi Cheung, the sentence on the defendant was reduced to 13 months’ imprisonment by the Court of Appeal.  In that case, the age disparity between the defendant and the victim was nine and a half years old.  In our case here, the victim was 1 month short of her 13^th birthday and the defendant was 28, so there is an age disparity of about 15 years.

45.  In the present case, the defendant did not, as in the case of Lau Chi Cheung, groom the victim.  Nothing was paid to the victim for the sexual intercourse.  It is clear to this court that the defendant in our present case is not one who had intended to exploit the vulnerable X.

46.  In HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432, the Court of Appeal said:-

“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. …

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 recognize 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.” ”

47.  In the Court of Appeal case HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 also lists out a number of factors to consider. When applying in the present case:-

(i) the defendant is 28 and X is 12;

(ii) the defendant met X in social media. The offence took place when they first met each other, and X took defendant to her home;

(iii) there seemingly had not been any threat nor inducement;

(iv) no safety measures had been used.

48.  This court did observe the appearance of X taken in the snapshots from the closed circuit TV of the lift lobby and lift at the building of the Flat captured on the offence date.  X did look, in my view, much older than her actual age.  This court will not query the defendant saying that she told the defendant she was aged 18 and he took her words without query.

49.  No threat or violence was used.  However, the defendant did not conduct protected sex with the girl so there was risk of pregnancy or disease.  A custodial sentence is inevitable in a case of this nature.

50.  The defendant is of course naturally entitled to a one-third discount for plea.  I note in this case there are no victim impact statements.  No doubt the family of X was distressed by the offence, but in this case, there is no evidence to show that they were particularly distressed.

51.  When determining the appropriate sentence, I have borne in mind the sentencing principles for offences of sexual assault on a child laid down by the Court of Appeal in HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427.

52.  Having considered the circumstances of this case, this court considers that the only appropriate sentence on the defendant is one of immediate custodial sentence and that the appropriate sentencing starting point is 24 months’ imprisonment.

53.  I am not prepared to grant a discount more than the usual one-third because the defendant committed the present offence just about 5 months after he was sentenced on a previous occasion with similar nature of offence.

54.  With the timely guilty plea, the sentence for this charge is reduced to 16 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.

55.  I also activated the suspended sentence and bearing in mind the totality principle, I ordered that 4 months of the suspended sentence to run consecutively to the present offence.  Therefore, the total sentence the defendant has to serve is 20 months’ imprisonment.