HKSAR v. HO SIU WAI

DCCC 739/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 739 OF 2013

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REASONS FOR SENTENCE

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INTRODUCTION

1. The defendant pleads guilty to two charges of unlawful sexual intercourse with a girl under the age of 13 years (Charges 1 and 2), three charges of unlawful sexual intercourse with a girl under the age of 16 years (Charges 3, 4 and 5) and one charge of controlling another person for the purpose of prostitution, respectively contrary to s 123, s 124(1) and s 130(1)(b) of the Crimes Ordinance, Cap 200. 

OUTLINE OF FACTS

2. The case involved three underage girls, X, Y and Z.  X was born on 15 August 1999, Y on 21 April 1999 and Z on 14 August 2000.  Therefore, at the time of the offences, X and Y were respectively aged 13 years and 9 months and 14 years and 1 month, whilst Z was aged 12 years and 9 months.  All of them came to know the defendant in May 2013 through a mobile phone application called “iAround”.  The defendant told the girls individually that he would refer customers to them for “compensated dating”, to which the girls agreed. 

The offences concerning X

3. On 16 May 2013, the defendant met X for the first time and he took her to a hotel in Fa Yuen Street, Mongkok, purportedly to test her sexual skills. They had consensual sexual intercourse.  According to X, the defendant had used a condom.  (Charge 4) 

4. On 24 May 2013, they met again and he said that he would introduce a customer to her for “compensated dating” for which she would get $5,000 to $6,000 and he (the defendant) would take $1,500 as commission.  X agreed.  In the small hours of 25 May 2013, the defendant took X to the same hotel in Fa Yuen Street, purporting to test her sexual skills again.  This time, the defendant did not use a condom and he ejaculated at X’s back.  (Charge 5)  When they left the hotel, they were intercepted by police.  The defendant admitted that he just had sex with X and that he was taking her to meet a customer for “compensated dating” for which he would receive a commission of $1,500.  (Charge 6)

The offence concerning Y

5. As regards Y, the defendant told her that he would refer customers to her for sex trade but they had to meet first so that he could teach her some safety procedures.  Y and the defendant met on 16 May 2013.  The defendant took her to a hotel in Portland Street where they had sexual intercourse.  Y was not sure if the defendant had used a condom.  (Charge 3)

The offences concerning Z

6. As regards Z, she met the defendant on 14 May 2013 when he asked her to come out for “training”.  They had consensual intercourse inside a toilet for the disabled in Ma On Shan Plaza. (Charge 1)  The defendant used a condom.

7. On the following day, the defendant asked Z out again for “training”. This time, the defendant took her to a hotel in Portland Street where they had sexual intercourse.  (Charge 2)  Again, the defendant used a condom. 

The defendant’s admissions

8. The defendant admitted under caution that since he needed money, he would refer customers to the girls to do “compensated dating” in order for him to earn commission and he did so by means of “iAround”.  He admitted that he had sexual intercourses with X, Y and Z which were the subject matters of the charges.  In relation to the sexual intercourses with X and Y, he said that he did not use any condoms on those occasions.  He also admitted that he had reserved a hotel room for a customer of X on 25 May 2013.

THE DISPUTE CONCERNING Y

9. The above-mentioned facts were admitted by the defendant.  However, in respect of Y, there was an aspect which the prosecution and the defence could not come to an agreement, that is to say whether Y was unwilling to have sex with the defendant and whether the defendant was aware of this.  The matter came about as follows:-

(a) The prosecution filed with court a summary of facts dated 15 August 2013 (“The Original Summary of Facts”) which was marked “for plea day only”.

(b) The case first came before the District Court for the Plea Day on 23 August 2013. The defence indicated a not guilty plea to some of the charges. Therefore, a trial was fixed to commence on 18 November 2013 with 4 days reserved.

(c) The defence, apparently thinking that a summary of facts similar to the Original Summary of Facts would be used by the prosecution for plea and sentence, wrote to court a letter on 30 October 2013, which was copied to the prosecution, indicating a guilty plea to all charges and asking that an early date be fixed for plea and sentence. As a result, a day was fixed for 18 November 2013.

(d) It was not clear what was happening between 30 October 2013 and 15 November 2013. It appears that there was a breakdown in communication between the prosecution and the defence in the interim.

(e) In the afternoon of Friday, 15 November 2013 which was the last working day before the day fixed for plea, at about 1601 hours, the prosecution sent to Court by fax an Amended Summary of Facts. It transpired that the prosecution wanted to add certain facts to the Original Summary of Facts at paragraph 5 concerning the case of Y. The effect of the additional facts was to show that Y was in fact not willing to have sex with the defendant. The additional facts read as follows:-

“The Defendant told Y to undress and she then realized the Defendant wanted to have sex with her. She did not want to have sexual intercourse with him. However, she was scared and therefore complied with his instructions. … In the course of the sexual intercourse, the Defendant used his hands to hold Y’s feet.”

(f) On 18 November 2013 when the case came up for plea, the Court was told that the parties were unable to agree on the facts concerning Y. Mr Butt, counsel for the defendant said that they were taken by surprise when they learned about the Amended Summary of Facts, which apparently was sent to the court without consulting the defence or having obtained their agreement. When the Court asked Ms Cheuk, prosecuting counsel, whether there was anything to show that the defendant knew or was aware that Y “did not want to have sexual intercourse” and “was scare”, and if not, then how these facts could bear on sentence, Ms Cheuk replied from the bar table that Y had said at the time to the defendant, “No! No! No!” Mr Butt, defence counsel, took great exception to what Ms Cheuk said, as this was yet another piece of information not even appeared in the Amended Summary of Facts, not to say the Original Summary of Facts.

(g) Although there was no dispute on the facts in relation to the other charges, no plea was taken from the defendant on that occasion. The Court adjourned the matter to 23 December 2013 for plea and sentence and, if necessary, Newton Hearing, so that the parties could further discuss the matter. Ms Cheuk was asked to consider whether it was really necessary to call Y to give evidence and if so, to inform what special arrangement should be made given the young age of Y.

10. During the adjournment, by a letter dated 12 December 2013 which was copied to the prosecution, the defence drew the Court’s attention to the case of R v Barry Druce (1993) 14 Cr App R (S) 691, 694 which contained the following passage:-

“It was the prosecution's case, as we understand it, in the course of the Newton inquiry that the girl had not consented. We do not think that that was an appropriate attitude for the prosecution to adopt on a Newton inquiry in a case where a man was charged with unlawful sexual intercourse and not with rape. If it was the prosecution's case that the girl had not consented, he should have been charged with rape. We ask ourselves: what would the position have been had the judge come to the conclusion that he was satisfied that the girl had not consented? Would he then have been entitled to sentence this man on the basis that he had raped the girl? The answer to that is obviously not. In our judgment it cannot be right for a judge to be asked as part of a Newton inquiry to find a man guilty of a more serious offence than he has been charged with. It was for a jury and not for the judge to decide if this man had been guilty of the offence of rape.

Accordingly, in our judgment, there was no alternative but for the judge to deal with this case by giving the defendant the benefit of the doubt on that aspect and proceeding on the basis that what he did to the girl was with her consent. …”

The defence proposed that the Court should hear arguments as to whether the Court should hear evidence from Y.

11. On 16 December 2013, the Court replied by saying that its tentative view was that if the defendant still wanted to plead guilty to the charges and if there was no agreement on the facts, then there should be a Newton Hearing. The Court said that as the prosecution had been warned of the attendant risks, it was a matter for the prosecution to decide whether the charge of unlawful sexual intercourse should be maintained, the Court also said that if the Prosecution wanted a Newton Hearing, then they should inform the Court what special arrangement should be made for Y to give evidence. 

12. On 16 December 2013, the prosecution replied by informing that all the charges would proceed as they were and since the facts could not be agreed by the parties, a Newton Hearing was necessary.  The prosecution went on to give an estimate of the length of the Newton Hearing and requested that certain witness arrangement to be made.

13. As the prosecution had not made known what its case was and what they sought to prove in the Newton Hearing, the Court on 17 December 2013 wrote to the prosecution asking whether it was the prosecution’s case that the defendant either knew or did not care if Y wanted to have sexual intercourse with him. The Court also said that, in view of the very young age of Y, the prosecution and the defence should do their best to avoid having the girl to give evidence by settling on a mutually agreeable summary of facts, if possible.

14. Eventually, the prosecution replied by a letter dated 20 December 2013, which was copied to the defence, saying that:-

“The Prosecution does not need to and should not proceed on the basis that the Defendant knew or did not care if the Girl Y wanted to have sexual intercourse with him.”

In the skeleton argument attached to the reply letter, the prosecution indicated that the “additional facts” that the prosecution put forward for the consideration of the defence were as follows:-

“The Defendant told Y to undress. She then realized that the Defendant wanted to have sex with her. She did not want to have sexual intercourse with him there and then but ultimately complied with his instructions.”

THE HEARING ON 23 DECEMBER 2013

15. On 23 December 2013, the Court took plea from the defendant and he pleaded guilty to all the charges.  The Court then heard submissions from the prosecution and the defence as to whether Y should be called to give evidence.  Written submissions were also prepared.  I am indebted to counsel for all of their assistance.

16. Ms Cheuk confirmed that the “additional facts” contained in her skeleton argument referred to in the above represented “the Final Version” put forward by the prosecution.  Ms Cheuk confirmed that there was no allegation that the defendant had used any violence or threat on Y.  She also confirmed that there was no longer any allegation that Y was scared at the time.  She said the purpose of the Newton Hearing was to ask the Court to infer, from the evidence that Y was supposed to give, that Y was unwilling to have sex with the defendant “there and then”.  On the other hand, Ms Cheuk maintained the position that the Prosecution did not need to and should not proceed on the basis that the defendant knew or did not care if the Girl Y wanted to have sexual intercourse with him.  When asked, given that position, then in what way Y’s uncommunicated unwillingness could bear on sentence, Ms Cheuk replied by asking the Court to take into account “the whole circumstances leading to the sexual intercourse” and she referred to the case of HKSAR v Yee Yiu Sam [2002] 3 HKC 21.  Ms Cheuk maintained that the “additional facts” set out in the Final Version were material to sentence.  I note also that Ms Cheuk said in her written submission that it was not the prosecution’s insistence to have a Newton Hearing but the hearing was “inevitable” in the circumstances and it would be fair to the defendant so that the Court could pass an appropriate sentence.

17. On the other hand, Mr Butt made it clear that the defendant would not admit the “additional facts” and the defendant refused to have a Newton Hearing.  It was Mr Butt’s basic position that the additional facts did not bear on sentence and should not appear in the Amended Summary of Facts at all.  He also applied for the Newton Hearing to be stayed and he had filed a notice for that purpose, though it was less than 21 days as required by Practice Direction 9.7. 

18. After hearing submissions from both sides, I ruled that a Newton Hearing was not called for in the present case.  I said that I would give reasons for the ruling in due course.  This I now do. 

19. My reasons are as follows:-

(a) In my view, the application for the stay of the proposed Newton Hearing was misconceived. The real question is whether a Newton Hearing is called for in the present case. If so, the Newton Hearing would not be unfair to the defendant and no question of stay of proceedings could arise.

(b) The guidelines on the approach to Newton Hearing are enumerated in R v Underwood [2005] 1 Cr App R 178 and reproduced at paragraph D20.9 of Blackstone and also at paragraph 5 to 11 of Archbold Hong Kong 2014 which I need not repeat now. I should say, however, that since it was the prosecution who wanted to amend the Original Summary of Facts which they had filed, they should make known its case and the area of disputes in the Newton Hearing so that the defence may response. This is a matter of procedural fairness.

(c) I note that the “additional facts” mentioned above was relied upon by the prosecution for the purpose of arguing whether it was necessary for Y to be called to give evidence. As there was no other case put forward in the skeleton argument, the additional facts must be taken to represent the prosecution’s case in the Newton Hearing. Furthermore, since the prosecution had put forward the additional facts to the defence for agreement, it must also have been the prosecution’s position that if the defence was prepared to accept them, then no Newton Hearing would be necessary. On the other hand, notably absent from the Amended Summary of Facts were the allegations that Y was “scared”, that she had said “No! No! No!” or that the defendant had “used his hands to hold Y’s feet during the sexual intercourse”. These matters, if true, were so important that I fail to see any valid reasons for not including them in the Amended Summary of Facts if the prosecution thought that they were in a position to substantiate them.

(d) Having considered the submissions from both sides, I take the view that the “additional facts”, even if proved, would add very little to “the whole circumstances leading to the sexual intercourse”. This is because it is clear from what the defendant was prepared to admit that Y agreed to have sex with the defendant not because she liked to, but because of the defendant’s saying that he would introduce customers to her for “compensated dating”, which in fact was prostitution in disguise. Moreover, she knew that the defendant was taking her to a hotel room, purportedly to teach her “safety procedure” when she was to receive a customer. Realistically speaking, it begs belief if Y would fail to anticipate at the time what was likely to happen. There was also no suggestion of any violence or threat of violence. In my view, in the circumstances of the present case the additional facts which the prosecution sought to prove, even if established, can bear very little on the defendant’s overall culpability, as there was nothing in the Amended Summary of Facts to suggest that he knew or should have known that Y was not consenting. As such, as submitted by Mr Butt, even if Y had for any blinking moment harboured any hesitation or unwillingness about having sex with the defendant, I am unable to see how that unexpressed unwillingness could to any significant extent affect the sentence. See Blackstone, supra, at paragraph D20.16 to 22 and Archbold Hong Kong 2014, supra, at paragraph 5 to 12.

(e) It is also my view that bearing in mind the very young age of Y, she should be spared of the embarrassment and trauma of giving evidence unless it is necessary. In the present case, with respect I can see no such necessity.

(f) I have considered the case of HKSAR v Yee Yiu Sam. For present purpose, that case stands for the proposition that consent takes many shades and the matter was not black or white. There can be no doubt about the correctness of that proposition. I note, however, that in that case there was evidence, in the form of a video recording (referred to in the Summary of Facts admitted by the applicant) of the buggery in question and also other circumstances, showing that the complainant’s consent was obtained in an oppressive manner. However, there are no such allegations in the present case. The facts of Yee Yiu Sam are therefore very different and readily distinguishable. Moreover, there was not any Newton Hearing held in that case and that case does not assist the prosecution in its contention that there should be a Newton Hearing in the present one.

20. After my ruling that a Newton Hearing was not called for, the Amended Summary of Facts dated 3 December 2013, with the disputed sentences deleted and initialed on the margin by the parties, was read to and agreed by the defendant.  Mr Butt then mitigated on behalf of the defendant and submitted the mitigation letters.  I adjourned the sentence pending the defendant’s psychiatric and psychology reports and also the victim impact statements. 

THE DEFENDANT’S BACKGROUND

21. The defendant was born in June 1992.  He was close to 21 years’ old at the time of the offences and is now aged 21½.  He was educated up to Form 5.  He had been a life guard by occupation for 3½ years before the offence, earning about $12,000 a month.  He lives with his parents.  He has a clear record. 

MITIGATION

22. In relation to Charges 1 and 2, Mr Butt said that the defendant believed, mistakenly, that Z was 1 to 2 years older than she actually was because of her appearance.  However, Mr Butt accepted that the defendant could only have himself to blame for not having enquired about her age.  Mr Butt said that Z was sexually precocious as she appeared to have experience in providing sexual service before.  Mr Butt submitted that if there was an element of “grooming” by the defendant, it was of a mild kind. 

23. As regards Charges 3 to 5, Mr Butt submitted that X and Y could be described as sexually precocious as both of them were prepared to trade their bodies for money.  In relation to Y in particular, Mr Butt said that she had falsely represented to the defendant that she was 18 and the defendant had no reason to disbelieve her at the time.  As to this, Ms Cheuk for the prosecution did not take any issue. 

24. As regards Charge 6, Mr Butt accepted that the young age of X would be an aggravating factor.  However, he highlighted the fact that there was not an element of duress and submitted that a starting point not exceeding 2 years would be appropriate. 

25. Mr Butt drew the Court’s attention to the following cases about sexual offences involving underage girls: HKSAR v So Wai Lun [2005] 1 HKLRD 443; HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432; and HKSAR v Lai Yip Sing [2001] 2 HKLRD 602.

26. Mr Butt said that the defendant contributed $6,000 a month to the family and he has a good family relationship, particularly with his mother and elder brother.  Mr Butt placed before me several mitigation letters written by the defendant’s mother, elder brother, former school teachers, pastor and work colleagues.  The letters said that although the defendant’s academic performance was not very satisfactory and he was playful in school, he is a filial son and of a good nature, active in sports and voluntary work and diligent in his work. 

THE DEFENDANT’S REPORTS

27. The psychiatrist’s report of the defendant is short and it said in essence that the defendant does not appear to be suffering from any psychiatric disorder and no specific recommendations are made in respect of him.

28. The psychologist’s report, which is more detailed, said that the defendant is impressed to be an extrovert but short-sighted youngster who harboured lots of negative emotions arising from work dissatisfaction and unmet intimate needs.  The offences are likely to be related to his minimization of negative consequences, maladaptive way to gratify his material and sexual needs as well as distorted belief towards underage girls, that is to say the belief that they are easier to be manipulated and to be taken advantage of and are causal in sex.  However, no sexual deviant interest is found at this stage and his risk of re-offending is assessed to be low to moderate.  The psychologist also comments that the defendant’s remorse is superficial and his insights into the offences are limited.

THE VICTIM IMPACT STATEMENTS

29. The victim impact statements, in the form of reports prepared by clinical psychologists who interviewed X, Y and Z, were obtained and made available to the prosecution and the defence before sentence.  The purpose of the reports is to assist the Court by providing information about the effect of the crimes on the complainants.

30. In considering the reports, I am guided by the propositions identified by Garland J in R v Perks [201] 1 Cr App R (S) 66, 72.  See also Sentencing in Hong Kong, 6^th edition, by Cross and Cheung, at p 637.  I remind myself in particular that assertions of the complainants alone should be approached with care, the more so if it relates to matters which the defence cannot realistically be expected to investigate.  I also remind myself that in case there are factual assertions contained in the victim impact statements which are at variance with the agreed summary of facts or not admitted by the defendant, I should not act on them for the purpose of sentencing without making a finding: see HKSAR v HCT, CACC 372/2012 (unreported), at paragraph 26. 

31. As regards X, Dr Lam, who prepared the report, said that she exhibited a very generous attitude towards the defendant by asking for a second chance for him, for the reason that he had admitted his fault readily, thus freeing her from facing the distress associated with court attendance.  The report said that X felt strong regret for having involved in compensated dating, as she described herself as damaged goods which were very dirty.  The report said that she rejected herself and held a giving up attitude towards her future, as she believed that no would ever love and accept her again.  She expressed a very pessimistic world view, as she believed that every kind of interpersonal relationship was instrumental in nature.  An analysis of test findings suggested that X exhibited moderate to severe stress responses towards the captioned sexual experience.  Her depressive mood and anxiety responses had also reached a clinically significant level.  Results of the examination suggested that X was encountering obvious adjustment difficulties to the experience.  Dr Lam said that X’s need for psychotherapy is indicated and her much distorted self concept and world view should also be tackled.

32. As regards Y, Ms Chin, who prepared the report, said that Y wanted to have a new start, but her plan to study abroad had been delayed by the court proceedings.  Y felt relieved that finally she did not have to be present as witness in court.  According to Y, her parents were shocked, upset and unhappy when they learnt about the incident.  Ms Chin said Y did not manifest significant psychological or emotional disturbances after the offence.  Ms Chin said that despite initial emotional disturbances, she resumes adequate adjustment.  No significant psychological problems were reported by Y.  Nevertheless, Ms Chin said that Y is impressed to cope by suppression.  Ms Chin said that whether long-term psychological sequels of the incident may surface in the future cannot be ascertained at this stage.

33. As regards Z, the youngest of the three girls, Ms Wong who prepared the report said that Z adopted an avoidant attitude during the interview and she, consistent with that attitude, displayed a significant level of under responses as revealed in the test findings.  Her test responses did not indicate that she had significant depression or anxiety apart from the emotions of anger, irritability and guilt.  The test concurrently indicated her desire to forget and avoid mentioning the incident. Ms Wong said that Z’s avoidance and denial suggested that she was psychologically impotent and vulnerable.  Ms Wong said that Z lacked the internal coping resources to manage her emotion, make sense of what had happened and work through the trauma.  Ms Wong commented that potentially, the current trauma would have affected the child’s psychological development in the long term as her present stage of development is a volatile but critical one.  The trauma might have impacted on her identify of self, trust on others, perspectives on sex and marriage, and her emotional coping in face of stress and adversity in the future.  Continuous residential school placement and psychological treatment are recommended.

SENTENCING CONSIDERATIONS

34. The offence of unlawful intercourse with a girl under 13 carries a maximum sentence of imprisonment for life.  The maximum sentence for the offence of unlawful intercourse with a girl under 16 is 5 years’ imprisonment.  There are no sentencing tariffs for these two offences, as the facts and personal circumstances of the offender can vary greatly from case to case.  Therefore, previous cases on sentencing appeal relating to similar offences, whilst helpful, are of reference value only.  Moreover, in some of the case authorities, eg, HKSAR v Lai Yip Sing, supra, the appellate court had concentrated on the specific grounds of appeal before it and therefore the facts given in the judgment were brief, which make it difficult for any comparison to be done by later courts. 

35. The Court of Appeal, however, has given guidance on the relevant sentencing considerations.  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 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.””

36. In HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427, the Court of Appeal said:-

“8. The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.

9. The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:-

(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 behaviour 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.

See HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, HKSAR v Ng Ka Kin (unrep, CACC 328/2010, [2011] CHKEC 982) and HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239.”

I note that although Tsang Chiu Tak’s case was about the offence of rape against a 15 years’ old girl, the above sentencing considerations have been applied to cases concerning unlawful sexual intercourse with underage girls: see HKSAR v Lee Kwok Wah Francis [2013] 2 HKLRD 1009, 1049-50; and HKSAR v HCT, CACC 372/2013 (unreported), at paragraphs 32.

37. I bear in mind the submission of Mr Butt that there should be a distinction between a “real assault” where actual violence was used or threatened and a “technical assault” where the complainant was unable to give consent in law: R v Hall [2013] EWCA Crim 1450 (CA).  In my view, this distinction can be taken care of by consideration (5) above in Tsang Chiu Tak’s case.  I will take the absence of violence into account when I determine the appropriate starting points of Charges 1 to 5.  However, I have to point out that whilst the presence of violence is an aggravating factor for offences ofunlawful sexual intercourse with an underage girl, I do not understand the case authorities to say that the absence of violence or threat of violence is a mitigation factor for which a defendant is entitled to a reduction of sentence. 

38. Applying the above case authorities to the present case, in relation to Charges 1 to 5 the Court has the following observations:-

(a) Although the defendant was only 6 to 7 years older than the girls concerned, he had been working for 3½ years. Therefore, he had much more life experience than the girls. According to his reports, he had several courtships in the past and he was no stranger to vice establishments.

(b) It is obvious that he had taken advantage of their youth and inexperience and used them as sex tools for his lust and as means of obtaining selfish financial gains.

(c) The defendant contemporaneously committed the offences in respect of the three different girls within a time span of 12 days.

(d) The defendant had not used any violence or threat. However, as mentioned above this is a neutral factor.

(e) The defendant admittedly had unprotected sex with X and Y. He exposed the girls to risks of pregnancy and sexually transmitted diseases. I regard his conduct as highly irresponsible even if it does not appear that he had ejaculated inside the girls. This was no mentioned of this in the agreed facts. If he had done ejaculated inside the girls, it would further aggravate his criminality.

(f) I take into account the evidence in this case which Mr Butt has drawn to my attention showing that the girls were not innocent, but appear to have been sexually precocious. I am also alive to the fact that the girls were agreeable to trade their bodies for money and two of them, namely X and Z, also appeared to have engaged in sex trade before. I bear in mind the submission of Mr Butt that there should be a clear causal link between the trauma, if any, suffered by the complainant and the act of the offender before the trauma could be taken into account. Nevertheless, I am satisfied that what the defendant had done would have a lasting adverse influence on their psychological well-being and development, although in the case of Y this is less apparent.

(g) I also find that there was a mild degree of “grooming” by the defendant in the case of each of the girls in that he lured them to have sex with him by purporting to test their sexual skills and to teach them safety procedures. The defendant had also proffered financial advantages to the three girls by saying that he would introduce customers to them for “compensated dating” and this is an aggravating factor in spite of the fact that no payment had actually been made: compared with HKSAR v Lau Chi Cheung, supra, at paragraph 17 of the judgment.

(h) In case of Y, there was evidence that her parents were shocked, upset and unhappy by what had happened. This is as expected. In fact, I would be surprised if it were the otherwise.

THE SENTENCES

39. The offences committed by the defendant are very serious and call for substantial terms of imprisonment: see HKSAR v Kong Yun Chiu [2007] 4 HKC 391.  Despite the fact that he is just over 21 and all the mitigating factors that are put forward on his behalf, a custodial sentence is inevitable.  I understand that Mr Butt did not suggest the otherwise.  In fixing the following starting points, I have taken into account the observations that I have made above even though I may not repeat them individually in the following passages.

40. As regards Z who is the youngest of the 3 girls, the charges concerning her are more serious in nature and carry a higher maximum sentence than the charges concerning X and Y.  I accept that the defendant may not know that Z was under 13 at the time. However, as Mr Butt accepted, the defendant can only have himself to blame for not asking.  In any event, it must have occurred to the defendant that Z was underage, which means at least under the age of 16, even if he thought that she was one or two year older than she actually was: compared with Secretary for Justice v Chung Yui Hung [2007] 2 HKLRD 771, 775A.  I do not therefore consider that the defendant’s ignorance of Z’s actual age, though relevant, can afford the defendant a significant reduction in sentence.  Moreover, there is the aggravating factor of the defendant agreeing to introduce customers to Z and thus the proffering of financial incentive to her as an inducement.  I accept Mr Butt’s submission that the gravity of Charges 1 and 2 are more or less comparable to those in Lau Chi Cheung’s case.  As such, I adopt 2 years’ imprisonment as the starting point of each of these charges.

41. As regards Y, I accept that Y had falsely represented her age to the defendant.  I also accept Mr Butt’s submission that there was no evidence that the defendant did not believe her, a point which the prosecution has not taken issue of.  Based on HKSAR v So Wai Lun, supra, at 459D, a mistaken belief as to the complainant’s age is a valid mitigating factor.  On the other hand, there are in the presence case aggravating factors including the defendant agreeing to introduce customers to Y and the fact that he had unprotected sex with her.  I adopt 15 months’ imprisonment as the starting point for Charge 3. 

42. As regards X, similar to the case of Y and Z, there is the aggravating factor of the defendant’s proffering financial advantages to X.  Similarly to the case of Y, the defendant had unprotected sex with her.  However, unlike the case of Y and Z, the defendant did not say that he had harboured any mistaken belief about X’s age, which was at the lower end of the range between 13 and 16.  Whilst the charges concerning X carry a lower maximum sentence than those of Z, she was older than the latter by just one year.  I adopt 2 years’ imprisonment as the starting point for Charges 4 and 5 respectively.

43. As regards Charge 6, which only concerns X, condemnation is a major consideration: see R v Fong Yuk Choi & Ors [1983] 1 HKC 208.  I take into account the fact that it was not a sophisticated operation and was only of a short duration, that X apparently had engaged in sex trade before, that X was a willing party and that there was no element of duress, false imprisonment or triad stamping.  However, the young age of X is an aggravate factor.  I adopt 15 months’ imprisonment as the starting point of this charge.

44. For each of the charges, the defendant is entitled to the customary one-third discount for plea.  In HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, at paragraph 31 of the judgment, the Court of Appeal said that previous case authorities which suggest that an additional discount may be given where a victim is spared the ordeal of giving evidence (and therefore having to recount the traumatic incident or incidents in question) must now be viewed against the general principle that the one-third discount is usually to be regarded as the high watermark of the discount for pleading guilty in good time.  Only in exceptional cases should a discount of more than one-third be given for a timely plea. 

45. Apart from the guilty plea, I do not find any other mitigating factors advanced on behalf of the defendant, including what was said in the mitigation letters, which can further reduce the sentences from their respective starting points.  Thus, the sentences on each charge, after the deduction of the one-third discount, are as follows:-

Charge 1: 16 months’ imprisonment;

Charge 2: 16 months’ imprisonment;

Charge 3: 10 months’ imprisonment;

Charge 4: 16 months’ imprisonment;

Charge 5: 16 months’ imprisonment; and

Charge 6: 10 months’ imprisonment.

Totality

46. In considering totality, I bear in mind what the Court of Appeal said in HKAR v Ngai Yiu Ching [2011] 5 HKLRD 690, followed in HKSAR v Pau King Kong [2013] 3 HKLRD 676, that when dealing with multiple offences committed on separate occasions over a period of time, the ultimate sentence must reflect the overall and true culpability, although the judge must pass an appropriate sentence for each individual offence without punishing twice for the same act.  The issue was whether the other charges added to the culpability of the offender.  This depended on whether the sentence for one offence comprehended the criminality of another.  Moreover, at the end of the sentencing exercise, the judge is required to stand back “far enough” to assess whether the resulting sentence is proportionate to the defendant’s culpability and mitigating features, whilst at the same time be sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation. 

47. I take into account that the offences were against three different girls, albeit they were committed within a short time span.  Therefore, at least partly consecutive sentences are called for.  I am also of the view that Charge 6 adds a different criminality to the case which is not comprehended by the other charges.  Although the mitigation letters show the better side of the defendant’s nature, I do not consider that he can be described as a man of general positive good character which would enable to the Court to adopt a lower overall sentence than it would otherwise have done.  Despite the defendant’s age, the sentence needs to contain a deterrent element.  Applying the above-mentioned legal principles to the present case, I order that:-

(a) Charges 1 and 2 be served concurrently;

(b) 6 months of Charge 3 be served consecutively to Charges 1 and 2;

(c) Charges 4 and 5 be served concurrently, with 6 months of the resultant sentence be served consecutively to Charges 1 to 3; and

(d) 4 months of the sentence on Charge 6 be served consecutively to Charges 1 to 5,

thus making a total sentence of 32 months’ imprisonment, a sentence which I am satisfied, by standing far back, is appropriate having regard to the circumstances of the offence and those of the defendant.