HKSAR v. CHAN KWONG PUI

CACC 228/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 228 OF 2003

(ON APPEAL FROM HCCC NO. 88 OF 2003)

__________________________

J U D G M E N T

__________________________

Hon. Cheung J.A. (giving the judgment of the Court):

The offences

1. The applicant pleaded guilty to two offences, namely, unlawful sexual intercourse with a girl under sixteen, contrary to section 124(1) of the Crimes Ordinance (Cap. 200) and buggery with girl under twenty-one, contrary to section 118D of the Crimes Ordinance.

The sentences

2. For the first offence Deputy High Court Judge M. Poon used a starting point of two and a half years' imprisonment which was then reduced by one third because of the guilty plea, resulting in a sentence of twenty months' imprisonment.

3. For the second offence, a starting point of five years' imprisonment was used. After giving a one-third discount, a sentence of forty months' imprisonment was imposed.

4. The judge ordered sixteen months out of the first twenty months to be served consecutively to the second forty months' sentence, resulting in a total sentence of fifty-six months' imprisonment. This sentence was imposed on the basis of a total sentence of seven years' imprisonment before giving the one-third discount.

5. The applicant now appeals against the sentence.

Facts

6. The facts revealed that during the search of the applicant's car, some nude pictures of a girl and five videotapes were found. The photographs and the tapes revealed sexual activities between the applicant and a girl.

7. The girl was subsequently located by the police. She was the daughter of a business partner of the applicant. The girl admitted that she had sexual intercourses with the applicant. The first sexual intercourse took place when she was fifteen years and eight months old and the buggery took place two months after the sixteenth birthday. She said she was a willing partner in these sexual activities. The applicant was thirty-four years old when the offences took place. He knew the girl since she was very young.

The complaint

8. Mr. Duncan and Mr. Kwan, counsel for the applicant submitted that the starting point of the individual sentences and the total sentence were too high.

The approach

9. The maximum sentence for the first offence is five years' imprisonment.

10. In R. v. Taylor (1977) 64 Cr. App. R. 182 the English Court of Appeal draws a distinction between the age of the defendants who committed this offence and the nature of the relationship of the offender with the victim. Obviously two young friends of similar age who eventually engaged in sexual activities is viewed differently from the situation of an older man engaged in a sexual activities with an underage girl. The situation is aggravated if the older man assumes the role of a supervisor over the girl such as a guardian or social worker.

11. HKSAR v. Lai Yip Sing [2001] 2 HKLRD 601 is an illustration of this approach. The defendant was twenty-four years old and had sexual intercourse with a girl of fourteen. They became acquainted through a telephone chat line. A three months' imprisonment was imposed. See also R. v. Chung Chi Wai HCMA 629/1994 (Penlington J.A. sitting as an additional High Court Judge).

12. It is clear that section 124(1) was enacted as a matter of public policy to ensure that the law will protect those vulnerable members of the public who cannot truly give their consent before they reached the age of sixteen. Obviously the age of the girl is an important consideration. The younger the girl, the less likely she can truly give her consent.

13. There is no tariff for this type of offence. A review of the cases shows that the range is about eighteen months : R. v. Leung Chung (CACC No. 284 of 1986), R. v. Chan Kin (CACC No. 492 of 1987).

14. In this case the girl was nearly sixteen when she first engaged in the sexual activities with the applicant. There was no force used.

15. On the other hand there was a great age gap of eighteen years between the applicant and the girl. He was a business partner of the girl's mother and he had known the girl since she was young. The applicant knew the age of the girl and he had obviously taken advantage of this relationship to befriend the girl and engaged in sexual activities with her. He further recorded the act on video. These are clearly aggravating factors.

16. We consider that the starting point for the first offence should be two years' imprisonment. After giving the one-third discount, the sentence should be sixteen months' imprisonment.

Buggery

17. The maximum sentence for buggery with a girl under twenty-one is life imprisonment. This is obviously a very serious offence.

18. In HKSAR v. Yee Yiu Sam CACC 530/2001, a thirty-seven years old man was charged with the same offence. The girl was seventeen. The defendant arranged for the girl who lived in the Mainland to come to Hong Kong as an illegal immigrant. She was told that she could earn money in Hong Kong by entertaining male customers but did not have to engage in sexual intercourse. The girl told the defendant that she was twenty years old. The defendant also recorded the sexual act.

19. This Court adopted the sentence of two years and eight months which was based on a starting point of four years and discounted it by one-third because of the plea. This Court took into account the fact that the innocent needed to be protected and the power that the defendant had held over the girl.

Aim of section 118D

20. The legislature clearly intended a section 118D offence to be a serious offence. It is clearly intended to protect the underage from being taken advantage of by others and also equally, we would emphasize, to protect the underage from themselves whose mental or emotional maturity is often not matched with their physical maturity. The legislature has clearly regarded those engaged in anal intercourse with a female under twenty-one years of age to have committed a more serious offence. It clearly is an aggravating factor for the applicant who is far older to engage in this act with the girl who had just turned sixteen.

21. We are of the view that a starting point of four years' imprisonment is appropriate. Given the one-third discount, the sentence should be two years and eight months' imprisonment.

Total sentence

22. In our view the appropriate total sentence is six years' imprisonment before the one-third discount or four years after the discount. The two sentences are to be served consecutively.

23. The application for leave to appeal is allowed. We will treat the application as the appeal itself. The appeal is allowed as indicated.