HKSAR v. LEUNG WING HANG

DCCC 690/2022

[2023] HKDC 1636

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 690 OF 2022

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REASONS FOR SENTENCE

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1.  The Defendant (“D”)  pleaded guilty to 3 charges of unlawful sexual intercourse with a girl under the age of 16 years.

2.  The dates and the places of the 3 offences: -

(a)  Charge 1 : 25 January 2021 in a room at Caritas Oswald Cheung International House

(b)  Charge 2 : 13 February 2021 in D’s home in Wah Fu Estate

(c)  Charge 3 : 15 April 2021 in D’s home in Wah Fu Estate

Summary of facts

3.  X is a girl born in May 2007.

4.  On 23 January 2021, X met D through her friends. At all material times, D was aware of X’s age as X had told D about it. The D and X were in an ambiguous romantic relationship.

Charge 1

5.  On 25 January 2021, X went to meet at D’s invitation via WhatsApp. D and X were alone in the Guestroom.

6.  At around 4 pm on the same day, X informed D that she would return home. However, D stopped her from leaving by hugging and lying on top of X. D later removed X’s and his underpants and touched X’s private parts for 1 to 2 minutes. Then, D penetrated X’s vagina with his penis. X felt pain. After about 15 to 20 minutes, D ejaculated on X’s belly.

7.  Thereafter, D wiped off his semen from X’s belly before X left his flat.

8.  As X was worried that she would get pregnant, she purchased and consumed a birth-control pill the next day.

9.  At the material time, X was 13 years and 7 months old whereas D was 24 years and 11 months old.

Charge 2

10.  On 13 February 2021, D told X in the WhatsApp that he missed her and invited her to meet up at his home in Wah Fu Estate.

11.  X went to his flat on the same day, D led X to his bedroom.

12.  D slipped his hand into X’s underpants and inserted his finger into X’s vagina for 1 to 2 minutes. Thereafter, D removed X’s and his underpants. D penetrated X’s vagina with his penis. After about 10 to 15 minutes, D ejaculated on X’s belly. D wiped off his semen from X’s belly. D and X then left the Flat.

13.  D subsequently told X to delete their WhatsApp chat record so that X’s friends would not find out about their relationship.

Charge 3

14.  On 15 April 2021, D invited X again to meet up at his Flat via WhatsApp.

15.  Once D and X were alone inside D’s bedroom, D closed the bedroom door immediately and pushed X onto the bed. Lying on top of X, D locked X’s hands and touched X’s private parts for 1 to 2 minutes. He then took off X’s and his own underpants.

16.  Thereafter, D pushed X’s head towards his penis and requested oral sex. X thus performed oral sex on D for 2 to 3 minutes. D then penetrated X’s vagina with his penis. D eventually ejaculated on X’s belly. X left the Flat thereafter.

D’s arrest

17.  In May 2021, X informed a social worker that she had engaged in sexual intercourse with D on several occasions and was very worried that she would get pregnant.

18.  Case was reported on 23 May 2021.

19.  On 7 June 2021, D was arrested for ‘Rape’. He was re-arrested for the present offences on 1 June 2022.

Criminal record

20.  The D has 2 previous criminal records:-

(a)  Possession of dangerous drugs in 2015.

(b)  S.19 wounding in 2021.

Background and mitigation

21.  The D is 27 years old. He married in 2022. He is an air-conditioner technician with a monthly income of $26,000. His employer will re-employ him after he has served his sentence.

22.  The defence said that X did not suffer from any trauma from the present incident and the D has no pedophilic tendency.

23.  There was no evidence to suggest that X was succumbed into those situations or any element of corruptive influence.

24.  In the last hearing, the defence provided me with a numbers of letters from the D, his wife, his sisters and the social workers.

25.  I have read them all. They all said good things on behalf of the D and asked for leniency.

26.  I understand that the D has keen interest in Thai boxing and volleyball, he knows that the convictions of the present offences will prevent him from being qualified as a coach.

27.  Nonetheless, he also understands the importance to become a good person as he has hurt his family in the past.

28.  Today, the D wishes this Court to impose a lenient sentence on him so that he can continue his financial support to the family. I told the defence that the D should have known the consequences of committing the present offences that his family will suffer. It is not a ground for reduction of sentence.

Pre-sentencing reports

29.  I have called psychiatrist, psychologist and victim impact reports before sentencing.

30.  The Psychiatrist said that D is not suffered from mental illness. However, he has been subjected to huge pressure because of the present proceedings.

31.  The Psychologist said that:-

(a)  There is no evidence to suggest the presence of pedophilia.

(b)  He was at moderate-low risk of sexual re-offending without overt psychopathology.

32.  In the reports, D said he did not know the age of X at the time of the 1^st offence. After clarification from the defence, it was a misunderstanding between D and the experts. He confirms his admission to the summary of facts.

33.  The victim impact report is not available as the parents of X would prefer to leave this matter aside and X not to be contacted to recall the present incidents. X did have negative feeling before, but now seems to recover from it.

34.  Recently, through the social worker, D’s father came to know X did exhibit signs of anxiety as she did not know whether she would be called as a witness. As such, this Court does not know the true level of impact of the present incidents on X.

35.  X’s father is concerned that X may meet some undesirable friends and gets hurt again.

Sentence

36.  The maximum sentence is 5 years for a charge of unlawful sexual intercourse with a girl under the age of 16.

37.  The defence cited 2 cases, the first one is HKSAR v Chan Kwong Pui CACC 228/2003. In that case, the applicant was charged with 2 offences, The 1^st charge is unlawful sexual intercourse with a girl under 16. X was nearly 16. Age gap was 18 years. On appeal, starting point is 2 years and reduced to 16 months. The 2^nd Charge is Buggery.

38.  The 2^nd case that the defence refers to was one of my previous decisions in HKSAR v Ng Cheuk Ki DCCC 276/2022. The facts of that case was totally different from the present case and the relationship between X and the D was different from the present one, they were genuine boyfriend and girlfriend relationship. The D also managed to obtain his university degree despite the fact that he had suffered from depression as a result of the arrest. While in the present case, the D committed further offence after the present arrest, albeit, a different nature of offence.

39.  In paragraph 51 of the judgment of HKSAR v Lau Chun Yuk CACC 243/2021 that Court of Appeal had already said that district court cases decisions have no binding effect upon me.

40.  During the mitigation, I told the defence that there is no sentencing guideline for the present offences.

41.  Nonetheless, both parties are aware of the sentencing factors as stated in HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427.

(a)  Age of X is an importance factor in sentencing. X was born in May 2007. In the present case, the age difference between X and the D is about 11 years. Between January to April, 2021, X was still under 14 during the 3 incidents.

(b)  During the first meeting with X, D had already known the age of X and she was a student. The first incident took place 2 days after the D met X. They hardly have known each other.

(c)  The first charge was taken place in a Guesthouse. The defence said that the D has a poor relationship with his family at that time, therefore he moved to stay in the Guesthouse just 2 weeks before the CNY. He started to stay in the Guesthouse after he met X. I have doubt about it as 2 weeks before CNY in 2021 could hardly stretched back to cover the day of offence in the 1^st Charge.

(d)  The Police has done enquiry with the Guesthouse and the result was that there was no record in the name of the D around that period of time. The Prosecution said that there may have many reasons why the Guesthouse did not have such record, maybe the booking was 2 years ago, the computer did not keep the record.

(e)  In any event, I consider that it was premediated and also an aggravating factor for reason that:-

(i)  The D asked X to go a Guesthouse was with a view and plan to have sexual intercourse with her, knowing very well that she was just 13. At least they were not in a boyfriend and girlfriend relationship.

(f)  There were 3 incidents of unlawful sexual intercourse over a period of 3 months.

(g)  The D in each occasion did not wear condom to avoid transmitting venereal disease to the victim or getting X pregnant.

(h)  Clearly, X was worried that she might get pregnant. No doubt she became anxious about it. Therefore she had taken birth-control pill after the first incident. She also expressed her concerns to the social worker.

(i)  I accepted there is no evidence to suggest that the D was involved in an inappropriate behavior such as taking pictures/‌videos or inviting other people to watch during the 3 incidents.

42.  Despite the fact that the defence claimed that X and the D were engaging in a ambiguous romantic relationship, I still do not understand why the D asked X to delete the messages so that her friends would not find out (do friends easily have accessed to X’s phones?)  And why he was arrested for ‘Rape’ in the first place.

43.  Having said that, I am fully aware that the sentences of the 3 charges is based on his guilty plea of unlawful sexual intercourse.

44.  The Psychologist said that:-

(i)  There is no evidence of pedophilia;

(ii)  He was at moderate-low risk of sexual re-offending without overt psychopathology.

45.  Taking everything into consideration, I consider that the starting point of each charge is 12 months.

46.  I enhance the sentence for 3 months of each charge in view of the aggravating factor of no condom issue.

47.  As to Charge 1, I further enhance the sentence for 3 months as previous discussed regarding the Guesthouse incident.

48.  The total sentence for each charge:-

	Starting point	Aggravating factor	Total sentence	1/3 discount
Charge 1	12	6	18	12
Charge 2	12	3	15	10
Charge 3	12	3	15	10

49.  I order 3 months from Charge 2 and 3 to run consecutively to Charge 1, the total sentence is 18 months.

50.  As pointed out in mitigation that the D had this matter hanging over his head for some 2 years 10 months, I reduce the total sentence for 2 months, it arrives at 16 months for the final sentence.

Order

51.  The D is to serve a period of 16 months’ imprisonment.