HKSAR v. KWAN HO FAI

 DCCC1220/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1220 OF 2009

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Reasons for Sentence

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1.  The defendant pleaded guilty to three charges. The 1st charge is a charge of unlawful sexual intercourse with a girl under 16 years of age. The offence took place on 8 June 2009 in premises at which the defendant was living in Ngau Tau Kok, Kowloon.

2.  The 2nd charge, a charge of making child pornography, was committed on the same day at the same place. The 3rd charge is a similar charge to the 1st charge, a charge of unlawful sexual intercourse with a girl under 16 years of age. This offence was committed again at the flat occupied by the defendant in Ngau Tau Kok. The date of the offence was 26 September 2009.

3.  The amended Summary of Facts admitted by the defendant discloses that in relation to the 1st and 2nd charge, the victim of that case, who will be referred to as Girl X, was born on 1 November 1994 and was aged 14 at the material time. She came to know the defendant on 8 April 2009 through Internet communication using the MSN chatline.

4.  They met the same day at the Ngau Tau Kok MTR Station. The defendant led the victim to his residence at Flat B, 19th Floor, Foo On Building in Ngau Tau Kok. They had a photo‑shooting session. It had been made clear that the victim was interested in photographic fashion. Thereafter, the victim attended the defendant’s flat for two other photo-shooting sessions during which no indecent photos were taken and no monetary reward was involved.

5.  At 8 am on Monday, 8 June 2009, the victim again visited the flat of the defendant for a photo-shooting session. The photo-shooting session took place in the living room, and after a while, the victim was taken to the defendant’s bedroom. There the defendant kissed the Girl X, fondled her body and removed her clothes. The victim thought about leaving and pushed the defendant away. She did not want the defendant to kiss her. Nevertheless, they had sexual intercourse and she consented to it.

6.  The victim was worried that she might get pregnant. Three days later, she disclosed the incident to her school social worker, and after informing the victim’s father of the matter, a report was made to the police.

7.  The defendant was arrested on 12 June. The victim led the police officers to identify the defendant’s residence. The officers attended the flat and arrested the defendant, and under caution, he said, “Ah Sir, she was willing. I knew she had not attained 16.” The police seized, inter alia, a camera with an SD card and a desktop computer from the flat.

8.  The defendant was interviewed on the afternoon of 13 June. He admitted he came to know the victim through MSN in March 2009 and he knew that she was 14 years of age. He said that he had a photo-shooting session with the victim on an unknown day in April at his home which lasted for about two hours. Thereafter, they did not meet each other but kept contact on MSN.

9.  On 8 June, he admitted that the victim visited his flat and again they had a photo-shooting session for about an hour. He said that he started to kiss her neck and she did not object. He removed her top and fondled the victim. Again she did not refuse.

10.  The defendant switched on the video-recording device and recorded the kissing, fondling and sexual intercourse with the victim. He claimed that he wore a condom, but it was clear from the film that the condom was only put on after a few minutes of intercourse. He said the video-clip that recorded the course of sexual intercourse was originally stored in a memory stick that had been transferred to his desktop computer for his own viewing.

11.  The desktop computer was examined: the MSN record between the victim and the defendant was located; photographs of the victim fully dressed; a video-clip footage showing the defendant caressing the victim’s breasts while she was naked; and video-clip footage showing sexual intercourse between the victim and the defendant whilst both were naked.

12.  The victim was examined by the forensic pathologist on 12 June and found that an old tear of her hymen showed residual sign of previous penetrative trauma to her private parts, including sexual intercourse.

Charge 3

13.  I will refer to the victim in this case as Miss Y. She was born on 2 December 1994 and she was aged 14 at the material time. Again she came to know the defendant in mid‑September through the MSN Internet communication network. The defendant claimed he worked in the marketing field. Miss Y told the defendant she was 14 years of age. They exchanged telephone numbers and chatted on the phone and MSN.

14.  On 25 September, the defendant invited the victim to his home ostensibly to see his pets. At 10 pm on the night of Saturday, 26 September, the victim met the defendant at Ngau Tau Kok MTR Station and she was taken to his flat.

15.  After arrival, the defendant asked the victim to go to his bedroom. He kissed her and pushed her onto the bed. The defendant removed the victim’s clothes and lay on top of her. They had sexual intercourse which lasted for about 50 minutes. She was aware the defendant was not wearing a condom. Although she felt painful at her vagina, she did not tell that to the defendant nor did she push him away. The defendant ejaculated inside her mouth. Whilst she was still naked on the bed after the intercourse, the defendant suddenly used a mobile phone to take photographs of her.

16.  The victim felt unhappy about the incident and complained to her boyfriend three days later. A report was then made to the police.

17.  On 30 September 2009, the victim led police officers to identify the defendant’s residence. On 6 October, the defendant was arrested at his flat, and under caution, admitted that he had sexual intercourse with the second victim and that she was a willing party. The police seized a mobile phone and SIM card and a desktop computer but no pornographic images were retrieved.

18.  Two records of interview were taken from the defendant. He admitted that he came to know the second victim in September 2009 through the Internet and knew that she was 14 years of age. They exchanged phone numbers and chatted on the phone several times. During the conversation, the defendant discussed sexual matters with the victim and asked her whether he could have sexual intercourse with her, and she answered in the affirmative.

19.  They met by arrangement at 10 o’clock on 26 September and they had sexual intercourse after arriving at his flat. She did not refuse or shout to stop his act. After sexual intercourse, the defendant used his mobile phone to take photographs of the victim who was naked at the time. The defendant said the photographs had been deleted by him after the victim left the flat and he did not make a copy or upload the photos onto the Internet.

20.  The victim was medically examined. An old tear of her hymen was residual sign of previous penetrative trauma to the private parts, including sexual intercourse.

21.  The defendant has a clear record. He is 26 years of age. He was born in Hong Kong and educated here. He lived at the premises in Ngau Tau Kok for one year. He completed education in Hong Kong and had been to New Zealand for further education. He had an English language diploma. After he came back to Hong Kong, he worked as the manager of a swimming pool. He organised courses in swimming. He earned 11,000 per month, and I am told he was given a further 5,000 every two months. I am told that his health condition is normal. He had surgery for kidney stones 18 months ago but has recovered from that.

22.  I am told that his parents divorced but continue to live together. I am told that his father is 53 and works on the mainland but returns to Hong Kong each evening. He has a heart condition. His mother is 49 and works as a building administrator. He has a sister aged 21. When he was in employment, he paid most of his salary to his parents when he was living with them and continued to make significant contributions to the family after he moved out to live on his own.

23.  Up to 2008, he had had a girlfriend for the previous seven years. I am told that since his arrest on the first two charges and whilst he was on bail, he met another girl who has become his girlfriend. Notwithstanding these offences and the commission of the third offence, she continues to stand by him and visits him regularly in Lai Chi Kok. His family supports him. His mother visits him regularly or has visited him regularly whilst he was in Lai Chi Kok.

24.  A number of letters of support have been submitted to the court. They come from the defendant himself, his mother and father, his sister, his current girlfriend and also a friend of the defendant. They speak of the defendant’s remorse and his distress, having committed these offences and caused anxiety to his parents. A particularly moving letter was submitted from the defendant’s girlfriend. She says that her heart is breaking and, initially, she found it impossible to forgive the defendant but later she gave him a chance to have a fresh start. She talks of his inherent goodness and is confident that he can reform.

25.  When the case first came before the court, I adjourned it to obtain a victim impact assessment report in respect of the two victims. In respect of the first victim, Miss X, it says that this has been a traumatic early sexual relationship for her. She told the clinical psychologist that this was her first episode of sexual intercourse, and he took the view that the relationship negatively influenced her sense of self and had significantly impacted upon her development. In her case, he recommends psychological treatment to resolve the trauma and develop a more healthy sense of self.

26.  In relation to the second girl, Miss Y, the girl impressed to be shameful of what has happened and strongly holding onto the distorted belief about causing the case and subsequently having harboured self‑blame and anger towards herself. She has self-doubt for failing to identify persons trustworthy to her and this has further defeated her sense of self-esteem. The psychologist states that recollections of these difficult feelings linger on which was still disturbing the girl by the time the assessment report was conducted. That was in January 2010. Psychological services were suggested to the girl and the effects of that have been explained to both her and her mother who attended for the psychologist’s assessment.

27.  In my view, these charges are serious. This is yet again an example of immature and vulnerable persons being taken advantage by a calculating and manipulative sexual predator by means of Internet communication. The dangers of allowing unsupervised children this kind of Internet access cannot be overstated.

28.  It was abundantly clear to me from watching the video that Miss X was a reluctant participant. She was clearly uncomfortable in front of the camera and folded her arms in such a way as to cover her private parts. She indicated that she did not wish the defendant to remove her knickers. Her facial expression showed that she was disturbed and she held a tie across her eyes. It was only after intercourse had taken place for a few minutes that the defendant put on a condom at the request of the victim. There was a ready supply of condoms in the cupboard at the head of the bed, and during intercourse, the victim constantly kept her face away from the camera and at the end turned to face the wall. The defendant made a number of attempts to kiss her and she prevented him from doing so by quickly moving her face away from his. She appeared to me to be totally embarrassed by what occurred.

29.  It was obvious that the defendant was not inexperienced either sexually or in his operation of the camera. He moved the victim’s body so that the camera could capture the intimate parts of her body and manipulated the camera during intercourse. During intercourse, he encouraged the victim to make more noise with a view to either increasing his arousal or for the purpose of pandering to the taste of the voyeurs who take pleasure in watching this kind of depravity. He was calculating and exploitive. He appeared to be grooming the victim and had no concern whatsoever for her feelings.

30.  No attempt was made by the defendant to protect her identity. Quite the opposite. He made sure right at the beginning that the camera fully captured her face. The initial indecent assaults upon her, his groping of her breasts and inserting his fingers inside her fully open vagina were performed with her private parts and face clearly displayed.

31.  In the Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519, the court sets out four levels of child pornography, and the behaviour in this case comes under the highest level, penetrative sexual activity between a child and an adult.

32.  In HKSAR v Chow Yuen Fai CACC392 of 2008, Hon Ma CJHC at page 9 made observations with regard to the impact on the victim and the victim’s family and the abhorrence that right‑thinking members of society would regard these types of offences and thus the need for deterrence. His Lordship stated that the protection of young and vulnerable children is of course the underlying policy. He referred to the case of Man Kwong Choi which referred to article 34 of the United Nations Convention on the Rights of the Child which applies to Hong Kong. That article states as follows:

“States parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.  For these purposes, states parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a)  the inducement or coercion of a child to engage in any unlawful sexual activity.

(b)  the exploitive use of children in prostitution or other unlawful sexual practices;

(c)  the exploitive use of children in pornographic performances and materials.”

33.  The court stated that the trauma, distress and psychological harm that are caused to young children (and they underlined, also to their families) from this type of offence cannot be underestimated. It states that while the court was sometimes provided with psychological reports on the victims of such crimes, the court was of the view that in the vast majority of cases this could be assumed.

34.  A number of decisions of this court have made this very point. It is found very helpful the observations of Stock JA in HKSAR v Kong Yun Chiu 113550 [2007] 4 HKC 391. Children in their formative years or when they first become aware of their sexuality during puberty are extremely vulnerable to and are easily persuaded by adults. In Kong Yun Chiu, Stock JA said at 395DE, paragraph 11:

“It is too easy for those who would prey on their naivety and trust to succeed, for children are by nature trusting, and the deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly.  The trauma caused to a child by an indecent assault and the long-term adverse impact is difficult to calculate, but trauma may be safely assumed in the vast majority of cases, perhaps all.”

35.  The court in Chow Yuen Fai continued:

“The trauma, distress and psychological harm is considerably magnified if, as in the present case, a record by way of photographs and videos is taken on the sexual act or acts in question.  Both the victim and his or her family may well be haunted for many years with the knowledge that the act or acts in question, regarded both as embarrassing and shameful in the extreme quite apart from being illegal, are somehow recorded, and with the possibility they may even surface when the victims reach later life.”

36.  The defendant committed the third offence whilst on bail for the first two offences. This is unquestionably an aggravating feature which must be taken into account. The Court of Appeal has said that it is well-established that to commit a second offence whilst on bail for a first was a factor that goes to aggravation of sentence. In such circumstances, the court may as a matter of principle order the sentences to run consecutively.

37.  When he commits the third offence, again he has met this victim through the Internet. He has unprotected sex with her and then ejaculates inside her mouth. He uses his mobile phone to take pictures of her. The failure to use a condom by the sexually active defendant is clearly an aggravating feature. The failure to use a condom gives rise to obvious health risks, risks and consequences, the extent of which the victim may well be ignorant. This sort of behaviour has to be condemned in the strongest terms. There must be in any sentence for an offence of this nature an element of deterrence of others to mark the public abhorrence and the need to redress grievances suffered.

38.  I have taken into account the defendant’s guilty plea and his clear record. I have taken into account everything that has been said in mitigation and the letters of support that have been submitted to the court. In respect of the 1st charge, I take a starting point of 2 years and reduce that by one-third to reflect the guilty plea. For Charge 2, I take a starting point of 2 years 6 months and reduce that by one-third to a sentence of 20 months. In respect of Charge 3, I again take a starting point of 2 years and allow a reduction of that sentence to 16 months to reflect the guilty plea.

39.  I have considered the question of totality and also the factors to be taken into account in relation to the fact that Charge 3 was committed whilst the defendant was on bail for Charges 1 and 2. I order that 14 months of Charge 2 should run consecutive to Charge 1. I order that 10 months of the sentence for Charge 3 should run consecutive to Charges 1 and 2. The total sentence therefore will be one of 40 months’ imprisonment.