HKSAR v. LEE PAK TO

DCCC 953/2020

[2021] HKDC 1597

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 953 OF 2020

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of unlawful sexual intercourse with a girl under the age of 16 years, contrary to section 124 of the Crimes Ordinance[1] (charge 1); two charges of indecent assault on another person, contrary to section 122 of the Crimes Ordinance (charges 3 & 4); one charge of procurement of an unlawful sexual act by false pretences, contrary to section 120 of the Crimes Ordinance (charge 6)  and one charge of indecent conduct towards a child under the age of 16 years, contrary to section 146 of the Crimes Ordinance (charge 7). The maximum sentence for the offences is either 5 years’ imprisonment or 10 years’ imprisonment.

2.  Full particulars of the offences are set out in the amended summary of facts dated 30 September 2021 admitted by the defendant on 17 November 2021.  Sentence was adjourned for the preparation of a psychological report on the defendant. 

3.  In summary between October 2018 and June 2020 the defendant, aged between 34 and 35, committed sexual acts on five school girls who he had befriended in the basketball court adjacent to where he lived.  The five girls, V, W, X, Y and Z, who were all under 16 and attended the same school, would socialise at the basketball court.

4.  Except in the case of W, the defendant would claim the girls were possessed by evil spirits and perform sexual acts under the guise that he was getting rid of the evil spirits.

5.  The offences came to light when Z disclosed to the social worker at school about what happened to her on 9 June 2020 (charge 7).  During the course of police investigation V, W, X and Y were located.  

6.  The defendant was arrested on 18 June 2020.  V, W, X, Y and Z all identified the defendant in identification parades conducted by the police on 22 June 2020.

Unlawful sexual intercourse (charge 1)

7.  V, who was 13, met the defendant between September and November 2017.  On a day in October 2018, close to when V was to take her school test, the defendant invited V to his home.  

8.  The defendant told V that something bad was happening to her and that he could perform exorcist rituals upon her to get rid of the bad thing. 

9.  The defendant examined V by first placing his hand on her abdomen and inserting his fingers inside her private parts.  The defendant then instructed V to lie down after which he pulled up her clothes and engaged in unprotected sexual intercourse during which V felt painful. V was scared and succumbed to the defendant’s acts. 

Indecent assault (charge 3)

10.  W first met the defendant after her thirteenth birthday.  On a day in October 2018, when W was still 13, W went with V to the defendant’s home to play[2]. 

11.  When the three of them were sitting on the upper bunk bed the defendant told W to lie down.  The defendant used a jacket to cover the upper body of W and then inserted his fingers inside W’s private parts and molested her for about one minute. 

12.  W hit the defendant’s hand in an attempt to stop him but in vain.  The defendant said he would only stop if W indicated she felt comfortable.  In order for the defendant to stop W said she felt comfortable. 

Indecent assault (charge 4)

Procurement of unlawful sexual acts by false pretences (charge 6)

13.  In 2018 X and Y became acquainted with the defendant.  At about 10:00 p.m. on 26 February 2019, when X was 12 and Y was 14, they encountered the defendant in the basketball court.  The defendant invited X and Y for dinner in a nearby restaurant.   During the dinner X said she was not feeling well.  The defendant said X was not well because she was possessed by spirits and suggested to get rid of the spirits. 

14.  The defendant then invited X and Y to a hotel for socialising purposes.  The defendant entered the hotel from the front and asked X and Y to enter from the rear.

15.  Inside room 1520 X felt very tired and fell asleep.  While X was asleep Y witnessed the defendant inserting his hand underneath X’s underpants and touching her private parts.  The defendant claimed he did this to get rid of the spirit from X’s body (charge 4). 

16.  The defendant then asked Y to follow him to the bathroom where he asked Y to perform oral sex for him.  Y refused.  Y also refused to kiss the defendant. The defendant claimed these acts were all rituals of exorcism.  Y became frightened and began to cry.  The defendant embraced Y and then they left the bathroom. 

17.  The defendant then forced Y to touch X’s private parts alleging Y would be able to feel the coldness of the spirit possessing X.  While X was still asleep Y placed her hand under X’s underpants as told by the defendant (charge 6).

18.  When they left the hotel room the defendant told X and Y not to tell anyone about the incident.  Later Y told X that the defendant had indecently assaulted her while she was asleep.

19.  The guest check-in record retrieved from the hotel confirmed the defendant booked room 1520 under his own name.

Indecent conduct towards a child under the age of 16 (charge 7)

20.  Z first met the defendant in 2017.  In May 2020, when Z was 15, the defendant contacted Z via Instagram saying he could foresee something bad was about to happen to her. In early June 2020 when Z asked for details of the bad thing the defendant invited her to his home where he could perform exorcist rituals to help her get rid of the bad thing.

21.  On 9 June 2020 Z went to the defendant’s home.  The defendant lifted up X’s school dress and touched her abdomen.  The defendant then claimed it was necessary for Z to engage in sexual intercourse with him to get rid of the bad thing.  Z refused. 

22.  Z also refused to masturbate the defendant, let him touch her private parts or give her underpants to him. The defendant then stood behind Z and masturbated during which he lifted up Z’s school dress exposing her underpants. 

23.  After the defendant masturbated he asked Z to spit into a bottle so their body fluids could be mixed together in order to get rid of the bad things from Z.  Z refused and instead spat onto a piece of tissue paper.  Z then left the flat on her own and severed all contacts with the defendant. 

Mitigation

24.  In passing sentence, I have carefully considered the written and oral submissions of Ms Lai, including that the defendant, who is now 37 and single, wishes to start a boxing gym to enable him to make a living and support his parents who are not of good health[3]. 

25.  I have read the defendant’s mitigation letter in which he apologizes to the victims and asks for an early release so he can take care of his parents.

26.  I have also read the letters written by the defendant’s parents and his friends, all asking for a lenient sentence.     

Guidelines

27.  There are no guidelines for these offences.  Case law makes clear that this kind of conduct gives rise to great abhorrence on the part of the public, who look to the courts for protection of children from those who seek to gratify themselves by taking advantage of young children. 

28.  The sentence of the court must mark the public abhorrence of such crimes and redress the grievance suffered by the victims and their families whilst at the same time deterring others from committing similar offences.  

29.  In Secretary for Justice v Huang Long Wei the Court of Appeal set out the principles to follow in sentencing indecent assaults by adults on young children, the most important of which is the protection of young children[4].

30.  Factors that the court has to consider include the age difference between the defendant and the victim; whether the defendant had used threats or inducements to make the victims succumb, falling prey to his licentious exploitation; the number of occasions and duration of the offences; whether the offences caused physical or psychological trauma to the victim; and whether the defendant is psychologically imbalanced or paedophilic and the likelihood of re-offending[5].  Each time an offence is repeated that is a matter that should also be taken into account together with other factors that may be present[6].

31.  I have considered the cases referred to the court by Ms Lai including Secretary for Justice v Wong Tsz Kin and Attorney General v Ho Yu Ping[7].  Subsequent decisions of the Court of Appeal have clearly stated that the sentence imposed in Secretary for Justice v Wong Tsz Kin was remarkably low and overly lenient and should not be regarded as an appropriate guideline[8].  The sentence imposed in Attorney General v Ho Yu Ping was when the maximum sentence for indecent assault was 5 years’ imprisonment.

32.  Sentencing is very much fact sensitive, offences of this nature covering a wide range of conduct[9]. Sentences in similar cases are of limited assistance, the circumstances of the offences varying widely[10].

33.  Whilst each case is to be decided on its own facts and circumstances, some assistance can be obtained from HKSAR v Chow Kam Wah, a case concerning young girls, not underage girls, being deceived into having sexual intercourse as part of an exorcist ritual[11].

Victim impact statements

34.  One important consideration in sentencing is to redress the grievance suffered by the victim and their families.  In the vast majority of cases the trauma, distress and psychological harm caused to young children and their families from this type of offence can be assumed and it is therefore not necessary to call for a victim impact statement which may well serve only to agitate painful memories[12].

35.  Mr Chan informs the court that contact was made with the school counsellor who stated that the girls were all doing well at the moment, none had suicidal thoughts and that no untoward incidents had happened. 

36.  In the circumstances I do not call for victim impact statements. 

Psychological report of the defendant

37.  The psychological report reveals that after breaking up with his girlfriend in 2016 the defendant dedicated more time to playing basketball through which he became acquainted with a group of teenagers for whom he volunteered to be their basketball coach.  The defendant enjoyed chatting with the teenagers who he found straightforward, unlike adults[13].  The defendant found being with the teenagers enjoyable as they were dependent on him and looked up to him thereby fulfilling his longing for affection and recognition which was lacking in his adult relationships[14].

38.  The defendant impressed to be sexually interested in adult female, however the commission of the offences suggest that he may possibly be attracted to teenage girls and even prepubescent girls.  The risk of sexual re-offending is assessed to be at the higher end of moderate range[15]. Psychological treatment with an aim of enhancing the defendant’s self-esteem, mood management skills, problem-solving skills and relationship skills is recommended[16].

39.  The report also reveals that the defendant was noted to be tense and more guarded when he talked about the offences.  Although the defendant is said in retrospect to be ashamed, he seeks not only to put much of the blame for what happened on the young girls but also strongly denied that he had ever used the excuse of exorcism to make sexual contact with any of the girls[17]. 

40.  This is contrary to the summary of facts admitted by the defendant.  In court today Ms Lai says that the defendant withdraws the denial set out in paragraph 14 of the psychological report that he had ever used the excuse of exorcism to make sexual contact with any of the girls.

Sentence

41.  Ms Lai asks the court to take into account that the defendant knew all the victims; there was no breach of trust; no physical force or violence was involved and in the case of V the relationship continued[18].   

42.  In my view young children must be protected.  The age difference is significant, the defendant, aged between 34 and 35, was a mature adult whereas all the schoolgirls were under 16, X being only 12. 

43.  The defendant clearly took advantage of the young ages of the girls deceiving all except W into believing they were possessed by evil spirits so that he could perform sexual acts on the girls. 

44.  In HKSAR v Chow Yuen Fai the Court of Appeal said that the risk of re-offending is an aggravating feature as is a poor previous record[19]. As noted already the risk of sexual re-offending is assessed to be at the higher end of moderate range[20].

45.  The defendant cannot be given credit for a clear record having served a sentence of 2 years and 4 months for indecent assault on a 15 year old girl[21].  I have read the reasons for sentence in that case which reveal a very serious case of indecent assault.  The defendant was released from prison on 4 December 2013[22].  I take into account the defendant did not reoffend until October 2018. 

46.  I am satisfied deterrent sentences are required. 

47.  Taking into account the age difference, the risk of re-offending is assessed to be at the higher end of moderate range and the defendant has a previous conviction for indecent assault, I consider the following starting points appropriate for each offence.  

Unlawful sexual intercourse (charge 1)

48.  Taking into account all the circumstances, including V was just over 13; the defendant deceived V into having sexual intercourse by falsely claiming something bad was happening to her and that he could perform exorcist rituals upon her to get rid of the bad thing; the intercourse was unprotected thereby subjecting V to the risk of sexually transmitted disease and pregnancy and V was scared and succumbed to the defendant’s acts, I am satisfied a starting point of 3 years and 6 months’ imprisonment is appropriate. 

49.  Giving the defendant full credit for his pleas of guilty reduces the sentence to 2 years and 4 months’ imprisonment.

Indecent assault (charge 3)

50.  Taking into account all the circumstances, including W was 13; the nature of the indecency involving the defendant inserting his fingers inside W’s private parts and that the defendant acted against the will of W, I am satisfied a starting point of 18 months’ imprisonment is appropriate. 

51.  Giving the defendant full credit for his pleas of guilty reduces the sentence to 12 months’ imprisonment.

Indecent assault (charge 4)

52.  Taking into account all the circumstances, including X was 12; the defendant lured X to the hotel by falsely claiming X was possessed by evil spirits; the nature of the indecency involving the defendant touching X’s private parts underneath her underpants and which took place while X was asleep, I am satisfied a starting point of 2 years’ imprisonment is appropriate. 

53.  Giving the defendant full credit for his pleas of guilty reduces the sentence to 1 year and 4 months’ imprisonment.

Procurement of an unlawful sexual act by false pretences (charge 6)

54.  Taking into account all the circumstances, including Y was 14; the defendant falsely claimed X was possessed by evil spirits; Y was frightened and the defendant forced Y to touch X’s private parts, I am satisfied a starting point of 18 months’ imprisonment is appropriate. 

55.  Giving the defendant full credit for his pleas of guilty reduces the sentence to 12 months’ imprisonment.

Indecent conduct towards a child under the age of 16 years (charge 7)

56.  Taking into account all the circumstances, including Z was 15; the defendant lured Z to his home by falsely claiming something bad was happening to Z and that he could perform exorcist rituals for her and the nature of the indecent conduct involving the defendant masturbating while standing behind Z and lifting up her school dress exposing her underpants, I am satisfied a starting point of 18 months’ imprisonment is appropriate. 

57.  Giving the defendant full credit for his plea of guilty reduces the sentence to 12 months’ imprisonment.

58.  In her oral submission Ms Lai asks the court to take into account by pleading guilty the defendant has spared all the girls from giving evidence in court[23].  In HKSAR v Chow Yuen Fai the Court of Appeal said that where a victim is spared the ordeal of giving evidence this is to be viewed against the general principle that the one-third discount is usually to be regarded as the high watermark for discount for pleading guilty in good time and that only in exceptional cases should a discount of more than one-third be given for a timely plea[24].

Totality

59.  Sentence must reflect that the defendant on four separate occasions between October 2018 and June 2020 committed acts of a sexual nature on five school girls who at the time were all under 16 and the need to protect the community from the risk of the defendant reoffending[25].

60.  I am satisfied a total sentence of 4 years and 4 months’imprisonment properly reflects the defendant’s criminality on the five charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[26].    

Charitable donations

61.  Paragraph 7 of the written submission states that the defendant is an animal lover who makes donations to the Society for the Prevention of Cruelty to Animals.  Asked by the court for details of these donations Ms Lai, having taken instructions from the defendant, informs the court that after the defendant was released from his prison sentence in December 2013 he has adopted various animals including cats, parrots, hedgehogs and rabbits; attended voluntary work with animal rescue, donated $5,000-$6,000 a year and has looked after abandoned stray animals.  In recognition I reduce the total sentence by 1 month to 4 years and 3 months’ imprisonment. 

Sentence

62.  The defendant is convicted and sentenced as follows:

Charge 1 - 2 years and 4 months’ imprisonment;

Charge 3 – 12 months’ imprisonment with 6 months consecutive and 6 months concurrent to charge 1;

Charge 4 – 1 year and 4 months’ imprisonment with 8 months consecutive and 8 months concurrent to charges 1 & 3;

Charge 6 – 12 months’ imprisonment with 3 months consecutive and 9 months concurrent to charges 1, 3 & 4; and

Charge 7 – 12 months’ imprisonment with 6 months consecutive and 6 months concurrent to charges 1, 3, 4 & 6.

The total sentence to be served by the defendant is 4 years and 3 months’ imprisonment.