HKSAR v. Wong Ching Hung

DCCC 729/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 729 OF 2015

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REASONS FOR SENTENCE

1.Wong Ching Hung you have pleaded guilty to one charge of having unlawful sexual intercourse with a girl under the age of 16 years, contrary to section 124(1) of the Crimes Ordinance[1], the maximum sentence for which is 5 years imprisonment.

2.In summary in December last year, using a pseudonym, you exchanged messages on “WeChat” with a 14 year old girl, who told you she was a secondary school student.  When your messages became licentious the girl blocked the conversation. In the afternoon of 18 April this year the girl, feeling bored and wanting to provoke the attention of her boyfriend, unblocked you. 

3.You then invited the girl to your home.  The girl hesitated to go but on your promise not to “interfere” with her, which she understood to mean you would not sexually abuse her, she agreed to go. 

4.When the girl entered your home you kissed and caressed her.  You then took off her clothes and took her inside your bedroom where you demanded her to perform oral sex.  You then had sexual intercourse without wearing a condom.  This was the first time the girl had sexual experience.  When the girl told you she was afraid of becoming pregnant you gave her a pill, falsely telling her that it was an emergency contraceptive pill. 

5.Sexual intercourse took place two more times, again without using a condom.  On one occasion you also used a vibrator and on the other, you again asked the girl to first perform oral sex.  On each occasion you had sexual intercourse you ejaculated on the girl’s abdomen.

6.You also appeared to use your mobile phone to take photographs of the girl when she was naked; while she performed oral sex; and during sexual intercourse.  

7.In passing sentence I take into account everything said on your behalf by Mr Chan together with the mitigation letters.  I take into account that you have no previous convictions.  I have carefully considered the psychological report.  Whilst the report reveals your sexual preference for young girls you barely knew and who you viewed needed your care and concern, no deviant sexual interest, such as paedophilic disorder, was detected.  The risk of re-offending is said to be low to moderate.  Psychological treatment targeting your distorted sexual attitude and prevention of sexual reoffending is recommended.

8.There are no guidelines as to sentence.  Deterrent sentences are however required.  The law exists for the protection of young girls, who need protection from their own immaturity.[2]

9.Factors that need to be taken into consideration in cases of sexual assault on children include:

(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[3].

10.One important consideration in sentencing is to redress the grievance suffered by the victim and their families.  The victim impact statement prepared by the clinical psychologist Natalie Wong, reports that the girl was markedly distressed by the sexual abuse incident and had reported significant post-traumatic symptoms, including intrusive thoughts, avoidance behaviour and hyper-vigilance.  The girl hated herself and worried others would not love her after the incident; had fleeting suicidal ideations; felt angry because the man had betrayed her trust when promising he would not offend her; had nightmares and could not sleep well after the incident and had distressing recollections of the incident.  Psychotherapy is recommended to monitor the possible long term impact of the incident and to facilitate working on post-traumatic symptoms.

11.The father worried very much about the impact of the incident on his daughter and blamed himself for not preventing the incident.  The mother was very angry with her daughter for her immaturity and weak sense of self-protection.

12.There are a number of factors which, in my view, make this a particular serious offence:

(i) you are 40, nearly three times the age of the girl;

(ii) you deceived the girl in visiting your home by promising you would not interfere with her;

(iii) there was no love and affection this being the first time you had met the girl suggesting that you just wanted to have sex with the girl;

(iv) you used WeChat, a popular messaging application, to groom a young girl for sexual intercourse;

(v) sexual intercourse took place three times and also involved oral sex and the use of a vibrator;

(vi) you did not use a condom and whilst you ejaculated on the girl’s abdomen there was still a risk of pregnancy and contracting sexual disease;

(vii) you deceived the girl that she would not get pregnant by giving her a pill, which you said was an emergency contraceptive pill;

(viii) you appeared to photograph the girl when she was naked and whilst performing oral sex and during sexual intercourse, although it would seem you did not keep any photographs as I am told none were found on your phone; and

(ix) that the girl was markedly distressed by the incident and has suffered significant post-traumatic symptoms.

13.Mr Chan says you did not know the exact age of the girl.  You did however know she was a secondary school student and therefore very young.  Being a mature man of 40 years, old enough to be the girl’s father, you should have taken more care to avoid breaking the law.  As was said by the Court of Final Appeal in So Wai Lun v HKSAR[4], the criminal law is not confined to deterring people from doing what they know is unlawful but also encourages them to take care to avoid what might be unlawful.   In the context of section 124 the court said that the taking of care to avoid what might be unlawful and steering well away from the line between legality and illegality materially adds to the protection of young girls which the section provides.  

14.In mitigation Mr Chan also says you were told by the girl that she was not happy with her boyfriend and that she wanted to do something to provoke him.  You told the psychologist that you told the girl you might kiss or hug her or even act naughty and therefore by going to your place she agreed to what you might do to her. 

15.Having promised not to interfere with the girl you deceived the girl into going to your home.   Even if you believed by going to your home the girl agreed to whatever you might do to her this in no way mitigates your culpability in taking advantage of this young girl, who had no previous sexual experience.  As the psychologist states you are a sociable, confident and manipulative person, who is articulate and skilful to gear people towards a way you wanted. 

16.In the circumstances I am satisfied the proper starting point after trial is 2 years and 6 months imprisonment. Full credit for your plea of guilty reduces the sentence to 1 year and 8 months imprisonment.  You are convicted and sentenced to 1 year and 8 months imprisonment.

[1] Cap 200.

[2] SeeR v Taylor [1977] 1 W.L.R. 612; Attorney General’s Reference No 127 of 2004 [2005] 2 Cr App R (S) 74; Secretary for Justice v Chung Yui Hung [2007] 2 HKLRD 772; HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 and HKSAR v Lee Kwok Wah , Francis [2013] 2 HKLRD 1009.

[3] See HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427.

[4] [2006] 3 HKLRD 394.