HKSAR v. Lu Wei

DCCC 255/2019

[2019] HKDC 1339

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 255 OF 2019

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REASONS FOR SENTENCE

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1.The defendant was convicted of two charges of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Cap 200 on his own plea and agreement to amended Summary of Facts.

2.In August 2018, X, then aged 12 and a Form 1 student, came to know the defendant, then aged 28, via playing online games. They communicated via the Internet and ‘WeChat’ and subsequently developed into a cyber-romantic relationship.

3.On 26 December 2018, X’s mother, Y, after making enquiries with X, came to know that X knew a male from the mainland via playing online games and that they had become lovers and had sexual intercourse at a hotel in Hong Kong on 22 December 2018.  The case was reported to police and X told police that she had sexual intercourse with the defendant in a hotel on 22 December 2018. 

4.In a video-recorded interview conducted later, X told, inter alia, that:

(i) she had introduced herself as 22 years old to the defendant online. Later, she told the defendant that she was underage;

(ii) the defendant came to Hong Kong and on 22 December, they met at a hotel in Kowloon City, namely, Regal Oriental Hotel, Room 340;

(iii) she had told the defendant that it is illegal to have sexual intercourse with underage girl, and she said that the defendant said he would bear the responsibility. They then had sex;

(iv) again, on 23 December 2018, they had sex in the same hotel, and prior to having sex, the defendant taught X to do homework for a few hours;

(v) on both occasions, the defendant had worn condom and ejaculated in the condom;

(vi) on 24 December 2018, when the defendant was leaving Hong Kong, X accompanied him to the airport and as X did not want him to leave, she mentioned to the defendant that she was actually aged 12. The defendant eventually stayed behind and as the defendant was short of money, X tried to borrow money from her brother but in vain.

5.In the video-recorded interview, the defendant stated under caution that:

(i) he came from China and worked in Shanghai;

(ii) he came to know the X via playing online games. They communicated via the Internet and the ‘WeChat’, and then X initially told him that she was aged 22 and later she told him that she was aged 17. They became ‘online lovers’;

(iii) the defendant decided to visit Hong Kong to meet his girlfriend, X, and he stayed at the Regal Oriental Hotel;

(iv) he had sex with the X on 22 December 2018 and he had worn condom during the intercourse. He also said that he knew X was underage.

Criminal Record

6.The defendant had a clear record.

Mitigation

7.The defendant is aged 28 years old.  He is single and lives with his parents in Jiangsu province, Mainland. 

8.He received university education in the Mainland and was an interior designer at the time of the arrest.

9.Defence counsel said that as this is a strict-liability offence, the defendant has pleaded guilty.  Defence counsel submitted that X represented to the defendant on first occasion that she was aged 22 and that was subsequently revised to 17 years old when they first met each other face to face in Hong Kong. 

10.Defence counsel submitted that as the defendant genuinely loved X, treating her as his wife-to-be after four months of interactive online with X, he lost control when the two of them first met face to face, and they had sex together.  In fact, according to X, she had requested the defendant not to leave Hong Kong when she saw him off at the airport. It is only then she told the defendant that she was aged 12.  That was the reason why the defendant had stayed behind and the defendant had also promised mother of X that he would take full responsibility for what he had done.  In fact, it was after X’s mother, Y, reported the case to police he was arrested three days afterwards.  

11.It was also submitted by defence counsel that when the defendant was arrested, he fully co-operated with the police and confessed to the commission of the offences.

12.The defendant has written to this court in mitigation.  In this letter written by him dated 20 June 2019, the defendant expressed his deep remorse for what he had done which had caused injury and distress to X and her family as well as this court.  He said all along, his parents had taught him to be a law‑abiding citizen and this is the first time that he has transgressed the law, as a result of which he as the main breadwinner of the family had caused his family severe financial stress and also mental stress.  He urged this court for leniency and he said he treasures his freedom and would never transgress the law again.

13.The father has also written to this court in mitigation for his son.  According to the letter from his father, the defendant had always been a hardworking and caring son.  He was always helpful to people in need and is well loved by other members of the family, including his grandmother who is now aged 80-odd years old in Shanghai.  He said that the commission of the present offences by the defendant were one out of character.

14.Defence counsel also urged this court to give credit to the clear record of the defendant.  She pleaded that the defendant had indicated his guilty plea at the earliest available opportunity and this court should therefore afford him with the one-third sentencing discount.  She also submitted that although the two offences were committed on consecutive dates and then it is open for the court to pass consecutive sentences, she asked the court to consider the totality principle and to pass the sentence on the defendant on a concurrent basis. 

Reports

15.During the defendant’s remand at the Siu Lam Psychiatric Centre, a psychiatric report as well as a psychological report were being prepared by Dr Lui and Mr Wong respectively. 

Psychiatric Report

16.According to the psychiatric report, the defendant claimed he met X in Hong Kong.  She then claimed to be 17 years old instead of 22 years old and he never doubted her.  The defendant also says that when he met X, he was still a virgin.  Dr Lui says the defendant is not suffering from any mental disorder.

Psychological Report

17.According to Mr Wong, the clinical psychologist, the defendant reported to have close relationship with his parents and brother.  He was obedient to his parents who had given him clear and reasonable demands on his behaviour.  He took care of his family of origin and he lived with his father whilst he worked in Shanghai as an interior designer. 

18.The defendant said he had two past courtships. The parents of his first girlfriend did not accept him because of his low income.  The second girlfriend broke up with him and she said he spent too much time at his work. 

19.The defendant said he was approaching 30 and he desired intimate relationship and marriage prior to the present offence.  The defendant said he was told by X she was 17 and he seriously considered the matter and consulted his father whether he should stay in the relationship as he was looking for a mature lady to marry.  He decided to continue as he was attracted by X’s pleasant personality and he could wait before they get married. 

20.He said victim actually told him she had her birthday one month before the indexed offences and she was therefore 18 years old, what he understood to be the legal age for sexual intercourse in Hong Kong.  He said X was physically mature as said by the pathologist’s report on X.  The defendant said he was only told by X that she was actually 12 when X was seeing him off at the airport after the offences.  The defendant said then he knew he had broken the law and he stayed to face the legal consequence. 

21.It was said in the report that the defendant was remorseful and he did not blame the victim, X.  Mr Wong, the psychologist, said the defendant had impressed him as an adult who was obedient to authority, conforming to social norms and responsible and sociable.  He therefore said that the defendant did not cast doubt onto the victim when she told him she was 17.

22.Mr Wong also said that the defendant’s chance of re‑offending was low as he would not be allowed to stay in Hong Kong after his release from prison.

Victim Impact Assessment Report

23.This report was prepared by Dr Cavy Lee dated 22 July 2019.  It says in his conclusion that X does not show significant problem in her daily living after the offence.  However, instead of feeling victimised by the offence, she considered herself a betrayer.  She feels guilty for causing her boyfriend the legal consequences and worries about losing the relationship with him.  For her emotional distresses relating to the present offence, psychological therapy to address the emotional distresses and develop a fair appraisal on her role and the responsibility on the offence is recommended by the Dr Lee.

Discussion

24.Upon conviction on indictment, the maximum sentence for these offences is life imprisonment. 

25.There is no sentencing tariff for this offence as both the facts of the case and the personal background of the defendant can vary immensely.  Further, when cases went on appeal, as the court would mainly deal with the grounds of appeal in their judgments and only briefly mention the circumstances of the case, the judgment in these cases could therefore only serve as a reference.

26.In the case of HKSAR v Tsang Chiu Tak, CACC 386 of 2011, Cheung JA, as he then was, in paragraph 8 of the judgment says that:-

“The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their family.

The Court of Appeal pointed out that where the court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:

(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 behaviours 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.”

27.In this case, at the time of offence, age of the defendant is 28 and that of X is 12.  It is agreed that X first presented herself to the defendant as a 22-year-old lady and according to the defendant, later on, after four months of active online exchanges, they developed a cyber-romantic relationship.

28.In the Agreed Facts, the defendant admitted that he knew the X was underage but the Agreed Facts is ambiguous as to when he came to know that X was underage, whether that was before or after the offences. The defendant came to Hong Kong to visit his girlfriend, X and had failed to control himself and committed the present offences on two consecutive dates.  He had used condom during the sexual intercourse.  According to X, it was only at the airport after the two offences that she told the defendant that she was aged 12. 

29.It is a fact that the defendant did not run away to avoid his liability or legal consequences when he was confronted by X or X’s mother at the time when she had yet to file the case with the police. 

30.In fact, the defendant promised X’s mother that he would take full responsibility for what he had done.  That was before the case was reported to police.  There was no grooming of X for sexual intercourse.  There was no coercion and no force applied. 

31.The defendant said he really loved X and he planned to marry her at a later stage.  The defendant could have absconded and returned to mainland to avoid the legal consequence but he did not.  He remained and this demonstrated he was not a person who had intended to exploit the underage X.  He said he was a virgin at the time he met X and this court had no reason not to accept this submission.

32.The defendant had a clear record in Hong Kong and I was told that he also had a clear record in Mainland. This court accepted that he had genuine remorse as to what he had done from his letter to this court and that he was a caring son and a helpful person to people in need as said by his father.  The commission of the present offence was one out of character.  It is fortunate that according to the victim impact assessment report that the X was not seriously jeopardised by the commission of these offences.

33.No doubt the family of X was distressed by the offences, but in this case, there is no evidence to show that they were particularly distressed.  And in fact when the victim impact assessment report was prepared, X’s mother was busy and did not accompany X for the interview.

34.It is also said that the chance of the defendant’s re‑offending is low and there is no aggravating factor in this case.  However, one must admit that the offences remain very serious offences. 

35.In the case of HKSAR v Lau Chi Cheung, the sentence on the defendant was reduced to 13 months’ imprisonment by the Court of Appeal.  In that case, the age disparity between the defendant and the victim was nine and a half years old.  In our case here, the victim was 12 and the defendant was 28, so there is an age disparity of 16 years old. 

36.This court did observe the appearance of X taken in the snapshots from the closed circuit TV of the hotel on the offence date. X did look, in my view, much older than her actual age.  This court will not query the defendant saying that she told the defendant she was aged 17 and he took her words without query.

37.In the present case, the defendant did not, as in the case of Lau Chi Cheung, groom the victim.  Nothing was paid to the victim for the sexual intercourse.  It is clear to this court that the defendant in our present case is not one who had intended to exploit the vulnerable X.

38.Having considered the exceptional circumstances of this case, this court considers that the only appropriate sentence on the defendant is one of immediate custodial sentence and that the appropriate sentencing starting point is 18 months’ imprisonment.  The defendant has pleaded guilty at the earliest opportunity and is therefore entitled to one-third sentencing discount, bringing the sentence to 12 months’ imprisonment for each charge.  

39.The defendant is also a man of positive good character, and this court accepts that he had committed the offence on impulse, he treated the victim as his intended wife and he loved her.  The defendant was willing to shoulder the responsibility for what he had done and not to abscond.  This court is therefore willing further to reduce his sentence on each charge by 2 months to 10 months’ imprisonment.

40.As submitted by defence counsel, although the offences were committed on consecutive dates and it is open for this court to pass wholly consecutive sentences on the defendant, having regard to the totality principle, especially to the overall criminality of the defendant in this case, this court is willing to pass wholly concurrent sentences on each of these charges, and therefore the defendant is sentenced to a total of 10 months’ imprisonment for the two charges.