HKSAR v. Man Ka Ying

DCCC 1043/2018

[2020] HKDC 55

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1043 OF 2018

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REASONS FOR SENTENCE

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1.The defendant faces four counts of procurement of unlawful sexual act by false pretences, contrary to section 120(1) of the Crimes Ordinance, Cap 200. He was convicted of the 1^st charge and the 4^th charge on his own plea and agreement to the Amended Summary of Facts. The prosecution agree therefore that the 2^nd and the 3^rd charges shall remain on the court file and shall not be proceeded with without leave of the court.

Facts

2.X was a 30-year-old single mother with a 4-year-old son.  She became acquainted with the defendant via “WeChat” in January 2018.  The defendant called himself “Man”.

3.The defendant mentioned that he had known a female spiritual master in Mainland who could perform rituals for others in order to improve their fate and to get rid of misfortune.  X paid no attention to this at the time.

4.In late June 2018, defendant assisted X in moving house.  Later, on or around 24 July 2018, X suspected abnormal behaviour of her son when he complained of seeing spirits inside their home.  X therefore became terrified and asked defendant for assistance, and defendant agreed to help her.

5.In the early hours of 26 July 2018, defendant went to X’s flat and performed certain rituals which he claimed could assist X in expelling the spirits.  He further claimed that the female spiritual master could communicate with him by psychic link despite the long distance.  After performing the rituals, defendant left X’s home.

6.Subsequently, on 26 July 2018, X received messages on her mobile phone from someone called “Black Rose” who claimed to be a friend of the defendant.  The sender of the messages claimed that X’s son was being haunted by evil spirits and they could only be cast away by X engaging in sexual intercourse with the defendant.  X initially refused but “Black Rose” claimed further that refusal on X’s part to do so would jeopardise the well-being of X and her son.  X eventually agreed.

7.X engaged in sexual intercourse with defendant inside her flat on the dates; at around midnight on 27 July 2018 (Charge 1) as well as between 11.27 pm on 30 July 2018 and 6.38 am on 31 July 2018 (Charge 4).

8.X said she only agreed to engage in sexual intercourses with the defendant under the mistaken belief, as falsely claimed by the defendant, that engaging in sexual intercourse with him could expel evil spirits.

9.Subsequently, “Black Rose” told X that she had asked the defendant to stay away from X as the defendant already exhausted his entire life-force and would soon perish.  Believing what she had been told, X refrained from further contacts with defendant and X had also deleted all “WeChat” conversations with defendant.

10.Subsequently, X read about other similar scams from the news and she then realised that she had been deceived by the defendant and the matter was reported to the police.

11.The defendant was subsequently arrested.  He admitted under caution that he had engaged in consensual intercourse with X on four separate occasions as they had romantic feelings for each other.

12.Two mobile phones were found and seized from the defendant, being an “iPhone X” with mobile phone number 67796446 and a “Samsung” mobile phone.

13.During a subsequent video-recorded interview conducted by the police with the defendant, the defendant admitted inter alia that:-

(i) the two seized mobile phones belonged to him and were used exclusively by him

(ii) the mobile phone with the number 67796446 was registered under his name;

(iii) he could not recall the telephone number of the other mobile phone;

(iv) he was the creator and user of the “WeChat” account named “Black Rose” since 2015;

(v) he became acquainted with X via the “WeChat” account since 2018 by using this account which he created under the name “Man” using the mobile phone number 67796446;

(vi) he also sent “WeChat” messages to X under the “WeChat” account “Black Rose”;

(vii) he had pretended to be the female exorcist under the name of “Black Rose” and he made false claims to X that she had been haunted by spirits and that she could only expel the spirts by engaging in sexual intercourse with him;

(viii) he engaged in sexual intercourses with X on four separate occasions, each time a condom had been worn;

(ix) he never mentioned to X that he was the one who sent messages to her under the WeChat account “Black Rose”.

Criminal record

14.Defendant has a clear record.

Mitigation

15.Defendant is aged 42 years old.  He was born in the Mainland.  He is married and he lives with his wife and two daughters aged 10 and 2.  He has received education up to Form 5 level.

16.At the time of arrest he was a chef with a monthly income of $23,000 per month and he is the sole breadwinner of the family.

17.Defence counsel submitted that the defendant and the victim became friends through “WeChat” and they would go out for meals sometimes.  In June 2018, the defendant had also helped the victim in moving house.  It was only after they got settled in the new flat that the victim told the defendant that she suspected her son was behaving strangely.  It was said that the defendant, by reason of his own wicked thoughts, took advantage of X, of that particular situation.  As a result, he had sex with the victim and committed the present offences.

18.It was also said that the sexual intercourses did not involve any supernatural rituals and they were protected sex.

19.Defence counsel asked this court to consider the defendant as a man of clear record and he has pleaded guilty and was fully co-operative with the police.

20.It was also submitted that the defendant’s wife has forgiven the defendant and she has written a mitigation letter to this court.  In this letter the defendant’s wife said that the defendant is the sole breadwinner of the family and he has committed the present offences due to impulse.

21.It was said that he has always been an honest, trustworthy and kind-hearted person.  She said also that she has now forgiven the defendant and she knew that he is truly remorseful for what he had done. She said at the time of offences, she had returned to the Mainland to visit the relatives with the children and then neglected the defendant.  She also asks this court to deal with the defendant leniently as he is a fresh offender.

22.It was said that the defendant was previously diagnosed with brain tumour and had undergone an operation whilst in remand, as a result of which he has now a permanent deafness in the left ear.

23.The defendant himself has also written to this court a mitigation letter.  He says in April 2018 he became unemployed due to his ill health.  He says at that time he did not have frequent contact with the wife and he felt lonely.  After he met the victim in this case, they became friends and he had feelings for the victim.  Foolishly, he said, he made up the stories and cheated the victim so that she could allow him to have sex with her and that he is now deeply remorseful as to what he has done and for causing injury to the victim as well as his wife.  He said his wife have been visiting him regularly and the family was under stress from finance problems.

24.During his remand, the defendant said he was diagnosed with brain tumour and had undergone an operation, and now have deafness in his left ear, dizziness and double vision as well.  He asks this court to pass a lenient sentence on him so that he could return to his family and to recuperate in a better environment after his operation.  He said he is now deeply remorseful as to what he has done.

25.Defence counsel contended that for these cases there are no sentencing guideline.  Defence counsel referred this court to cases in the area, namely, 香港特別行政區 訴 關仲宏 DCCC 599/2015, HKSAR v Ho Ka Po, Tony DCCC 1169/2012, 香港特別行政區 訴 歐陽國富 CACC 41/2010, 香港特別行政區 訴 李國明 HCCC 294/2016, 香港特別行政區 訴 馮國豪 DCCC 712/2015, 香港特別行政區 訴 阮毓健 CACC 454/2011 and 香港特別行政區 訴 盧福義 DCCC 70/2010.

Discussion

26.For this offence, on conviction upon indictment, a person is liable to 5 years’ imprisonment.

27.Before sentencing, this court has considered all submissions by defence counsel as well as mitigation letters from the defendant and his wife, also of course the circumstances of the case and the authorities cited to this court.

28.As submitted, there is no sentencing guide for these offences and each case will depend on the facts of each case. 

29.This court must say that whilst the court has considered all authorities cited to this court, none of the facts of these cases is identical or very much similar to the facts of the present case.

30.In this case the victim is a single mother of 30 years old with a 4 year old child.  The defendant and the victim knew each other through “WeChat” and the defendant had helped her in moving house and they were friends.  X must have trusted the defendant when she confided in him and told him the problem of her young son.

31.It is despicable for the defendant, on learning the anxiety of the victim, to exploit her by reason of her fear for safety or well-being of her young son.  Being a single mother, X must be vulnerable and desperate at the time.  The age difference between X and the defendant is 12 years.

32.From the agreed facts, it is clear that the defendant had tried to distance himself from X after he had sex with her and he clearly was not, as he submitted, truly emotionally attached to her.  He had committed the offence solely for the purpose of taking advantage of X.

33.This court noted in fact the defendant had fooled X and said he knew a spiritual master well before X told him about the abnormal behaviour of the son.  There is therefore a certain degree of premeditation and planning in this case.

34.It is noted by this court that the defendant had protected sex with X and there was no other supernatural rituals performed.

35.This court has called previously for a victim impact assessment report but X had refused to co-operate in preparation of the same.  Her reaction is understandable.

36.Having regard to the circumstances of this case, this court considers that immediate custodial sentence is the only sensible and appropriate sentencing option.  It is clear that the appropriate sentencing starting point for each of these offences is 2 years and 6 months’ imprisonment.

37.Defendant used to be a man of clear record. This court is accordingly willing to reduce the same to 2 years and 3 months’ imprisonment.  Having considered the submission by the defence counsel, the most valid mitigating factor in this case is the defendant’s guilty plea, of which he is entitled to a full one-third sentencing discount. Accordingly, he is sentenced to 18 months’ imprisonment for each charge.

38.The two offences were of similar nature and they involved the same victim and they were committed within a matter of four days. The culpability of the defendant in commission of the 4^th charge obviously adds to his culpability in commission of the 1^st charge. 

39.Considering the totality principle, this court finds that 24 months’ imprisonment is a just and proportionate sentence on the defendant having regard to his overall culpability in the case.  Accordingly, 6 months’ imprisonment of the sentence in the 4th charge is to run consecutive to the sentence in the 1st charge and the rest 12 months’ imprisonment is to run concurrent to the sentence in the 1st charge.  The defendant is therefore sentenced to a total of 24 months’ imprisonment.