HKSAR v. Gautam Suman

DCCC 445/2019

[2020] HKDC 413

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 445 OF 2019

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Reasons for Sentence

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Charge

1.D pleads guilty to a charge of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Cap. 200. 

Facts

2.On the date of the offence, 4 March 2019, PW1 ("X") (DOB: 27 July 2006) was a Primary 6 student in Hong Kong.  She was 12 years 8 months old.  D was 25 years old, the chef of a Nepalese restaurant in Yau Ma Tei (“Restaurant”). 

3.Born in the Philippines, X came to Hong Kong in 2014 at the age of 7.  Here she resided with her mother, stepfather and 2 elder sisters.

4.D resided with his brother inside a partitioned unit situated in the same building as the Restaurant but on a different floor.

5.D and X became acquainted via a social media online platform known as "Instagram" in early March 2019. They chatted online from time to time and D invited her to visit the Restaurant.

6.On 4 March 2019, after X finished school and accompanied by her friend (aged 16)("PW2"), X met up with D near the Restaurant at around 3:15 p.m. After chatting briefly, D brought X to his place of residence (the Room"). No one else was present.

7.Once inside the Room, D forthwith locked the door. D offered X an alcoholic drink but she declined. They sat on D's bed and he undressed her. D bit her on the neck and her left chest. He then had sexual intercourse and ejaculated in her mouth. She spat out the semen. He had sexual intercourse with her again. This time he ejaculated on X's abdomen.

8.Afterwards, X left the Room and joined PW2 downstairs. X told PW2 that she had engaged in sexual intercourse with D at his place of residence.

9.On 6 March 2019, X's school teacher discovered certain self-inflicted cut marks on X’s forearm. The matter was referred to the social worker in school. X told the social worker the sex with D. A report was made to the police.

10.On 11 March 2019, D was arrested. He denied knowledge of X’s tender age but admitted having unprotected sex with X for 6 to 7 minutes. He said X had kissed on his lips before they entered the Room.

11.Medical examination on X revealed no injury.

Background and mitigation

12.D is now 26 years old. He is married but his wife resides in Nepal. His parents had divorced. He regularly sends money back to Nepal to support his mother. His father is a part-time chef in Hong Kong. D also gives him regular financial contributions.

13.His only criminal record originates from a court case in 2017 leading to a fine each for selling liquor without a licence and for possessing a liquor for sale without a licence respectively.

14.The pre-sentencing psychologist report on D states that he is not a paedophile or sexual deviant. He is said to be remorseful for his deed.

15.The victim impact report on X reveals, among others, that she cannot live with thought of being demeaned and exploited as a sex object. She has been suffering from post-traumatic stress disorder since offence. She also shows much sexual distortion and distress. She has much difficulty in forming interpersonal relationship, in particular, heterosexual relationship. She fears that D may retaliation on her and her family. She made repeated attempts to take her own life. She is in need of psychological treatment, which she does not feel ready to receive at the present moment. D’s counsel Mr. Young does not take issue with the report.

16.There are apology letters written by D to X, X’s parents and this Court. His father and stepmother had also written apology letters to X’s parents and this Court. The employer’s letter to this Court indicated that D was a hardworking, sincere and honest person. He had been working as the chef and manager for that restaurant for a number of years.

17.He volunteered in helping with social activities in the Nepalese community at times. However, the occurrences are not adequate for mitigation of his sentence.

18.After arrest, he had been detained for 6 months until bail was granted.

19.His counsel Mr. Young refers me to 6 examples of sentences in the District Court.

20.In HKSAR v Tung Tsz Ping DCCC 987/2012, the victim was 12 years 5 months old whereas the defendant was 19 years old at the material time. He thought she was 17 years old. After a few online chats and a few days they met in person. She took him to her flat where they had unprotected sex. She had no injury. There was no evidence of grooming by the defendant. The psychologist reports indicated that neither the defendant nor the victim suffered from any impact. The defendant had two triad-related records and had been to the rehabilitation centre. The judge took a starting point of 12 months.

21.In HKSAR v Cheng Tsz Fung Gordon DCCC 793/2011, the victim was 12 years 6 months old whereas the defendant was 2 months shy of 22 years old at the material time. They connected via the internet. She claimed to be 14 on her Facebook. After meeting for a few times, they had unprotected sex in his flat. The psychologist report revealed that the victim suffered from post-traumatic stress disorder which was lessening with the support of her family and knowledge that she would not have to testify in court. There was no evidence of grooming by the defendant. He had meant to enter into a genuine relationship with her. The psychological report indicated that the risk of re-offending is between low and moderate. He had a clear record. The judge took a starting point of 15 months.

22.In HKSAR v Lui Wei, reported in SCM Post on 27 August 2019, the victim was 12 years old whereas the defendant was 28 years old at the material time. Before sex, she claimed to be 18. Before seeing him off at the airport, she told him she was only 12. He flew to Hong Kong, from Shanghai, where he ordinarily resided to face penal consequence. The sentence was 10 months for 2 counts of the same offence on the very next day of each.

23.In HKSAR v Gu Zuoqi DCCC 1085/2011, the defendant and the victim connected via Facebook when he was 20 years 5 months. He knew she was 12 years old. Two months later, they had unprotected sex in her flat. The victim had gone to study abroad before court. No psychological assessment on her could be conducted. There was no evidence of grooming. The judge took a starting point of 21 months.

24.In HKSAR v Nip Ho Fai DCCC 603/2010, the victim was one week shy of 13 years old where the defendant was 21 years old at the material time. They were connected on the internet. Before meeting in person, they already called each other little husband and little wife. The judge considered the girl more likely to be sexually mature than he was. It was a guilty plea. Community service of 180 hours was ordered.

25.In HKSAR v Tsang Tsz Chun DCCC 852/2012, the victim was 12 years old whereas the defendant was 25 years old. He worked in a restaurant with her mother. Two months after they met and became friends, they started dating. A month later, they had sex. The judge considered him naïve and very immature, that he was not a paedophile and that they were in genuine courtship. It was a guilty plea. He had been detained for 5 months before sentence. Stressing that it was an exceptional case, the judge imposed community service of 200 hours on him.

Sentencing D

26.D was a married man, aged 25 at the time of the offence. It signified exploitation of the victim for sex. There was no evidence of grooming, though. He is not a paedophile or sexual deviant.

27.X suffers from post-traumatic stress disorder due to the offence and other psychological impacts. She cannot live with the thought of being demeaned and exploited as a sex object. While she is not able to cope with the problem by herself, she does not feel ready to receive psychological treatment yet. She has repeatedly tried to take her own life.

28.I would have taken a starting point of 18 months if the offence had not left X in such an appalling condition. Eventually I consider 21 months as the proper starting point, as our present case is worse than all cases aforementioned. The only mitigation is his plea of guilty. After the one-third discount, the sentence is 14 months.