HKSAR v. Wong Ka Ho

DCCC 358/2021

[2021] HKDC 995

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 358 OF 2021

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Reasons for Sentence

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1.In respect of this indictment, the defendant has pleaded guilty to four charges, two charges of unlawful sexual intercourse with a girl under the age of 13 years. The particulars of those offences show that those offences were committed on 8 September 2019 and 15 September 2019.

2.On the 3^rd charge, he pleaded guilty to indecent conduct towards a girl under the age of 16 years, that offence also being committed on the 15^th day of September 2019 at the same location as the offence of the 2^nd charge; and the 4^th charge, a charge of indecent assault on another person, being committed on an unknown date in October 2019 at the Long Ping Sports Centre. 

3.The facts show that the victim, referred to as X, had been acquainted with the defendant in September 2019 via social media, particularly on Instagram.  At the time, she was aged 12 and was a Form 1 secondary student.  The defendant was then aged 22 years old. 

4.About one week later, they met in person for the first time in the morning on 8 September 2019.  It appears that on the afternoon of 8 September 2019, the defendant brought X back to his place of residence where they engaged in consensual sexual intercourse, the defendant wearing a condom during the sexual intercourse. 

5.The defendant, after that incident, said that he was to treat the girl, X, as his girlfriend.  They went on another date on 15 September 2019.  Again, they had consensual sexual intercourse for the second time, the defendant wearing a condom during the sexual intercourse. 

6.In November 2019, the matters were disclosed after the defendant had ceased to contact X when he was allegedly angry over a discovery that she had chatted with a male person over the phone.  Those facts refer to the 1^st and 2^nd charges. 

7.The 3^rd and 4^th charges were found as a result of a video-recorded interview with X conducted in November 2019.  That video-recorded interview established that they had met as a result of Instagram, that she knew his full name and his age.  She knew it was wrong for the defendant to engage in sexual intercourse with her, an underage girl, but she nevertheless engaged in consensual sexual intercourse with the defendant out of curiosity. 

8.Further details of the incident on 15 September 2019 were disclosed where it became clear that she had taken the initiative to perform oral sex on the defendant and had done so for about half an hour.  That led to the discovery of the 3^rd charge. 

9.The 4^th charge was also discovered when she gave details of their meeting in October 2019 when she had met up with the defendant.  They had embraced and he touched her breasts over her clothing but she pushed him away.  She said their relationship had gone bad in November 2019.  And on 26 November 2019, the matter had been reported to the police.  Those facts were agreed by the defendant. 

10.The defendant is now aged 24.  He is single and he has a clear record, and the psychological report that was prepared as a result of the sentencing inquiry showed that he is immature, passive, reserved and introverted.  He shows some remorse but it is said he lacks insight into the offences.  Nevertheless, the risk of recidivism is seen to be at the low end of the moderate range.  In mitigation, the defendant’s introversion and passivity were also referred to.  He was described as being shy.  Clearly, although he is considerably older than the victim, he has little experience with girls prior to this incident. 

11.As far as the sentencing considerations are concerned, I look first at the offence of unlawful sexual intercourse with a girl under the age of 13 years, which is the first two charges.  This carries, in fact, a maximum sentence of imprisonment for life. 

12.The Court of Appeal has given some guidance of the relevant sentencing considerations in the case of HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432, the court saying:

“However, when one comes to sentence, one has to take into account all the circumstances, including, for example, the attributes of the girl as well as the man. A man who has unlawful sexual intercourse with a girl the day before her 13th birthday is likely to receive a lower sentence than a man who had unlawful sexual intercourse with a girl who is substantially younger. Indeed, the younger the girl, one would expect the sentence to be heavier.”

13.On the other hand, there may be aggravating circumstances, eg if the man had groomed the girl for sexual intercourse.  An explanation of the meaning of that expression can be found in Re A-G’s Reference No. 127 of 2004 where the headnote reads:

“One of the purposes of the legislation was to recognise that the young needed protection from their own immaturity. One of the perils of the misuse of the internet by an older man was that he could groom an immature girl into believing that she was more mature than she was, and to give her a false confidence that she could behave and should be treated as if she were an adult. The internet is now widely available for all sorts of valuable, innocent and educational purposes. Its misuse by older men to seek and find and then groom girls who were vulnerable and immature should be deterred. In fact, the court should deliver a clear message of disapproval.”

14.In respect of the other offences the defendant faces, namely indecent conduct towards a child under the age of 16 and indecent assault on another person, there are no guideline sentences.  However, consideration of the factors to be looked at by the court could be seen in the case of HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427.  The Court of Appeal said this amongst other things:

“The court has to protect innocent trusting children and prevent these vulnerable persons 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 families.

The factors that should be taken into account are:

(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 or 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 offences he committed; and

(10)  whether the defendant is psychologically imbalanced and paedophilic and the likelihood of reoffending.”

15.I note though that although the case of Tsang Chiu Tak, was about the offence of rape against a 15-year-old girl, the above sentencing considerations have also been applied to cases involving unlawful sexual intercourse and indecent assault.  It is clear it is also relevant to the approach to cases of indecent assault and indecent conduct towards children under the age of 16. 

16.A number of the factors set out for consideration are not appropriate in this case.  I note that the victim herself was 12 years old at the time of the offences.  The defendant was 22, which would make him 10 years older than the girl.  Clearly, he had more life experience and maturity than the girl.  He must therefore have taken advantage of X’s youth and inexperience in order to achieve sexual intercourse with her.

17.No threat or violence was used.  The defendant conducted protected sex with the girl so there was no risk of pregnancy or disease.  There must, however, exist some degree of grooming with a girl of this age contacted by way of social media over the internet. 

18.The defendant has, by the assessment of the clinical psychologist, a low risk of reoffending.  The offences themselves, however, are very serious and call for terms of imprisonment.  A custodial sentence is inevitable in a case of this nature.  The defendant is of course naturally entitled to a one-third discount for plea.  I note in this case there are no victim impact statements.

19.The defendant has produced letters of recommendation to the court.  I have read and considered those letters of recommendation.  Defendant clearly is a somewhat diffident young man but clearly has the ability to achieve rehabilitation in due course.  He has in the past shown to be an honourable and a dedicated student, and this must, to a certain extent, be borne in mind when sentencing him.

20.As I have indicated, I consider the offence to be serious and custodial sentences of a length must be imposed on the defendant.  The first two charges are of course similar, involving unlawful sexual intercourse with a girl under the age of 13 where a large age difference existed between the parties.  I consider an overall starting point on each of the 1^st and 2^nd charges should be one of 27 months’ imprisonment.  I will reduce that to 18 months’ imprisonment for the defendant’s plea of guilty. 

21.The third offence is also serious involving a serious form of sexual misconduct towards this child.  I will take a starting point of 24 months’ imprisonment, reduce that to 16 months’ imprisonment for the defendant’s plea of guilty. 

22.Finally, the indecent assault on the girl in respect of the offence in October 2019 is also a serious offence, but less serious than the three previous offences.  I will take a starting point of 18 months’ imprisonment, reduce that to 12 months’ imprisonment for the defendant’s plea of guilty.

23.I must consider the overall totality of sentence.  The overall sentence must reflect the overall true culpability, having taken into account these are a series of serious offences committed against this girl throughout September and into October of 2019. 

24.I will order the 2^nd and 3^rd charges, which were committed on the same day, should be served concurrently to one another, but 6 months of those sentences should be served consecutively to the 1^st charge.  Finally, in respect to the 4^th charge, this was a separate and isolated incident. I order that 3 months of that sentence to be served consecutively to the 1^st to 3^rd charges, leading to an overall total sentence of 27 months’ imprisonment for these offences.