HKSAR v. Lam Kwai Sang

DCCC 1018/2021

[2022] HKDC 1124

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1018 OF 2021

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Reasons for Sentence

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1.The defendant faced four counts of unlawful sexual intercourse with a girl under 13, contrary to section 123 of the Crimes Ordinance, Cap 200. Upon plea bargain, the defendant pleaded guilty to 3 counts, namely Charges 1, 2 and 4. He was convicted accordingly. Charge 3 is left on the court file. In light of the age of the victim and the nature of this offence, I called for a victim impact assessment report and adjourned the sentence to today, 16 September.

The Prosecution case

2.The victim X was born in October 2008, and she started to study at a secondary school in 2020. At the material time, X was 12 years old and the defendant, aged 24, was the teacher of X’s secondary school.

3.In March 2021, X started to go out with the defendant who repeatedly begged to have sex with X. X refused the defendant’s request for a few times as X thought that she was too young to do so. However, the defendant falsely told X that he was divorced and single. The defendant also alleged that he lost his virginity at a similar age in order to appeal to X to have sex with him.

4.Eventually, X succumbed to pressure and agreed to have sex with the defendant on 3 occasions when X was still under the age of 13.

Charge 1

5.On 30 June 2021, the defendant took X to a hotel in Tsim Sha Tsui. They played video games in the hotel room and upon the defendant’s repeated request, X reluctantly agreed to have sex with the defendant. The defendant did not use any condom and X was having menstrual period. The defendant ejaculated inside X. They then left the hotel together.

Charge 2

6.On 4 July 2021, the defendant took X to a hotel in Mong Kok. Inside the hotel room, they chatted for a while and upon the defendant’s repeated request, X had sex with the defendant reluctantly. X was still having her period and the defendant did not use a condom. The defendant ejaculated inside X. Later, they left the hotel together.

Charge 4

7.On 18 July 2021, the defendant took X to the same hotel in Mong Kok. X reluctantly allowed the defendant to take off her clothes and then they have sex together. The defendant used a condom on this occasion and he ejaculated inside the condom. They left the hotel together.

Discovery of the offences

8.On 20 July 2021, X saw a missed call from the defendant on her phone and X made a return call. It transpired that it was the defendant’s wife who answered the phone. The defendant’s wife blamed X for having sex with her husband. A moment later, X accessed to the defendant’s Instagram and saw a question posted, asking rhetorically why the defendant slept with his student when his wife was pregnant. X was frightened and disappointed. 

9.X immediately talked to Z, her classmate, who advised X to talk to her parents. As such, X told her mother about her sex with the defendant on 4 occasions. A report was made.

10.The defendant was arrested on 21 July 2021. Under caution, the defendant admitted that he was X’s school teacher.  The defendant said he was the user and subscriber of a mobile phone number. He used the phone to book the hotel room on the specified dates.

11.Text messages exchanged between X and the defendant at the material time showed that, before 30 June 2021, the defendant had been urging X to have sex with him.  The CCTV footages of the various hotels revealed that the defendant took X to the hotel room on those occasions.

Mitigation

12.The defendant was born in 1995 in Hong Kong and is now aged 26. He is married with one 3-year-old son. He graduated from the University of Hong Kong. The defendant was raised by his grandmother, who passed away in March 2022. The defendant had no criminal record in Hong Kong. He was a secondary school teacher prior to his arrest. The Defence submitted that with this criminal record, the defendant cannot be a teacher again in Hong Kong.

13.Defence submitted a total of 15 mitigation letters including those written by the defendant and his wife. The Defence also submitted a few authorities to assist the court in sentence.  The Defence urges the court to pass a lenient sentence.

14.Family members and friends of the defendant attended court today and on the last occasion to show their support.

15.The Prosecution also submitted a District Court case ( HKSAR v Tsang Kui Man DCCC 823/2012)  for the court’s consideration.

Sentence

16.The maximum sentence of this offence is life imprisonment, and that reflects the gravity of this offence. The Prosecution had submitted a photo album of the still images derived from the CCTV footage (marked as MFI-1).

17.In his mitigation letter, the defendant admitted that he was “too selfish that only focus on his loneliness and pressure.”  He relies on his religion to show his remorsefulness. He is indebted to his wife who has to look after the whole family during the pandemic. The defendant is regrettable that he could not attend the funeral of his grandmother. The defendant’s wife in her mitigation letter, said the defendant is a responsible husband who prepared meals for them after work.  The defendant has lost the chance to witness the growth of their son. The defendant is the breadwinner of the family and, with his remand, it causes financial hardship to the whole family.  The defendant’s wife urges the court to pass a lenient sentence so that the whole family can be reunited again. The defendant’s three aunties believed that the defendant is remorseful and would take responsibility for his wrongdoings. The defendant will be a law-abiding person, a good father, and a good husband in future.  The defendant’s uncle said the defendant is not mature enough and lacks social experience, and it is hoped that the Court can handle this case with mercy. Friends of the defendant for over 10 years, and colleagues of the same tutorial centre also wrote positively about the defendant.

18.Despite the defendant’s positive character and sense of responsibility towards his family, the fact is he could not resist his lust for having sexual relationship with X whom he knows was under 13 at the material time.  He exploited X and within a short span of time (that is between 30 June to 18 July 2021)  he took X to a small hotel and had sex with X. The aggravating factor is the defendant did not use a condom when having sex with X. He ejaculated inside her. On two occasions (that relates to Charges 1 and 2), the defendant had sex with X when X was having menstrual period. As a kind of common sense, having unprotected sex with a girl, it can transmit sexual disease, and/or cause inflammation to X’s private parts. There is still a possibility that by having sex it can cause pregnancy to the girl, even though she is having a period. When the defendant was committing Charge 4, it transpired that the defendant’s wife was pregnant. 

19.In addition, the defendant was in serious breach of trust, being X’s school teacher, when committing these sexual offences. He exerted pressure on X in order to satisfy his personal sexual desire. The crime was premediated as the defendant took X to those hourly hotels, and on the last occasion, he brought along a condom and used it. The age difference between the defendant and X is about 12 years. There is no evidence to show that the defendant gave money to lure X.

20.The clinical psychologist’s report on X, after conducting clinical interview with X and X’s mother, remarked that X’s mother was shocked to know about the offences and felt heartbroken that her daughter was harmed.  The expert came to the conclusion that “the present assessment suggested that X’s family has been suffering from serious relationship ruptures following the offences, despite the time lapse. … While X did not report noticeable psychological problems at the time of assessment, it is possible that she might have suppressed some unprocessed emotions associated with the experience, as evidenced by the test findings. Given the above findings, continued psychological intervention is recommended for both X and her mother.” (Paragraph 10 of the report).

21.In SJ v Chung Yui Hung [2007] 2 HKLRD 771, the Respondent was a secondary school teacher who pleaded guilty to unlawful sexual intercourse with a girl under 13, in addition to another offence of possession of child pornography.  The Respondent met X, a student aged 12 years and 8 months, through an internet chat line where he groomed her for sex.  The Respondent had sex with X without the use of a condom at X’s home when they first met. The Respondent ejaculated inside X. The Court of Appeal was of the view that the incident was a particularly grave offence and in reality came extremely close to the borderline with rape. The Court also remarked that the way the Respondent manipulated X to have sex with him was behaviour the Courts owed a duty to the public to make every effort to deter.  An appropriate starting point was 5 years’ imprisonment. The Court of Appeal in HKSAR v Tsang Chiu Tak CACC 386/2011, also promulgated a number of factors for sentencing purposes when dealing with offences of sexual assault on a child. 

22.In the present case, there are a number of aggravating features that justify a heavy deterrent sentence. They are as follows:-

(1)  Unlike the Respondent in Chung Yui Hung, the defendant in this case was actually the school teacher of X, and since March 2021, the defendant made use of his trust position to lure X to have sex with him. He eventually succeeded to persuade X to have sex with him on 30 June 2021. X was reluctant to have sex (as can be shown in the text messages between X and the defendant, MFI-2). On one occasion, X even reminded the defendant that she was only 12 years old. She repeatedly refused the advance and sexual desire of the defendant. There was no evidence to suggest that the defendant forced X to have sex with him, nor did the defendant give money to X as an incentive.

(2)  The defendant did not use a condom on 2 occasions, and he had sex with X while the latter was having her period.

(3)  The age difference was about 12 years.

(4)  The defendant committed the offences within a short span of time, and X was scolded by the defendant’s wife when the offences were unearthed.

(5)  The traumatic effects of the offences affect not just X, but also X’s mother. The clinical psychologist recommended continued psychological intervention be conducted for both X and X’s mother.

23.I would say it is a pity that the defendant used his position to exploit a little girl. The defendant can have many other means to satisfy his sexual desire, but his utter selfishness effectively destroys the sentimental well-being of X, and I can envisage that it will affect X’s perception about human relationship.

24.Taking all factors into account, I will adopt a starting point of 4½ years (54 months)  for these 3 offences. It is a wise move for the defendant to plead guilty to 3 out of 4 charges. I will give the defendant a full one-third discount in sentence. To that end, the sentence is reduced to 36 months and the sentence of these 3 charges is to be served concurrently. In addition, I am convinced that the defendant, with full support of his wife and his son, has learnt a bitter lesson. He will be a law-abiding person again and may even become a pastor in future. In the circumstances, I will further reduce the sentence by 3 months and sentence the defendant to 33 months’ imprisonment.