HKSAR v. Cheung Man Ho

DCCC 4 of 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.4 OF 2010

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Reasons for Sentence

1.The defendant faces 2 charges of “Unlawful Sexual Intercourse with a girl under the age of 13” contrary to s.123[1] of the Crimes Ordinance, Cap.200. It is alleged that, within a 6 day period between 30^th October and 5^th November 2009, the defendant twice had intercourse with X, a girl under the age of 13 at the material time, at the defendant’s home.

2.The defendant pleaded guilty to both charges, admitted to the summary of facts and was duly convicted.

Summary of facts

3.X came to know the defendant in late October 2009 through playing an internet game. They met up at a computer centre shortly thereafter and became ‘lovers’. According to X’s account, her definition of ‘lovers’ involved holding hands and kissing each other on the mouth.

Charge 1

4.On or about 3^rd or 4^th November 2009, X forgot her home keys and was not able to go home. She called up the defendant and they met up at Nam Cheong MTR Station at around 5 to 6pm. The two of them went to the defendant’s home in Sham Shui Po. There was no one at home. They started to play some computer games in the living room when the defendant started to kiss and cuddle X. The defendant suggested to have sexual intercourse which X refused, but the defendant took her into his room. The defendant took off X’s clothing and cuddled her. The defendant then took off his pants and underwear, put on a condom and put his penis into X’s vagina. They had sexual intercourse for around 45 minutes. The defendant pulled out his penis and discarded the condom afterwards. The defendant’s father returned home at around 8pm. X only left the defendant’s home at around 9 to 10pm.

Charge 2

5.On or about 4^th or 5^th November 2009, X finished school and found that she had forgotten to bring her home keys again. X contacted the defendant again and the defendant told her that his elder brother was home. X nevertheless met up with the defendant at Nam Cheong MTR Station again and went to the defendant’s home at around 5 to 6 pm.

6.The defendant’s brother left home shortly after the defendant and X had arrived, and the 2 of them were again alone in the flat. The defendant cuddled and kissed X, took her into his room, undressed her, took off his own pants and underwear and put on a condom and had sexual intercourse with X. the defendant pulled out his penis after some time and discarded the condom. Again, X left the defendant’s flat some time after the defendant’s father had returned home.

7.A few days later, X told her friend, who in turn told X’s mother about the incidents. The mother reported the matter to the police.

8.The defendant was arrested on 17^th November 2009. Under caution, the defendant admitted that he had consensual sexual intercourse with X on 30^th October and 3^rd November 2009 at his home and that he knew X was around 13 years old at the time. X was just a few days shy of 13 at the time of the commission of the first offence.

Previous convictions

9.The defendant is of clear record.

Mitigation

10.The defendant is 18 years old, he was only 17 years old at the time of the commission of the offences. RC, DC, TC were called for before sentencing. I shan’t repeat the contents of the reports here, but that the eventual recommendation is that the defendant be detained in RC.

Sentencing authorities

11.In the case of HKSAR v Lau Chi Cheung (劉志翔), CACC 427/2007, the girl was 12 years 7 months and 18 days old on the day of the offence. The applicant was 22 years old at the time. He was sentenced to imprisonment for 22 months by HH Judge Mackintosh. The learned judge adopted a starting point of 3 years, deducted one-third for the plea and a further 2 months to reflect the applicant’s positive good character. The relevant facts were stated thus in the Court of Appeal judgment,

“Prior to May 2007, X and the Defendant had come into contact through internet chat programs, and also by mobile phone messaging.  The Defendant had told X that he was in LA (Los Angeles) but would be coming to Hong Kong soon.

Recorded messages on X’s computer dated 21st April 2007 show the Defendant, identifying himself as Ngo Cheung Lam Tin-Hoover@LA, asking X her age, and X replying ‘12’, the Defendant saying he is 19.

Conversation about sex continues, in which X said she had had sex with a previous boyfriend, and later they arrange to have sex the following month.

On 18.05.2007, the Defendant contacted X by MSN.  X agreed to meet him at Langham Place Hotel in the morning of 19.05.2007.

X took a taxi from Tai Po at 8 a.m. on 19th May 2007, arriving at Langham Place Hotel, where the Defendant met her, paid the taxi fare, and took her to Room 2921.

X and the Defendant took off their clothes, lay on the bed and had sexual intercourse, the Defendant withdrawing before ejaculating on a towel.  No condom was used.

X replaced her clothes, and returned home by taxi, after the Defendant gave her $2,200.00, of which $200.00 was to cover the taxi fare.

X’s brother was suspicious that she had $2,000.00 on her, and told their mother, who, after questioning X, made a report to the police.

At 3:05 a.m. on 20th May 2007, the Defendant was arrested at Room 2921 of Langham Place Hotel.  He initially admitted that X had visited his room, but denied sexual intercourse.

A forensic pathologist who examined X found no physical damage.”

12.The Court of Appeal found that a starting point of 3 years’ imprisonment by the learned trial judge was excessive. Taking into consideration “the fact of payment to be a very serious aggravating factor”, the Court considered a starting point of 2 years’ imprisonment to be appropriate. A discount of more than the usual one third upon a guilty plea was granted on the grounds of the defendant saving the girl from having to give evidence as well as the sexual precociousness of the girl in that case.

Sentence

13.In the said case of Lau Chi Cheung, the learned trial judge said this,

“2. Children need to be protected from those who seek to engage them in sexual activity. Sometimes they need protection from their own foolishness. They can be immature, naïve, impressionable and easily led. They may indulge in childish or inappropriate fantasies which can be used by mature men who wish to have sex with them and in the era of the internet, it is more difficult than ever to protect such children…

3.  A girl of 12½ is very vulnerable.  She is likely to be at an age when consciousness of her own sexuality, and the influence of that sexuality upon her, is growing; and experience in these courts shows that it is a time when some men seek to take advantage of the naivety of such girls to gratify their own sexual desires.”

14.I find that, regardless of the lack of aggravating circumstances such as sexual grooming or payment of rewards, or the relatively small age difference between the defendant and X, and the evidence in the witness statement of a friend of X indicating some degree of sexual precociousness of X, and taking into consideration the overriding necessity to protect young girls and to deter those lurking on the internet seeking easy targets, a custodial sentence is required.

15.Having considered carefully the Probation Officer’s report, I find that having regard to the character and conduct of the defendant and the circumstances of the case, it would be in the interest of the community and the defendant himself that he should undergo a period of detention in the Rehabilitation Centre, hopefully he will understand the seriousness of his conduct and learn to discipline himself in the future.

16.I will adopt the recommendation of the Probation Officer’s report and sentence the defendant to a period of detention in the Rehabilitation Centre on each of the 2 charges.