HKSAR v. Fung Lai Wing

DCCC31/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 31 OF 2009

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to three offences of unlawful sexual intercourse with a mentally incapacitated person, contrary to section 125(1) of the Crimes Ordinance, Cap. 200, and a single offence of failing to surrender to custody without reasonable cause, contrary to sections 9, 11(1) & (3) of the Criminal Procedure Ordinance, Cap. 221.

2.You admitted the brief facts, and I convicted you. Briefly, the facts are as follows. The victim was born on 20 July 1986 in Hong Kong and has an IQ of 53. This falls within the mild grade mental retardation level. Her overall adaptive functioning is equivalent to a person of 7 years and 8 months. The victim has been living with her father and younger brother in Wong Tai Sin. She has been working at a workshop for the mentally incapacitated. She habitually took bus route no. 2B at Chuk Yuen Estate to and from work by herself.

3.You are retired and live in the same estate. You are a friend of the victim’s mother who resides in a hostel suffering from mild psychiatric problems. You have known the victim since she was young, but lost contact. However, in May 2008 you met her at Chuk Yuen Estate Bus Terminal. You told her you wanted to be her friend and obtained her home telephone number. PW1 told you that she was living at home with her father whilst waiting for admission to a halfway house for mentally incapacitated.

Charge 1

4.Around 21st of May of 2008 you phoned PW1 and invited her to your home for sexual intercourse with her, but she refused. At about 5.30 pm, on 22 May, you saw her waiting at the bus terminal. You again requested sexual intercourse, but she refused. You then told her that you would not be friends and she would be sent to a remote hostel if she refused. And PW1, being scared, consented. You took her to your flat. Your son, who is 23 years of age, was there. You took her to your bedroom and you stripped. You removed her trousers and underwear. You had sexual intercourse with her without a condom for about half an hour. PW1 cleaned herself with tissues and found some bleeding. You warned her not to tell anyone, otherwise she would be sent to a faraway hostel. You also warned her not to tell her father that you were friends.

Charge 2

5.On or about 31 August 2008 you telephoned PW1, asking her to go to your home for sexual intercourse. You told her that you were unable to find the girl that you had had sexual intercourse with before. PW1 refused. At about 5.30 pm, on 1 September of 2008, she saw you waiting for her at the bus terminal. You persuaded her to go to your home for sexual intercourse for $25. You told her to avoid being seen by others, or else they would be in trouble. So PW1 entered first, and you followed.

6.Your son was in the flat. You took PW1 to your bedroom where you stripped, and then removed her trousers and underwear. You had sex without a condom. At one point PW1 asked you to stop as it was painful, but you continued to ejaculation. PW1 found some bleeding on her private parts. You had sexual intercourse with her for about half an hour and gave her $25 when she left.

Charge 3

7.On the 4th of September of 2008 you phoned PW1 and told her you would wait for her at the bus terminal when she returned from work. You then took her to your flat. Your son was present. You and PW1 went to the bedroom. PW1 said she did not want to have sex, but you persuaded her by saying that you would not be friends if she refused. You stripped and took off her trousers and underwear. You had sex without a condom. At one point PW1 said it was painful, but you told her to open her thighs more and relax. You continued until ejaculation. The sex lasted for about half an hour. Then you gave PW1 $25, and she left.

8.On 8 September of 2008 you met her at the bus terminal. You told her not to tell the social worker at the workshop, and if she did that she would be in trouble and removed to a remote hostel, never to be allowed to leave.

9.At 2 pm, on 9 September, PW1 informed a social worker at the workshop that she was scared because someone was waiting for her at the terminal. The told her about the incident of sexual intercourse on 1 and 5 September. PW2 informed her superior and PW1’s father. The police were informed, and the victim informed the police of three occasions when sex had taken place. Forensic examination supported her having sexual intercourse in the past, but there was no injuries or signs of recent sexual intercourse.

10.On 10 September 2008 you were arrested at Lowu whilst leaving Hong Kong. You admitted having sex with PW1 on three occasions and ejaculating on two or three occasions. I am sorry, that was on the second and third occasions.

11.PW1 is classified within a mild grade range of mental retardation.

Charge 4

12.You were admitted to bail but you failed to attend District Court on 30 January 2009 without reasonable cause. You admitted to nine previous convictions on four occasions. I note that none of those convictions are similar, and the last conviction was in 1986.

13.In view of the nature of the charges and the mental problems of the victim I adjourn the case for a victim’s impact report, and in respect of you for a probation officer’s background report and a psychological report. Those reports are now before me. I have read them, considered them and taken them fully into account when returning sentence.

14.On your behalf Mr Woon entered mitigation. Firstly, dealing with a problem arising from the psychological report, he told me that you did not allege that sexual intercourse had been initiated by the victim. This was a misunderstanding. He told me that you too - and this is supported by the background report - had a history of psychiatric problems beginning in 2001, that you had two failed marriages which led to many of the problems. He pointed out to me that you had been out of trouble since 1986 and that you had spared the victim the trauma of the witness-box by your plea of guilty.

15.The victim impact report showed the victim to be of mild grade mental retardation, and she had not suffered any significant psychological problems because of these events. Both Mr Chan and Mr Woon did provide authorities for sentence. But, with respect, I did not find them particularly helpful as the facts are very different - there is no tariff for this type of offence; it depends very much on the individual circumstances - although I did take those cases into account.

16.I turn now to the sentence. The case involves three acts of sexual intercourse with an adult lady who suffers from mild grade mental retardation. These took place over a period of time. During the acts of intercourse you took no precautions by using a condom. That is an aggravating feature. I note also that threats were involved, though the threats were mild and were certainly not threats of violence, and monetary inducements were offered. It is purely fortuitous that these acts of intercourse did not result in the lady falling pregnant.

17.In your favour, you pleaded guilty at the first available opportunity. Although you have a criminal record, you have nothing similar. And it is over 20 years since your previous conviction. I note also that you have had your difficulties in life. You too have suffered from psychiatric problems.

18.I note also the act of absenting yourself was deliberate and wilful. Any medical treatment that you required would have been available in Hong Kong, and would certainly have been available through the prison service.

19.These acts are serious. But I have to say, given all the circumstances, they are not the most serious and are towards the bottom of the scale in terms of criminality. I note there was no question of any breach of trust, that you are not a person in authority of the lady in question. Though there are three separate acts of intercourse, my approach has been to view them as one course of conduct and to decide what the appropriate starting point for the whole course of conduct is.

20.In that regard, I take as a starting point some 27 months’ imprisonment. Given your plea of guilty, this is reduced to 18 months. I note also that you have spared the young lady the trauma of the witness-box. This is a very important factor in my opinion. And whilst the victim impact report at the moment is fairly positive, had she had to go through the trauma of the witness-box it might have been a totally different story.

21.In those circumstances I do give a further discount of a further three months. On Charges 1 to 3, you will go to prison for 15 months on each charge, to be served concurrently.

22.The act of absconding was wilful and deliberate, as I have said. In that case I take a starting point of 4½ months’ imprisonment, reduced to 3. You will go to prison for 3 months, which would be consecutive. That is a total of 18 months’ imprisonment.