HKSAR v. Liang Fu Ting

DCCC 535/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 535 OF 2011

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Reasons for Sentence

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Charges and facts

1.The Defendant, as a maintenance worker of the Victim’s family residence, came to know the Victim through the latter’s mother.  He was nearly 28 and the Victim was 3 months short of 16 when they had consensual sexual intercourse after dating for less than a week (1^st Charge).  On subsequent occasions, she let him take nude photos of her.  She later broke up with him.  He threatened to upload the photos to the internet if she refused to have sex with him.  Subject to such threats, she had sexual intercourse with him on 2 occasions (3^rd and 4^th Charges). 

2.She told her mother about the incidents.  The police were informed. Upon being arrested and cautioned, he admitted the offences.  He had used a condom each time.   

Personal background and mitigation put forward

3.The Defendant is now 30.  He has a clear record.  After completing F.3, he worked in the construction site and then became a driver.  His employer is satisfied with his performance at work.  He has a fiancée, who is a police officer.  He is remorseful for what he has done. 

4.His counsel informs me that there had been regular courtship before consensual sex.  The Victim’s statement to the police can confirm this.  They had been going steady for 1½ years until she ended their relationship when she was aged 17 years and 4 months.  Lovelorn and buckled, he was driven to threatening her with the photos in return for sex.  

Sentencing considerations

No sentencing tariffs

5.The offence of unlawful sexual intercourse with a girl under 16 (1^st Charge) has no sentencing tariffs as the circumstances of each case may widely differ.  The same can be said of procuring sex by threats (3^rd and 4^th Charges).  The prime objective of sentencing in each case is to protect under-aged girls and deter anyone with a view to exploiting them for self-gratification or reward.   

Sentencing examples

6.In HKSAR v Lai Yip Sing [2001] 2 HKLRD 601, the appellant pleaded guilty to unlawful sexual intercourse with a girl under 16.  He was 18 and she was 14.  He worked in a freight forwarding company.  They came to know each other over a phone chat online and had sex after 2 months.  For the 2 instances in question, he was sentenced to 3 months concurrently.  His appeal to the Court of First Instance was dismissed.   

7.In HKSAR v Lo cheuk-hung DCCC 363/2010, the defendant, aged 31, pleaded guilty to 4 counts of indecent assault, 3 counts of making child pornography, and 1 count of procurement for sex by threats.  1 charge related to his indecent assault of his own girl friend, who was aged 15 at the material time. Other charges related to 4 girls aged between 12 and 15, who answered to his advertisement on the internet.  They were in turn arranged to be photographed by him in hotel rooms for reward.  He indecently assaulted 3 of them (thus resulting in the other 3 indecent assault charges), prevailed upon 3 of them to take nude photographs of their breasts and private parts (thus resulting in 3 child pornography charges), and threatened to distribute nude photos of one of them if she would not have sexual intercourse with him (thus resulting in the charge of procurement for sex by threat).  Partly concurrent and partly consecutive sentences were passed.  His overall sentence was 28 months.     It pointed to a notional starting point of 42 months.    

8.In香港特別行政區訴楊明南DCCC 610/2010, the defendant, aged 22, and the victim, aged 17, were lovers when they had sex.  The victim allowed him to video-tape the course.  When the victim ended the relationship, he refused to delete the clips unless she had sex with him again.  She did it accordingly.  He had actually duplicated the clips.  Later, when he asked for sex, she refused.  Out of anger, he uploaded the duplicated clips onto the Facebook.  The Court took 3 years as the starting point. 

9.In香港特別行政區訴傅景裕DCCC 829/2010, the defendant and the victim were lovers when they had sex.  When she asked to end the relationship, he asked for a final sexual intercourse.  He furtively video-taped the course.  He later used the clips to demand her to have sex with him.  Judge Yau drew an analogy between procurement for sex by threat and blackmailing for money.  The respective ages of the defendant and the victim were not mentioned in the Reasons for Sentence.  The Court took 3 years as the starting point.      

Age gap between defendant and victim

10.As submitted by counsel in mitigation drawing on Lai Yip Sing (above), the age gap between the defendant and the victim was to be a relevant factor.  The apparent catch was on any unfair advantage taken of the victim’s young age. 

Sentencing present Defendant

11.For Charge 1, the Defendant was a mature working man 12 years the Victim’s senior.  There was courtship but it lasted less than a week before they had sex.  She was under 16.  I take 12 months as the starting point.  The plea of guilty takes it down to 8 months.  There are no other mitigating factors. 

12.For Charges 3 and 4, the Defendant’s conduct was utterly debasing and in betrayal of her dedication and malleability to let him take the photos. I share Judge Yau’s analogy between procurement for sex by threat and blackmailing for money in傅景裕(above).  I take 30 months each as the starting point. The plea of guilty takes it down to 20 months each.  There are no other mitigating factors.

13.By totality, I order all sentences to be concurrent.