HKSAR v. Wong Koon Chow, Eddy

HCCC318/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 318 OF 2011

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant pleaded guilty to the following nine counts:

(a) three counts of unlawful sexual intercourse with a girl under 13 - Counts 1, 3 and 8; (contrary to s123, Cap 200)

(b) one count of buggery with a girl under 21 - Count 2; (contrary to s118D, Cap 200)

(c) three counts of making child pornography - Counts 9, 14 and 16; (contrary to s3(1), Cap 579)

(d) one count of possession of child pornography - Count 17; (contrary to S3(3), Cap 579) and

(e) one count of indecent assault - Count 11. (contrary to S112(1), Cap 200)

Background

During the period between August and October, 2010, the defendant became acquainted with girl X and girl Y in a park at Yiu Tung Estate.

Girl X was born on 21 July, 1998. She was the victim in Counts 1, 2, 3, 8, 9 and 16. Girl Y was born on 17 March 1997. She was the victim of Counts 11, 14 and 16.

During that period of time, the defendant invited girl X and her friends to watch footage of him making love with another girl. He also took both girls and their friends to his flat at Kam Chun House, Tung Chun Court, Shau Kei Wan (“the flat”).

The defendant knew that girl X was 12 at all material times.

The defendant also paid girl X $50 for every half-hour so that he could have private tuition with her. In about early December, the defendant gave the keys of the flat to girl X so that she and her friends could study there.

Counts 1 and 2

In relation to Counts 1 and 2, the defendant admitted that on a day from August to December, 2010, he had sexual intercourse with girl X in the flat. During the same incident, he also inserted his penis into her anus. No condom was used despite the request of girl X.

The defendant also took video of the sexual intercourse. The police subsequently found these two video clips in the computer peripheral devices of the defendant.

Count 3

In relation to Count 3, the defendant admitted that on another day from August to December, 2010, he had sexual intercourse with girl X in the flat. He used a condom this time. The police subsequently found a video clip depicting the sexual act in the computer peripheral devices of the defendant.

Counts 8, 11 and 14

Counts 8, 11 and 14 occurred during the Christmas holidays of 2010. Girl X, girl Y and another girl stayed at the flat. The defendant admitted that on 27 December, 2010, he had sexual intercourse with girl X inside a bedroom in the flat. He used a condom this time.

Girl Y accidentally entered the room and discovered the sexual act. The defendant gave her $500 for not telling anyone. On the same day, the defendant also took photographs of him kissing and fondling the breast of girl Y. The purpose of this act was to ensure that girl Y would not disclose his sexual act with girl X. Girl Y was 13 years old at that time. The police subsequently retrieved two photographs and a video clip from the computer peripheral devices of the defendant. These are the subject matters of Counts 11 and 14.

On 30 December, 2010, the police arrived at the flat to investigate a case of missing persons. Girl X, girl Y and other girls were found in the flat. Various offences were revealed, and the defendant was arrested.

Count9

In relation to Count 9, the police retrieved 1,536 pornographic photos and 274 video clips of girl X from the computer peripheral devices of the defendant. Among the photos, 1,004 are of Level 1; 486 are of Level 3; and 46 are of Level 4. As to the video clips, 27 are of Level 1; 118 are of Level 3, and 129 are of Level 4. These pornographic materials were made between August and December, 2010. They included those made during the commission of Counts 1, 2 and 3.

Count 16

In relation to Count 16, the police further retrieved from the defendant’s computer peripheral devices 17,112 photographic photos and 2,149 video clips of five other female children. Most of them are of Level 3 and 4. All these were made from 19 December 2003 to 30 December, 2010.

Count 17

As to Count 17, as of 30 December, 2010, the police found that the defendant was in possession of 20,050 still images files, 2,149 video files, and 8,301 anime images of child pornography in his computer peripheral devices. Most of them are of Level 3 and Level 4. This lot included those under Count 16.

The defendant has one previous conviction in 2011 for possession of Part I poison. He was a senior engineer. He has a daughter and a son of 25 and 19. His wife suffered from depression after the defendant’s arrest.

I have read letters submitted by his wife and colleagues. To his family, the defendant was a good husband and a caring father. While family members acknowledged that the defendant might be suffering from certain psychopathic disorder, they would stand by him. His colleagues commented that the defendant was a responsible and amiable person. All of them were shocked by the defendant’s behaviour.

The background report disclosed that the defendant grew up in a grass-root family. He had strived hard to attain success in his career. He also made handsome profit in his investment in real properties. However, he was addicted to pornographic websites. He had socialised with young girls online since year 2003.

Dr Choi, of Siu Lam Psychiatric Centre, pointed out in the report that the defendant felt bored in marital sex. He was fascinated by the bodies of young girls and started to have sexual relationships with different young girls since 2003. However, the defendant denied having paedophilic interest. Dr Choi opined that the defendant did not suffer from any formal psychiatric disorder. He might have problems in personality and difficulty in coping with stress. It might be difficult to predict the risk of reoffending. However, Dr Choi recommended close supervision of the defendant in future.

The defendant admitted to have sex with four to five secondary schoolgirls since 2003 in the psychological report. He was interested in photography, especially taking photos of adolescent girls. Clinical psychologist Miss Chan opined that chronic stress, boredom, sexual indulgence contributed to his criminal behaviour. The defendant showed remorse and understood his problems. Miss Chan strongly recommended psychological treatment, albeit difficult to assess the risk of reoffending at this stage.

According to Miss Yau, clinical psychologist of Social Welfare Department, girl X, the victim in Counts 1, 2, 3 and 8, developed high level of emotional distress since the offence was revealed. She felt shameful, unhappy and anxious. She was very worried that her identity might be revealed. She felt lonely and badly needed family support. Her mother was shocked and shameful about this incident. Family relationship was strained after this incident. Miss Yau recommended further therapeutic intervention.

Girl Y, the victim in Counts 11 and 14, suffered from stress symptoms after the offence was disclosed. Initially she had nightmares, self blame, shameful feelings and distrust in men. These symptoms had subsided gradually and she adjusted well. She had good family and social support. Clinical psychologist Miss Chan recommended further therapeutic treatment.

I note that the defendant had a clear record before the offences. He is a responsible father. His family would suffer seriously on his imprisonment. For offences of this nature, all this background, however, is of limited mitigating effect.

In assessing the sentence, I bear in mind the aggravating factors set out in HKSAR v Chow Yuen Fai [2010] 1 HKC 181 and also HKSAR v Lee Hon Wah [2011] 4 HKLRD 319. While these cases concern homosexual activities of boys under 21, in my view the sentencing principles are equally applicable to unlawful sexual intercourse with a girl under 13. Both offences attract a maximum sentence of life imprisonment.

In the recent case of HKSAR v Lee Kwok Wai CACC199/2011, Cheung JA stressed that courts would take a serious view against paedophiles preying on young children. Heavy sentences were warranted to deter sexual exploitation and abuse of children. The trauma to the victims and their family could be assumed and must be adequately reflected in the sentence. (para 14 of the judgment)

The psychiatrist and clinical psychologist of Correctional Services Department have not diagnosed the defendant as paedophilic. The reports revealed that he had been having sexual relationships with adolescent girls since 2003. All the photographs and video clips concern adolescent girls. I am sure this defendant has sexual preference towards young adolescent girls. He is a potential threat to the society.

In my view, the following are aggravating factors when assessing the starting point of the unlawful sexual intercourse and buggery charges:

(a) the defendant was 52, while girl X was 12 years and 5 months old. There was a big difference in age;

(b) the defendant became acquainted with the victim, who frequented a park. He also paid girl X from time to time and invited her and her friends to use the flat;

(c) there were three unlawful sexual intercourse and one incident of buggery in a period of four months with girl X;

(d) in Counts 1 and 2 the defendant did not use any condom;

(e) the defendant took video clips of girl X while having sexual intercourse with her.

In Chow Yuen Fai, the aggravating factors identified were similar as in the present case. The victim in that case was actually under 13. Ma CJHC as he then was concluded that the correct starting point should be 10 years for buggery with a male under 21 in the circumstances. Ma CJHC also commented that the sentence of 3 years after plea on a charge of buggery with a girl aged 13 in HCCC74/2009 was very much on the low side. (para 36-41 of the judgment)

Mr Cheng Huan, Senior Counsel, drew my attention to HCCC180/2010 in which the sentencing judge took a starting point of 4½ years’ imprisonment for unlawful sexual intercourse with a girl under 13 under similar aggravating circumstances. In my view, this case cannot reconcile with the principles set down in Chow Yuen Fai.

I have also considered the guideline set out in Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519 when considering the starting point for the child pornography counts.

I note that most of the images were of Level 3 and 4. The total number of images in Count 16 is 19,261 and in Count 17 is 30,230, albeit that the latter included the former.

I have examined the sample images which constituted the subject matter of the child pornography counts. The video depicted acts of sexual intercourse, oral sex and masturbation between the defendant and different girls. The content is disgusting and outrageous.

As to Counts 11 and 14, the indecent assault of girl Y and the making of video clips of the incident, the defendant committed these offences in order to gag girl Y from telling others about his sexual act with girl X. Girl Y was then 13 years and 5 months old. These are aggravating factors.

Having considered the above, I pass the sentences in relation to each count as follows:

Count 1, unlawful sexual intercourse with a girl under 13 starting point, 9 years’ imprisonment. One‑third discount for plea; 6 years’ imprisonment.

Count 2, buggery with a girl under 21, 9 years’ starting point. One‑third discount for plea; 6 years’ imprisonment.

Count 3, unlawful sexual intercourse with a girl under 13, 8 years’ starting point. One-third discount for plea; 5 years and 4 months’ imprisonment.

Count 8, unlawful sexual intercourse with a girl under 13, 8 years’ starting point. One-third discount for plea; 5 years and 4 months’ imprisonment.

Count 9, making child pornography, 4 years’ starting point. One‑third discount for plea; 2 years and 8 months’ imprisonment.

Count 11, indecent assault, 4 years’ starting point. One‑third discount for plea; 2 years and 8 months’ imprisonment.

Count 14, making child pornography, 3 years’ starting point. One‑third discount for plea; 2 years’ imprisonment.

Count 16, making child pornography, 4 years’ starting point. One‑third discount for plea; 2 years and 8 months’ imprisonment.

Count 17, possession of child pornography, 3 years’ starting point. One-third discount for plea; 2 years’ imprisonment.

I give one-third discount for the plea in each count. Bearing in mind the totality principle, I make the following orders:

(a) the sentences of Counts 1 and 2 to be served concurrently as they were different phases of the same incident;

(b) 1 year of the sentence of Count 3 to be consecutive to Counts 1 and 2. I take 8 years as the starting point as this was a repeat offence on girl X, albeit he had used a condom;

(c) 1 year of the sentence of Count 8 to be consecutive to Counts 1 and 2. I take 8 years as the starting point as this was a repeat offence on girl X, albeir he had used a condom.

(d) 1 year of the sentence of Count 9 to be consecutive to Counts 1 and 2. This is to reflect that there were other pornographic videos and photographs of girl X apart from those in relation to Counts 1, 3 and 8;

(e) 1 year and 4 months of the sentence of Count 11 consecutive to Counts 1 and 2. This is a distinct offence committed on girl Y to threaten her, albeit that it occurred in the same incident of Count 8;

(f) the sentence of Count 14 to be concurrent to all other sentences, as I have taken into consideration of this count in assessing the sentence of Count 11;

(g) 1 year of the sentence of Count 16 consecutive to the sentence of Counts 1 and 2. This count is a separate incident in relation to different child victims;

(h) 1 year of the sentence of Count 17 consecutive to sentence of 1 and 2. About two-thirds of the child pornography were included in 16. However, the remaining 10,000-plus images were mainly Level 3 and Level 4.

The defendant in total has to serve a term of 12 years and 4 months’ imprisonment.