CRIMINAL CASE NO. 265 OF 2012
COURT: The defendant pleads guilty to one charge of indecent assault, four charges of unlawful sexual intercourse with a girl under 16, one charge of
buggery, and one charge of AOABH.
He got to know the victim, a 13-year-old girl, on Facebook. One day after they first met, they visited a grandmother, and the defendant requested to have sex with her. On her refusal, he put his hands into her trousers and fondled her private parts.
They started having sex about a week later. Thereafter, they had sex on another three occasions. On the last occasion - that is, the April 2012 occasion - he suspected that she had other male friends. He threatened to upload films of their sexual intercourse onto Facebook to frighten her. She was scared, and complied with his order to go to his home. She was then ordered to perform oral sex on him whilst he used his mobile phone to film the sexual intercourse, during which the victim used her hands to cover her face from being captured.
Afterwards, the defendant was irritated by the victim receiving a call from a male friend. He hit her head, kicked her to a cabinet, and threw a half-full water bottle towards her. During this altercation, he threatened to give her and her parents a hard time. He then played the video film of the sexual intercourse to her. She refused to watch, and left.
A few days later, she revealed the matters and a further incident of buggery which occurred in February 2012 to a neighbour. That incident occurred at a rear staircase. He ejaculated inside her. She was in pain and in tears.
The defendant is a student at Hong Kong U Space. Schooling has been disrupted after this matter came to light. Mr Chain, on behalf of the defendant, quite sensibly conceded that no condom being used on all the occasions and filming of the sexual intercourse are aggravating features.
However, it is urged on his behalf that in sentencing this defendant, the court should place rehabilitation over punishment.
I have perused the background report, clinical psychologist’s report, and training centre report. It would seem that the offences were committed due to his weakness in self‑control and weak law-abiding concepts. According to the psychologist, his problem, I quote: “is more of psychological immaturity and naivety marked with high egocentricity, lack of constructive life goals.” It is opined that he will benefit from counselling.
These incidents have a negative impact on the victim. I have called for a report for the victim as well. She is now aged 14. Whilst she is lucky to have supportive parents, she had flashbacks about the sexual activities scene and the assault by the defendant and his abusive words. She lacks self‑esteem, and her academic performance deteriorated.
I have taken into account all that could have been said and was said by counsel on the defendant’s behalf. I give him credit for pleading guilty.
That said, this case contains the aggravating features set out in the case of Chow Yuen Fai, namely the young age of the victim and the long-term psychological harm arisen out from the incident, threats by the defendant to upload the video showing the sexual intercourse and the actual taking of the video at the time of the incident relating to Charge 9, and then there was the non-use of condoms.
The defendant’s behaviour was appalling, despicable and disgraceful. He exploited her vulnerability and young age, and made threats in order to make her succumb to his demand.
The sentencing principle relating to training centre orders are well settled in the case of Wong Chun Cheung. Mr Chain, on behalf of the defendant, urged that this is a case where no overriding community interests preclude the making of that order and a length of remand in a training centre would be in line with a period of imprisonment which the defendant would receive in accordance with prevailing authorities.
Given the aforesaid circumstances and aggravating features of the present case, I am of the view that the offences are too serious to regard the object of rehabilitation by training as expedient. Therefore, even though he is suitable for training centre, I reject that as an option.
In the circumstances, for a man of hitherto good character, I adopt the following starting points for the respective charges.
Charge 1, indecent assault, 1½ years’ starting point.
Charge 2, Charge 5, Charge 6, unlawful sexual intercourse, I adopt a starting point of 2½ years for each of those charges.
Charge 7, the buggery charge, I adopt a starting point of 6 years’ imprisonment.
Charge 9, the unlawful sexual intercourse with the most aggravation, 5 years’ starting point.
Charge 10, the AOABH, 6 months as the starting point.
So after giving the one-third discount to each of the charges, it goes as follows.
Charge 1, 1 year’s imprisonment.
Charge 2, 5 and 6, 20 months each.
Charge 7, 4 years’ imprisonment.
Charge 9 is 14 months’ imprisonment.
Charge 10, 4 months’ imprisonment.
Taking into account totality, I consider the facts of this case warrant an overall starting point of 9 years. Affording him the one-third discount on his plea and an extra 6 months of sparing the victim the ordeal of giving evidence in court, I consider an overall sentence of 5½ years on a plea to be appropriate, and make the order as follows.
I order 6 months out of Charge 2 and 1 year out of Charge 9 to run consecutively to the 4 years’ imprisonment in respect of Charge 7, and all other sentences to run concurrently.
That is the sentence that I pass, so a total of 5½ years’ imprisonment.