HKSAR v. Wong Chin Ching

DCCC 850/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 850 OF 2014

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to two charges of unlawful sexual intercourse with a girl under the age of 13 years contrary to section 123 of the Crimes Ordinance Cap 200.

2.These are serious offences as is reflected by the maximum penalty prescribed by the Ordinance of life imprisonment.

3.According to the summary of acts which have been admitted by the defendant the defendant and X came to know each other through the social media website Facebook.  They met in February 2014 and in March on two separate occasions had sexual intercourse at the defendant’s home.  On the second occasion X had drunk alcohol supplied by the defendant.  On both occasions sexual intercourse was consensual and the defendant had used a condom.

4.The case came to light after X had spoken to the school social worker and had complained of pain to her private parts when urinating.

5.The defendant was arrested after he surrendered himself to the police station and made a full confession under caution to the police.

6.At the time the offence occurred X was approximately one month short of her thirteenth birthday. The defendant was 17 at the time.

7.During his interview under caution the defendant admitted he knew X was a student but did not know her age.

8.Ignorance as to the actual age of X is of course no defence to the charges but a mistaken belief of an age older than the actual age of the girl in question maybe a mitigating factor.

9.The defendant has a number of previous convictions but none similar to the present offence.  He has been to Detention Centre and Training Centre and although currently on remand at Pik Uk Correctional Services Centre remains subject to recall to Training Centre if the sentence I pass is less than 2 years imprisonment.

10.In August of this year the probation order to which the defendant was subject as a result of a conviction for theft on 8 February 2013 was discharged.  Although it is not apparent from the criminal record before me I understand the Training Centre order was imposed after the defendant had been convicted of driving related offences.

11.It is common ground the driving related offences occurred after the present offences and further at the time the defendant committed the present offences he was in breach of the probation order.  Hence the Court has to consider what penalty if any should be imposed for breach of the probation order in addition to the sentence I shall pass for the present offences.

12.Mr Tang who appears for the defendant has presented a very thorough mitigation.

13.As part of the mitigation and in answer to a question from the court Mr Tang says the defendant did not know X was under 16 at the time of the offences and hence committed the offences “unintentionally”.

14.I have been shown a photograph of X (exhibit P13) which is a still image taken from her video interview with the social worker and I accept from that image X could be perceived as being somewhat older than 12 going on 13 but I do not accept she looks older than 16.  Nor do I accept the defendant’s claim he had no idea she was younger than 16.

15.I find it hard to believe the question of her age and where she was studying never came up in conversation between them.

16.Moreover whilst age may be deceptive it is hard to believe anyone can mistake a 12 year old girl for a young woman over the age of 16.

17.I have been informed prior to her relationship with the defendant X had a sexual relationship with another male however his identity has not been disclosed.

18.Mr Tang says after meeting through Facebook the defendant and X developed a deep relationship which led to the acts of sexual intercourse between them.  Bearing in mind they only met in February 2014 and the offences occurred in March 2014 I do not see how within that short period of time their relationship could be said to have developed into something deep and meaningful.

19.I do accept however this was not a case of exploitation by the defendant, there may have been some element of genuine affection between the two and the acts were purely consensual and not the acts of a young man just taking advantage of this young girl.

20.I have been provided with a number of letters in mitigation all of which speak highly of the defendant.  I also note the defendant was involved an act of bravery by rescuing a woman from the sea when she tried to commit suicide but I have to say what is said on his behalf in those letters and his act of bravery do somewhat stand at odds with his background as disclosed in his criminal record which inter alia include two offences for violence, one offence for claiming to be a member of a triad society and one offence for theft.  He has twice been put on probation and twice breached those probation orders.

21.Given the previous criminal record despite the defendant’s age I decided there was no point in calling for further reports and the only appropriate sentence for the present offences is a term of imprisonment.

22.Mr Tang referred to three sentencing cases.  Both parties accept there is no sentencing tariff or guidelines for these offences since each offence is very fact specific.

23.In Hui Yeung Chit and The Queen CACC 347 of 1979 the girl in question was just two weeks short of 13 and after meeting the appellant in a ballroom she became a prostitute.  The appellant had sexual intercourse with her on the first evening they met and a few days later.  There was no evidence the appellant had introduced the girl to prostitution.  A sentence of 3 years was set aside and a sentence of 15 months imposed to run concurrent on both charges.  It is not clear from the report whether the appellant had pleaded guilty.

24.In HKSAR and Lau Chi Keung [2008] 4 HKLRD 432 the girl was 12 years and 7 months and took part in sexually explicit conversations on internet chat rooms which included boasting about her previous sexual experience.  The defendant had met her through the chat room and agreed to meet her in a hotel room where he had sex with her.  The defendant was 22 at the time and paid the girl for the sex.  The Court of Appeal said there was no evidence of grooming the girl but nevertheless acknowledged the seriousness of the offence.  A sentence of 22 months was set aside and a starting point of 2 years was adopted which after the one third discount for the plea and a further two months for good character and one month for additional mitigating factors reduced the term to 13 months.

25.In The Queen and Cheung Hon Ki CACC 28 of 1996 a sentence of 18 months was upheld on appeal however it is noted the appellant was 30 but a man of previous good character.

26.This case does present a number of disturbing features.  Most prominently is the history of the girl who at 12 going on 13 already had one previous sexual experience and had willfully engaged in a second and third with the defendant.  During the second act with the defendant she had consumed alcohol.  I can only say that her parental care and attention must have been lacking to lead her into such circumstances.

27.Another rather disturbing feature is the defendant introduced X to his father as his wife.  I find it difficult to accept the father did not appreciate the tender age of X and question his son about the relationship more particularly in what circumstances they had married.

28.A further factor is the consumption of alcohol by both persons who are under age and this illustrates the ease by which such persons have access to alcohol.

29.This case also illustrates the inherent dangers in contact through the social media on the internet where young persons’ free of parental control and guidance meet and engage in sexual activities.  Whilst there is no suggestion X was groomed in this case the dangers are well publicized and parents have a duty to exercise guidance and control over the use of the internet by their children particularly young girls who are potentially vunerable to exploitation.  

30.I have considered carefully all that has been advanced in mitigation.

31.These are serious offences and I adopt a starting point of twenty one months imprisonment on each charge.  I will reduce that sentence by one third to reflect the pleas of guilty – this will reduce the sentence to 14 months imprisonment.

32.Unlike the appellant in the Lau Chi Cheung appeal the defendant is not of previous good character and he committed these offences whilst on probation.  Hence I make no further reduction as a result of  previous good character.

33.However I bear in mind the sexual acts were entirely consensual and it would appear X was not an innocent.  The defendant has also sought to enroll himself on an apprentice course and has shown himself to be a socially responsible person by his act of bravery in rescuing the woman from the sea.

34.In all the circumstances I shall further discount the sentence by 1 month to 13 months imprisonment and this will be the sentence in respect of each charge.

35.I order the sentences in respect of both charges to run concurrent so the total term which the defendant will have to serve is 13 months imprisonment.

36.I have considered whether to impose any additional penalty in respect of the breach of probation order but in all the circumstances consider it appropriate not to do so.  Since the probation order has already been set aside I make no further order in respect of the breach.

37.I bear in mind the sentence I pass will leave it open for the Training Centre to recall him should the Correctional Services Department consider it appropriate after the completion of the term of imprisonment I now impose.