HKSAR v. LAI WING TAT

DCCC 1107/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1107 OF 2013

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HKSAR
v.
LAI Wing-tat
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Before: HH Judge Douglas T.H. Yau

Date: 15th January 2014 at 11:48 am

Present: Miss. Sheroy Tam, Senior Public Prosecutor, of the Department of Justice, for HKSAR
Mr. Charles P.T. Chiu instructed by M/s CMK Lawyers,
assigned by DLA, for the Defendant

Offence: Unlawful sexual intercourse with a girl under the age of 13 years (與年齡在13歲以下的女童非法性交)

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Reasons for Sentence

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1. The defendant pleaded guilty to one charge of Unlawful Sexual Intercourse with a girl under the age of 13, contrary to section 123 of the Crimes Ordinance, Cap.200. Particulars of the charge are that the defendant on 2nd October 2013, at room 2, 1st floor, Cheong Tai Building, no.120 Tseuk Luk Street, San Po Kong had unlawful intercourse with X, agirl under the age of 13.

Summary of facts

2. X was born on 10th November 2000, she was 12 years 10 months and 22 days old on the day of the offence. The defendant was born on 14th November 1992, he was just under 21 years old on the day of the offence.

3. At about 11pm on 1st October 2013, X went to meet a female friend in Chuk Yuen Estate. They went to a food stall nearby and met up with other people.X made the acquaintance of the defendant, another male and her girlfriend. X had never met them before.

4. Later that night, X and the others went to a podium nearby to chat and drank some beer. The defendant asked X to be his girlfriendbut X refused. The defendant tried to kiss X who pushed him away. The other male and his girlfriend pushed X towards the defendantso that the defendant could hug X. X tried to push the defendant away but failed.

5. The other male suddenly grabbed X’s handbag and left so that X would follow them. They got onto a taxi while the defendant pushedor lifted X into the taxi. They arrived at the charge address building at around 6am on 2nd October. The other male told X that he had left her handbag in Chuk Yuen Estate. X eventually followed the group to go upstairs tothe charge address unit.

6. At about 6:45am, while X was watching television, someone switched off the lights and television and then the defendant pulled Xto the bed. The other male told the defendant and X to have sex quickly as he wanted to have sex with his girlfriend afterwards,who then performed oral sex on the other male.

7. X’s female friend, the other man and his girlfriend then took off the defendant’s trousers and underpants and the man told Xto take off her own clothes or they would tear them off. Then X’s female friend, the man and his girlfriend all went into the toiletand left the defendant and X in the living room.

8. The defendant took off X’s shorts and underpants and had sex with her on the bed without using a condom. The defendant’s penispenetrated X’s vagina at times and lasted for 10 to 15 minutes until the defendant ejaculated on X’s abdomen.

9. At about 8am, the defendant appeared to have a dispute with the other male and the defendant left. X subsequently left together withher female friend and went home to shower and sleep.

10. Later on the same day, X met with her other friends who told X that they knew X had been ‘sexually molested’. They asked X aboutthe matter and one of her friends made a report to the Police.

11. The defendant was arrested on 3rd October and said he was drunk and slept ‘outside the location’ under caution.

12. In the subsequent 2 video recorded interviews, the defendant gave his version of fact. He said that he went to Chuk Yuen Estate tomeet up with his friend who introduced X and her female friend to him. The defendant’s other friends, that is to say, the othermale and his girlfriend came to join them and they chatted and drank beer. The defendant said he thought X was about 14 or 15 andit was X who started to kiss the defendant when they were chatting. They took a taxi to the charge address and went up to the flat.When there, the defendant lied on the bed in the living room while the other male and his girlfriend had oral sex in the same room.Then the other male, his girlfriend and X’s female friend went into the toilet together. X then took off the defendant’s pantsand underpants and hers as well and X had sex with the defendant on the bed. There was no use of condom and after some 10 minutes,the defendant ejaculated on X’s abdomen.

Previous convictions

13. The defendant was convicted of one charge of criminal damage in June 2009 and one charge of robbery in September 2010 where he wassentenced to 12 months’ probation and to the Training Centre respectively.

Mitigation

14. The defendant is now 21 years old. He was just about 1 month shy of turning 21 at the time of the commission of the offence. Mr.Chiu pointed out that the greatest mitigating factor is the defendant’s plea of guilty, reflecting his deep remorse.

15. Letters written by the defendant, his father and younger brother and his stepmother are produced.

16. Mr. Chiu drew the court’s attention to the fact that there is no big difference in age between the defendant and the victim. Healso urged the court to adopt the version of facts as put forward by the defendant in his video recorded interview and set out inthe amended summary of facts as the basis for sentencing the defendant.

17. Ms. Tam for the prosecution was given time to take instructions on whether they seek to challenge the defendant’s version of factand subsequently indicated that they did not wish to do so.

Sentence

18. The maximum sentence under s.123 is that of imprisonment for life. It is not an excepted offence within Schedule 3 of the Criminal Procedure Ordinance.

19. The defendant is 21 years old, therefore s.109A of the Criminal Procedure Ordinance that requires imprisonment as a last resort for a defendant between the age of 16 and 21 does not apply.

Which version of fact

20. The first matter that needs to be dealt with before considering the sentence is on which version of facts should the defendant besentenced. The version put forward by the victim or the version put forward by the defendant in his video recorded interviews.

21. X was a 12 year old girl. She went out without parental supervision at 11pm to meet up with her friend. They then made the acquaintanceof 3 complete strangers and proceeded to drink beer together, something which she should not have been doing given her age. It was7 hours later at 6am the following morning that X and the group left for the home of one of the strangers. There is no evidence ofX being prevented from leaving in that 7 hours. Given that it is X’s case that the defendant had asked her to be his girlfriendand had tried to kiss her at the podium, X must have known about the defendant’s interest in her when she decided to go togetherwith them to a total stranger’s home.

22. I find that, given that the prosecution does not seek to challenge the defendant’s version of fact, and given that the above mentionedconduct of X would tend to support the defendant’s allegation of what happened that night, I find that on the balance of probabilities,the defendant’s version of fact is the truth and I will sentence him upon those facts.

23. Ms. Tam for the prosecution invited the court to consider the factors identified by the Court of Appeal in the case of HKSAR v Tsang Chiu Tak, CACC 386/2011 when sentencing the defendant.

24. There the appellant was convicted after trial of 2 charges of rape. On appeal, the Court listed out factors to be taken into considerationwhen dealing with cases where children are being sexually assaulted. Although there is no allegation of force being used by the defendantin the commission of the offence in our present case, technically the process of sexual intercourse itself would involve some formof assault.

25. The factors are the age difference between the defendant and the victim; the relationship between the defendant and the victim, includingwhether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trustin the case; whether the defendant had used threats or inducements to make the victim succumb; the number of occasions of committingthe offences and the duration of the offences; whether inappropriate and unnecessary violence was used by the defendant to causeharm or discomfort to the victim; whether any safety measures were taken by the defendant in sexually abusing the victim in orderto avoid transmitting any venereal disease to the victim or getting her pregnant; whether the sexual abuses have caused physicalor psychological trauma to the victim; whether the offences have impact on the family members of the victim; whether the defendantwas involved in other inappropriate behaviour such as inviting other people to watch or take photos or videos of the offence he committed;and whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.

26. In the case of HKSAR v Lau Chi Cheung, CACC 427 of 2007, the appellant was convicted on his own plea of unlawful sexual intercourse with a girl under 13 contrary to section 123. There the girl was 12 years 7 months and 18 days old on the date of the offence. The appellant was 22 years old at the time. Hewas sentenced to imprisonment for 22 months by the learned trial judge, after adopting a starting point of 3 years, deducting one-thirdfor the plea and a further 2 months to reflect the appellant’s positive good character.

27. On appeal, the starting point of 3 years was found to be excessive given the circumstances of the case and a starting point of 2years was considered appropriate. Further reduction in the sentence was applied for the appellant’s good character and other mitigatingcircumstances, resulting in the final sentence of 13 months’ imprisonment.

28. The facts of that case are that the appellant got in touch with the victim over the internet while he was still a student in LosAngeles. Upon his return to Hong Kong, he met up with the girl and had sex with her. $2,200 was given by the appellant to the girlafterwards. The Court of Appeal found that there was evidence to show that the girl was sexually precocious.

29. In considering the appeal, the Court of Appeal stated that

“5. …when one comes to sentence, one has to take into account all the circumstances, including, for example, the attributes ofthe girl as well as the man. A man who has unlawful sexual intercourse with a girl the day before her 13th birthday is likely toreceive a lower sentence than the man who had unlawful sexual intercourse with a girl who is substantially younger. Indeed, the youngerthe girl, one would expect the sentence to be heavier. Also, the age of the man is relevant. Here, the applicant is 22 years old,a student and not a mature man.”

30. More importantly, the Court considered the payment of money to be a “very serious aggravating factor” and on that basis considered an appropriate starting point should be 2 years’ imprisonment.

Factors to be taken into consideration

31. In our present case, X was just 1 month shy of turning 13 at the time of the offence. The sexual intercourse was initiated by X herselfas according to the defendant she was the person who took off both his and her pants and underpants and had sex with him on the bed.This is part of the attributes of X that the court has to consider.

32. Although there is an age difference of about 8 years, the defendant himself is a young man. There was no grooming of X for sex andthere was no payment to X for sex. There was no breach of trust on the defendant’s part, nor did he use threats or inducement tomake X succumb. The offence was a one off incident and no violence was used. The defendant did however fail to use a condom.

33. There is no evidence from the prosecution to suggest that the victim suffered any trauma or that her family members had sufferedany adverse impact as a result of the offence. There is no evidence that the defendant had involved in other inappropriate behaviour,that he is psychologically imbalanced or paedophilic, or that he is likely to re-offend.

34. Bearing in mind all the circumstances of the case and the sentence adopted in the above mentioned case of Lau Chi Cheung, I find that a proper starting point is that of 21 months’ imprisonment. I will grant the defendant the full one-third discountfor his guilty plea and sentence him to 14 months’ imprisonment. I see no other mitigating grounds to further reduce this sentence.

(Douglas T.H .Yau)
District Judge