HKSAR v. CHEUNG HO FAI

HCCC74/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 74 OF 2009

———————-

HKSAR

v.

Cheung Ho-fai

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Before: Deputy High Court Judge Line in Court

Date: 17 April 2009 at 11.30 am

Present:

Ms Anna Y K Lai, SPP, of the Department of Justice, for HKSAR
Mr Jonathan Acton-Bond, instructed by Simon C W Yung & Co., for the Accused

Offence:

Unlawful sexual intercourse with a girl under the age of 16 years
(與年齡在16歲以下的女童非法性交)

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

COURT: You stand committed here for sentence in respect of unlawful sexual intercourse with a girl under 16 and buggery with a girlunder 21. At the material time, the girl was one month short of her 14th birthday.

In 2007, you had met on the Internet and chatted together and that clearly endured for some time. It was not until October oflast year that you actually met. On your first meeting, you both went to your home where you had sexual intercourse, followedlater in the early hours of the morning of the next day by buggery. Those acts were undertaken with the consent of thegirl and I accept it was she who phoned you to set up the meeting on the day and I will also accept the assertion put forward in mitigation that she had been phoning you before that.

She told you that she was 14. I have seen her picture on the video, and that would have been quite believable. You told herthat you were 18, doubtless to make yourself the more attractive. The indications are that this was not going to be along-term relationship. It looked like it was a one-night stand but the fact of reporting to the police and the matterscoming to light prevent us from knowing how matters could have developed.

You were 28 at the time; you are 28 now. The obvious gravity of having sex like this with a girl who was still only 13 at thetime is obvious. If I had thought you were, in effect, a mature and cynical man who had been surfing the Internet lookingfor girls of this age with a view to grooming them to having sex, the sentence would have been substantially longer. Butthis case does not, in my view, have that high degree of sexual exploitation.

From the material presented to me, which includes letters from a social worker who has known you and members of your family andthe like, one can form an impression, and that is that you are not particularly mature for 28. You have physical problemswith heredity bone disease and, as one of the letters relates, chatting on the Internet has been one of your sources of social communication.

By relating these facts, it is not to say that you clearly did not display by the nature of the forum you were at called “Toon Up”,some sexual interest, but it is not that grave degree of exploitation as I perceive to exist here that helps you in your case.

Mr Acton-Bond, in a very realistic mitigation, does not seek to try to persuade me that the buggery is not a graver mischief thanthe unlawful sexual intercourse.

It has been held in these courts that the provision that made buggery a crime punishable with life imprisonment for young men agedover 16 was discriminatory. That does not stop the buggery in circumstances as exist in this case being an aggravation. A caseabout discrimination for the sexual outlets of young men has nothing to do with the sentence of those who have sex with 13-year-oldgirls.

I take the view that right-thinking members of society would regard your subsequent act of buggery of this 13-year-old as making thecase substantially graver than if it had stopped at straight-forward sexual intercourse.

I have been referred to various cases in the course of these proceedings and, of course, I make the obvious point that the factsvary so differently from case to case that they are of little direct help.

In your case, there is a lack of aggravating features because there was consent; there was no force, and the like; and therewas a lack of aggravation beyond the grave one of the girl's age. One can find instances of sentences based on starting-pointsof 4 years where the girl was as old as 17 but it may be that it would be less these days, because that was a 2002 case.

If one can derive any source of guidance from the cases, it would seem that if the girl is under 16, a starting-point in theregion of 4 years is unremarkable, but it will depend, as I have said, very much on the facts of each case.

In your case, I am going to take a starting-point of 4½ years. That is because the girl was still only 13, albeit coming upto 14 and I will deal with you on the basis you thought she was 14. Those two years of maturation between the 14th birthdayand the 16th are significant and it is obvious to say the younger the girl, the graver the crime.

So in respect of the 2nd charge, there will be a starting-point of 4½ years. You earn a third discount for your plea. Thesentence I pass will be 3 years' imprisonment.

There is slightly more help to courts when it comes to taking a starting-point for the unlawful sexual intercourse. I shalltake one of 27 months, reduce it by a third for the plea, and pass a sentence of 18 months on the 1st charge.

I then come to the question that has exercised my mind: how those two sentences should relate to each other. In the circumstances,I have decided that they should be concurrent. It gives an overall starting-point for your conduct on this night of 4½ years andI do not think you would have received more than 4½ or 5 years after trial. More than that, as Mr Acton-Bond points out, this wasthe work of one night. It was going to bed together once.

There is a substantial difference in the starting-point I have taken for the two crimes and that reflects the extra mischiefof the buggery. It seems to me that, in those circumstances, it would be wrong to make the sentences consecutive or partlyconsecutive. As in all these cases, it is the end-point, not the starting-point that really matters, and the end-pointfor you is 3 years' imprisonment which I judge on a plea to be the right sentence for the conduct represented by these twocharges.

I can tell you this: when I first read the papers and saw the age difference, I had a greater sentence in mind but my assessmentof your character and what Mr Acton-Bond has been able to say about you, lowered my sights significantly. But the gravity of undoingthe protection society gives by this legislation to 13-year-olds is such that the sentence cannot be less than 3 years on aplea.