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Secretary For Justice v Chung Yui Hung

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date21 December 2006
Year2006
Judgement NumberCAAR11/2006
Subject MatterApplication for Review
CourtCourt of Appeal (Hong Kong)
CAAR000011/2006 SECRETARY FOR JUSTICE v. CHUNG YUI HUNG

CAAR 11/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION for review NO. 11 OF 2006

(ON review FROM DCCC NO. 448 of 2006)

____________________

8 BETWEEN

　 SECRETARY FOR JUSTICE Applicant
　 and 　
　 CHUNG YUI HUNG (鍾銳洪) Respondent

____________________

Before: Hon Stuart-Moore VP, McMahon and Lunn JJ

Date of Hearing: 21 December 2006

Date of Judgment: 21 December 2006

___________________

J U D G M E N T

___________________

Stuart-Moore, VP (giving the judgment of the Court):

1. On 5 October 2006, District Judge D Lok sentenced the respondent to a total of 20 months’ imprisonment for offences of unlawful sexual intercourse with a girl under the age of thirteen, contrary to section 123 of the Crimes Ordinance, Cap. 200 (charge 1), and possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap. 579 (charge 2). Thereafter, the Secretary for Justice (the applicant) sought leave for a review of sentence pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, on the principal basis that the sentence was manifestly inadequate. Leave was granted on 24 October 2006.

The facts

2. The facts were straightforward. ‘X’, as the victim identified in the 1st charge was described, was a Form One student aged twelve years and 8 months. The respondent, aged thirty-eight, was therefore three times her age. They came to know each other through a chat-line on the internet (ICQ).

3. On 12 December 2005, X was alone at her home when she called the respondent to meet her there. This was their first meeting.

4. Shortly after the respondent had arrived, he pushed X onto the sofa. He removed her shorts and underpants before having intercourse with her without the use of a condom. The respondent ejaculated inside her. During this time, X had tried to tell the respondent to stop but the respondent was kissing her on the mouth and he was pressing onto her hands. The respondent then left.

5. X immediately told two friends about what had happened to her. She was concerned that she might become pregnant. Later, X’s mother returned and X told her that she had been “molested”. X was taken to hospital where she was examined. Some days after this, the respondent was identified by X on CCTV tapes taken from her building.

6. In the police investigation which followed, the police laid a trap to catch the respondent by setting up an ICQ account by reason of which the respondent was led to believe that he could meet a girl called “Amy” aged fifteen. This would be a meeting, as the respondent was led to believe, for the purpose of having sex with the girl. The respondent was duly arrested on 25 January 2006 after he had told a female detective who was posing as “Amy” that he had brought a condom with him. When searched, he was found to be in possession of two condoms and two mobile telephones. The prepaid SIM card inside one of the telephones had the number used by X to contact him.

7. When the respondent was interviewed, he admitted having had sex with X but he said that, having met X, he believed that she was fifteen at the time. However, the police obtained from X’s computer a printout of the ICQ communications between the respondent and X which revealed that X had told the respondent only eight days before the offence that she was aged twelve. The printouts were shown to the respondent who then claimed that he had forgotten X’s age.

8. DNA comparisons, between samples taken from the respondent and those found on high and low vaginal swabs taken from X, provided strong support for the proposition which, in the event was not denied, that the respondent was the culprit responsible for this offence.

9. The 2nd charge came to light on the day after the respondent’s arrest. On 26 January 2006, his residence in Tin Shui Wai was searched and a desktop computer was seized. The computer’s hard disc was found to contain saved images in a file named “ally2k5”. Six of the images showed the genitalia of a female child with whom the respondent had also engaged in dialogue containing explicit sexual overtones.

Mitigation

10. The judge was invited to treat the respondent as someone who was extremely remorseful about the harm he had done to X and to his own family consisting of his wife and two daughters aged five and one respectively, for the suffering he had brought upon all of them. The respondent was well educated. He had a degree and had been teaching physical education in a secondary school until he tendered his resignation following his arrest.

11. It was the respondent’s case that he had resorted to the “excitement” he derived from casual relationships because he had been unable to cope with the stress he was under at work and the disapproval of his parents-in-law towards himself. Students and ex-colleagues spoke highly of the respondent in letters submitted in mitigation.

Sentencing

12. Prior to sentencing, the judge had been provided with a psychological report and a probation officer’s report. In the light of these, it is curious that the judge remarked:

“… the defendant is not suffering from any psychological disorder or paedophilia.”

The report prepared by Ms Candy Hui, a clinical psychologist, had merely referred to the respondent’s denial of having “any sexual interest towards children” or having “deviant sexual interest”. Ms Hui continued that “major psychopathology” was not suggested and concluded that:

“To prevent re-offending, psychological intervention for improving his stress management skills and preventing deterioration of his sexual problem was recommended.”

13. It seems absolutely clear to us, upon the facts which were presented to the court, that the respondent’s sexual problem related not only to a need for casual relationships with strangers but also to underage girls.

14. The judge correctly acknowledged the gravity with which offences of the kind in the 1st charge are viewed by pointing out that the legislation makes provision for a life sentence where the victim is aged less than thirteen whereas a 5-year maximum is available where the victim is under the age of sixteen. In his review of the seriousness of this particular case, the judge also noted a number of aggravating features, saying:

“12. In the present case, the Girl had told the Defendant her actual age. Even though the Defendant claimed that he forgot her...

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