HKSAR v. TSUI CHIN FUNG

 DCCC487/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 487 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to 1 charge of "Unlawful sexual intercourse with a girl under 13" and 1 charge of "Unlawful sexual intercourse with a girl under 16". The victim is X, a girl who was, at the time of both charges, respectively 12 and 13 years of age.

Summary of Facts

2.  X was born on 29 November 1996. She came to know the defendant (who was then aged 15) at school. They were a courting couple at the material times.

3.  On 5 January 2010, X's mother (Madam CHEUNG) discovered a text message sent by the defendant to X's mobile phone. The defendant asked X if she had gained weight and told her that he had bought a pregnancy test kit. On the following day, Madam CHEUNG accompanied X to school. X disclosed to the school social worker that she had sexual intercourse with the defendant twice in about October and November 2009. The matter was reported to the Police.

4.  The defendant was arrested on 14 January 2010. Under caution, he admitted that he had sexual intercourse with X twice in the home of his friend (Miss WONG), which is a residential unit located at Ching Ming House, Tsz Ching Estate in Tsz Wan Shan. The 1^st time took place in about mid-October 2009 and the 2^nd, on or about 30 November 2009. The defendant knew that X was only 12 in mid-October 2009. He borrowed from Miss WONG the keys to her home because there was no one there after school. On about 4 January 2010, X told the defendant that she was afraid of getting pregnant, he therefore bought a pregnancy test kit for her and informed her by text message.

5.  Miss WONG confirmed having lent the keys to her home to the defendant respectively in October and November 2009. The defendant had told Miss WONG that he was going to her home with X; however, Miss WONG did not know that the defendant has had sexual intercourse with X at her home until he told her so in December 2009.

Mitigation & Sentence

6.  The defendant is now 16 years old and has a clear record. He was 15 when he committed Charge 1. He and X were respectively in F.4 and F.1 when they started dating in March 2009. Their courtship only lasted for 9 months when they broke up in December 2009.

7.  Defence lawyer Mr. LEUNG submitted that the defendant committed the offences on a spur of the moment and "just for fun". He did use a condom on both occasions and X did not get pregnant. The defendant has been cooperative throughout and has made frank admissions. He is remorseful and feels sorry for his wrongdoing. Mr. LEUNG also submitted a bundle of mitigation letters. Their contents are duly noted.

8.  Both Charges 1 and 2 are absolute liability offences[1]. It is plain that the legislative intent is to impose a statutory protection on those of young age such as X. The defendant and X might well be in love, but the law simply does not allow them to get intimate with each other. The message sent by the legislature cannot be clearer.

9.  For the purpose of sentencing, I cannot take into consideration of X's consent or willingness to have sexual intercourse with the defendant. However, there is no evidence which shows that this event has any detrimental or traumatic effect on her, save perhaps she might have gotten into trouble with her mother and/or at school. To this extent, it is beneficial to the defendant.

10.  What the defendant did is very wrong. He and X were both too young to have any sexual experience. The legislature thinks young girls like X cannot protect themselves, so the law steps in.

11.  I adjourned the sentence to obtain an array of pre-sentencing reports. All the reports are generally positive. Rehabilitation Centre Order and Community Service Order are both recommended. In my view, the defendant lacks discipline and was unable to control his impulsive behaviour and sexual desire. I believe a period of short-term disciplinary training coupled with statutory supervision will benefit him and strengthen his law-abiding concept. Also, a clear message must be sent to the general public that the court does not treat these offences lightly. The bodies of underage girls are not to be violated under any circumstances. Those who breach the law will no doubt face serious consequences.

12.  Based on the reasons stated above, I will make a Rehabilitation Centre Order, which will be the sentence for both Charges 1 and 2.