HKSAR v. LAI TSZ CHING

DCCC495/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 495 OF 2009

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to a single offence of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Cap. 200.  The victim, PW1, was at the time some 12 years and 9 months old having been born on 3 June 1996.  You were 16.

2.  On the afternoon of 7 March of this year, PW1, a schoolmate of yours met you and three males aged 13, 17 and 19.  You all went up to a room in Kwan Tai House, Fu Tai Estate, Tuen Mun, the residence of the 13 year old male.  There you played a game whereby you formed a circle, a bottle was spun and whoever the bottle pointed to was the loser.  The loser had to answer a question honestly or accept a challenge.  PW1 lost and as a result had to stay in bed with you for 10 minutes.  You both agreed and went to the bed of the 13 year old boy who gave you a condom.  Under the cover of a blanket and you, using the condom, had sexual intercourse with PW1.  The others watched, made noises and kept the time.

3.  On 10 March last, the matter came to the attention of a social worker, a report was made to the police and you with a school teacher surrendered to the police and made a full confession, including knowledge of the age of the prosecution witness.  Forensic examination of PW1 was supportive of the facts.

4.  I adjourned the case and remanded in custody for a Probation officer’s background report, Rehabilitation Centre, Detention Centre and Training Centre reports.  Those reports are before me now.  There are two recommendations and the Probation officer’s report there has made a recommendation for a Community Service Order and in the report from the Commissioner of Correctional Services for a Detention Centre Order. 

5.  On your behalf, Mr Lee has entered mitigation.  He told me that you were still at school, aged 16, and from a relatively poor family.  Indeed, you have to work in your spare time to supplement the income.  You had pleaded guilty at the first available opportunity and were truly remorseful.  You said that the 21 days  spent in custody had had a profound effect upon you and you had come to better understand and appreciate your family.  He read to me a letter that you had written from prison which was supportive of these facts. 

6.  He went on to say with regard to the offence itself, the girl was a schoolmate, there had been no coercion and that the commission of the offence started as a game.  He pointed to your youth, he asked me to differentiate this type of case from that of a man of mature years taking advantage of young children.  With that sentiment I entirely agree.

7.  Also, he referred me to the authority of R v Cheung Chi-wai(?), MA629/1994, however, I have to say I could gain very little help or guidance from that case, the girl in that case being some 14 years and 9 months whereas the victim in our present case was only 12 years and 9 months.

8.  In sentencing you, I have taken into account the facts of the case, the nature of the charge, the mitigation advanced and the contents of the reports.  Unlawful sexual intercourse with a girl under the age of 13 years is a very serious offence indeed.  It is an offence for which the courts of Hong Kong quite rightly impose condign punishments, punishments that are designed to protect those of tender years.  I tell you here and now that anything other than an immediate custodial sentence is out of the question. 

9.  I do accept, however, in this case there are points of mitigation and I do allow you credit for those.  Firstly, you are only 16 yourself and the gap in ages is relatively small.  Secondly, you acted extremely responsibly in surrendering yourself to the police in the company of your teacher.  Having surrendered to the police, you were entirely co-operative and straightforward.  This is reinforced by your plea of guilty at the first available opportunity.  This is a major consideration and a major mitigation in that you have spared the girl the trauma of the witness-box and also faced up to your responsibilities.

10.  Also, there is some degree of mitigation to be recognised in the fact that you were responsible enough to use a condom in this case.  You are of clear record and I do accept that there was no coercion nor even persuasion involved in this case, though I have to say that that is of very limited mitigation given the age of the girl.  The victim in this case is a child. 

11.  I have also already referred to the duty of the courts, that the courts have a duty to protect children.  Whilst the sentence must be proportional, it must also send out a message to those of like-minded behaviour that they will not be tolerated.  You are young, you are lacking in discipline and you have a weak sense of control.  I take all the facts into consideration and in this case you will go to Detention Centre.  There, you will receive a degree of punishment but also a degree of support and supervision upon release.