HKSAR v. TSANG CHI FAI

DCCC1379/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1379 OF 2010

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Reasons for Sentence

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1.  Defendant, you have 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.

2.  You have admitted that on 16 November 2010 at your home in Tin King Estate, Tuen Mun, you committed this offence.  At the material time the girl was aged 12 years and 4 months old and was a primary 6 student.  At that material time you were 17 years and 4 months.  There was a 5-year age difference.  You had come to know the girl some 2 to 3 months prior to 16 November.

3.  In the late evening of 15 November you and a friend and the girl gathered together at about 10.30 pm and were drinking beer.  You were together at the home of your mother’s boyfriend.  At that time you and the girl became drunk after drinking beer.  You then left those premises and hung around in the park in Po Tin Estate at about 11.30 pm.  Then at about midnight the girl refused to go home.  You then suggested to go back to your mother’s flat in Tin King Estate.  The girl agreed. 

4.  At about 1.40 am the girl went into your premises where you lived with your mother.  She went into your bedroom and slept on the bed.  A while later you went in and slept beside her and that is when you had sexual intercourse with her consent.  You had not had sex with a condom.  After that the two of you slept in the room together, and in the morning of 16 November the police located the girl in your premises.  The reason being the girl’s mother had reported her missing and suspected that she might be at your house. 

5.  You were arrested and cautioned on 16 November at about 11.30 pm.  You admitted this offence and said that you had consumed alcohol and for that reason you had sexual intercourse with her.  You also said that you had told the girl to go home but she refused to go home and therefore you had asked her to go back to your premises. 

6.  As I said, you are 17 years of age and of clear record.  I mentioned to you on the last occasion that this offence is a very serious offence as the maximum penalty is one of life imprisonment.

7.  Prior to sentencing you, I called for a probation officer’s report, community service order report, rehabilitation centre, detention centre and training centre reports.  Mr Lam, your solicitor, has told me that the contents of the reports have been read and explained to you and your parents and you agree to the contents.

8.  You are the second youngest child amongst 6 children.  Your parents are now divorced, having divorced in 2007.  Your eldest sibling brother is 24 whilst the youngest is 10.  All of them but the youngest are living separate and apart.  You had left school in the summer of 2008 at the age of 15.  As regards your employment, you had worked for a cleaning company for about one year in 2009, however, since then have not had gainful employment but short periods of employment on and off as a shop attendant in some food companies.

9.  You have not been very constructive with your life but like most youngsters would play computer games and sometimes have late nights.  Your academic performance was poor.  You had once, I believe, mingled with some undesirable peers but, fortunately, one of your elder siblings stepped in and since then you have not been associating with them.  Both parents realized they have not supervised you sufficiently, being involved either in work or in their other matters.   Seeing now that you have committed this offence, they realized that they should be there to support and supervise you. 

10.  The probation officer does not recommend probation.  I am not clear why that is so from reading the report.  The Correctional Services Commissioner says that you are suitable for detention in a rehabilitation centre.  The probation officer says in view of your unfavourable work habit in the past 2 years, community service is also not considered to be an appropriate option in this case. 

11.  Mr Lam, your solicitor, has urged me to give you a sentence that allows you an open setting.

12.  In deciding what punishment and/or rehabilitating measure to impose on defendants of your age and in consideration of this offence, I think I must look at both retribution and rehabilitation.  You have been frank with the court; you pleaded guilty.  You have also been frank with the court in the report by saying that you were told by your mother and others and you yourself knew that the girl was underage and yet you still committed this offence despite your knowing that it was illegal.

13.  You however said that you were placed in a position that this offence was committed as the victim stayed over became she refused to go home.  No doubt young girls like her need to be protected even though they, for example her, run away from home or go missing and have to be reported to the police.  They should be protected from people who would or might take advantage of their vulnerability.

14.  What is important in sentencing in these cases is to look at the relationship of the parties and the age difference.  The age difference, as I said, was some 5 years which is not very large.  You were friends with each other and had known each other for some 2 to 3 months prior to the date of the offence.  I am told that once before this date of the offence the girl was reported missing by her mother and she was also found at your premises.  So it is clear to me that this is not a new relationship.

15.  Looking at you although you are 17, you look like a rather young 17-year-old.  I take into account that you are not a rebellious or bad youngster.  I consider a sentence which is rehabilitative as well as punitive is appropriate for you.  Usually, as I say, in this type of offences, deterrence is warranted.  But in view of that, I am minded and think appropriate, to impose a community service order. 

16.  Defendant, are you agreeable to a community service order?

DEFENDANT: Yes.

(CSO & breach explained to and understood by the defendant)

17.  You will be sentenced to 120 hours of community service.