HKSAR v. CHUNG KAI- LAM

DCCC 493/2022

[2023] HKDC 375

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 493 OF 2022

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REASONS FOR SENTENCE

The defendant pleaded guilty to 3 charges of "Unlawful sexual intercourse with a girl under the age of 16 years" (Charges 1 to 3).

Summary of Facts

2.  X is a female born in August 2006.  The defendant was born in September 2001.  They met through a dating app in February/March 2021.

3.  Shortly after they met, they exchanged contacts and communicated regularly on WhatsApp.  The defendant offered X free tutorials on school work.  On 28 May 2021, they met in person for the first time at the defendant's home situated at Hoi Tat Estate, Cheung Sha Wan ("D's Home").  After the tutorial, they left D's Home together for a meal.  On 29 May 2021, they met again for desserts.

4.  About 8:00 a.m. on 31 May 2021 (a Monday), the defendant and X met for breakfast and then went to D's Home for tutorial.  They held the tutorial in the defendant's room until about noon.  The defendant's mother fixed lunch for them before she left home.  At some point, the defendant told X that they were home alone.

5.  When the tutorial resumed after lunch, the defendant tickled X on her waist and blew into her ear.  She asked him to stop, but he did not.  The defendant started kissing X on her lips and touching her breasts.  He removed both their clothes.  The defendant put on a condom and inserted his penis into X's vagina.  This is Charge 1.

6.  After a while, the defendant withdrew his penis and put on a new condom.  He inserted his penis into X's vagina again.  This is Charge 2.

7.  Later, the defendant withdrew his penis and passed X her clothes.  X put on her clothes.  The defendant asked X to continue with her homework and to ask him if she had any questions.  X did her homework for a while and then started playing with her phone.  The defendant pressed onto her legs and removed her underpants.  He put on a condom and inserted his penis into X's vagina.  This is Charge 3.

8.  They cleaned up and got dressed.  X did not know if the defendant had ejaculated during these 3 times of sexual intercourse.

9.  About 6:00 p.m. on the same day, X told the defendant that she had to go home.  They left D's Home together.  On her way home, X told her friend Y what happened at D's Home.  Y accompanied X home and told X's parents what happened.  The matter was reported to the Police.

Arrest and admissions

10.  The defendant was arrested at his home on 1 June 2021.  Under caution, he admitted having engaged in sexual intercourse with X, but did not force her to do so[1].

11.  In his video recorded interview, the defendant admitted that he knew X was a F.3 student.  He described how they met and admitted that he had sexual intercourse with X 3 times on 31 May 2021.  He said he had ejaculated on all 3 occasions.  The defendant stated that after the 3^rd intercourse, X said she needed to meet a friend.  He then accompanied X to an MTR station and left.

Forensic evidence

12.  The defendant's sperm was found on the inside of X's underpants; and his DNA, on the outside of X's bra.

13.  The WhatsApp messages between the defendant and X showed that they were chatting frequently from April to 31 May 2021 and he knew that X was born in 2006.

Mitigation & Sentence

14.  The defendant is 21 and has a clear record.  He was 19 when he committed the present offences.  Defence counsel Mr. Lam informed me that the defendant is educated up to F.6.  He was unemployed at the time of his arrest.  He resides with his family in a public housing unit.

15.  In mitigation, Mr. Lam submitted that the defendant met X through a dating app, the name of which carried certain implications of consensual sex by its participants.  Mr. Lam stressed that the defendant did not deceive X.  No exploitation of position or power by the defendant was involved either.  The defendant had socialized with X as friends for a while before they engaged in sexual conduct.  They maintained a good relationship throughout.  Mr. Lam also submitted that the defendant has demonstrated his sense of responsibility by putting on a condom each time.  He committed the present offences as a misguided and curious young lad.

16.  Charges 1 to 3 are absolute liability offences[2]. The legislative intent is to impose statutory protection on those of young age such as X.  The defendant and X might have been "friends with benefits", but the law

simply does not allow them to get intimate with each other. It matters not what kind of social platforms they joined or what implications are carried by being members of such platforms. The message sent by the legislature cannot be clearer.

17.  At law, I cannot take into consideration of X's consent or willingness to have sexual intercourse with the defendant (even if there was any).  The legislature thinks young girls like X cannot protect themselves, so the law steps in.

18.  The defendant is at a border line age.  He is now 21 but was 19 when he committed the present offences.  With some reluctance, I have decided to obtain a Detention Centre Report and a Community Service Order Report just to keep all sentencing options open. Comments contained in both reports are positive.  The defendant has a part-time job and also engages in crypto trading at home earning some good income.  His mother and elder sister care about him.  He is considered suitable for both Detention Centre and community service.

19. As a general principle, rehabilitation (rather than punishment)  plays an important role in reforming young offenders. I cannot overlook the defendant's need for rehabilitation. I have reminded myself that correctional institutions such as Rehabilitation Centres, Detention Centres and Training Centres exist for the benefit of young offenders. These institutions play an important role in our penal system.

20. I would not hide the fact that the defendant's age, personal background and clear record played a determining role which spared him the punishment of immediate imprisonment. On the other hand, as I have expressed in my exchanges with Mr. Lam in open court, the facts of the present case are too serious for a non-custodial sentence. It would be wrong in principle to sentence the defendant to community service.

21. After careful consideration, I have decided to make a Detention Centre Order, which will be the sentence for all 3 charges. I believe a Detention Centre Order will benefit the defendant most in terms of disciplinary training, reformation and punishment.