HKSAR v. CHUNG SHING FUNG FAND ANOTHER

DCCC1115/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1115 OF 2009

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Reasons for Sentence

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1.  D1 pleaded guilty to Charge 1. 

2.  D2 pleaded guilty to Charges 2 and 3. 

3.  These three charges are unlawful sexual intercourse with a girl under the age of 13, contrary to section 123 of the Crimes Ordinance, Cap. 200.

4.   All the three charges involved the same girl, who was 12 years old at the material time.  The incidents took place in D1 and D2’s home.

Prosecution Case:-

Charge 1

5.  The girl and D1 were former schoolmates.  D1 dated the girl for a week before they broke up and they had one sexual intercourse with the consent of the girl in his home.

Charges 2-3

6.  D2 said that he met the girl at the end of 2008 and they broke up in early 2009.  Both incidents of sexual intercourses took place in his home.

7.  The first time was when D2 and the girl, as a pair, D1 and the other girl were sitting on a sofa bed to watch TV.  D2 and the girl were covered with a blanket when they were having sexual intercourse, while the other two were sitting next to them.

8.  A few days later, D2 took the girl home again for a second time sexual intercourse. 

9.  At the material time both D1 and 2 did not use condom. 

The criminal record

10.  D1:  (i) Theft in 2008.  Fined $500.

(ii) Possession of dangerous drugs in 2009.

    Probation order for 18 months.         

11.   D2:  Clear record.

Background of D1

12.  According to the information contained in various reports, D1 is now seventeen.  He dropped out from school in May 2008, as he lost interest in studies.  His parents divorced in 2002.  He was born in China.  In 2003, he came to Hong Kong to join his father.  He also has a younger brother.  In 2005, his father re-married .  D1 gets along well with his stepmother.

13.  After he dropped out from school he mingled with undesirable peers.  He began smoking and loitering at the parks.  He simply led a loose life.  His parents could not render sufficient guidance towards D1.

14.  In March 2009, he was arrested for the present offence and was granted bail.  He still kept in association with his dubious peers.  In May 2009, he took up a bad habit by sniffing ketamine.  For the offence of possession of dangerous drugs he was put on probation, with condition to receive residential drug treatment.  However, D1 failed to attend three interview appointments with CNBF.

15.  Apparently, the defendant’s father also considered that it was unnecessary, as he believed that D1 did not have the money to spare to buy ketamine.  D1’s father also doubted the effectiveness of custodial sentence upon D1’s rehabilitation, while D1 himself was uncertain about his rehabilitation plan.

16.  In mitigation, D1 said in his letter that he is now remorseful.  His father also undertakes to guide D1 on to the proper track so that D1 could set a good example to his two younger brothers.  D1’s younger brother also writes to this court that D1 is a good brother and he looks after him.  Madam Chang, who is the Chairlady of the 楊小坑村婦女會 said in her letter that D1 is a hardworking young man.  Since he left school he had a steady job and also did voluntary work for this society.  They all asked this court to pass a lenient sentence on D1.

17.  The probation officer considers that D1 could hardly benefit from further probation supervision and therefore a probation order is not recommended.  In view of his drug problems, CSO is also not recommended.

18.  While the YOAP panel is disappointed to see D1 did not treasure the chance to reform under the counselling-based probation order, the panel opines that only the form of strict disciplinary training in a confined setting may be able to guide him back to the right track of life.  The panel opined the Detention Centre programme is considered the best treatment alternative for him.  The one-year statutory supervision ensuing from his release also served to monitor his progress.

Background of D2

19.  As to D2’s mitigation, in his own letter he says that he is now remorseful.  He has learned discipline during the 20 days of remand and he promised to be a good son and he asked this court to be lenient to him.

20.   A church of which D2 has became a member since 2006 also wrote to this court to indicate that D2 is now remorseful.  He committed the present offence out of a spur of the moment.

21.  As to the various reports I called for, the information provided to me is that D2 is 16 years of age.  He comes from a broken family,  his parents separated in about 1999.  His mother took up the responsibility to look after the defendant.  The mother failed to render effective sufficient supervision and guidance to D2 after the separation, as D2 often turned a deaf ear to the advice of his mother and seldom disclosed his social life.

22.  D2’s first experience in reading pornographic material began in Primary 4.  He kept watching such indecent material regularly.  As to the present offence, he was arrested in March 2009 and he was granted bail.  He ran away from home and stayed with a friend and got involved in an outstanding case of possession of offensive weapon in a public place in April 2009.  Since then he returned home but he became jobless . I was also told in a report that he continued watching pornographic movies at leisure in the cyber café.

23.  In the present offence he knew the age of the girl and he was fully aware that sexual intercourse with her was unlawful.  At the material time he did not use any condom, as he did not care whether she would get pregnant or not.

24.  The Pik Uk Correctional Institute, after assessment, consider D2 is medically unfit for detention in a Detention Centre.  He is mentally and physically fit for detention in a Rehabilitation Centre or a Training Centre.  From the information available, and after a general assessment of his behaviour while on remand, the Institute considers that he is more suitable for detention in a Rehabilitation Centre, while the probation officer considers that D2 is a fresh offender and appears to have learned a lesson from his misdeed; probation supervision may be a suitable measure for him.  The YOAP also agree that D2 be put on probation.

25.  I respect the view of the panel of the YOAP.  However, this is a very serious offence that D2 has committed.  The maximum sentence is life imprisonment.  The victim is 12 years of age at the material time.

26.  At the time of mitigation, the defence placed heavy emphasis on the attitude of the girl; that she has a number of boyfriends who have sexual relationship with her.  That was immaterial.  The law is meant to protect the underage girls, especially for girls under the age of 16 when they are young, immature and vulnerable.  There is a public interest that this court has to look after.

27.  D2 knew full well that it was unlawful to have sexual intercourse with the girl.  Nonetheless, he disregarded the consequence and he did it twice with the girl without using  condom.  D2 also says he did not care whether the girl would get pregnant or not.  That reflects his poor concept of law and order and his selfish and loose attitude towards sex.  He claimed to have dated the girl after the girl broke off from her previous boyfriend.  That so-called dating lasted for a very short time from the end of 2008 to the beginning of 2009.  It can hardly be regarded as a relationship.  This association was purely sexual.

28.  I agree with the Pik Uk Correctional Institute that for the interest of rehabilitation, a period of discipline and statutory supervision will strengthen his law-abiding concept.  He is medically unfit to be detained in a Detention Centre but he is fit to be detained in a Rehabilitation Centre and Training Centre.

29.  The officer’s view was that after a general observation and assessment of his behaviour while on remand, D2 is considered more suitable to be detained in a Rehabilitation Centre.  I therefore disagree with the YOAP to pass a probation order on D2 in such a serious offence, as it will send a wrong message to the public.

30.  Finally, I have been referred by the defence as to the case of DCC1043/2008, of a defendant being convicted upon his plea of unlawful sexual intercourse with a girl under the age of thirteen.  The learned judge passed a sentence of CSO with good reasons.  I do not propose to recite the detailed reasons for sentence but one distinguished difference between the two defendants in the present case against the defendant in DCCC1043/2008 was that he was still in school and achieved good results.  The learned judge tempered justice with mercy after careful consideration before he passed a CSO order.

Sentence

31.  To this end, I order D1 to be sentenced to a Detention Centre and D2 to a Rehabilitation Centre for the two charges.