HKSAR v. CHEUNG CHUK YEE

DCCC 901/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.901 OF 2011

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Reasons for Sentence

1.  The defendant pleaded guilty to one charge of unlawful sexual intercourse with a girl under the age of 13, contrary to s.123 of the Crimes Ordinance, Cap.200. The maximum penalty under s.123 is life imprisonment. This is not an excepted offence under Schedule 3 of the Criminal Procedure Ordinance, Cap.221. The defendant is 18 years old, as such, s.109A[1] of the Criminal Procedure Ordinance applies and imprisonment should be the last resort.

Facts

2.  The girl in question was born on 10^th July 1998, she was aged 12 years and 5 months at the time of the offence. The facts available from the summary of facts are brief. The girl came to know the defendant through friends on 5^th December 2010 and they quickly became lovers. On a day before Christmas 2010, she went to the defendant’s home and they had consensual sexual intercourse.

3.  The defendant was arrested on 3^rd March 2011. He admitted under caution to having sex with the girl one time. The defendant claimed that the girl told him that she was about 13 to 14 years old while the defendant himself thought she was around 15 to 16 years old.

Previous convictions

4.  The defendant is of previously clear record. The defendant was about 17 years and 4 months old at the time of the offence.

Reports

5.  As mentioned above, since imprisonment should be a last resort for young offenders, reports were called for prior to sentencing. Community Service was however not recommended for the defendant, while the defendant’s drug addiction and his weak physical state caused him to be unsuitable to be made the subject of a Detention Centre order. A further Probation Officer’s report was ordered and the officer was of the view that the defendant would be a marginal case for probation.

6.  A victim impact report was obtained and there is no apparent lasting psychological damage on the girl.

Mitigation

7.  In mitigation, Ms. Moosdeen pointed out that the defendant had pleaded guilty, therefore saving court’s time and the girl from having to give evidence.

8.  The girl and the defendant became acquainted in December 2010. As young people they shared common feelings and quickly became friends. The girl went to the defendant’s home, talked and when emotions went high, out of impulse they had sexual intercourse. According to the defendant’s statement, there was brief and partial penetration and he did not ejaculate inside the girl.

9.  From the medical report, there was no damage to the girl. Ms. Moosdeen submits that the girl appeared to be more mature than her age.

10.  At the last hearing, the girl’s father even came to court to plead for leniency on behalf of the defendant. Mr. Chan came on his own accord. He said that he had bumped into the defendant near where they lived and the defendant apologized sincerely and Mr. Chan accepted his apology.

11.  PC4245’s evidence suggest that the girl had had sexual intercourse with another male before, and that she had gone missing from the family much earlier. When the girl was missing, she met another boy in November. They broke up and then in December the girl was introduced to the defendant.

12.  The defendant is 18 years old. His father is 70 years old and retired. The defendant’s mother works as a cleaner.

13.  The defendant came to Hong Kong in 1999 from Donggon in China. He has limited education, was not too familiar with the law in Hong Kong and did not realize the serious consequences of his action.

14.  After he arrived in Hong Kong, the defendant could not catch up with his studies. He also had to look after the family and so worked on a casual basis. The defendant worked as an assistant hair-stylist and was earning around $6,000 per month. The defendant contributed money to the family.

Sentence

15.  The age difference between the defendant and the girl was relatively small. There was no grooming the girl for sex, nor payment afterwards. On the contrary, there is evidence to suggest that the girl was acting far more mature than her age and her past actions suggest that she might have taken an active role in her relationship with the defendant resulting in the one time sexual intercourse which took place on Christmas Eve in the defendant’s own home when the girl went to visit him.

16.  The girl’s father had turned up in court to plead for leniency for the defendant from the court. This has never happened before in all the similar cases that I have dealt with. The defendant has the full support of his family and is truly remorseful.

17.  I find that putting the defendant into jail would not be just nor would it be conducive to his rehabilitation. I am mindful that it might send out the wrong message that it is fine to engage in sexual intercourse with someone as young as 12 years and 5 months old. But I find that justice demands that a non-custodial sentence be imposed in this particular case.

18.  Given the small age gap, the precociousness of the girl and the active role that she had played in the lead up to the sexual intercourse, I find that a sentence of probation is the proper way to deal with the defendant.

19.  I will order that the defendant to be put on probation for a period of 18 months, with the added conditions as set out in the further probation officer’s report dated 16^th January 2012. I have specifically warned the defendant that should he fail to comply with any of the conditions to the probation officer’s satisfaction, he will be brought back to court and sentenced afresh. The new sentence will be a term of imprisonment and no further leniency will be shown to the defendant.

20.  I further order that there be a progress report on the defendant in 6 months’ time. The defendant will return on 19^th July 2012, 09:30am, Court 21. Legal representation on the defendant’s part will not be required but he is free to engage lawyers should he so wishes.

[1] 109A(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A) This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.

(2) In this section "court" (法庭) includes the District Court and a magistrate.