HKSAR v. L.C.H.

DCCC 473/2022

[2022] HKDC 1537

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 473 OF 2022

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Reasons for Sentence

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1.  Defendant pleaded guilty to the charge of unlawful sexual intercourse with a girl under age of 13 years, contrary to section 123 of the Crimes Ordinance, Cap 200.

2.  The facts of the case were that at the time of the offence, X was a 12 years and 8 months-old girl.  X started dating defendant on 6 June 2020 after getting acquainted with him through social media Instagram on 31 May 2020.  

3.  On 17 June 2020, X told Ms Kwan, an outreaching social worker, that she would like to reveal an illegal incident to her, being the reason why defendant and X broke up, and the incident was that defendant had sex with her.  X also revealed her fear of becoming pregnant. 

4.  On the same evening, Ms Kwan met with X and X revealed that:

(a)  in the afternoon of 9 June 2020, X and defendant went to defendant’s flat when his family was away and during the stay, defendant asked to have sex with her;

(b)  defendant then penetrated X’s lower private part with his penis without protection, and X understood this constituted sexual intercourse;

(c)  defendant eventually ejaculated outside X’s body. However, since defendant did not use a condom, X was worried that she might get pregnant; and

(d)  X met defendant through social media Instagram one week before the sexual intercourse took place.

5.  Upon hearing the incident, Ms Kwan arranged X to be admitted to hospital for check-up on 20 June 2020.  The case was reported.

6.  During the video-recorded interview on 26 June 2020, X stated that:

(a)  X and defendant met through social media Instagram on 31 May 2020. They soon got into a relationship on 6 June 2020. She told defendant that she was aged 12;

(b)  on 9 June 2020, X needed to attend a centre in Tseung Kwan O for payment. Defendant offered to meet her at school and lead the way;

(c)  at about 1 pm, X met defendant outside her school. X was wearing her school uniform. This was the first time defendant and X met. X recognized defendant from the photos on his Instagram account;

(d)  defendant then brought X from Kwun Tong to Tseung Kwan O by bus. X merely followed defendant and forgot which bus they took;

(e)  when they arrived at Tseung Kwan O, defendant suggested going back to his flat to get changed because they had sweated along the way, X agreed;

(f)  as they got back to defendant’s flat, they sat on the sofa to play with their mobile phones. Defendant was sitting on X’s right side;

(g)  defendant then reached his left arm across X and placed it on her shoulder and said he “wants it”. X understood this meant that defendant wanted to have sex with her. X then replied “don’t be silly”;

(h)  defendant then kept on begging and started to touch and squeeze X’s breasts with his right hand over her school uniform. X neither liked or disliked it, but she tried to dodge him and moved his hand away for a bit. X felt that this was the foreplay. X was still playing with her mobile phone during the harassment;

(i)  defendant then started to touch X’s lower private part under her dress and underpants. X felt defendant’s finger touching the inside and surroundings of her lower private part. X felt embarrassed and asked defendant to take away his hand, and pressed on defendant’s hand;

(j)  defendant then pulled down his own shorts and underwear to his knees, facing X, removed her underwear and placed both of his hands on each side of her thighs. X was still sitting on the sofa playing with her mobile phone;

(k)  defendant then inserted his penis into X’s vagina. X did not know how deep defendant’s penis had penetrated but she felt pain from the inside. She told defendant that she felt painful. Defendant continued his back-and-forth motion for about 15 to 30 minutes (according to X’s estimate);

(l)  defendant eventually ejaculated on a piece of tissue paper. X saw defendant wrapping the semen, which was half-transparent, with the piece of tissue paper;

(m)  after the sexual intercourse, defendant and X left defendant’s flat and went to the centre to make payment. Defendant bought a can of drinks for X and told her that she would feel less painful after she drank it. They then went to another centre to kill time. Defendant later sent X to the MTR station, and X went home by herself; and

(n)  X estimated that they had stayed at defendant’s flat for about an hour before leaving.

7.  CCTV footage of the lift lobby and lifts at the building of defendant’s flat had captured that on 9 June 2020, defendant and X entered the building, and then left the building separately on the same day. 

8.  ID parade was held in August 2020 and defendant had been positively identified by X.

9.  Defendant, aged 20, clear record. 

10.  Mr Boyton in mitigation submits that at the time of the offence, defendant was only 17 years and 9 months old.  The age difference between defendant and X was small.  Defendant suffered from ADHD and was taking medication.  After finishing Form 3, defendant started vocational training and is now an apprentice with a metalwork company.  Defendant is very remorseful and committed the offence out of curiosity.  Defendant’s relatives and former teacher comment that the defendant had good intention at heart.  Defendant was brought up by grandparents as the parents divorced when defendant was only 12 months old. 

11.  Defendant in his mitigation letter also admitted being very childish and did wrong and apologised to the victim and promised to turn a new leaf.

Discussion

12.  Unlawful sexual intercourse with a girl under 13 is a very serious offence.  On sentence, as quoted by Mr Boyton, and in HKSAR v Chan Kwong Pui [2003] 4 HKC 208 and in HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432, age difference between the offender and victim is no doubt a significant factor for sentencing.

13.  Also, in the Court of Appeal case HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 also lists out a number of factors to consider.  When applying in the present case:

(i)  defendant is 17 and X is 12;

(ii)  defendant met X in social media. The offence took place when they first met each other, and defendant took X to his home;

(iii)  there seemingly had not been any threat nor inducement;

(iv)  but no safety measures had been used; and

(v)  X refused to conduct an interview for impact report.

14.  Mr Boyton also referred to the case of HKSAR v C.H.Y. DCCC 871/2013, where the defendant was sentenced to CSO for the same offence.  However, that defendant was only 14. In view of the seriousness of the offence, CSO is not a suitable option in this case.

15.  The seriousness of this case was of course that X was only 12 years and 8 months old and the defendant committed the offence at the very first time meeting X and taking X home.  Defendant was only 17, the age difference is relatively small comparing to other cases. Defendant pleaded guilty at the earliest opportunity and saving court’s costs and time.

16.  However, detention centre is not recommended due to his psychological and mental fitness, but the training centre is considered suitable.

17.  In the circumstances, I am also of the view that training centre is a suitable option for sentence. Therefore, defendant is sentenced to the training centre for this charge accordingly.