HKSAR v C.H.Y.

DCCC 871/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 871 OF 2013

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REASONS FOR SENTENCE

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1.  You have pleaded guilty to one charge of indecent assault, contrary to section 122 of the Crimes Ordinance, Chapter 200 and two charges of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Chapter 200.

2.  The three offences were committed in June 2011 when the girl was eleven and a half and you were just over fourteen.  You are now over sixteen.  You are related to the girl being the son of the younger sister of the girl’s paternal grandma. 

3.  In summary in June 2011 the girl’s grandmother had a stroke and was unable to look after her granddaughter.  Arrangements were therefore made for the girl to stay at your home after school until her father picked her up. 

4.  One day after your mother went out leaving you at home alone with the girl you asked to fondle her private parts.  The girl initially refused but later agreed after you repeated your request.  You then indecently assaulted the girl as described in the admitted facts.  On each of the next two days you had consensual sexual intercourse with the girl.  On each occasion no condom was used.

5.  The matter came to light almost two years later when the girl disclosed to her teacher and school social worker that she had sexual intercourse with you when she was a Primary 6 student.  You were arrested and admitted having sexual intercourse with the girl.

6.  As Mr Choi accepts these are very serious offences the maximum sentence being life imprisonment for unlawful sexual intercourse with a girl under the age of 13 years.  The law is to protect young girls (seeR v Taylor [1977] 1 W.L.R. 612).  More often than not deterrent sentences are imposed. 

7.  Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  Whilst this provision does not apply to indecent assault, which is an excepted offence, a court must exercise great care before committing a young offender to prison.

8.  In view of your young age and clear record I called for a probation report and a community service suitability report together with a victim impact statement.   I have carefully considered these reports.

9.  In passing sentence I have carefully considered everything said on your behalf by Mr Choi together with the mitigation letters and certificates, in particular those speaking as to your voluntary work in helping transplant patients. 

10.  The probation report reveals a good boy although rather introverted in personality.  You have struggled at school but managed to progress to Form 4 after repeating Form 3.  You are said to have no serious behavioural problems at school.  You wish to continue with your studies. 

11.  With your father having received a liver and kidney transplant you are said to be enthusiastic in the organ donation promotion activities, including being an active volunteer of the Hong Kong Transplant Sports Association Limited.  This is also seen in the various letters and certificates submitted to court by Mr Choi.

12.  The mitigation letter written by your father is particularly moving especially as to how the revealing of this incident may have affected his health.  All the letters speak well of you and ask for leniency on your behalf. 

13.  The girl’s father also asks for leniency.  Whilst at first enraged about what happened having reflected on the matter and learnt his daughter has not been affected physically or psychologically in the past two years he accepts that you were young and ignorant and acted out of curiosity and momentary impulse.  Having seen you grow up the father comments that you are good and kind.  Both the girl and her father have forgiven you and asked the police to withdraw the charges. The police declined to withdraw the charges therefore the father wrote a letter requesting that you be sentenced lightly. 

14.  The report from the clinical psychologist Lam Siu Ngar confirms the view of the father that his daughter has not been affected by the incident.  The report concludes by saying that the incident appears to have had little impact on the girl’s mood and behavioural functioning, trust on self and others and on her feelings of safety. 

15.  I am prepared to accept you acted out of curiosity and impulse.  However from your letter and the reports this once again highlights the danger of allowing young people access to pornographic material on the internet.  You say in your letter you will be more careful when browsing on the internet and swear you will not commit any kind of mistake again.  I truly hope you keep to this promise.

16.  Taking into account your young age; you have pleaded guilty saving the young girl coming to court; that you were only fourteen at the time of the incident and that if the matter had been reported earlier you would have been dealt with in the Juvenile Court; that in the intervening two years there has been no repetition of this or any other misbehaviour; your clear criminal record and voluntary work; that fortunately the young girl has not been affected by the incident; the views of the girl’s father; and that you are receiving counselling services from your school, I am satisfied I can take a lenient course and impose a community service order.

17.  I am of the view 180 hours community service is appropriate.  I will now explain to you a community service order and subject to your consent to the order you are convicted and sentenced to 180 hours community service concurrent on each charge.