HKSAR v. CHEN KA LEONG

DCCC 973/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 973 OF 2014

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Reasons for Sentence

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1. The defendant has pleaded guilty to four charges. Two of those are contrary to section 123 of the Crimes Ordinance, Cap 200. The 3rd charge is one of criminal intimidation, and the 4th charge is an offence contrary to section 124 of the Crimes Ordinance. Three of the charges involve sexual intercourse with an underage girl. Two of them were committed while the girl was under the age of 13, one while she was under the age of 16.

2. The defendant himself is now aged 18 years, but the offences were committed back between 2012 and 2014.

3. The defendant has admitted the offences by pleading guilty and admitted the facts put before the court.

4. As far as the relevant details of the facts are concerned, the defendant and the victim were at the time in a boyfriend and girlfriend relationship.  The victim was born on 26 November 1999 and the defendant on 24 August 1996, so there is about a three-year age difference between them.  Both the defendant and the girl were under the age of 16 except for the last offence, when the defendant was 17.

5. As far as the 1st offence is concerned, the first sexual intercourse, that occurred on a day in January 2012.  The victim was 12 years 2 months old and the defendant was 15.  The 2nd offence occurred in the summer vacation of 2012.  The victim was 12 years 9 months and the defendant was between 15 and 16.  The 3rd charge of criminal intimidation occurred in February 2013, and the defendant had a desire for sex with the girl and in fact said he would rape her, but the girl managed to run away.  The third sexual intercourse occurred on 3 January 2014.  The victim was then 14 years and 1 month old.  The defendant by then was over the age of 16 and was 17 years old.  So for the two more serious offences committed in 2012, the defendant was between the ages of 15 and 16.  For the third sexual intercourse he was aged 17.

6. The defendant made admissions in his records of interview.

7. Of course, for the first two offences, they are serious offences, especially serious when an adult is committing an offence against a girl under 13.  Such offences can lead to substantial terms of imprisonment.  However, a very important factor in these offences is the age of the defendant. 

8. The defendant is a person of previous clear record.  Given his age, I requested reports from the probation services and also from the Correctional Services Department.  I had a number of recommendations, and because there was to a certain extent a conflict in the recommendations, I obtained a report from the Young Offenders Assessment Panel.  I also obtained psychiatric and psychological reports on the defendant.  It was necessary, given the nature of the offending, to assess the risk of recidivism in the defendant.

9. The probation officer’s report referred to the defendant’s clear previous record and willingness to reform, and recommended a 15-month probation order subject to conditions of study, working and residing as directed by a probation officer.  The defendant was found to be less suitable for a community service order.  The defendant was also assessed by the Correctional Services Department.  Unfortunately he has obesity.  This renders his medically unfit for detention in a detention centre.  He was physically fit for detention in a rehabilitation centre or a training centre.  There a general assessment of his behaviour and attitude considered him to be more suitable for detention in a rehabilitation centre.

10. That report showed that the defendant is now 18 years and 4 months of age.  The conclusion and recommendation are described as follows.  He was born in China, being the elder of two siblings; settled in Hong Kong in the year 2005; described as being spoiled and over-indulged during his upbringing.  His academic performance has been below average; without significant behavioural problems.  He continued his studies whilst on bail after arrest.  He is described as having a weak law-abiding concept, and that is why a period of disciplinary training, coupled with staff supervision, is recommended.

11. The defendant had been noted as having a suicidal ideation of hanging or jumping from height in February 2014.  The reports on the defendant’s mental condition were of importance in this case. The psychiatric report referred to the defendant having an adjustment problem at present.  He displayed some anxiety, but no definite psychiatric diagnosis could be ascertained.  No psychiatric inpatient management was warranted.  The psychological report illustrated some matters of concern, and they were referred to in the clinical impression.  The defendant is described as being socially introverted and immature; sexually preoccupied; endorses problematic attitudes towards intimacy and sex.  He has had years of academic frustration, social difficulties, and has low esteem.  He suffers from self-defeating thoughts and loneliness, and had resorted to sex for coping with negative emotions and loneliness.  He had been exposed to excessive sexual materials in early years and lacked appropriate guidance and supervision.

12. A problem identified is one that is described as sexual preoccupation.  This sexual preoccupation uses sex as a coping with intimacy deficit.  It means that his risk of sexual recidivism is now moderate, and that has a possibility to vary in response to various personal and environmental factors.  The defendant is described as having a limited insight into this.  Psychological intervention in this area would be beneficial to the defendant.  The defendant is willing to receive such services.

13. Because of that reference to a risk of reoffending, I wished to consider whether the best disposal for the defendant is one where he remains on probation or requires a more disciplined form of treatment and further statutory supervision, and that is why I obtained assessment from the Young Offenders Assessment Panel.

14. The Young Offenders Assessment Panel report describes the defendant as being a loosely-disciplined teenager.  They considered his non-insightful attitude serious to the offences and a clear criminal record.  They identify that the defendant is in dire need of a period of residential training in a disciplinary setting, combined with psychological assistance to help with the sexuality problem.  The rehabilitation centre programme is considered the most appropriate treatment measure for the defendant, one of the reasons being the existence of the one‑year statutory supervision.

15. In sentencing the defendant, I have to bear in mind a number of factors.  One is the seriousness of these offences, particularly the first two offences, but also I have to consider the age of the defendant at the time when the offences were committed, and that the primary object of sentencing persons of the defendant’s age now is his rehabilitation. It is in the interests of both the defendant and society at large that his risk of reoffending be kept to a minimum, and the court should consider any sentence that would enhance that.

16. The defence counsel has suggested or submitted that these matters can be adequately dealt with by the imposition of the recommended probation order to which the defendant consents.  Defence counsel acknowledges that the first two offences can carry a sentence of life imprisonment, but it is said that the offences are technical in nature due to the ages of the children at the time when the offences were committed.  The third offence, the offence of criminal intimidation, was as a result of a sexual urge.  There was no injury to anybody.  And as far as the fourth offence is concerned, both parties were older at the time.  The court must remember when sentencing that the victim clearly appears to have, insofar as she can do, provided her consent to all the sexual activity that took place.

17. I was pointed to the defendant’s previous clear record, the letters of recommendation from his family and social worker.  They say all should make the court confident that what problems the defendant does have can be dealt with under probation supervision.

18. Against that I have to bear in mind the recommendation of the Joint Panel of the Young Offenders Assessment Panel and the difficulties that the defendant appears to labour under in respect of his psychological profile, and the difficulties he labours under can lead or could possibly lead to sexual recidivism.

19. I consider that the overall interest of both the defendant and society at large are best handled by following the recommendations of the Young Offenders Assessment Panel in this matter, and that is that the defendant undergoes the training at a rehabilitation centre.

20. So in respect of each of the charges the defendant faces, I order that he be subject to a period of training at a rehabilitation centre.