HKSAR v. KHAN MOHAMMAD ZAKIR SHAH

HCCC 308/2024

[2026] HKCFI 64

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 308 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two charges of unlawful sexual intercourse with a girl under the age of 16 years, contrary to section 124(1)  of the Crimes Ordinance, Cap 200, and admitted the Summary of Facts in the committal proceedings at the Eastern Magistracy on 23 September 2024. The case was then committed to the Court of First Instance for sentence. Before this court, the defendant confirmed his plea and his agreement to the Summary of Facts through counsel.

2.  The particulars of Charge 1 state that on 20 June 2023, at the Rooftop, No. 113 Wan Chai Road, Wan Chai, in Hong Kong, the defendant had unlawful sexual intercourse with X, a girl of the age of 16 years. 

3.  The particulars of Charge 2 state that on 30 June 2023, at the Rooftop, Nos. 87-89 Percival Street, Causeway Bay, in Hong Kong, the defendant had unlawful sexual intercourse with X, a girl of the age of 16 years. 

4.  The Summary of Facts admitted by the defendant provides, inter alia, as follows. Girl X was born in September 2008 and was 14 years old at the material times. She met the defendant through a friend on 18 June 2023 and they started communicating via Instagram Messenger. 

Charge 1

5.  On 20 June 2023, X felt bored and asked the defendant out to smoke.  They then met up at the rooftop of No. 113 Wan Chai Road, Wan Chai at around 8.40 pm that day. After they had met up, the defendant recorded a video of X saying that she consented to having sex with him.

6.  X then performed oral sex on the defendant.  They then had two rounds of sexual intercourse at the rooftop.  The defendant had initially put on a condom but later took it off and continued without one.  The defendant ejaculated on the floor in the end. 

Charge 2

7.  In the evening of 30 June 2023, X met up with the defendant at the rooftop of Nos. 87-89 Percival Street, Causeway Bay.  The defendant asked X to perform oral sex on him.  X complied.  They then had sexual intercourse at the staircase near the door leading to the rooftop.  The defendant did not use a condom that day.

8.  The case was reported to the police on 3 July 2022 and the defendant was arrested that day.  In a video-recorded interview conducted on 4 July 2023, the defendant stated, inter alia, that he had met X around three weeks ago through a group of friends and they chatted at the rooftop of a building in Wan Chai. X was just a friend to him and they had only communicated via Instagram. 

9.  The defendant accepts and admits that at the material times of Charges 1 and 2, he had unlawful sexual intercourse with X, a girl under the age of 16 years. 

10.  Regarding the personal background of the defendant, the defendant was born in Hong Kong on 2 July 2005.  He was thus aged 17 at the time of the offences, and now aged 20.  The defendant has no criminal conviction record in Hong Kong.  He received education up to Secondary Form 1 level in Hong Kong and the defendant was unemployed at the time of his arrest.  The defendant is single.  His father is a manager at a carpet shop and his mother is a housewife.  He has two elder sisters, an elder brother and a younger brother. 

11.  In HKSAR v Chan Kwong Pui [2003] 4 HKC 208 at paragraph 10, the Court of Appeal referred to the English approach and stated as follows:

“In R v Taylor (1977)  64 Cr App R 182 the English Court of Appeal draws a distinction between the age of the defendants who committed this offence and the nature of the relationship of the offender with the victim. Obviously two young friends of similar age who eventually engaged in sexual activities is viewed differently from the situation of an older man engaged in a sexual activities with an underage girl. The situation is aggravated if the older man assumes the role of a supervisor over the girl such as a guardian or social worker.”

12.  In this regard, I accept the defendant’s submissions that:

(1)  The age difference between the defendant and X (being three years)  was not great. The defendant was 17 and X was 14.

(2)  The two young persons were friends and shared mutual friends.

(3)  The defendant had a clear record.

(4)  There was no breach of trust.

(5)  No threats or inducement were used by the defendant on X.

13.  In the circumstances, I am of the view that it should be open to the court to exercise leniency towards the defendant. 

14.  In R v Chung Chi Wai, HCMA 629/1994 (Unreported, 2 September 1994), because of the young age of the parties, that the acts were consensual, and because the appellant had been in custody for five weeks, Penlington JA (sitting as an additional High Court Judge)  saw fit to allow the appeal against the sentence, quashed the Detention Centre Order and ordered a discharge of the appellant. 

15.  Indeed, in the present case, a Probation Order is recommended by the Young Offender Assessment Panel in its report dated 28 July 2025.  The Panel opines that the defendant “is in need of counselling to develop a proper moral value, constructive and law-abiding life, as well as psychological assessment/treatment to strengthen his consequential thinking, self-evaluation, and future heterosexual relationships.  Hence, the Panel views that [the defendant] is more suitable to be placed on Probation Order for 12 months with other special conditions recommended by the Probation Officer”. 

16.  Accordingly, I will place the defendant on a Probation Order for 12 months in respect of both Charge 1 and Charge 2, with the following conditions as recommended by the Probation Officer, namely:

(1)  The defendant shall be of good behaviour and keep the peace.

(2)  The defendant shall keep in touch with the supervising probation officer (“PO”)  in accordance with such instructions as may from time to time be given by the PO.

(3)  The defendant shall work/study and reside as directed by the PO.

(4)  The defendant shall abstain from all kinds of dangerous drugs.

(5)  The defendant shall submit to random urine tests/samples as and when directed by the PO.

(6)  The defendant shall receive any form of drug withdrawal treatment as directed by the PO.

17.  Finally, for the avoidance of doubt, I direct that the said Probation Orders shall run concurrently with each other.