HKSAR v. CHAN MAN MIN

DCCC 773/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 773 OF 2014

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REASONS FOR SENTENCE

1. The defendant is charged with 2 offences of "Unlawful sexual intercourse with a girl under the age of 13 years" (Charges 1 and 2) and 2 offences of "Indecent assault" (Charges 3 and 4; as alternatives to Charges 1 and 2 respectively). He pleaded not guilty to Charges 1 and 2, but guilty to Charges 3 and 4. The prosecution accepted his guilty pleas to the alternative charges.

Summary of Facts

2. X was born on 6 August 2001.  At the time of Charges 3 and 4, she was 12 years old.  The defendant was born in February 1998.  He was 16 when he committed the present offences.

3. X and the defendant met at a badminton course in January 2014 and they subsequently became lovers.

4. On 31 March 2014, X ran away from home feeling her parents being too strict on her.  A "missing person report" was made to the Police.

5. In the early hours on 1 April, X went to the defendant's home situated at the address pleaded in the charges ("the Flat").  X showered and went to bed alone.

6. About 6:00 pm on 1 April, when no one else was present in the Flat, the defendant and X performed a sexual act together in the defendant's room.  No violence was used.  The defendant wore a condom and did not ejaculate.  This is Charge 3.

7. About 6:00 pm on 2 April, in the Flat, the defendant and X performed a sexual act together in the defendant's room.  No violence was used.  The defendant wore a condom but not sure if he had ejaculated.  This is Charge 4.

8. The Police located X and the defendant in the Flat on 2 April.  They also found 2 used condoms in a rubbish bag in the kitchen.

9. In his cautioned interview, the defendant admitted that he and X had sexual acts twice in the Flat, respectively on 1 and 2 April 2014.  On both occasions, he only managed to insert his penis partially into X's private parts since she felt pain.  He immediately withdrew his penis.  They then hugged, kissed and fondled each other.  He used a condom each time and did not ejaculate.  The defendant knew that X was 12 years old at the time.

10. X was examined by a forensic pathologist on 3 April 2014.  Her private parts and anal region had no injury.

Mitigation & Sentence

11. The defendant is a 16-year-old F.5 student and has a clear record.  He resides with his mother and elder brother.  His parents had a divorce when the defendant was about 1; he was raised by his mother.

12. Defence counsel Mr. SZETO submitted that the defendant was immature and committed the offences out of impulse.  Mr. SZETO explained that when X left home, she went to the home of another friend first, but was not welcome there.  She then went to the defendant's home.  A bundle of letters was placed before me; their contents are duly noted.

13. The law clearly states that a person under the age of 16 cannot give any consent to any act of indecent assault.[1] It is plain that the legislative intent is to impose a statutory protection on those of young age such as X.  The defendant and X might well be in love, but the law simply does not allow them to get intimate with each other.  The message sent by the legislature cannot be clearer.

14. When considering the appropriate sentence, I have borne in mind the sentencing principles for the offence of indecent assault on young children laid down by the Court of Appeal in SJ v HUANG Long Wei [2009] 3 HKLRD 136.

15. For the purpose of sentencing, I cannot take into consideration of X's consent or willingness to get intimate with the defendant.  There is, however, no evidence showing that the relevant events have any detrimental or traumatic effect on her.  The defendant did use a condom on both occasions and withdrew when X experienced pain.  X did not sustain any injury.  The defendant has been cooperative throughout and has made frank admissions.  He is remorseful and feels sorry for his wrongdoing. 

16. What the defendant did is very wrong.  He and X were both too young to have any sexual experience.  The legislature thinks young girls like X cannot protect themselves, so the law steps in.

17. I adjourned the sentence to obtain a pre-sentencing report.  A Detention Centre Order is recommended.  Today, Mr. SZETO drew my attention to the defendant's ankles injury, which is mentioned in the Report[2], and invited me to strike a balance between a Detention Centre Order and a Rehabilitation Centre Order.

18. The defendant lacks discipline and was unable to control his impulsive behaviour and sexual desire.  A period of short-term disciplinary training coupled with statutory supervision will benefit him and strengthen his law-abiding concept. Also, a clear message must be sent to the general public that the bodies of underage girls are not to be violated under any circumstances.  Those who breach the law will no doubt face serious consequences.

19. The defendant's ankles injury is mentioned in the Report, I have no doubt that the authority is aware of his physical condition.  The emphasis of the programme in a Detention Centre is placed on hard work, strenuous exercise and the highest standard of discipline (commonly referred to as the "short sharp shock" treatment).  In my view, this is exactly what the defendant needs in terms of punishment and reformation.  On the other hand, a Rehabilitation Centre Order may not achieve this purpose fully for the defendant in the present case.

20. Based on the reasons stated above, I will make a Detention Centre Order, which will be the sentence for both Charges 3 and 4.