HKSAR v. KWAN KA LUN

DCCC790/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 790 OF 2009

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Reasons for Sentence

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 1.  The defendant has pleaded guilty to one offence of unlawful sexual intercourse with a girl under the age of 13 years.   He has accepted the facts presented by the prosecution, and I have convicted him of that offence.

2.  The facts establish that the victim or complainant was born on 10 May 1996, and she was a Form 1 student while the defendant was a Form 5 student; the defendant being 18 years of age.  And they had known each other for some 6 months, and the defendant assisted her with her schoolwork.  He was considered to be her boyfriend.

3.  On 28 February 2009 the offence occurred at the defendant’s home.  The defendant’s mother had been there, after she left, sexual intercourse took place, and no protection was used.  But it is clear that the intercourse was consensual. 

4.  The offence came to light because of the suspicions by the victim that she was pregnant.  Subsequently, the offence came to light on interview with the victim.  And when interviewed, the defendant made an admission.  It is on the basis of those facts I have convicted the defendant.  The facts show that the girl was at the age of 12 at the time of the offence and the defendant himself was aged 18. 

5.  The defendant was within the statutory matters I must consider under section 109, Cap.221.  This is not an excepted offence although it carries a sentence of life imprisonment, I obtained sentencing reports on the defendant.   He is a young man of clear record and he had been brought up within a single-parent family.  And he clearly has a close and affectionate relationship with his mother; he refers to the pain he has caused her in letters that he has written to me.

6.  The father has been absent.  The defendant has been a student and studied diligently.  It also appears from the report that the defendant had dated the girl concerned some five months.  He was remorseful and asks for a chance to start anew, having a new chance.

7.  The report obtained from the Correctional Services Department provides some recommendations as to how the defendant may be sentenced.  They conclude that the defendant was born in a working-class family and the only child to his parents.  They identify a lack of parental supervision and guidance from a young age when the parents divorced in 1997.  The defendant’s relationship with his own family was harmonious.  At school he is described as having maintained a fair school performance and displayed no serious deviant behaviour, no bad acquaintances or any use of dangerous drugs.

8.  It appears that he did become what one can describe as sexually curious, but received no formal sexual education.  And clearly that reflects one of the reasons why he became involved in this particular offence.  The defendant’s recent academic record has been poor; he had to repeat Form 5. 

9.  It says in September 2008 the defendant’s curiosity about sex and ignorance of legal consequences landed him in the current offence.  The conclusion is as follows.  The medical officer confirmed the defendant is mentally and physically fit for detention in a training centre.  From the information available and after a general assessment of his behaviour and attitude whilst on remand, I consider him suitable for detention in a training centre. 

10.  As far as the sentencing tariffs are concerned, Mr Cheung correctly pointed out, there is no particular tariff for this offence.  It can clearly be identified as a serious offence by the fact that the maximum sentences is one of life imprisonment.  Furthermore, obviously, girls under the age of 13, whether they are consensual or not to intercourse, must be protected against sexual precocity, and young men should know that it is a serous offence, that the courts take very seriously. 

11.  Insofar as there are cases that deal with the sentencing of this offence, the starting point for sentence can depend very much on many factors.  In the case of Lau Chi Cheung in as recently as 2007 where there was a girl, again of 12 years old, a starting point of 2 years’ sentence was adopted.  In that case the defendant himself was a young man of 22.  But it is clear that it is the kind of sentence of imprisonment the courts will be looking at in relation to offences of this nature. 

12.  The defendant is younger here; he is only 18.  He is not an adult and should not be treated or dealt with as an adult.  In his case there exists an alternative to sentence of imprisonment and that the sentence available contains within it a rehabilitative element that may well assist the defendant in the future.

13.  It is clear from what I have read, the defendant needs training and education in certain areas, and he is a young man who needs direction.  The training centre would provide all those factors.  The training centre programme also provides, statutorily provides, a minimum detention period of 6 months, and a maximum of 3 years.  I understand the average period of detention is around 18 months, but the length of that detention very much depends on how the defendant responds.  I have every confidence that this young man will respond well and will be assisted in gaining maturity by this programme.  The programme combines the element of punishment required by the offence itself and the rehabilitation that the defendant requires, and so I consider the appropriate order to make in respect of this defendant is a training centre order; that is the order which I make.