HKSAR v. LUK WAI CHUNG

DCCC 287 /2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 287 OF 2012

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Reasons for Sentence

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Introduction

1. The defendant is convicted upon his own plea of one charge of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance (Cap.200).

Facts

2. The facts admitted by the defendant are as follows:

(i) Girl X was born on 25 July 1998. On 20 June 2011, she was about 12 years and 11 months old.

(ii) On 11 June 2011, the defendant and Girl X came to know each other through Girl X’s friends. They started dating thereafter. Girl X treated the defendant as her boyfriend.

(iii) On 20 June 2011, the defendant took Girl X to his home. In the defendant’s bedroom, the two of them had unprotected sex.

(iv) The incident came to light when Girl X’s mother found a love bite on Girl X’s neck later that day. Girl X revealed to her mother that she had intercourse with the defendant. A report was made to the police on 21 June 2011.

(v) The defendant was arrested by the police on 6 July 2011. Under verbal caution, the defendant admitted having had unprotected sex with Girl X at the material time.

Previous criminal conviction record and antecedent

3. The defendant has no previous criminal conviction. He was born in July 1994 and was about 16 years and 11 months old at the time of the offence. He has received education up to Form 1 level. He used to work as a hair salon assistant. He is now unemployed. He is single living with his parents and elder brother.

Mitigation

4. The gist of the mitigation is as follows:

(i) On the offence date, the defendant was about 16 years and 11 months old and the age difference between him and Girl X was about 4 years. Girl X treated the defendant as her boyfriend.

(ii) The defendant, being 16 years and 11 months, was immature and committed the offence out of curiosity. He was ignorant of the serious consequence of the offence.

(iii) The defendant was remorseful. He fully co-operated with the police and pleaded guilty at the very first opportunity.

A letter from a team leader of Shatin Youth Outreaching Social Work Team, Chinese YMCA of Hong Kong, was submitted to this court asking this court to give the defendant a chance to turn over a new leaf.

Discussion

5. The maximum sentence for the offence of unlawful sexual intercourse with a girl under the age of 13 years is life imprisonment. It is a serious offence which often sees a deterrent sentence even for a first offender.

6. For sentencing purpose, a sentencer usually takes into account factors including the age of the victim, the age difference between the offender and the victim, the nature of the relationship, whether there was exploitation practiced on the victim, any breach of trust, abusive acts, taping of the sexual acts, etc.

7. In imposing sentence on offence of this type, the court needs to impose a sentence so as to deter others from committing this type of offence. The court will also have to ensure that the law will protect those vulnerable members of the public who cannot truly give their consent before they reach the age of 16. In this connection, the Court of Appeal in HKSAR v Lau Chi Cheung CACC 427/2007 endorsed the view of the sentencing judge who said:

“2. Children need to be protected from those who seek to engage them in sexual activity. Sometimes they need protection from their own foolishness. They can be immature, naïve, impressionable and easily led. They may indulge in childish or inappropriate fantasies …

3. A girl of 12½ is very vulnerable. She is likely to be at an age when consciousness of her own sexuality, and the influence of that sexuality upon her, is growing; and experience in these courts shows that it is a time when some men seek to take advantage of the naivety of such girls to gratify their own sexual desires.”

8. In the present case, Girl X was about 12 years and 11 months old on the offence date. On the other hand, I bear in mind that Girl X treated the defendant as her boyfriend, that the defendant was about 16 years and 11 months old at the time of the offence, that their age difference was about 4 years, and that there was no exploitation on Girl X or abusive acts.

9. I also note that the defendant is now 17 years and 11 months old. Section 109A(1) of the Criminal Procedure Ordinance reads:

“No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate …”

10. On the day when the defendant was convicted on his plea (i.e. 8 May 2012), I called for Reports on Suitability for Detention Centre (“DC”), Training Centre (“TC”), Rehabilitation Centre (“RC”), Probation Order and Community Service Order and a Young Offender Assessment Panel (“YOAP”) Report to explore sentencing options other than imprisonment. At that stage, this court was unaware of the defendant’s drug habit. The case was adjourned to 29 May 2012.

11. The aforesaid pre-sentencing reports were available on 29 May 2012:

• It was stated in the Probation Officer’s Report that the defendant was in need of a period of residential training in a strict setting and thus not suitable for either probation supervision or community services under a Community Service Order;
• In the Report on Suitability for DC/RC/TC, it was concluded that since the defendant was a drug dependent, he was not suitable for detention in a DC, RC or TC; and
• The YOAP was of the view that the defendant was in imminent need of residential drug treatment programme to deal with his drug dependency, and recommended the case to be adjourned for three weeks, pending a Further Probation Officer’s Report and a Drug Addiction Treatment Centre (“DATC”) Suitability Report to consider his suitability for residential drug withdrawal programme, for the YOAP’s further consideration.

In light of the recommendation by the YOAP, I called for a Further Probation Officer’s Report, a DATC Suitability Report and a Further YOAP Report, and adjourned the case to 19 June 2012.

12. Further Probation Officer’s Report, DATC Suitability Report and Further YOAP Report are now available. The Further YOAP Report says:

“After learning a bitter lesson from current remand, Wai-chung repented for his present offence and showed awareness towards his wanton life. During the Panel interview, he expressed determination to start life afresh through receiving professional counseling with residential drug treatment service. Further considering his clear record and remorseful attitude, the Panel considers that a period of statutory supervision with voluntary residential drug treatment programme is a suitable rehabilitation plan to deal with his bad habit in taking dangerous drugs and help him build up an industrious life. Therefore, the Panel recommends placing Wai-chung on probation supervision for eighteen months with the following conditions:

a) he shall submit to random urine tests as directed by supervising probation officer;

b) he shall complete a voluntary residential drug treatment programme as directed by supervising probation officer; and

c) he shall observe a curfew order from 11 pm to 6 am unless with prior consent of his parents or the supervising probation officer.”

Sentence

13. The defendant has already spent 6 weeks in custody in order to obtain the pre-sentencing reports. Having considered all the circumstances of this case and the pre-sentencing reports, I am prepared to follow the YOAP’s recommendation and impose a probation order for 18 months with the following conditions:

(i) the defendant shall submit to random urine tests as directed by the supervising probation officer;

(ii) the defendant shall complete a voluntary residential drug treatment programme as directed by the supervising probation officer; and

(iii) the defendant shall observe a curfew order from 11 pm to 6 am unless with prior consent of his parents or the supervising probation officer.