HKSAR v. CHAN CHING MAN

DCCC 228/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 228 OF 2015

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Reasons for Sentence

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1.  This is a case of unlawful sexual intercourse with an underage girl. The defendant, a 19-year-old young man, pleaded guilty before me to one count of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance.

2.  What happened was sometime in July 2014 a friend hooked the defendant up with a girl and they soon became lovers.  About two months later, on the night of 16 September 2014, just 10 days before the girl’s 13^th birthday, the defendant went to the girl’s place to help her do her homework and they worked into the small hours.  There came a time the girl went to take a shower and later came out wearing only T-shirt and underpants.  Being sexually aroused, the defendant started undressing himself and then the girl.  The two of them had sex.  That did not last long because the defendant stopped the sexual activities about a minute later as he was scared, so was the girl.  No condom was used and no ejaculation.  The two of them fell to sleep.

3.  The girl’s mother came home in the middle of the night and found them asleep on the bed.  The incident was then reported to the police.  The girl was taken to hospital to be examined by doctor. 

4.  On medical examination, she was found to have a fimbriated hymen.   No abrasion or discharge was noted. 

5.  The defendant is a person of previous good character, a student at the Youth College doing a 4-year diploma course in vocational education (print media). 

6.  Counsel for the defendant emphasised that it was not a pre-planned action on the part of the defendant as one can see that the defendant did not bring along any condoms on the night in question, and it was only a one-off incident of the defendant giving way to temptation.  Giving the situation he found himself in, two persons alone in a room, suddenly facing a scantily clad girlfriend, the defendant just could not resist it.

7.  Defence asks the court to take a lenient view of the matter despite the apparent serious nature of the charge.

8.  The court adjourned the matter to enable a probation officer’s report and a CSO report to be prepared.  The reports are now before the court.  The probation officer is of the view that probation is not necessary; CSO is suitable for the defendant’s reformation in the long run. 

9.  The offence to which the defendant pleaded guilty is undoubtedly a very serious offence.  The maximum sentence for a conviction on indictment is life imprisonment.  The policy of the legislation is the protection of the extremely young girls.  In an ordinary case, immediate custodial sentence is almost inevitable.

10.  There were, however, extenuating circumstances in the instant case.  As gathered from the report, defendant is a decent sort of person.  Clearly, this is not the case where the defendant deliberately set out to target young girl for sex.  They were boyfriend and girlfriend to start with, and then such romantic relationship turned into a sexual one, simply because a temptation was put in his way.  Fortunately, the defendant stopped the sexual activity in time, and that reduced the risk of unwanted pregnancy to nil because he had not ejaculated. 

11.  Given the nature of the offence, there will be a great variety of factual circumstances.  The facts of the instant case put it at the lower end of the culpability scale.  I am sure this court experience taught the defendant a lesson he will never forget.  For this reason, and with his consent (given already), I am prepared to give this young man a chance to mend his ways and deal with the case by way of CSO. 

12.  The sentence is CSO for 240 hours.  The defendant has 1 year’s time to complete it.  If he fails to complete the work or any part thereof, and he may be found in breach of the order; in those circumstances, the court has power to re-sentence him on the original offence.  The defendant indicated that he understood it.