HKSAR v. YAU KIT LONG

DCCC 38/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 38 OF 2012

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to 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, the maximum sentence for which is life imprisonment. There is no tariff for offences of this nature. This is not an excepted offence under Schedule 3 of the Criminal Procedure Ordinance, Cap 221, and the defendant being 18 years old, Section 109A(1) of the Criminal Procedure Ordinance, Cap 221 applies, which provides that no court shall sentence a person of or over the age of 16 years and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.

2.  Girl X, PW1 herein, was born on 19 March, 2000 and was aged 11 years and studying in Primary 6 at the time of the offence.  Facts admitted by the defendant disclose that on 2 September, 2011, PW1 was introduced to the defendant by her friends.  She spent the night of 3 September, 2011 hanging out with the defendant and other friends.  The defendant was born on 17 September, 1993, and was just short of his 18^th birthday at the material time.  At around 4 a.m. on 3 September, 2011, the defendant took PW1 to his residence in Shatin.  He brought her into a room and they slept on the same bed.  PW1 took off her clothes and had consensual sexual intercourse with the defendant without the use of a condom or other contraceptive device.  At around 1700 hours the same day, they left the defendant’s home.  At about 2145 hours, PW1 and the defendant together with 7 other boys were located by the police in Shatin. Upon inquiry, PW1 revealed that she had had sexual intercourse with the defendant.  The defendant also admitted under caution that he had had sexual intercourse with PW1.  He said under caution that he knew he should not have molested PW1 and he knew it was wrong and he asked for a chance. He also said in a subsequent video interview under caution that it was after the incident of sexual intercourse that he heard from his friends that she was 11 years old.  A medical examination of PW1 conducted on 4 September, 2011 disclosed that apart from an abrasion of 1 cm x 0.5 cm on her hymen, there was no other abnormality or injury to her private parts, and the abrasion was consistent with recent penetration within a day of the forensic examination.  Upon screening for sexually transmitted disease, chlamydia was detected from PW1’s endocervical swab, although there is no suggestion that the disease was transmitted to her from the defendant.  PW1 also said when interviewed that she had not disclosed her age to the defendant and as far as she knew, he did not have knowledge of her age.

3.  After hearing defence counsel in mitigation, I adjourned sentence until today, calling for the full range of reports – Probation Officer’s Report, Community Service Order Report, Drug Addiction Treatment Centre Report, Training Centre Report, Psychiatric & Psychologist Reports.  These reports are now before.  During the adjournment, solicitors for the defendant have also submitted letters in mitigation written by the defendant’s paternal grandmother and his sister.  I have carefully considered all that had been urged upon me in mitigation on behalf of the defendant and the authorities submitted by counsel as well as the contents of the reports before me and the contents of the letters written by the defendant’s social worker, his grandmother and his sister. Mr. Clarke on behalf of the defendant submitted that although this was not a drugs related offence, the defendant asked the Court to consider making a Drug Addiction Treatment Centre order as the defendant felt that he could benefit from such an order.

4.  The defendant has 5 previous convictions in 2 court appearances. On each occasion he was sentenced to the Detention Centre.  His first court appearance was in 2008, when he would have been 15 years old, for offences of false imprisonment, criminal intimidation and common assault.

5.  The defendant’s family background and personal circumstances are set out in great detail in the various reports before me and I do not propose to recite these again.  Suffice to say that the defendant had been brought up by his paternal grandmother in a New Territories native village family. His mother left the family when the defendant was very young, taking the defendant’s elder sister with her.  His father has remarried and lives across the border with his new family, and the defendant has limited contact with his father.  He got involved with street gangs and became affiliated with triad elements in the neighbourhood.  The defendant’s elder sister has moved back to live with the grandmother after completing tertiary education – she had tried to get the defendant away from these undesirable elements by arranging that he changed schools on more than one occasion but to no avail.  Since the summer of 2011, he has relapsed to his previous wanton lifestyle.  He has been counseled by the outreach social worker of YMCA Shatin Team, but clearly that has not helped. A letter from the Team Leader of the Shatin Youth Outreaching Social Work Team of the Chinese YMCA of Hong Kong dated 29 March, 2012 was submitted at tab 6 of the mitigation bundle.  The defendant has been taking cocaine and ice since about 2009.  He was examined by a medical officer who opines that the defendant is a drug dependant and therefore not suitable for training in the Training Centre. He is considered to be suitable for admission to the Drug Addiction Treatment Centre.  The Probation Officer has opined that probation supervision is considered inadequate to bring him back on the right track and is thus not recommended. He is also not considered a suitable subject for a community service order because of his psychotropic substance abuse habit, truant playing at various schools, low threshold of sexual gratification, and his lack of motivation to work.

6.  The psychiatric report discloses that he is not suffering from any psychiatric disorder.  The clinical psychologist in his report opined that the defendant was an ‘immature, carefree and morally loose individual with inadequate problem solving ability.  He is likely to be impulsive and shortsighted; as such he tends to act hastily and pay no heed to the consequences of his actions.  Though he does not impress me to have suffered from any major psychosexual problem, his polysubstances abuse habit definitely requires professional attention.  His risk of re-offending of nature similar to the current offence is assessed to be moderate to high given his negative peer influence, poor impulse control, and insufficient problem solving abilities’.

7.  I take into account the defendant’s young age and his plea of guilty, which plea has saved PW1 from giving evidence in court.  I take into account too that his mother left the family when he was very young, and his limited contact with his father who now lives mostly in China with his new family, and that he had been brought up by his paternal grandmother.  His elder sister is now back in his life, and she is obviously concerned about him as well, as can be seen from her letter to the court.

8.  In my view, the young must be protected (see R. v. Taylor [1977] 1 W.L.R. 612).  The present offence was created to protect under-aged girls.  Here, there was no element of unwillingness by the victim.  However, girls of such young age are particularly vulnerable and immature.  They need to be protected from their own foolishness and immaturity. The defendant gave no thought to how old the girl was but clearly must have known she was young.  This is not a situation of two young friends of similar age who eventually engage in sexual intercourse.  Here, the defendant was just short of being 18 years old, whilst PW1 was only 11 years old.  There was not the slightest hint of any romance or relationship between them, sexual intercourse taking place between them very shortly after they met.  Mr Clarke has submitted that there has been no breach of trust by the defendant and he did not know PW1’s age, as PW1 herself has confirmed when she was interviewed.  Mr Clarke also submitted that she was described by the doctor who examined her to be a ‘teenager’ – in my view that does not mean very much – anyone aged 13 to 19 years can be described as a ‘teenager’ – the fact is that she was only 11 years old. Although money was not offered nor paid to the victim, the defendant took advantage of the victim’s immaturity and naivety to satisfy his sexual gratification even though this was their first meeting.  He had unprotected sex with her. He chose not to wear a condom.  Obviously, he did not care if the victim would get pregnant or infected with sexually transmitted disease.  In sentencing the defendant, I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention.  Rehabilitation for a young offender is always an important consideration, and it also serves the interest of the community, although the need for punishment of the offender and deterrence of others must be given due regard.

9.  I am satisfied in the circumstances of this case that probation or community service is not appropriate.  In so deciding, I have not forgotten the need for individual justice, balancing policy considerations with those of the individual circumstances of the defendant. The Probation Officer has opined that probation supervision is hardly adequate to bring the defendant back on track and because of his psychotropic substance abuse habit, truancy, low threshold of sexual gratification and lack of motivation to work, he is not a suitable subject for a community service order, and neither probation nor community service is recommended.  Also because of his drug dependency, he is not suitable for detention in a training centre, and he is considered suitable for admission to the drug addiction treatment centre. The interviewing officer opined that ‘in view of his drug taking behavior and poor self control, a period of compulsory drug addiction treatment programme coupled with statutory supervision would be appropriate for his rehabilitation’.  I agree with this recommendation that the defendant is more suitable for admission to the drug addiction treatment centre where his drug addiction can be dealt with.  I am satisfied that detention at the Drug Addiction Treatment Centre is in the best interests of the defendant’s rehabilitation.  The defendant is sentenced to detention in a Drug Addiction Treatment Centre.