HKSAR v. LAI NIN HANG ALVIN

DCCC 1030/2023

[2024] HKDC 2156

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1030 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to a single charge of Unlawful sexual intercourse with a girl under the age of 13, contrary to Section 123 of the Crimes Ordinance, occurring in August 2022 with a girl X who is under 13 years of age. I note the sentence for this offence can range as high as life imprisonment so it is a serious offence.

2.  The facts show that the girl X was born on 4 August 2010.  The defendant was born on 1 May 2004.  In early May 2022, he and the girl X met online and through friends they started charting on Instagram and social media and they went out together.  They started dating on 24 May 2022 but had broken up by late August or early September of that year.  The defendant knew that this girl named X was 12 years old as she told him her date of birth or year of birth. It would appear that on an unknown day in August 2022 between 4 and 6 pm, the defendant had sexual intercourse with X at her home in North Point.  At that time, they were still in a relationship, they were the only ones at home at the time and in the Facts he had asserted that this was the first time and only time that X had sexual intercourse with the defendant.  Further details of their intercourse is set out in the Facts, I do not need to detail that today.

3.  On 30 October 2022, X’s mother learnt that she had missed her period and the incident was disclosed to her mother.  The defendant did make an admission to a relative and then a report was made to police and it is admitted the defendant had unlawful intercourse with a girl X under the age of 13 years.

4.  The defendant’s antecedents showed he was a person of clear record, he is now 20 years old.  The defendant has some quite compelling mitigation to put forward.  He is of course single now, living with his mother and younger brother.  His mother is the main breadwinner of the family but the defendant has gone into employment to help out with the family expenses.  He has experienced medical problems, being diagnosed with right hemothorax in his lung which has collapsed twice.  He says in his mitigation that he has no excuse for what he did to X, he was wrong, foolish and acted out of curiosity about sex. His parents were going through a separation and he was not in a position to tell his family about his curiosity in relation to that matter.  He cooperated with the police since his arrest and has indicated a plea of guilty from an early stage.  He is remorseful and ashamed of what he had done.  He understands it is a serious offence but he is prepared to face up, as he says, to his mistakes and the consequences of his actions.  It would appear from his mitigation the defendant has not dated any girl since X and not thought about starting any relationship.

5.  Because this offence involved young people, both the defendant and the girl, I obtained reports upon the defendant to see if there were any psychological or psychiatric issues in relation to this matter.  I am confident from those reports, firstly, the defendant is not suffering from any psychiatric or mental illness and no recommendation is made by a psychiatrist. As far as the psychological report is concerned, the defendant was described as a first offender who showed remorse for his offending behaviour.  He was impressed to be an unsophisticated young man with no major psychopathology or sexual deviancy.  Out of sexual curiosity, he ignored the age of the victim and had sex with her.  He rationalised it was acceptable intimate behaviour by the victim’s mother.  It is said his risk of sexual recidivism was assessed to be low and that is an important feature of the case.  No psychological treatment was recommended for the defendant.

6.  Now as far as sentence is concerned, this is a very serious offence carrying a very substantial sentence but the court must take into account both the age of the offender and the age of the victim.  It is the case that in relation to offences of this matter for people of the defendant’s age and the girl involved, sentences can range up to and beyond a starting point of 18 months’ imprisonment, so substantial sentences can be imposed.

7.  I have been referred by the defence to the case of HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 which sets out and summarises the kind of matters that the court should take into account when dealing with offences of this nature.  Clearly one of the most important will be the age difference between the defendant and the victim that was in the region of about seven years in this case. Now they were in a relationship here. Whether any threats or inducements were made that is not the case in this offence. Whether the defendant has offended in this way before we obviously known he has not.  No violence was used.  Any physical or psychological trauma to the victim?  I have not been informed of any so I assume there was not, there has not been any, and whether the offences have had an impact on the family members of the victim? It appears there is no substantial impact upon them.  There is no other improper behaviour besides the one occasion of sexual intercourse.

8.  I also must investigate the defendant’s psychological condition and the likelihood of reoffending.  Now all those matters have been dealt with.

9.  I did obtain other reports on the defendant.  Firstly, from the Probation services to see if he is suitable for a Community Service Order. Secondly, from the Correctional Services Department to see what, if any, of their rehabilitation or custodial options were available for the defendant. The conclusion of those reports is the defendant is both suitable for a Community Service Order with a medium duration being recommended and also to be sentenced to a Rehabilitation Centre.  It is important to resolve that matter because there is a difference between the two recommendations, one is custodial and one is non-custodial.  So as a result of that, I obtained a report from the Young Offenders Assessment Panel which is an expert panel in relation to these matters.  Their conclusion, having spoken to the defendant and read the other reports was this:

“The defendant is an immature youth with a weak self-control and poor law-abiding concept. The panel is disappointed to see that he committed the present offence even though he understood its unlawful nature. The panel considered the defendant had little insight to his problems but had underestimated the possible harm to the victim in the present offence. The panel opine that the defendant is in need of greater impact to shake him up and guide him back to the right track of life, thus the Rehabilitation Centre programme which emphasises on monitoring of the social reintegration of an offender being considered as the most appropriate treatment measure for the defendant.”

10.  I find that in sentencing this case I must be guided by their expert opinion on the present condition of the defendant.  I would appear he is an immature young man and that is the main reason why he became involved in this offence.  The Rehabilitation Centre is an appropriate sentence having regard to the fact it deals with deterrence as well as rehabilitation.  I find myself in agreement with the panel that when faced with the choice between a Community Service Order or Rehabilitation Centre Order that the imposition of a Rehabilitation Centre Order would be more appropriate.

11.  Of course, the court must also consider whether the Rehabilitation Centre Order should be imposed or a sentence of imprisonment should be imposed on the defendant but because of his youth and immaturity, I am required to consider whether any other way of dealing with him is appropriate.  It clearly is the Rehabilitation Centre is an appropriate and proper way to deal with the defendant in respect of this offence to which he has pleaded guilty and that is the order I shall make, that defendant be sentenced to a Rehabilitation Centre programme.