HKSAR v. CHOW KAI MING, KENNY

DCCC 196/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 196 OF 2009

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Reasons for Sentence

1.   The defendant pleaded guilty to 3 charges of having unlawful sexual intercourse with a girl under the age of 16 (contrary to Section 124(1) of the Crimes Ordinance Cap 200, an offence for which the maximum penalty prescribed is a term of 5 years imprisonment) while the 1^st offence of having unlawful sexual intercourse with a girl under 13 (contrary to section 123 of the Crimes Ordinance, which carries a maximum sentence of life imprisonment) is left on court file. The 1^st charge is not the subject matter of the present sentence.

2.   The victim was an adopted child of the family since birth. Her adopted mother is her paternal aunt. The defendant was the elder child of the family and was aged 6 when the victim was born. The victim and the defendant were cousins by blood. Through adoption they became de facto brother and sister.

3.   The defendant, the victim and the defendant’s mother used to live in the mainland. They came to Hong Kong in 1997 to join the father of the defendant for family re-union. After their immigration to Hong Kong, the defendant and the victim (aged 5 at the time) used to share one room.

4.   The defendant admitted he had sexual intercourse with the victim on 3 occasions: the first one in December 2005 when it was the defendant’s birthday; the 2^nd occasion in the year of 2006 and the 3^rd one was in the year of 2008.

5.   The sexual relationship between the two came to light when the victim told her teacher about it in January 2009.

6.   Background report of the defendant showed the defendant to have developed an intimate relationship with his current wife in the year of 2006. The girl (his current wife) moved in to live with the defendant since 2006. After getting pregnant, the girl and the defendant registered their marriage in June 2009. She is expecting their first child in September this year.

7.   The defendant gave the reason that he was drunk during his 1^st sexual encounter with the victim. This is not a crime of passion for there was no suggestion of inexplicable love between the defendant and the victim. The defendant does not seem to have any plausible explanation for his sexual activities with the victim particularly for those incidents which happened in the years of 2006 and 2008 when the defendant already had his live-in girlfriend. His sexual intrusion to the victim can only be viewed as a quench of his selfish lust and sexual desire on the opposite sex, ignoring his obligations towards protecting his 14 years old cousin who took shelter in his home to live as his younger sister.

8.   There is no established sentencing tariff for this offence.

9.   For sentencing purpose, a sentencer usually takes into account factors including the age of the victim, the age difference between the defendant and the victim, the nature of the relationship between the defendant and the victim, exploitation practiced upon the victim, any breach of trust, abusive acts, taping or recording resulting in a long term influence on the child, psychological impact on the child as a result of the sexual encounter the victim had with the defendant. These factors could either serve as aggravating features to escalate the term or as mitigating factors to reduce the gravity of the offence.

10.   Though the defendant and the victim were cousins by blood relations, they were raised and brought up as brother and sister. In the absence of a loving passion between them, the acts can only be viewed as acts of exploitation to gratify sexual desire. I consider a custodial term of 2 ½ to 3 years to be the appropriate starting point to reflect the gravity of the exploitation acts.

11.   The defendant has a clear record. The age difference between the defendant and the victim is not excessive (there being an age difference of only 6 years). The defendant has the decency to admit the offences and saved the girl her embarrassment of testifying in court. The medical report confirmed that the victim has no noticeable hymen injury. Thus, physically she does not have a marked physical scar to carry as a reminder of the sexual indiscretion of her adopted brother. Current report on the girl showed the girl to be adjusting to the situation by living apart from the family. Psychologically, possibly it is still too early to say what impact she would likely have when sexual relationship was imposed on her as a casual event in the course of her teenage up bringing. In light of the relative young age of the defendant at the time of the offence, reflecting possibly some immaturity on the part of the defendant, I adopt a lower starting point of 2 ½ years. Giving him credit for his plea exhibiting his remorse, I reduce the intended term by 1/3 to that of a 20 months imprisonment term.

12.   Though the 3 offences straddled over a period of 3 years, bearing in mind the clear record of the defendant, the likely impact on his family with his incarceration and his chance of re-offending would likely be low, I order penalty for all 3 charges to be served concurrently amongst each other. The total duration would still be a term of 20 months imprisonment (i.e. a period of 1 year and 8 months) for all 3 offences.