HKSAR v. NG YU SUM

HCMA1146/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1146 OF 2001

(ON APPEAL FROM FLCC NO.2104 OF 2001)

------------------------

------------------------

---------------------------------------------------------

REASONS FOR JUDGMENT

---------------------------------------------------------

1. The appellant pleaded guilty to the offence of having sexual intercourse with a girl under 16. Having heard the mitigation and considered the full range of reports, the learned magistrate imposed a detention centre order. The appellant sought to appeal against sentence. I had allowed the appeal after hearing submissions and given reasons orally in Court. However, I shall hand down this written judgment for record purpose.

2. The admitted facts revealed that in September 2000, the defendant became acquainted with the victim through chatting on the internet ICQ. Eventually they started to date. On an occasion, the defendant had gone to the victim's home and there he had committed the offence. When the victim's mother found out about this, she made a report to the police. The defendant never denied having had intercourse with the girl but he explained that the girl looked like a 15 year old.

3. Although the probation officer recommended a term of probation, the learned magistrate declined to follow the suggestion, apparently unimpressed by the defendant's poor academic performance as revealed in the reports. The learned magistrate, in a very clearly written Reasons for Sentence, stated that he would consider as an aggravating factor that the defendant was aware of the girl's actual age, namely 131/2. Therefore, despite his age, clear record and the plea, a deterrent sentence was considered necessary in this case. The learned magistrate believed that the short sharp shock regime of the detention centre was the most suitable way to deal with the defendant.

4. Mr Moorfoot appeared for the respondent when the appellant applied to this court for bail pending appeal. On that occasion, Mr Moorfoot indicated that he would not oppose the appeal proper. However, as all the necessary appeal documents had not been prepared and filed at that stage, the hearing of the appeal had to be adjourned, although an earlier date was given. On the date of the hearing, Mr Kwan was asked to take over the case for the respondent, and being unaware of the background, he had taken a different stance. He sought to argue against the merits of the appeal. In this regard, he had prepared a written submission and cited a number of authorities to support him.

5. At the actual hearing of the appeal, Mr Moorfoot decided to appear with Mr Kwan, and explained to the court about the apparent contradictory approach. On the merits of the appeal, he maintained his previous view that the respondent would not oppose the appeal, mainly on the ground that the present case should not call for a deterrence sentence, particularly in view of the appellant's clear record. In fact, the appropriateness of a deterrence sentence was one of the main grounds raised by the appellant in the perfected grounds of appeal. Further, it was argued by the appellant that the sentence was manifestly excessive and that the learned magistrate had failed to give sufficient consideration to the mitigating factors.

6. The issues were not beyond dispute in this case. The factors for and against the appellant were quite evenly balanced. However, having considered the submissions and taking into account of the concession by the prosecution, I would agree that this appeal must be allowed. It would not be appropriate to impose a deterrent sentence in the present case, especially when the appellant himself was relatively young, around 17, at the trial of the offence. In view of the recommendation of the probation service, the proper sentence in the circumstances should have been a probation order. Having said that, I did find Mr Kwan's skeleton submissions very helpful.

7. Hence, I had quashed the Detention Centre order and substitute it with a term of probation for 18 months with special conditions that the appellant should study, work and reside as directed by the probation officer.

8. The effect of breach had been explained to the appellant and he consented to the probation order.