HKSAR v. GU ZUOQI

DCCC 1085/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1085 OF 2011

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Reasons for Sentence

1.  The defendant pleaded guilty to one charge of Unlawful sexual intercourse with a girl under the age of 13 years, contrary to s.123 of the Crimes Ordinance, Cap.200. The maximum penalty under s.123 is life imprisonment.

Facts

2.  The defendant made the acquaintance of PW1 (the victim) via the ubiquitous online social network of Facebook. The defendant knew that PW1 was only 12 years old. On 1^st September 2011, about 2 months after they first connected, the defendant visited PW1 at her home and they had consensual sex once. The defendant did not use a condom. He ejaculated outside of PW1. The defendant was 20 years and 7 months old at the time of the offence.

3.  S.123 of the Crimes Ordinance is not an excepted offence listed in the 3^rd Schedule to the Criminal Procedure Ordinance, Cap.221. As such, the defendant being a young offender between 16 and 21 years old, s.109A[1] of the Criminal Procedure Ordinance applies and imprisonment should be the last resort. For reasons apparent below, I find that imprisonment is the last resort.

4.  The defendant is a first offender.

5.  Prior to sentencing, I ordered a background report to be prepared on the defendant. I would have called for a victim impact report as well but for the fact that the girl has since left Hong Kong to further her studies overseas. I do not wish to disturb the studies of the victim and to order a victim impact report would have that effect. I am quite sure that she would rather be left alone to get on with her life than re-visiting this unfortunate incident.

Sentence

6.  HKSAR v Lau Chi Cheung, CACC 427/2007:

I first of all refer to the case of Lau Chi Cheung. The victim in Lau was 12 years and 7 months old at the time of the offence, and the applicant was 22 years old. The applicant was a college student in the US and was in Hong Kong on vacation at the time of the offence. There the Court of Appeal said that when sentencing in this kind of cases, the court should take into consideration various factors. Those factors include the attributes of the girl and the man, the age of the girl as well as the man at the time of the offence, the younger the girl or the bigger the age difference, the heavier the sentence. If the man had groomed the girl for sexual intercourse, it is an aggravating factor.

7.  In Lau Chi Cheung, even given the fact that the girl was sexually precocious and that the man was just a 22 years old student and “not a mature man”, the Court of Appeal nevertheless accepted that “young girls have to be protected from their own foolishness” and in the circumstances of that case considered that a community service order would be completely out of question.

8.  Another aggravating factor confirmed by the Court of Appeal is the payment of $2,200 to the girl afterwards. The Court considered that the mere fact that a large sum of money was paid to the girl was a serious aggravating factor because of its corrupting influence on the girl. In the end, the Court of Appeal considered that an appropriate starting point in that case was that of 2 years’ imprisonment.

Sentence

9.  When compared with Lau Chi Cheung, the age difference in our present case is smaller. Although only by 2 years (22 in Lau and 20 in our present case), in those early years of a man’s life, those 2 years would make a big difference in terms of maturity of the mind. There is no payment of money which was found to be a serious aggravating factor in Lau Chi Cheung. There is no evidence of grooming of the victim for sex either.

10.  On the other hand, there is no evidence that the victim in our case was sexually precocious or promiscuous. The defendant also chose to have unprotected sex with the victim.

11.  Taking into consideration all the circumstances, and bearing in mind that there is a need to deter young men from taking advantage of girls of a young age especially in this age of the internet, I find that a proper starting point is that of 21 months’ imprisonment. I will grant the defendant the full one third discount for his guilty plea and reduce the sentence to 14 months’ imprisonment.

12.  As in Lau Chi Cheung, I will further reduce this sentence by 2 months in recognition of the defendant’s positive good character and the information disclosed in his background report[2]. The defendant is therefore sentenced to a total of 12 months’ imprisonment.

[1] 109A(1)  No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A)  This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.

(2)  In this section "court" (法庭) includes the District Court and a magistrate.

[2]See paragraph 5 of report