HKSAR v. LAM CHUN KIT

DCCC901/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 901 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a charge of unlawful sexual intercourse with a girl under the age of 13.

2.  The incident occurred on 26 July 2012 at the girl’s residence in Sau Mau Ping.  At the time of the offence the girl concerned was 12 years of age.  She was born on 18 September 1999.  The defendant was 17, being born on 3 January 1995.

3.  The defendant and the victim became acquainted in mid-June 2012 through Facebook.  She and the defendant then exchanged their mobile telephone numbers and communicated mainly by telephone and sometimes by use of an application called WhatsApp.

4.  On 26 July at 10 o’clock in the morning she and the defendant first met near her residence in Sau Mau Ping.  The girl’s family were all out.  They went to her residence and she and the defendant hugged and kissed each other for a few minutes in the living room.  She and the defendant then went to the master bedroom where the defendant took off her clothes, and then his clothes.

5.  They began to have sexual intercourse for about 30 minutes and no condom was used.  During intercourse she told the defendant that she felt very painful many times and she also said no for two times, but she did not do any physical act to reject him.

6.  After intercourse she found that there were bloodstains on the bed which she tried to clean unsuccessfully.  They then went to bath together and soon afterwards her younger brother returned to the house.  The younger brother met the defendant and she and the defendant then left and went out to dine together.

7.  On 30 July the victim’s mother found that there were suspicious messages on the victim’s mobile phone number.  The victim had contacted the defendant and they referred to each other as Kit Siu, which means husband and wife.  The girl confessed to her mother that they had engaged n sexual intercourse at her home on 26 July and the mother then found the bloodstain on the bed sheet.

8.  The mother then contacted the defendant and met him at about 10.30 the same day.  He admitted to the mother that sexual intercourse had taken place and promised that it would not happen again.  The matter was reported to the police.

9.  Under caution the defendant admitted sexual intercourse with the victim out of curiosity and said this was his first time to have sexual intercourse.

10.  Under caution he admitted that he had met the victim on the Facebook in mid-June of 2012 and she told him that she was 12 to 13 years of age.  He went on to admit having unprotected sexual intercourse with the victim and having ejaculated inside her.

11.  Forensic examination revealed that the victim had injuries consistent with sexual intercourse.

12.  Examination of the mobile phones of the victim and the defendant revealed that the victim and the defendant addressed each other as husband and wife and that they both expressed their desire to have sexual intercourse with each other.  They also revealed that after the incident the defendant asked the victim if she felt painful and apologised for making her feel that way.

13.  The defendant has a clear record.  According to reports prepared, the defendant comes from a working class family, being the younger of two siblings.  The defendant’s father worked as a furniture maker and the mother is a housewife.  The report describes the defendant’s parents as being lenient and permissive in parenting and failed to exercise effective supervision over the defendant. 

14.  The report states that the defendant’s academic performance was poor in his early primaries without behavioural problems being displayed.  According to the report, the defendant made no improvement on his studies after being promoted to secondary school.  It states that in Form 5 he often exposed himself and was addicted to pornographic materials, and driven by his impulsive sexual desire the defendant committed the present offence.

15.  I am told that during his bail period he continued his studies as a Form 6 student, and the report states that in order to help the defendant get back onto the right track a period of disciplinary training coupled with statutory supervision would be beneficial to his rehabilitation.

16.  I also have a letter from a teacher of the defendant.  She states that she has seen him improve gradually in maturity. She says that he has actively participated in extra-curriculums and has shown great potential.  She states that he is very regretful about this incident and has learnt a very important lesson and she invites the court to deal with him in a lenient manner.

17.  I am told that the parents and other family members are in court today to show their support for the defendant.

18.  Offences of this kind are serious because of the age of the victim.  Underage girls require the protection of the courts and immaturity is not to be taken advantage of by older people.  The courts have stated that a very serious view will invariably be taken when the girl is under the age of 13. 

19.  The legislation was enacted as a matter of public policy to ensure that the law protects those vulnerable members of the public who cannot truly give their consent.  This case is yet a further example of inappropriate contacts arising from the use of social websites. 

20.  An aggravating feature of this case is that the sexual intercourse was unprotected and it took place on the very first day they met.

21.  The defendant has tried to characterise his relationship with the victim as girlfriend and boyfriend.  That is self-delusional.  12-year-old girls should not have 17-year-old boyfriends intent on sexual intercourse.  They have neither the maturity nor the experience to know what they are getting into.  The defendant preyed on the victim’s naivety using such terms as husband and wife to try and justify his depraved actions.

22.  I have given this case very anxious consideration.  The defendant is a person of clear record and only 17 years old.  He admitted the offence to the victim’s mother and to the police when first asked about it. 

23.  I have the advantage of having the report prepared by the representative from the Commissioner for Correctional Services.  The defendant is unsuitable for detention in a detention centre because of his physical condition, and the recommendation is that he be detained in a rehabilitation centre.

24.  Having considered all the circumstances, and particularly his age, I have decided that that is the appropriate sentence in this case.  You will go to a rehabilitation centre.