HKSAR v. LI JINTIAN

DCCC 359/2023

[2024] HKDC 70

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 359 OF 2023

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REASONS FOR SENTENCE

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1.  Mr Li pleaded guilty before me to 4 charges on a Charge Sheet as follows.

2.  Charge 1 is Unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Cap 200 (“USI U13”). Particulars are that he, on a day unknown in January 2022, at “Hollywood Hotel”, 2^nd Floor, Nos 243-245 Sha Tsui Road, Tsuen Wan, New Territories, in Hong Kong, had unlawful sexual intercourse with X, a girl under the age of 13 years.

3.  Charge 2 is also USI U13.  Particulars are that he, on a day unknown in February 2022, at the same place, in Hong Kong, had unlawful sexual intercourse with X, a girl under the age of 13 years.

4.  Charge 3 is also USI U13.  Particulars are that he, on a day unknown in February 2022, at the same place, in Hong Kong, on an occasion other than that referred to in Charge 2, had unlawful sexual intercourse with X, a girl under the age of 13 years.

5.  Charge 4 is Indecent conduct towards a child under the age of 16 years, contrary to section 146(1)  of the Crimes Ordinance, Cap 200.  Particulars are that he, on a day unknown in February 2022, in Mong Kok, Kowloon, Hong Kong, committed an act of gross indecency with or towards X, a girl of the age of 12 years.

Facts admitted by Mr Li

6.  X was a F1 student.  She got acquainted with Mr Li on an online dating application in January 2022.  They communicated on Instagram, and/or WeChat afterwards.  They were already in a romantic relationship prior to their first meeting.

Charge 1

7.  Two days after their first acquaintance online, on a weekday in January 2022, X met up with Mr Li in a park outside Mei Yin House in Shek Kip Mei Estate.  She told Mr Li she was only 12 years old.  Later, X told Mr Li she wanted to go to toilet.  Mr Li then took her to a motel in Tsuen Wan known as “Hollywood Hotel” by taxi.  There they were led by the staff into a room.  They then sat on the bed.  Mr Li gave $500 cash to X for taking taxi later.  They lay on the bed.  Mr Li hugged X facing down.  Mr Li took off his own clothes. After persuading X to have sex with him, Mr Li took off her clothes too.  Mr Li used a condom made available in the room.  During the process, X felt pain and told Mr Li so; however, Mr Li persisted.

8.  Afterwards, X was not happy and she told Mr Li so.  They slept together.  X left on her own at about 5 am as she needed to go to school in the morning.

Charge 2

9.  On a day unknown in February 2022, at the same motel, Mr Li and X had consensual protected sexual intercourse.

Charge 3

10.  On another unknown day in February 2022, at about 10 to 11 pm, Mr Li and X met at Tsuen Wan MTR station as suggested by Mr Li.  They took a minibus to the same motel.  In a room of the motel, they had some beer.  Mr Li asked X for sex.  They then had protected sexual intercourse.  Afterwards, they drank beer again and chatted.  X left at about 5 am as she needed to go to school in the morning.

Charge 4

11.  On another unknown day, a Friday, in February 2022, at about 8 to 9 pm, X met up with Mr Li at Sham Shui Po MTR station as suggested by Mr Li.  They then went to a motel in Mong Kok by MTR.

12.  When they reached the motel room, they sat on the bed and chatted with one another.  X told Mr Li she was on her period.  Mr Li went for shower and returned naked.  Mr Li asked X to perform oral sex on him without the use of condom.  X consented.  Mr Li removed X’s trousers.  X then had oral sex on Mr Li.  Mr Li ejaculated outside of X’s mouth.  They left together at noon the next day.

Subsequent events

13.  Mr Li broke up with X on WeChat on 28 February 2022.  The sexual encounters were made known to a school-teacher.  The case was reported to the police.

14.  On 28 September 2022, upon arrest and caution, on the event subject of Charge 1, Mr Li said, in the presence of his grandmother, that, “I was in a relationship with her at the time; I could not resist to have sex with her.  I knew I was wrong.”

15.  Later the same day, during a cautioned VRI, Mr Li, in the presence of his grandmother, said the following:-

(a)  He and X had sexual intercourse from January to February 2022;

(b)  He met X in around January 2022 on an online dating application;

(c)  He had protected sexual intercourse with X three times in the same motel; he had used condom each time and ejaculated in it;

(d)  On the third occasion, they had beer but were not drunk;

(e)  He had oral sex once with X without using condom in a motel in Mong Kok and he ejaculated ex-mouth;

(f)  He thought X consented to these sexual acts;

(g)  He knew X was only 12 when they first met online;

(h)  They talked on Instagram and WhatsApp but he had deleted all the chat history; and

(i)  They broke up in February 2022 after the last sexual act because X was too clingy.

16.  X underwent a forensic medical examination on 18 July 2022.  The report stated that there was an old tear on X’s hymen, which was a residual sign of previous injury to her private parts, including sexual intercourse, that happened at least a week before the medical examination.

17.  Mr Li now admits that at all material times, X was only 12 years of age; that he had unlawful sexual intercourse with X on the occasions of Charges 1 to 3; and that he committed an act of gross indecency with or towards X on the occasion of Charge 4.

Criminal record

18.  Mr Li has a clear record.

Antecedents

19.  Mr Li is aged 18 (about 17 at the time of the offences), educated to F2 level.  He had been a restaurant waiter earning $12,000 a month.  He lives with his father and grandparents and an uncle in Sham Shui Po.

Mitigation

20.  Mr Duncan Ma of counsel mitigated on behalf of Mr Li.  The following is a summary of the mitigation submissions.

21.  Mr Li was born in the Mainland and there he studied until he completed the 2^nd year in a secondary school.  In mid-2018, he came to Hong Kong with his family and studied F1 in Hong Kong.  During his summer holiday in 2020, he went back to the mainland to visit his relatives.  However, Mr Li was not able to come back to Hong Kong afterwards due to the pandemic.  He could only come back to Hong Kong in 2021 and when he did so he found his secondary school had already terminated his place since September 2020.  He then became a waiter in various restaurants until July 2022.  From then on, he became a salesperson working in a seafood store operated by his mother’s friend in Lei Yue Mun.  Since September 2023, he turned part-time (with a salary of about $7,000 per month)  in order to study F3 level in an evening secondary school.

22.  Mr Li has a clear record.

23.  In or about January 2022, Mr Li would like to have a girlfriend to accompany him as he found his parents were separated and would like to have a divorce.  Mr Li then got to know X on an online dating app as described in the Amended Summary of Facts.

24.  Mr Li committed the offences because he could not properly control his desire and impulse.  However, for all the incidents of sexual intercourse, Mr Li did use a condom because he worried that pregnancy might greatly affect X’s life.

25.  Mr Li confessed to the police and pleaded guilty showing remorse.

26.  Mr Li likes playing sports including lion dance.  He participated in various types of voluntary work.

27.  At the time of the offences, Mr Li and X were having a romantic relationship.  Mr Li was on the eve of reaching 17 years old when he committed the offences.  The age difference between them was thus not large, a mere 4 years only.

28.  Mr Li used a condom to avoid pregnancy and therefore had sex responsibly.  He is now 18 years old and is more mature.  He is determined to turn over a new leaf.  He decided to pursue his study again and earn money in a proper way.  He is confident that with his determination and the support of his teachers, parents and seniors, he will not commit any further offence in the future.

29.  Mr Ma prays in aid section 109A of the Criminal Procedure Ordinance, Cap 221.

30.  In HKSAR v Tsang Chiu Tak, CACC 386/2011, the Court of Appeal at para 9 stated that when the Court dealt with offences of sexual assault on a child, the following factors are to be taken into consideration:-

(a)  The age difference between the defendant and the victim;

(b)  The relationship between the defendant and the victim;

(c)  Whether the defendant had used threats or inducements to make the victim succumb;

(d)  The number of occasions of committing the offences and the duration of the offences;

(e)  Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(f)  Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(g)  Whether the sexual abuses have caused physical or psychological trauma to the victim;

(h)  Whether the offences have impact on the family members of the victim;

(i)  Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and

(j)  Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.

31.  In HKSAR v Lee Hon Wah & Another, CACC 54/2010, the Court of Appeal at para 38 stated that for cases of indecent conduct with or towards a child under the age of 16 years, the severities of respective circumstances of offences could vary widely; that it is therefore very difficult to give sentencing guideline; that besides, sentences in similar cases are of limited assistance as a guide to sentencing in individual cases.

32.  The Court of Appeal at para 40 held that “[i]t is possible that the offences are committed by two young people, of little age difference, in agreement and in private.  It is also possible that it does not involve any threat and inducement, not to mention any exploitation, corruption and deprivation on one party by the other.  In the course of the offence, both parties might have taken adequate preventive and safety measures and that no health and safety risks to the other party or the public will be caused.  In these circumstances, it should be open to the court to exercise leniency.” (emphasis supplied by counsel)

33.  The Court of Appeal at para 43 provided the same “10 factors” as Tsang Chiu Tak which the Courts should consider when dealing with cases involving indecent conduct with or towards a child under the age of 16 years.

34.  Applying the above legal authorities into the facts of the present case:-

(a)  The age difference between Mr Li and X is small;

(b)  They were couples;

(c)  Mr Li did not use any threats or violence to make X succumb;

(d)  The four offences happened within a month only;

(e)  Safety measures were taken by Mr Li;

(f)  It seems that X fortunately did not experience any trauma or any serious trauma;

(g)  The offences will not have any impact on X’s family members;

(h)  Mr Li did not do any other inappropriate behaviours such as inviting people to watch or taking pictures or videos at all times;

(i)  This is not a case where Mr Li is obviously psychologically imbalanced or paedophilic; and

(j)  The chance of re-offending is very low.

35.  Mr Ma submits that the present case is not within the serious spectrum of the offences concerned.  Mr Ma invites the court to accept that it is open to the court to exercise leniency.

36.  Mr Ma referred to three District Court sentencing cases on similar charges, namely HKSAR v F.H.T., DCCC 689/2019; HKSAR v Chan Ka Chun, DCCC 154/2018; and HKSAR v Wong Chun Hin (transliteration), DCCC 269/2020, in which sentences varying from Detenion Centre Order to 240 hours’ Community Service Order to 15 months’ Probation Order have been imposed.

37.  Mr Ma submitted on behalf of Mr Li a total of 5 mitigation letters all in Chinese written respectively by Mr Li himself, his father, his previous Headmaster, his employer, and the head of a Chinese Kung Fu Association.  The contents generally are that Mr Li is remorseful and promises not to re-offend; that he was a kind kid but was immature; that he committed the offences out of youthful ignorance; that he was a responsible and smart man who performed well at work and is welcomed back to work again for his employer; that he took part in voluntary performances of lion dance at Old Age Homes, schools and hospitals etc.  All writers asked for leniency for Mr Li so he may turn over a new leaf and contribute to society.

38.  Copy of various documents and photographs were submitted to show that Mr Li studied in an evening school, what extra-curricular activities he took part in, what prizes he got in competitions and what voluntary work he performed in 2022.

39.  Upon receipt of the reports (see below), Mr Ma made the following further mitigation submissions.

40.  The reports have been explained to Mr Li; he agreed to most of the contents, save and except the following two aspects.  First, Mr Li’s instruction is that the couple became lovers even before they physically met for the first time and that Mr Li knew X’s real age before they had sex. Second, Mr Li’s instruction is that he started working since September 2022 in the seafood store.

41.  It is submitted that Mr Li has been remanded by now for 27 days and has learned a bitter lesson; that he misses his family members very much; that he wants to continue with his study and work; that he promises not to re-offend.

42.  Mr Ma submits that out of the 5 sentencing options for which reports have been obtained, only CSO was recommended.  Mr Li invites the court to adopt that solo recommendation.

43.  As regards Mr Li’s immigration status, since Mr Li came to settle in Hong Kong as late as 2018, he could not obtain permanent resident status until 2025.  At present, that is still contingent and uncertain.  It is therefore not as of right that Mr Li can stay in Hong Kong beyond [5 May] 2025.

Reports

44.  Because of Mr Li’s young age, I called for five reports namely, Probation Order report, Community Service Order report, Detention Centre suitability report, Training Centre suitability report and Rehabilitation Centre suitability report.

45.  It is true that out of the five sentencing options for which reports have been obtained, only CSO was recommended, for the various reasons as disclosed in those reports.

46.  In particular, the CSO report concluded with the following remarks in para 27:

“In view of the Accused’s commitment in meeting the requirements of CSO, availability for community service, physical fitness, stable life, good family support and fulfillment of other criteria as stated in the Checklist for Assessment on Case Suitability for Community Service Order, the Accused is considered a suitable person for CSO. Thus, CSO with total hours of unpaid work in the range of 160 to 200 hours is recommended for this case.”

Sentence

47.  In light of the positive comments and recommendations of the CSO report, and Mr Li’s satisfaction of most, if not all, of the 6 factors identified in R v Brown (1981)  3 Cr App R (S)  294, 295, the court is minded to impose a Community Service Order of 180 work hours on Mr Li.

[I then explained to Mr Li in ordinary language the purpose and effect of the Order, the consequences of failure to comply with the requisite conditions and requirements, the consequences of re-offence, and finally the court’s power to review the Order. Mr Li indicates his consent to the making of a CSO]

48.  I am satisfied of the following:

(a)  Mr Li consents to the making of such an order;

(b)  He is a suitable person to perform work under such an order; and

(c)  Provision can be made for him to perform work under such an order.

(Mr Li, please stand)

49.  On each of the 4 charges, I impose a Community Service Order of 180 work hours on Mr Li.  The sentences are to run concurrently with each other.