HKSAR v. A

HCCC 54/2026

[2026] HKCFI 3596

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 54 OF 2026

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two charges on 26 January 2026 before a magistrate at Eastern Magistracy.

2.  Charge 1 was a charge of unlawful sexual intercourse with the girl under the age of 16 years contrary to Section 124(1) of the Crimes Ordinance Cap 200.  Charge 2 was a charge of buggery with the girl under the age of 21 years contrary to section 118D of the Crimes Ordnance.

3.  As a result of his pleas of guilty he was committed to the Court of First Instance for sentence.

4.  In charge 1 the defendant admitted that on 19 October 2018, at a flat in Tai Po Garden, Tai Po, Mui Shu Hang Road, he had unlawful sexual intercourse with X, a girl of the age of 15. 

5.  In charge 2 the defendant admitted on 20 March 2019 at a flat in Royal Ascot, Shatin, he committed buggery with X, a girl under the age of 21 years.

Facts

6.  The summary of facts and amended summary of facts dated 9 January 2026 and 15 May 2026 respectively was admitted by defendant as correct and facts in support of the charges.

7.  X was born in April 2003.  The defendant was one month younger than X, born in June 2003.  They were schoolmates between 2016 and 2021.  In December 2016, X and the defendant then both aged 13 years started dating and broke up in March 2020 when they were 16 years old.

Charge 1

8.  On 19 October 2018, X and the defendant had planned to have sexual intercourse that day in X’s home in Tai Po Garden knowing that X’s parents were not in Hong Kong.  The defendant therefore stayed at X’s home that day and after some foreplay which involved oral and digital sex the defendant had protected sexual intercourse with the agreement of X.

Charge 2

9.  On 20 March 2019, whilst they were at the defendant’s home the defendant and X agreed to have anal sexual intercourse.  The defendant used a lubricant and a condom which X got for free when X participated in an activity called Hong Kong Pride Parade.  At the time X felt pain and told the defendant to stop but her demand was ignored by the defendant.  X repeated her demand three times and the defendant eventually stopped.  The buggery lasted for about 30 seconds.

10.  About one year later in June 2020 X no longer wanted to be in contact with the defendant and blocked him on her WhatsApp.  X felt depressed and started to seek medical consultation in November 2020.

11.  In 2021 X went to the United Kingdom to study where she learnt about sex crimes.  When she recalled the incidents between herself and the defendant she felt sad about it.  She later returned to Hong Kong and reported the case to the police in August 2022.

12.  The defendant was arrested on 22 August 2022 he was positively identified by X in an identification parade held on 7 September 2022.

13.  The defendant was charged with the above offences in August 2024.

Background/ Mitigation

14.  I have taken into account the thorough and detailed written mitigation on the defendant’s behalf submitted by counsels Mr Adonis Cheung and Ms Velda Yau. 

15.  The defendant is now 22 years of age.  He has a clear record.  He was born and raised in Hong Kong.  He graduated in 2025 with a Bachelor of Science from a University in Hong Kong.  He is currently employed as a Project Executive in his family’s accounting firm earning a base salary of HK$16,000.

16.  The defence have drawn the court’s attention to matters considered in the “Consultation Paper on Sexual Offences Involving Children and Persons with Mental Impairment dated 16 November 2016.” (The Consultation Paper) 

17.  It was submitted by the defence that the present offences were gender specific in nature specifically designed for the protection of girls but not boys under the current statutory regime which has long been under the subject of debate.  It was submitted that where the consensual sexual activity between persons who are between 13 and 16 years of age the consultation paper reviewed three possible approaches to the issue being:-

(1) Consensual sexual activity between persons who are between 13 and 16 years of age is criminalised but with prosecutorial discretion being exercised as to whether a charge is brought.

(2) Consensual sexual activity between persons who are between 13 and 16 years of age is criminalised but exemption from liability is provided for where the teenagers are close in age.

(3) Consensual sexual activity between persons who are between 13 and 16 years of age is not a criminal offence.

18.  Ultimately, the Sub-Committee opined that Hong Kong should continue with the first approach, but recommended that relevant offences should be rendered gender-neutral so that both the girl and the boy involved could, in principle, be subject to the law (§6.4 of the Consultation Paper).

19.  Further, the Law Reform Commission expressed the view that it was unnecessary to create a special statutory provisions for imposing lighter sentences on child offenders, on the basis that it is preferable for judges to take the particular circumstances of such cases into account when exercising their sentencing discretion (§6.34, Consultation Paper)

20.  According to The Chief Executive’s 2025 Policy Address Supplement published on 17 September 2025 at p.111, the Security Bureau is actively studying the aforesaid reports published by the Law Reform Commission of Hong Kong to improve Hong Kong’s laws on sexual offences involving children, and aims to complete legislative amendments within the current term of the Government.

21.  It was submitted on behalf of the defendant that the inordinate delay has caused real and irreversible prejudice to the defendant.  Had X’s complaint been made earlier the defendant would have been a suitable candidate for lighter and rehabilitative sentencing options available to young offenders such as a Superintendent’s caution which would have avoided a criminal conviction.  In this regard they referred to §6.12 of the Consultation Paper:

“In Hong Kong, the current practice in respect of consensual sexual intercourse between persons who are between 13 and 16 years of age is that a young offender with a clear record would usually be dealt with by a superintendent’s caution under the Police Superintendent’s Discretion Scheme. ….”

22.  In their submissions defence counsel made it abundantly clear that the above material was not cited to challenge the validity of the existing law, but to illuminate the legislative and policy context within which the Court is invited to take into account when assessing the defendant’s moral blameworthiness and determine the appropriate sentence.

23.  It was submitted that the materials demonstrate that cases involving consensual activity between adolescents close in age show that fairness should be recognized particularly, even though the criminalized conduct was mutually consensual and participated by both. 

24.  Due to the varied circumstances of cases, Hong Kong Courts have consistently recognized that there is no tariff in sentencing sexual offences involving young children or in cases of buggery HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239 at §13 and HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354 at §27.

25.  In summary the defence submit that although policy is not law per se the court’s discretion is sufficiently broad to recognize this is an exceptional case having regard to the facts of the case and the defendant’s low culpability and moral blameworthiness. 

Cases and factors for consideration in sentencing

26.  Despite the Court of Appeal in Lee above setting out sentencing principles involving young children involving a paedophile, some of those principles and factors can be taken into account when dealing with offences involving youth.  The factors relevant in this case are:

(1) the age difference between the defendant and the victim X;

(2) the relationship between the defendant and the victim;

(3) whether the defendant had used threats or inducements to make the victim succumb;

(4) whether the offences had caused physical or psychological trauma to the victim; and

(5) the likelihood of the defendant re-offending;

Victim Impact Report

27.  I turn now to the victim impact report.  The report states that the defendant was X’s “first love” and from the early stages of the courtship the defendant made sexual advancements that caused X discomfort.  While X initially perceived certain sexual encounters from the age of 15 as consensual and felt no immediate impact on her well-being, she later identified specific incidents during the relationship that was profoundly violating and traumatic for her such as the offence in charge 2.  Although several years have passed, she retains a vivid recollection fear and shock she experienced during the buggery. X stated at the time the defendant was a major attachment figure, X feared losing the defendant and was terrified of the potential consequences and the stigma of disclosure.  Consequently, X suppressed her emotions to maintain a façade of normalcy.  This accumulated psychological distress eventually humiliating a mental breakdown following a subsequent incident on June 3, 2020 at which point X fully recognised and experienced the true extent of the violations she had endured.  X experienced physiological and psychological symptoms. 

28.  Whilst pursuing her degree in Law in UK particularly focusing on criminal law served as a constant psychological trigger.  X received assistance via the NHS to cope with the stress, mood symptoms and trauma of her relationship with the defendant.  She ultimately disclosed the incidents to her family and filed a report to the police.  X described that she had a three year period of a mental breakdown.  However the traumatic triggers, depressive mood or anxiety have only surfaced once or twice in the last year.  X will be completing her Master of Laws this year.  Her emotional state has stablised with support from her family and years of dedicated psychological intervention.  The clinical psychologist concludes that although X has become increasingly able to manage her mood fluctuations and traumatic triggers she remains affected by the memory of the violations and the lack of recognition of the harms.

Probation, Community Service and Background Report

29.  I turn now to the probation, community service and background report of the defendant this Court called for prior to sentence. 

30.  The contents of the report are very favourable to the defendant.  There is no evidence that there is a risk of the defendant re-offending.

31.  The report revealed that X was the defendant’s first love.  Being adolescents attracted to each other they developed a romantic relationship in December 2016.  According to the defendant, he was cautious in the courtship initially and had his first kiss with X in early 2018 upon X’s request. Out of curiosity and without legal knowledge, X and the defendant mutually agreed to have sexual encounters at X’s home in October 2018 and the defendant’s home in March 2019.  Their courtship which lasted for over three years was ended by the victim unhappily in 2020. 

32.  On the one hand, the defendant recognised the victim’s sad feeling.  On the other hand, he was initially depressed as the victim blamed him solely and openly as a result it had negative implications to his school life.  Having paid much effort in resuming his normal life, the defendant was shocked when he was arrested by the Police in August 2022.  The probation officer stated it was such a ‘serious blow to him, that he once became helpless and hopeless.  Having deeply reviewed his wrongdoings, he frankly admitted his misdeeds and understood that he should bear the legal consequences.’

33.  The probation officer indicated that the defendant has been leading a stable and decent life and has strong family support.  Owing to the present offence, he suspended his plan to secure a job in the field of finance and investment. Instead, he joined the workforce as a Project Executive at his family’s company.  He planned to seriously formulate and implement his career path when the legal proceeding for the present offence was completed.

34.  The probation officer concluded that taking into account his genuine remorse and that his chance of re-offending is slim, a probation order which is counselling orientated, is considered not necessary and therefore not recommended.  The report indicates that Community Service Order in the low range is available should this court deem it desirable. 

Discussion

35.  The defendant grew up in Hong Kong.  The defendant and X have known each since they were about 5 years old.  X and the defendant became a boyfriend and girlfriend for four years between 2016 and 2020 between the ages of 13 years to when they were almost 17 years old whilst they were attending the same school. They were adolescents who gradually developed a romantic relationship.  The present offences occurred when both X and the defendant were 15 years old and in a courtship by then for at least two years.  Even after the second offence they continued their boyfriend and girlfriend relationship for about a year until it broke up in about June 2020. 

36.  Their relationship was a long term, genuine, mutually affectionate committed partnership of “puppy love”.  This was not a case of the defendant’s sexual exploitation as an older, more mature or manipulative adult.  In fact, in this case, the defendant was younger than X.  No threats or inducements had been used by the defendant to make X succumb.

37.  In charge 1, their sexual intercourse took place at X’s home upon her invitation and her consent when she knew her parents would be out of town.  Thereafter the defendant stayed at X’s home for a further two nights without any complaint or difficulty arising from X. 

38.  In charge 2, X had gone to the defendant’s residence on the understanding that they would attempt anal intercourse for the first time.  X brought the packets of lubricant which she provided to the defendant to facilitate the process.  X positioned herself for the defendant.  X consented to the defendant putting his finger first then subsequently his penis.  She was initially a willing partner.  The defendant however did not stop on X’s initial requests but acceded to it after. 

39.  X only made the report to the police in 2022 some two years after they relationship broke down and only after she returned from her studies in UK.  This was some 3 years after charge 2.  During these times both X and the defendant were pursuing their graduate studies in different countries. 

40.  I have given anxious consideration to the facts of this case.  Whatever policies are now being considered is not law.  However when assessing the appropriate sentence I have had regard to the particular facts of the case being: X and the defendant’s mutually agreed engagement of the sexual acts, X and the defendant’s respective same ages at the time of the offences, their courtship of approximately four years and their continued courtship for a year after charge 2, the defendant’s clear record, the defendant’s genuine remorse and plea of guilty at the earliest opportunity. 

41.  X played an active role in the offences, her belated change of heart some 4 and 3 years after the commission of the offences does not vitiate her consent or their relationship at the material time and after.  X’s delayed report to the police in 2022 leading to the arrest of the defendant obviously caused him shock and worry.  The defendant was only formally charged with these offences in August 2024, six years after the commission of the first offence, yet with perseverance he successfully completed his degree.  The delay has inevitably caused the defendant anxiety and stress.  The present offences have interrupted the defendant’s plan in furthering his career plans, the convictions may also hamper and mark the defendant’s efforts in the future. 

42.  I accept defence counsel’s submission that in the circumstances of this case it is unfair to attribute moral culpability and blameworthiness solely to the defendant. 

43.  I am of the view that the court should impose a sentence to facilitate the defendant to begin a fresh start, to build a stable life around work and personal growth and involvement in the community.

44.  I find this to be an exceptional case where this court should exercise its discretion and impose a sentence which reflects the extenuating circumstances under which these offences were committed, it is inexpedient to inflict any punishment or any other than a nominal punishment.   The court’s power to permit conditional release of offenders are granted under Section 107 of the Criminal Procedure Ordinance Cap 221.

45.  In the circumstances I order that the defendant be discharged conditionally for a period of 2 years and to enter into a recognizance in the sum of HK$2,000, to be of good behaviour and to appear for sentence when called on at any time during such period.