HKSAR v. KWAN KA HO

DCCC270/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 270 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to 2 charges of "Indecent assault". The victim is X, a girl who was, at the time of the offences, of 13 years of age.

Summary of Facts

2.  X was born in April 1996. She came to know the defendant (who was then aged 27) through the internet in April 2009. She had told him her age whilst chatting on MSN.

3.  On a day unknown in April 2009, X and the defendant went to Hoi Lai Shopping Arcade in Sham Shui Po together. At the No.12 rear staircase on the R Floor of the shopping arcade, the defendant kissed X on her lips and fondled her breasts. They left the said location when a patrolling security guard asked them to go away. This is Charge 1.

4.  Thereafter, X and the defendant went to the staircase on the 27^th Floor of Hoi Wai House, Hoi Lai Estate. At that location, the defendant kissed X on her lips, fondled her breasts and vagina underneath her clothes. The defendant also lowered his pants and underpants and asked X to massage his penis. X did so for about 10 minutes until the defendant ejaculated. This is Charge 2.

5.  X disclosed the 2 incidents to her cousin Miss LUI in about April or May 2009.

6.  The defendant was arrested in August 2009. In his video interview, he admitted under caution the 2 incidents described above. In particular, he admitted kissing X on her lips and fondling her breasts at the No.12 rear staircase. After being sent away by a security guard, they went to the staircase on the 27^th Floor of Hoi Wai House. There, he fondled X's breasts and vagina. He also masturbated and asked X to massage his penis. X had done so at his request.

Mitigation & Sentence

7.  The defendant is now 28 years old and has a clear record. He is single and has taken up various jobs including property agent and insurance sales after completing F.5. Since April 2009, he has been working part-time as a transportation worker.

8.  Defence counsel Mr. McNamara submitted that the defendant is truly and consistently remorseful. As revealed in the letter written by the defendant's pastor, the defendant made no attempt to cover up this event. Pastor Laudon wrote "[the defendant] has carried himself in complete honesty throughout these past months". Mr. McNamara pointed out that by pleading guilty, the defendant has spared the embarrassment of X coming to court to testify. Mr. McNamara further submitted that there is evidence showing that X was not traumatized at all by these 2 incidents. In fact, X had no regrets about what she did and was boasting to her cousin about her intimate experience with the opposite sex.

9.  I see the force in Mr. McNamara's submissions, but I would approach the matter from a different angle. Section 122(3) of the Crimes Ordinance (Cap.200) stipulates that a person under the age of 16 cannot in law give any consent to being indecently assaulted by others. Plainly, the legislative intent is to impose a statutory protection on those of young age such as X. It might well be true that X was eager to experiment intimacy with the opposite sex, but the law does not allow it. By enacting subsection 3, the legislature is in effect saying that young girls like X do not know any better; they cannot decide for themselves.

10.  I have read the textual communication sent by X to her cousin. I can only feel sorry for X. For the purpose of sentencing, I cannot take into consideration of X's consent or willingness to get intimate with the defendant, because the law says she cannot. However, I accept there is evidence which shows that this event has no detrimental or traumatic effect on her. To this extent, it is beneficial to the defendant.

11.  What the defendant did is very wrong. He knew X's young age, yet he took advantage of her. The legislature thinks young girls like X cannot protect themselves, so the law steps in.

12.  I adjourned the sentence to obtain a Community Service Order Suitability Report. The report is positive. Community Service Order is recommended. In my view, this is a borderline case. Had I not known X's attitude towards this event, I would not hesitate sending the defendant directly to prison. This morning, Mr. McNamara submitted a letter written by the defendant, the contents of which are noted. The defendant has heard the clang of the prison gate in the past 2 weeks. I hope he has learned a hard and bitter lesson. I accept what he did is a single fall from grace. In the circumstances, I am prepared to let him reform in an open setting. I will make a Community Service Order.

COURT: Mr Kwan, before I formally make the order, I need to explain to you the requirements of a community service order.

Community service order means in the next 12 months, you need to perform a certain number of hours of community service work. Such work carries no remuneration at all, but you still have to perform to the satisfaction of the probation officer or those who supervise you. You cannot be late for work or leave work early. If you have a valid reason to be absent, such as being sick, you need to inform those who supervise you well in advance.

If the probation officer reports to the court that your performance is not up to standard, and the court, after consideration, takes the view that you are in breach of any conditions of the community service order, the court has the power to sentence you afresh. Do you understand?

DEFENDANT: Yes.

COURT: Are you willing to comply with the terms?

DEFENDANT Yes.

13.  Now, for the 2 charges, I sentence you to 240 hours of community service order for each charge and both to run concurrently. Before you leave court today, you will be given some information as to when and where to report to the probation officer so that work can be arranged for you as soon as possible. You need to attend accordingly.

COURT: Mr Kwan, I really hope you have learned your lesson. If you re-offend, chances are you will go directly to prison. Do you understand?

DEFENDANT: Yes.

COURT: Now, please treasure this last opportunity.