HKSAR v. WONG CHUN KIT

DCCC 350/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 350 OF 2009

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Reasons for Sentence

1.   The defendant pleaded guilty to the offence of having unlawful sexual intercourse with a girl under the age of 13 (contrary to Section 123 of the Crimes Ordinance Cap 200), an offence for which the maximum penalty prescribed is life imprisonment.

2.   As disclosed in his background report, the defendant came to know the victim through Internet online games sometime in August 2007. The defendant was aware the victim was only 12 years old whilst the defendant was himself 18 years of age at the time. After knowing each other the defendant sometimes waited for the victim at her school and walked her home.

3.   On an occasion in October 2007 the victim was prohibited to go out by her father and she decided to run away from home. After leaving home the victim went to the defendant’s residence and stayed overnight with the defendant. The two had sex in the defendant’s lodging.

4.   The relationship between the victim and the defendant broke up towards the end of 2007, after their 2 months’ affair.

5.   The sexual relationship between the defendant and the victim was not disclosed until 14 July 2008 when the victim was questioned by her sister about a diary entry the victim made concerning her sexual encounter with another male. The victim admitted to her sister that she was having sex with a boy “Ah Leung” but she also had previous sexual experience with the defendant.

6.   Medical examination confirmed that the victim had an old complete vaginal hymen tear which was indicative of previous penile penetration. When arrested on 28 November 2008 the defendant made frank admission of his sexual relationship with the victim in October 2007.

7.   The prescription of life imprisonment indicated the serious view society took about premature sexual activities involving teenagers. The legislative intent of protecting the under-aged from her own folly, her mental or emotional immaturity is loud and clear.

8.   There is no established sentencing tariff for this offence. One can hardly look to previous cases for parity, as the fact circumstances vary from case to case.

9.   Cases of casual acquaintance from ICQ, internet Online games and video game centre encounters that developed into boyfriend/girlfriend relationship and which subsequently escalated to a sexual connection are not unknown. See for example, cases of Cheung Hon Ki CACC-28/96 (16/6/96) Chung Yui Hung CAAR-11/06 (21 Dec 06); Lau Chi Cheung [2008] 4 HKLRD 432 (22 April 08), Tse Wing Tai DCCC-1154/08 (223 Jan 09) and Lau Chun Wai DCCC-881/08 (9 March 09)

10.   A sentencer would normally take into account the age of the victim, the age difference between the defendant and the victim, the nature of the relationship between the defendant and the victim, any exploitation practised on the victim, any breach of trust situation, any abusive acts, any taping or recording resulting in a long term influence on the child, any psychological impact on the child as a result of the sexual encounter the victim had with the defendant. These factors could either serve as aggravating features to escalate the term or as mitigating factors to reduce the gravity of the offence.

11.   It is well known that increasing pre-mature sex in other jurisdiction has manufactured problems such as creating teenage single parents. This, I am sure, is a trend not to be encouraged in Hong Kong. When the girl was hardly 13 years of age, she has a long way to grow to know how she would live her life.

12.   In the present facts the girl was 12 years and 10 months old at the time of the offence. The defendant was himself slightly over 18 years. For their brief 2 months’ encounter from August to October they treated each other as boyfriend and girlfriend. There was no suggestion of exploitation.

13.   The girl was sexually precocious. She developed a further sexual relationship with another partner after she parted company with the defendant. There was no grooming activity on the part of the defendant. The victim ran away from home and had chosen to stay with the defendant for the night. I was told there was no apparent psychological detriment to the victim’s development. A custodial term of 2 years imprisonment would likely be an appropriate starting point to reflect the gravity of the offence.

14.   However, the defendant was only 18 at the time of the offence. As his age, the defendant would likely be mentally immature himself. The offence was almost 2 years old by now through no fault of the defendant. He had a clear record and had an uneventful upbringing. He has the decency to plead guilty to save the girl’s embarrassment of having to testify in court, exhibiting at the same time his signs of remorse. Striking a balance between the need to deter and the need to rehabilitate, the facts weigh more towards a rehabilitative approach than a retributive mode. Despite the seriousness of the offence, I am minded to extend clemency to the defendant and to sentence him to the training centre instead.