R. v. WONG CHUN FAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.645 of 1996

------------------------

----------------------

---------------------

J U D G M E N T

---------------------

1. The appellant pleaded guilty to one count of unlawful sexual intercourse with a girl under 16. He was sentenced to be detained in a Training Centre. He now appeals against sentence.

2. The victim was just approximately 14 years and one month at the time of the offence. The appellant courted her for about five to six months. They had sexual intercourse at home. This affair continued for some time and there was a total of approximately 10 occasions when they had sexual intercourse. The victim was then pregnant. She went to see the appellant but the appellant apparently ignored her. She brought the matter up with her father. They went to report to the police and the matter came to light.

3. The appellant was only 16 before the Magistrate and 151/2 at the time of the offence. The Magistrate called for reports. It appears that the appellant came from a single parent family, the parents having divorced. He was the eldest child of the family. He finished Form 2 and had been doing different jobs. His father unfortunately because of his work was not able to look after him. Yet, from the Probation Officer's report, notwithstanding the lack of supervision, he had not been turning wild. There was no behaviour problem and there was no complaint by his teachers. In fact, the probation report appeared to be in his favour. His employer would be willing to continue to employ him. He has certainly got a clear record.

4. The learned Magistrate conceded that it was failure on the part of the appellant to take up the responsibility of the commitments "which go along" with sexual intercourse. He considered that as an aggravation factor. He also, I think, considered, although not in his Reasons of Verdict but in the oral decision delivered at the time, that his father's attitude was equally bad. The Magistrate took the view that Detention Centre was not a sufficient measure to teach him right or wrong and he needed a period of good training in the Training Centre to learn some sense of responsibility.

5. In my view, some of the comments made by the learned Magistrate were not altogether appropriate and they might have affected his decision. I am not sure that the father's attitude had anything to do with the appellant's culpability. I am also not sure whether Training Centre is the best place to teach him a sense of responsibility towards sex. According to the reports, he had displayed some sense of responsibility in his work. He has been in custody for more than three months in the Training Centre. I think he has learnt the lesson now. In the circumstances, I would allow the appeal, set aside the Training Centre order and upon his consent I put him on probation for 12 months.