HKSAR v. LI MING KIT

 DCCC1340/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1340 OF 2009

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Reasons for Sentence

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Charges

1.  The defendant was faced with two charges. He pleaded guilty to Charge 1, namely, unlawful sexual intercourse with a girl under the age of 13 years. He pleaded not guilty to Charge 2, namely, criminal intimidation. On conviction of Charge 1, this court has left Charge 2 on its file. Such charge would not be proceeded with unless with the leave of the court.

Facts

2.  The facts of the case can be summarised as follows. The victim, aged 12, was born on 30 April 1997. She came to know the defendant through a friend. In August 2009, the victim left home and she was reported missing from home by her mother. In the evening of 31 August 2009, the victim returned home. She then disclosed to the police that she came to know the defendant through a friend.

3.  In August 2009 when she first met the defendant, she was brought to a guesthouse in Mongkok. Inside the guesthouse, the defendant took off her clothes and underpants. He then grabbed her breasts and laid her onto the bed. Afterwards, without using condoms, the defendant inserted his penis into her vagina. After penetrating into her vagina for a while, the defendant ejaculated. This was the first and only time the victim had met the defendant. At that time, the victim was about 12 years and 3 months old.

4.  On 18 September 2009, the defendant made a call to the victim’s home and spoke to the victim’s mother. Shortly, the mother called the police. On 23 September 2009, the victim identified to the police that the defendant was the person who had sexual intercourse with her in August. The defendant was then arrested and cautioned.

5.  Upon examination of a mobile phone found on the defendant, two video clips containing images of the defendant having sexual intercourse with the victim were retrieved. The defendant admitted that he had kissed and hugged the victim and that he had brought her to a guesthouse.

Mitigation

6.  The defendant is a packaging designer, aged 24 and a half. At the time of the incident, he was almost 24 years old. He has a clear record. He is single and was living with his parents and an elder brother.

7.  According to the defendant’s parents, both the defendant and his elder brother could behave within limits and did not engage themselves much in any night activities. Through introduction by a female friend, Yuen Yuen, the defendant came to know the victim. The victim seemed to look much older than her age, and the defendant believed that she was 16 when they first met. Out of sexual impulsiveness, he committed this offence.

8.  The defendant claimed that even after the sexual intercourse, he maintained telephone contacts and was in good terms with the victim until an argument about buying gift for Yuen Yuen ensued. The defence counsel further submitted that there was neither force used nor money was offered or paid for having sex with the victim.

Authorities

9.  There is no sentencing tariff for the offence of unlawful sexual intercourse with an underaged girl. However, the present offence is undisputedly a very serious offence which carries a maximum sentence of life imprisonment. Sentence with a deterrent element is definitely called for.

10.  The prosecution only referred to this court the case of Secretary for Justice v Chung Yui Hung [2007] 1 HKC 440 whereby the Court of Appeal indicated that a starting point of 5 years’ imprisonment would be proper for a charge of unlawful sexual intercourse with a girl under 13. The Court of Appeal viewed that case to be extremely close to the borderline with rape and was associated with many aggravating factors. The age disparity between the defendant and the victim in that case was considerably huge. The victim was aged 12 years and 8 months, and the defendant was 38 at the material time. The defendant was aware of the victim’s exact age. He was a secondary school teacher by profession and a father of two young daughters. The defendant manipulated the victim to have sex with him and had groomed the victim for sexual intercourse.

11.  The defence only referred to this court paragraph 42 of So Wai Lun v HKSAR, [2006]3 HKLRD 394 in his submission which, apparently, was counsel’s submission without, however, any court ruling.

12.  The court has brought up a Court of Appeal case of HKSAR v Lau Chi Cheung, [2008] 4 HKLRD 432 whereby the defendant had pleaded guilty to a charge of unlawful sexual intercourse with a girl under 13. The victim was 12 years and 7 months old; the defendant was a 22‑year‑old college student. They met each other through Internet chatline where they arranged to have sex, and sexual intercourse eventually took place at a hotel room. The defendant had paid the victim $2,200 in return.

13.  The Court of Appeal reckoned that the victim was sexually precocious, but large payment for sex was an aggravating factor. There was no evidence that the defendant had groomed the victim for sex. A community service order was considered to be inappropriate under these circumstances even for a person with a positive good character. The Court considered 2 years to be an appropriate starting point in that case NP14. Having considered the authority submitted by the prosecution, this court could not find HKSAR v Chung Yui Hung to be as appropriate as HKSAR v Lau Chi Cheung.

14.  The facts of the present case are nearly on all fours with that case of Lau Chi Cheung. However, each case has its own facts and the defendant should be sentenced on the basis of the facts as found by this court. In the present case, the disparity in age and maturity was relatively small. At the material time, the victim was 12 years and 3 months old whereas the defendant was about 24. There was no element of unwillingness by the victim. However, girls of such young age were particularly vulnerable and immature. They need to be protected from their own foolishness and immaturity.

15.  There was no evidence suggesting that the victim was sexually precocious or promiscuous. Although money was not offered nor paid to the victim, the defendant took advantage of the victim’s immaturity and naivety to satisfy his sexual gratification even though this was their first meeting. He had unprotected sex with the victim. He chose not to wear a condom and ejaculated inside her. Obviously, he did not care if the victim would get pregnant or infected with sexually transmitted disease. He had also taped down the scene while having sexual intercourse with the victim.

16.  Under these circumstances and as indicated by the Court of Appeal in HKSAR v. Lau Chi Cheung that community service order was simply inappropriate and out of the question. To reflect the criminality involved and the gravity of the offence, to mark the disapproval of the society and to act as a deterrent to the defendant and other potential offenders, immediate imprisonment is called for even in the case of a first offender.

17.  Having fully considered all the circumstances, including the background features of the case and of the defendant, mitigation advanced by counsel, the defendant’s guilty plea and the relevant authority, this court would adopt a starting point of 27 months’ imprisonment. By pleading guilty, the defendant has spared the victim with a traumatic experience and embarrassment of having to testify in court. He is therefore entitled to a full one-third discount for his plea. Hence, the sentence would be reduced to 18 months.

18.  For the defendant’s previous good character and co‑operation with the police, this court is prepared to further reduce the sentence by 2 months. Accordingly, the defendant will be sentenced to 16 months’ imprisonment.