HKSAR v. MOK WAI SAN

DCCC 418/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 418 OF 2013

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to six charges of unlawful sexual intercourse with a girl under the age of 13, contrary to section 123 of the Crimes Ordinance.

2.  As was disclosed in the background report, you came to know the girl as you met her at the park.  The girl at the time of the six offences was 12 years old.  At the material time, you were 15 years old. After meeting her, you became boyfriend and girlfriend.  Your physical sexual relationship began late in August 2011.  It continued until the end of your relationship in November 2011, so that lasted for approximately three months. 

3.  It was not until August 2012 that you were arrested for these offences.  You were arrested as a result of the girl’s father discovering sexual conversations between herself and her new boyfriend. As a result, the father of the girl reported these offences to the police. However, what is clear on the facts of this case is that when you broke up in late November 2011, the girl told a Social Worker about her sexual relationship with you and took contraceptive pills obtained from the Social Worker. 

4.  As you now know, this offence is a very serious offence indeed as it calls for a maximum term of life imprisonment.  This is there for the protection of young girls.  Girls under the age of 16 cannot give their consent to sexual intercourse.  However, as disclosed by the facts of this case the girl, aged 12, had consensual intercourse with you.

5.  Your solicitor, Mr Lam, has on the last occasion and today before me mitigated fully and thoroughly on your behalf.  You are 17 years of age now and otherwise have a clear record save for a police superintendent’s caution for an offence of theft on 15 September 2011. 

6.  Prior to sentencing you I called for the full range of reports upon you so that I could know more about your background and as to what was the most appropriate sentence to levy upon you.  Those reports were a Probation officer’s report, a Community Service Order, a Detention Centre, a Rehabilitation Centre and a Training Centre report. 

7.  You had quit school in 2010 when you had failed to complete Form 3.  Since then you have not been doing much with your life save that you had been associating with undesirable peers and loitered aimlessly until late at night.  Until you were arrested for this offence you had not been in any gainful employment.  As Mr Lam has pointed from the report, when you were given bail for this offence you had cut off your linkage with those adverse peers and commenced working in October 2012.  Thereafter in your leisure you stayed home and surfed the internet.  In March 2013, you again quit your job and became idle.  You have stayed home most of the time thereafter until the present hearing on 4 June where thereafter you were remanded in jail custody. 

8.  The Probation officer does not recommend probation or community service.  As stated in the last paragraph of the Probation report, it says that you have “Limited family support from your divorced parents, you had wayward behaviour despite being put on the Police Superintendent Discretion scheme on 15 September 2011 and was unreceptive to social intervention from various NGO’s and your close affiliation with vice associates. For that reason, the Probation officer says that “Statutory supervision in an open setting may not be effective to help you learn to live a law-abiding life”.

9.  As for community service, in view of your young age, limited working experience and unstable work habit after leaving school, community punishment is also assessed as not suitable.

10.  The officer at the Correctional Institution says that you are suitable and mentally and physically fit for all three centres, that is Detention, Rehabilitation or Training Centre but considers you more suitable for detention in a Detention Centre.

11.  Today, I received a letter from you expressing to me your genuine remorse and the experience you have felt in losing your freedom in the last two weeks and the fact that you now wish to turn a new leaf.   You have realised that your parents are concerned about you and I am told by Mr Lam that you wish now to continue your studies and thereafter find proper employment.

12.  It is clear that this offence was enacted as a matter of public policy to ensure that the law would protect vulnerable young girls.  In sentencing for this offence the court looks at various factors.  There is no tariff for this offence.  A court would normally take into account the age of the victim, the age difference between the defendant, yourself, 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 long-term influence on the child, any psychological impact on the child as a result of a sexual encounter with the victim.  These factors serve as aggravating features either to escalate the term or as mitigating factors to reduce the gravity of the offence. 

13.  In this case, it appears to me there are no aggravating factors which escalate the term, i.e. there was no breach of trust, no adult exploitation, no tape recording.  I have no evidence of any psychological impact on the girl, however, as noted by Mr Lam, your solicitor, the victim appeared to be sexually precocious as your offence with the girl only came to light when her father discovered sexual conversations between her and her new boyfriend on her Facebook in August 2012. Mr Lam has pointed out in mitigation, according to her father’s statement, the girl admitted to him that she had sexual intercourse with her new boyfriend in August 2012. 

14.  In your case, the present facts show that there was approximately a three year age gap between you and the girl.  For your brief three month encounter from August to November, you had treated each other as boyfriend and girlfriend.  Immediately upon arrest, you gave a detailed statement under caution and admitted all the offences.  You pleaded guilty at the first opportunity when you came to court and spared the girl the experience of giving evidence in court. 

15.  As to sentencing you, defendant, these are mitigating factors in reducing the gravity of these offences.  As a result of these mitigating factors I am able to exercise some leniency.

16.  Surprisingly, the Probation officer does not recommend probation.  It appears to me that on her conclusion as to why probation is not recommended, she contrarily suggests that you do need supervision.  The reasons given for not recommending community service is that you are of young age and limited working experience.  I again do not see why that is prohibitive of you receiving community service order.  Nevertheless, the Probation officer says should I consider to place you on community service, there is provision for you to perform work. 

17.  Defendant, you have had a short, sharp shock, I whilst in gaol custody in the last two weeks.  Your letter addressed to me today shows that you are truly remorseful and you intend to turn a new leaf.  Your parents have been here on both occasions.  It shows to me that you do have some family support.  You have informed me that your parents have visited you daily whilst you have been in custody.  I am considering placing you on community service, that is unpaid voluntary work. 

18.  Defendant  I, however, can only do so if you agree to perform unpaid voluntary work.  Do you agree?

DEFENDANT: Yes, I agree.

19.  Defendant, this community service unpaid work is worthwhile work under constructive supervision of a Probation officer.  You will be paying back to the community your wrongdoings.  In many cases it is considered as a real and effective alternative to imprisonment. 

20.  Defendant, I sentence you to Community Service Order for 60 hours on all charges, that is charges 1 to 6 and that sentence is to run concurrent to each other. 

21.  (Court explains a community service order and the consequences of a breach of the order to the defendant.  The defendant understands.)