HKSAR v. LAM HO KAN

 DCCC1380/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1380 OF 2009

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two offences of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crime Ordinance, Cap.200.

2.  The Brief Facts were as follows.  The victim X was born on 23  December 1997.  X was in the custody of her father and resided with him and her grandmother at an address in Shau Kei Wan.  Her father was unable, due to work, to supervise her closely.  On occasions she stayed at a youth outreach hostel. 

3.  On 27 August last she informed the social worker that she may be pregnant as a result of unprotected sex.  The police were informed. 

4.  Interviewed on video X said she got to know you through friends and you dated her.  On 16 July of last year she dated you, you said you were sleepy as you had been up all night.  She did not want to go to your home so she brought you to the family flat.  You suggested sex and after some persuasion she agreed.  You and X had consensual sex in the father’s bedroom.  You did not use a condom and you ejaculated inside her.

5.  On 21 August of last year X met you at Shau Kei Wan MTR station.  She had quarrelled with her family and did not want to go home.  You then took her to your hut in Shek O.  After chatting for a while, you suggested having sexual intercourse and she agreed.  For the second time you had consensual sex.  You did not use a condom and you ejaculated inside her.

6.  On 11 September X was examined by a forensic pathologist and found the hymen was attenuated in the posterior half with a rolled edge.  To put it simply, this was consistent with sexual intercourse. 

7.  On 17  September you were arrested and admitted the offence.  In a video-recorded interview that day you confirmed X’s version except that you claimed not to have ejaculated in the second occasion as you were tired.

8.  You admitted to one subsequent conviction that resulted in a probation order and was different from the present offence. 

9.  In view of your age, the age of the victim and the nature of the offence, I adjourned the case for a whole range of reports and the victim impact report.  The recommendation was for a detention centre order. 

10.  Mr Lo on your behalf confirmed that you accepted the contents of the reports.  He then proceeded to mitigate on your behalf.  I was referred to parts of a psychological report which state clearly that you were in need of the support of your family and mental health professional support.

11.  Mr Lo told me, and this is confirmed by the reports, that you come from a broken family.  Your father had not fully appreciated the seriousness of the problems you had and that you needed help from an early age.  Now, the family understands your needs and is standing by you.  That is evident by the attendance of family members in court today, together with the pastor of your church. 

12.  Mr Lo stressed that the acts of intercourse were consensual.  The main mitigation that Mr Lo advanced on your behalf is that since you were placed on probation there had been a marked improvement in your behaviour and your maturity.  Whilst recognizing the seriousness of the offence, he asked me to give you one last chance and impose a probation order despite the fact that this was not recommended by the probation officer. 

13.  You confirmed that at the time that you committed these offences you were not quite of 16 years of age.  And of course at the time of the commission of the offences you were technically of a clear record.  On your behalf he produced letters of support.  I have read those letters and taken them into account. 

14.  I turn now to the sentence.  I accept that this was a girlfriend-boyfriend relationship.  Clearly, it is not the case of a mature man corrupting a young girl.  At the time of the offences you were 15, approaching 16, and the victim was 11.  I do note she was very young indeed. 

15.  Both you and the victim have something in common in that you come from broken homes and both have suffered from lack of family support.

16.  The victim impact report is most helpful.  It is rather different from the usual report in that the conclusion that is drawn is that the problems that the girl suffers are not the result of these offences but they stem from the lack of support and help she has received.  She was portrayed as a deeply depressed and unhappy young girl who had suffered previous sexual abuse.   To some extent these offences are the symptoms of her past.

17.  I note also that you were extremely co-operative with the police, making full admissions upon arrest and that you have spared the girl the trauma of the witness-box by your pleas of guilty.  That is an important expression of remorse.  However, I do note that you were over 4 years older than the victim.  You did take advantage of her immaturity and many psychological problems to gratify your own desires.

18.  As far as you are concerned whilst I do agree with Mr Lo that a probation order is cosmetically attractive, there has, however, to be an element of deterrence.  It may well be that probation order would assist you.  This court has a wider duty and that wider duty encompasses the protection of the young.  In this case the victim was only 11. 

19.  I make full allowance for the mitigation and all the facts.  This is clearly a case where if you had been of more mature years, you would have been looking at a very substantial prison sentence indeed.  However, I do take into account that at the time of the offence you were only 15 years old.  I do reject -- probation been totally inadequate in these circumstances.  You will be sentenced to detention centre on each charge.