HKSAR v. LI CHEUK YIN

DCCC 949/2023

[2024] HKDC 1348

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 949 OF 2023

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REASONS FOR SENTENCE

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1.  Mr Li pleaded guilty before me to one charge of Unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Cap 200. Particulars are that he, on or about 14 August 2021, at a flat in Sai Kung, New Territories, in Hong Kong, had unlawful sexual intercourse with X, a girl under the age of 13 years.

Facts admitted by Mr Li

2.  X was a girl born in October 2008.  X was living with her family members in a flat in Sai Kung (“the Flat”).

3.  Late July or early August 2021, X became acquainted with Mr Li (born in November 2006)  through a friend.  X entered into a romantic relationship with Mr Li early August.  The relationship ended in September 2021.

4.  On 9 August 2021, via WhatsApp, Mr Li asked X to engage in sexual intercourse with him.  X agreed.  Furthermore, X stated that they could have sexual intercourse at X’s bedroom in the Flat the coming Saturday (ie 14 August 2021).

5.  Mr Li knew X was 12 years old at the time.

6.  On 14 August 2021, Mr Li went to the Flat with a friend.  Upon arrival, Mr Li found that a friend of X was also there.  The four of them chatted for a while.  None of X’s family members was there.

7.  Sometime later, Mr Li and X had sexual intercourse in X’s bedroom for about 15 minutes.  Mr Li used a condom that he brought to the Flat.

8.  In September or October 2021, X told a close friend PW2 about what happened.  On 15 October 2021, PW2 suggested X to tell her parents about it.  X told her mother Y on the same day.  Y did not know how to handle the matter so on 26 October 2021 she sought help from X’s school teacher PW4.  On the same day, X told PW4 what had happened.

9.  PW4 reported the case to the police on 27 October 2021.

10.  On 11 November 2021, Mr Li was arrested.  During a cautioned VRI conducted in the presence of his father, Mr Li stated:-

(a)  He met X in early August 2021 and commenced a romantic relationship with her;

(b)  They broke up in September 2021;

(c)  Prior to the incident, he asked X via WhatsApp where to have sexual intercourse; X said her home; he told X he would bring a condom; X said okay;

(d)  Sexual intercourse meant the male’s private parts enter the female’s private parts;

(e)  On 15 August 2021 (sic), at about 1 pm, he went to the Flat with intent to have sexual intercourse with X; a friend went with him since it was his first visit to the Flat;

(f)  Before getting there, he bought a box of condom in a convenience store in Sai Kung;

(g)  X gave her consent to the sexual intercourse;

(h)  He ejaculated inside the condom;

(i)  Afterwards, he and X maintained WhatsApp communications;

(j)  He knew X was 12 years old and was studying in Form 2; and

(k)  The mobile phone seized from him belonged to him.

11.  WhatsApp messages between Mr Li and X show:-

(a)  On 9 August 2021 at about 2 am, Mr Li and X talked about Mr Li bringing a condom to X’s house;

(b)  Between 2:23 pm and 2:43 pm the same day, Mr Li asked X if he could bring condom; X replied “probably could”; Mr Li said he would take it as X’s agreement; X replied “ok”; Mr Li then asked how many condoms he should bring and how many times X wanted to engage in; Mr Li then asked whether X wanted to engage in or not and said he would not force X; in reply, X said she did not want it to happen too quick; Mr Li said he wanted to try it once, to which X said “try then”;

(c)  On 10 August 2021, between 2:20 am and 2:25 am, Mr Li asked X if there would be someone at X’s home on Saturday (ie 14 August 2021); X said normally there would not be anyone present;

(d)  On 14 August 2021, at around 11:13 am, Mr Li said they would be coming at about 1 o’clock; at about 12:46 pm, X asked if Mr Li had arrived and he replied yes;

(e)  On 14 August 2021, at about 2:41 pm, X complained she was still suffering from pain; X complained about the pain again at 3:32 pm the same day;

(f)  At about 9:46 pm the same day, Mr Li asked if X had missed him; X replied yes;

(g)  On 1 September 2021, Mr Li and X talked about getting back together; and

(h)  On 23 October 2021, Mr Li said he wanted to get back together with X; X said her mother knew about the incident and would not allow them to get back together.

Criminal record

12.  Mr Li has a previous clear record.

Antecedents

13.  Mr Li is aged 17 (14 at the time of the offence), was a F4 student at the time of arrest.  He lives with his mother and younger sister in public housing in Kwun Tong.

Mitigation

14.  Mr Albert Cheung of counsel[1] mitigated on behalf of Mr Li.  The following is a summary of the mitigation submissions.

15.  Mr Li has a clear record and was 14 years and 8 months old at the time of the offence.  He has now completed secondary education and taken DSE examinations. He has been accepted by VTC into their programme starting September 2024.

16.  Mr Li is remorseful about his actions and understands the seriousness of the offence.

17.  Mr Li’s mother is suffering from depression and requires regular psychiatric check-ups.

18.  Mr Li did not manipulate the girl into having sex with him.  There was no element of unwillingness by the girl.  There was little disparity in age between Mr Li and the girl.  They were romantically involved schoolmates.  This is a case of an immature teenager failing to control his sexual curiosity.

19.  The court is asked to be as lenient as possible in sentencing Mr Li.

20.  Mr Cheung submitted on behalf of Mr Li a total of 9 mitigation letters all written in Chinese (with English translation).  The writers were respectively the Headmaster of Mr Li’s school, the Managing Director of a Football Academy, Mr Li’s senior aunt, Mr Li’s junior aunt, his PE teacher, his mother, his part-time employer, Mr Li himself and his younger sister.  The contents are generally that Mr Li acted out of temporary impulse, is deeply regretful and is determined to reform himself; that Mr Li is courteous, a filial son and grandson, a hardworking and serious employee.  All letter writers except Mr Li asked for a lenient sentence so he may turn over a new leaf.

21.  After the various reports have been obtained, Mr Cheung submitted that the reports have been explained to Mr Li and the latter understood and agreed to the same.

22.  Mr Cheung further submitted that because of the remand, Mr Li has heard the clangs of prison gates and therefore the risk of re-offending is low.

23.  Mr Cheung reminded the court that a place has been secured for Mr Li to attend a VTC course starting September this year.

24.  Finally, Mr Cheung asked the court to impose a Community Service Order on Mr Li as recommended by the relevant suitability report.

Reports

25.  Before sentence, because of Mr Li’s age and the nature of the offence, I called for a Detention Centre, a Training Centre, a Rehabilitation Centre and also a Community Service Order (“CSO”)  suitability reports on Mr Li.  I also made an order that the Young Offender Assessment Panel (“YOAP”)  be consulted. YOAP later wrote back to say that they could not complete the recommendation report unless one more week was allowed.  The defence have been duly notified of the YOAP’s position by correspondence.  After consideration and in the absence of written demurrer from the defence, the court decided to dispense with the YOAP report.

26.  The Detention / Rehabilitation / Training Centres Joint Suitability Report that came back has the following conclusion:-

“The Medical Officer has confirmed that defendant is medically unfit for detention in a Detention Centre because of poor exercise tolerance. I therefore consider him unsuitable for detention in a Detention Centre. He is mentally and physically fit for detention in a Rehabilitation Centre or a Training Centre. From the information available and after a general assessment of his behavior and attitude whilst on remand, I consider him more suitable for detention in a Rehabilitation Centre.”

27.  The CSO Suitability Report that came back has the following conclusion:-

“The collected information revealed that the Accused was brought up in a single-parent family. He maintained good relationship with his mother and younger sister and received adequate care and support from the mother. Though he was an academic underachiever, he appeared to have behaved himself at school and led a regulated life except his commission of the present offence. He had motive to handle his problems and reform himself by seeking counselling services from social workers after the arrest. The Accused had realized his wrongdoing and expressed remorse. Taking into consideration of the above, his guilty plea with a clear record, his acceptance of responsibility and commitment in performing unpaid work under CSO, availability for community service, physical fitness, stable life and fulfillment of other criteria for CSO and the support from his mother, the Accused is considered a suitable person for CSO. Hence, CSO is recommended should [the court] deem it a desirable sentencing option to deal with the Accused.”

Sentence

28.  The maximum penalty on conviction of the subject offence is life imprisonment. This is to be contrasted with a similar offence which carries a maximum penalty of only 5 years’ imprisonment where the girl is aged between 13 and under 16. One can immediately see the vast difference in seriousness between the two offences.

29.  No matter how advanced society is said to have developed and how low the standard of morality is said to have dropped, the court must continue to and be seen to protect the interests of girls under the age of 13 years because of the extreme youth.

30.  Mr Li has been remanded in custody for 2 weeks for the purpose of preparation of the reports.  He has heard the clangs of prison gates.  As such, he has been warned of the consequence of re-offending.

31.  Having read all the reports made available to me, I am of the opinion that although the offence is serious and is punishable by imprisonment, mandatory detention may not reap the most benefits for Mr Li or the society. The reasons are as follows:-

(a)  Mr Li did not have serious behavioural issues;

(b)  The relationship between him and his family is a good one;

(c)  The age difference between him and the victim is minimal;

(d)  There is little indication of sexual depravation or exploitation; and

(e)  A place in a vocational course (due to start in September)  organized by VTC has been reserved for him and it would be unfortunate if this was wasted.

32.  In the premises, and in light of the positive comments and recommendations of the CSO suitability report, and of Mr Li’s satisfaction of most, if not all, of the 6 factors identified in R v Brown [1981] 2 Cr App R (S)  294, 295, the court is minded to impose a CSO of 160 work hours on Mr Li.

(Mr Li, please stand)

[I then explained to Mr Li in ordinary language the purpose and effect of the intended Order, the consequences of failure to comply with the requisite conditions and requirements, the consequences of re-offence, and finally the court’s power to review the Order. Mr Li indicates his consent to the making of a CSO]

33.  I am satisfied of the following:-

(a)  Mr Li consents to the making of such an order;

(b)  He is a suitable person to perform work under such an order; and

(c)  Provision can be made for him to perform work under such an order.

34.  The sentence for Mr Li is a Community Service Order of 160 work hours.