HKSAR v. Cheung Kan Leong

DCCC 653/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 653 OF 2015

____________

REASONS FOR SENTENCE

1.The defendant pleaded guilty to 2 charges of "Unlawful sexual intercourse with a girl under the age of 13 years".

Summary of Facts

2.X was born on 5 October 2001.  At the time of both offences, the defendant was a 16-year-old student.  X was living in the Children's Home at the Eastern Hospital.  They started dating in July 2013.

3.According to X, she and the defendant had sexual intercourse 10 times at the defendant's home.  The 1^st time took place one day in November 2013 (Charge 1) and the last time, on 5 July 2014 (Charge 2).  They had sex about once every fortnight. No condom was ever used.

4.The defendant admitted the above under caution.  He knew X was 12 years old when they had their 1^st sexual intercourse.  

5.On 10 July 2014, X revealed her sexual relationship with the defendant to social worker Madam CHU (PW2).  Preliminary pregnancy test on X showed positive results.  PW2 alerted the Police.

6.Medical examination confirmed that X was pregnant.  Her pregnancy was terminated by surgery on 25 July 2014.

7.The DNA of the defendant and the abortus removed from X were compared.  The result provided very strong evidence that the defendant is the biological father of the abortus.

Mitigation & Sentence

8.The defendant turned 18 recently.  He has 3 conviction records (all dated June 2012 when he was 14), none of which is similar to the present offences.  Defence lawyer Mr. WONG informed me that the defendant's mother was a drug addict.  She went in and out of voluntary drug addiction treatment centres repeatedly.  His father is a chef working long hours.  Thus, the defendant received very little parental supervision during his childhood.  Worse yet, he often found his mother unconscious at home due to drug overdose.  He had to deal with the situation himself.

9.Owing to inadequate care at home, the defendant was placed in the Children's Home at the Eastern Hospital[1] in 2007.  He managed to behave himself until he entered F.1 in September 2010.  He was then transferred to a Salvation Army Boys Home and stayed there until he was expelled in early 2012 due to behavioural problems.

10.Mr. WONG submitted that the defendant met X at Youth Outreach in June 2013, when both of them were members of the centre.  They started dating in July.  In November, the defendant began his employment at Youth Outreach as an Activity Assistant. Mr. WONG stressed that the defendant did not abuse his position as a staff member of Youth Outreach in dating X.  Their relationship began before the defendant became a staff member.  Furthermore, their age difference is only 4 years.

11.A bundle of mitigation letters was placed before me; their contents are duly noted.  One letter is written by X's mother, who has forgiven the defendant.  The defendant's supervisor at Youth Outreach also made positive comments about his work performance.

12.Both Charges 1 and 2 are absolute liability offences[2]. The legislative intent is to impose statutory protection on those of young age such as X.  The defendant and X might well have been in love, but the law simply does not allow them to get intimate with each other.  The message sent by the legislature cannot be clearer.

13.At law, I cannot take into consideration of X's consent or willingness to have sexual intercourse with the defendant.  Although there is no evidence showing that this event has any detrimental effect on X, her pregnancy and abortion are plainly aggravating factors in terms of sentencing.  What the defendant did is very wrong.  He and X were both too young to have any sexual experience.  The legislature thinks young girls like X cannot protect themselves, so the law steps in.

14.I adjourned the sentence to obtain a pre-sentencing report.  The comments in the report are generally positive.  I note that the defendant is still in love with X and is still dating her.  It also appears that the defendant has been trying hard to reform himself since his arrest.  I am prepared to give him one last chance by not sending him to prison.

15.The defendant is mentally and physically fit for detention in a Rehabilitation Centre, Detention Centre or Training Centre.  The report recommends Detention Centre.  In my view, the defendant lacks discipline and was unable to control his impulsive behaviour and sexual desire.  I believe a period of short-term disciplinary training coupled with statutory supervision will benefit him by strengthening his self-control and law-abiding concept.  A clear message must be sent to the general public that the court does not treat these offences lightly.  The bodies of underage girls are not to be violated under any circumstances.  Those who breach the law will no doubt face serious consequences.

16.Based on the reasons stated above, I make a Detention Centre Order, which will be the sentence for both Charges 1 and 2.