HKSAR v. Leung Tsz Hin Dicky

DCCC 89/2021

[2021] HKDC 710

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 89 OF 2021

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 3 charges of "Unlawful sexual intercourse with a girl under the age of 13 years" (Charges 1 to 3).

Summary of Facts

2.X is a female born in July 2007.  The defendant was born in October 2001.  They met in mid-2019.

3.Mr. Chan (PW2) was a social worker of a youth centre in Kowloon City.  X became acquainted with PW2 when she started to visit the youth centre in mid-2018.

4.During a conversation with PW2 in late 2019, X disclosed to PW2 that she had engaged in consensual sexual intercourse with 2 male friends including the defendant.  The matter was referred to the Social Welfare Department.  The Police was alerted on 15 September 2019.

5.On 25 September 2019, in her 2 video recorded interviews, X disclosed to the Police her sexual encounters with the defendant.

Charge 1

6.After breaking up with her ex-boyfriend, X asked a female friend to introduce a male friend to her.  X's female friend then introduced the defendant to X.  In the evening on 25 August 2019, X, the defendant and 2 other friends went to a friend's home in Lok Fu, Kowloon ("the Flat"). 

7.When X was using the bathroom in the Flat, she saw the defendant peeping from outside the bathroom. When X finished what she was doing, the defendant entered the bathroom and told her that he "wanted to do it".  The defendant removed X's pants, made her face the wall, and made her bend down.  He then inserted his penis into X's vagina and had sexual intercourse with her.  No condom was used.  They left the bathroom together after 1 to 2 minutes. 

Charge 2

8.In the evening on 3 September 2019, X had an argument with her father.  She met with a few friends including the defendant to socialize.  She consumed about 2 bottles of alcohol whilst chatting with her friends.  The group then went to a motel in To Kwa Wan ("the Motel").  They arrived in the early hours on 4 September 2019 and rented a room ("the Room"). 

9.X's friends later left the Motel, leaving X and the defendant in the Room.  X was watching TV on the bed. The defendant switched off the lights and lay down next to her.  He told X that he "wanted to do it".  The defendant took off his shirt and removed X's pants and underpants.  He then took off his pants, lay on top of X and inserted his penis into her vagina.  They engaged in sexual intercourse for a while.  The defendant withdrew his penis and ejaculated on X's belly.  No condom was used.  He helped X clean up and they got dressed.  About an hour later, their friends returned to the Room.  The group continued chatting until they all fell asleep.  When they woke up, the group left the Motel and went to Mongkok to play.

Charge 3

10.On 5 September 2019, X and her friends were playing snooker at a snooker hall.  The defendant and X were boyfriend and girlfriend then.  On the same day, X, the defendant and some friends went to the Motel and rented a room.  X felt hungry so her friends went out to buy food, leaving X and the defendant in the room.  The defendant asked X if she "wanted to do it".  X replied "Do it if you want to."  They removed their pants and engaged in sexual intercourse for a short while.  No condom was used.

11.X and the defendant broke up on 7 September 2019, but they maintained contact on a friendly basis.

Arrest and admissions

12.The defendant was arrested on 17 July 2020.  Under caution, he admitted having engaged in sexual intercourse with X on the 3 occasions as described by X.

Mitigation & Sentence

13.The defendant is 19.  He was almost 18 when he committed the present offences.  He has 4 conviction records, which included a "Theft" offence and 5 "Indecent assault" offences.  He has been sentenced to Probation, Reformatory School, Detention Centre and imprisonment.

14.Defence counsel Ms. Lai informed me that the defendant started working after he finished F.2.  He has worked as a waiter on a casual basis in various restaurants earning about $12,000 per month.  He became unemployed in February 2020 owing to the pandemic.

15.In mitigation, Ms. Lai submitted that the defendant is remorseful.  He committed the present offences out of impulsiveness.  He claimed that he did not ask X about her age.  In his mitigation letter, the defendant expressed his determination to turn a new leaf.  He plans to receive vocational training in hairstyling.

16.Charges 1 to 3 are absolute liability offences[1]. The legislative intent is to impose statutory protection on those of young age such as X.  The defendant and X might have been a dating couple (however short their relationship was), but the law simply does not allow them to get intimate with each other.  The message sent by the legislature cannot be clearer.

17.At law, I cannot take into consideration of X's consent or willingness to have sexual intercourse with the defendant.  Furthermore, the defendant's failure to use a condom each time constituted an aggravating factor.  What the defendant did is very wrong and could bring harmful results such as sexually transmitted diseases and teenage pregnancy to X.  The legislature thinks young girls like X cannot protect themselves, so the law steps in.

18.In view of X's attitude towards the defendant's sexual requests, I do not see the need to obtain a Victim's Impact Assessment Report.  On the other hand, the defendant is no stranger to sexual offences.  He seems to have trouble controlling his sexual impulse, though there is no evidence of perverted sexual desire or behaviour.  He needs punishment and possibly professional help as well.

19.I am aware of the defendant's age. I should normally consider other sentencing options before sending him to prison. Ms. Lai, however, informed me that the defendant has been remanded in jail custody for almost 9 months since mid-September 2020. Placing him in a correctional institution for young offenders may well amount to double jeopardy. Also, the defendant has been sentenced to Detention Centre and imprisonment before. It is highly doubtful that he would be found suitable for any type of correctional institution for young offenders. Imprisonment seems to be the only viable punishment for him.

20.When determining the appropriate sentence, I have borne in mind the sentencing principles for offences of sexual assault on a child[2] laid down by the Court of Appeal in HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427. Taking into consideration of the relevant factors[3], I adopt a starting point of 2 years' imprisonment for each charge. I am not prepared to grant a

discount more than the usual one-third[4] because the defendant committed the present offences just about 6 months after he was released from prison in February 2019[5]. With the timely guilty plea, the sentence for each charge is reduced to 16 months. Apart from this, I see no other mitigating factors which warrant any further reduction.

21.Bearing in mind the totality principle, I consider a global starting point of 3 years' imprisonment appropriate for all 3 charges. With the timely guilty pleas, the overall sentence becomes 2 years. I order 4 months in Charge 2 to run consecutive to Charge 1; and 4 months in Charge 3 to run consecutive to Charges 1 and 2. Thus, arriving at a total prison term of 24 months.