HKSAR v. Lam Tsun Hei

DCCC 613/2022

[2023] HKDC 793

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 613 OF 2022

----------------------

----------------------

-------------------------------

Reasons for Sentence

-------------------------------

1.The defendant pleaded guilty to one count of unlawful sexual intercourse with a girl under the age of 13. He was convicted accordingly. Given the nature of the offence and the age of the defendant, the court called for the victim’s impact assessment report of X and, in accordance with section 109A of the Criminal Procedure Ordinance, the TC, DC and RC report of the defendant.

2.The sentence was adjourned to 23 May 2023.

Brief Facts

3.X was born on 21 August 2009 in Hong Kong. At the material time, she was about 12 and a half years old. On 30 January 2022, X went away from home and spent time with her friends. On 31 January 2022, X came to know the defendant.

4.In the early hours of 3 February 2022, at the request of the defendant, X went to a guesthouse, called Gold Stars Hotel, at Apliu Street, Sham Shui Po, with the defendant and her female friend, PW3 Xie. It was the defendant who booked Room 8 of the guesthouse. There were 2 beds in the room, and the defendant shared the same bed with X, while PW3 Xie slept in another bed.

5.It was alleged that while X was sleeping, the defendant started to have sexual intercourse with her and the defendant did not wear a condom. X was woken up with pain and was aware of the sexual intercourse activity. The defendant continued to have sex with X for about 5 to 10 minutes until X asked the defendant to go out to buy some food. X was a virgin before this incident.

6.On 4 February 2022, PW5 Koo had a chat with both the defendant and X in a park. The defendant admitted that he had sex with X on 3 February, and X nodded her head.

7.The guesthouse owner confirmed that the said room was rented by one young man and 2 young females at about 3 am on 3 February 2022.

8.The offence was disclosed when X told her friend, PW6 Chan, about the sexual intercourse. X’s mother overheard about that and eventually the case was reported to the police.

9.The defendant was arrested on 23 March 2022. During the video-recorded interview, the defendant made, inter alia, the following statements:

(1)  On 1 February 2022, the defendant made friends with X through PW3 Xie.

(2)  X was a missing person, and X’s mother did not allow X to go out.

(3)  The defendant claimed that he did not know how old was X.

(4)  Between 1 February and 3 February 2022, X stayed with the defendant and they became lovers.

(5)  At about 4 am, they went to a guesthouse in Sham Shui Po. The defendant rented a room and paid $600.

(6)  The defendant and X slept in one bigger bed while PW3 slept in another one.

(7)  The defendant and X became intimate and they took off their clothes. The defendant said X did not resist.

(8)  The defendant removed X’s underwear.

(9)  The defendant claimed that he had no recollection as to what happened until the moment when he left the guesthouse to buy bottles of water at a convenience store.

(10)  The defendant said he had consumed some beer. Hence, the defendant alleged that he was not sure if he indeed had sexual intercourse with X and if he had worn a condom. However, the defendant was certain that he did not ejaculate.

(11)  On the following day, the defendant, X and PW3, left the guesthouse and had a meal together. The defendant said there was nothing special about X.

10.The defendant was positively identified by X in an identification parade.

Mitigation

11.The defendant was 18 years old and X aged 12 at the time of the offence. The defendant was educated to Form 3 level and was a casual worker prior to his arrest.

12.The defence submitted that the defendant has made a timely plea. The age difference between the defendant and X is less than 6 years. The defence submitted that there was no evidence to show that there was traumatic impact on X.

13.The defence cited three District Court cases to suggest that a short period of imprisonment is justified. The defendant has been in custody for over 13 months. He is remorseful and asks for leniency.

14.The defence submitted 3 mitigation letters from the defendant, the defendant’s father and a social worker. In his mitigation letter, the defendant said he has been remanded for 1 year and 1 month. He felt remorseful that he was drunk when committing the offence. He will turn a new leaf and act as a filial son. The defendant’s father said in his letter that the defendant was raised in a single family and was diagnosed to be suffering from ADHD. The defendant also has problems with his heart. He felt guilty that he did not teach his son properly. The defendant was remorseful and promised to be a law-abiding person after discharge. The defence also tendered a supplemental submission today and urged the court to impose a custodial sentence so that the defendant can be released as soon as possible.

Sentence

15.The maximum sentence for this offence is life imprisonment which reflects the gravity of this offence and the need to protect the under-aged. The defendant had a clear record. There was no evidence to suggest that the defendant used force or induced X to have sex with him.

16.As regards the possible traumatic impact on X, it is a pity to see that the authorities cannot locate X (vide the memo dated 5 May 2023) and X is a missing person since 2022.

17.As expected, the various reports that the court called for spoke favourably about the defendant. The reports remarked that the defendant developed a romance relationship with X in January 2022. It was said “Out of momentary sexual impulse”, the defendant committed the present offence. The defendant was remanded in PUCI since 25 March 2022 and the defendant managed to behave himself without incurring any disciplinary offence. The report said the defendant is mentally, psychologically and physically fit for detention in a Rehabilitation Centre or a Training Centre, and so is the recommendation.

18.When it comes to sentence a young offender, the court has to consider the principle of rehabilitation vis-à-vis deterrence. In my view, that is the spirit of section 109A of the Criminal Procedure Ordinance.

19.In the present case, the defendant claimed that he and X were lovers, and there was no evidence to suggest otherwise. The age difference between X and the defendant is about 6 years. X said that the sex was unprotected. There was no evidence of forced sex and the defendant claimed that he was under alcoholic influence. There was no information as to the effect upon X as she is a missing person.

20.In normal circumstances, I would favourably consider the recommendation of the reports, that is to say, to sentence the defendant to TC or RC.

21.That said, I have to consider the fact that the defendant has been remanded since March 2022 for over a year. In my view, given the defendant’s age, the defendant should have been granted bail pending trial.

22.This court would take a pragmatic approach and have to balance various factors in order to arrive at a just solution. To be fair to the defendant and with reference to the sentence of the Appellant in HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432, I would adopt a starting point of 21 months. I would give the defendant one-third discount in sentence for his plea. Accordingly, the defendant is sentenced to 14 months’ imprisonment, and with this imprisonment term, the defendant should be able to be released from prison immediately or very shortly.