HKSAR v. Leung Ho Tai

DCCC 974/2022

[2023] HKDC 1392

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 974 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 2 charges of indecent assault on another person, contrary to section 122(1)  of the Crimes Ordinance, Cap 200 (1^st charge and 2^nd charge)  and 2 charges of unlawful sexual intercourse with a girl under the age of 13, contrary to section 123 of the Crimes Ordinance, Cap 200 (3^rd charge and 4^th charge). He also agreed to the Amended Summary of Facts and was so convicted of the charges.

Facts

2.In November 2020, the defendant started to chat with X on WeChat.  In mid-December 2020, they became boyfriend and girlfriend.  At the material time, X was 12 years old and the defendant was aged 15.

3.As X did not go to school, enquiry was later made with X by her form teacher, Y on 26 October 2021, during which X told Y that she had sexual acts with her boyfriend, the defendant.  A report was subsequently made to the police.

4.In a video-recorded interview, X recounted, amongst other things, that:

(a)  On a day unknown in early August 2021 and on a day unknown in early September 2021, when X and the defendant were at the defendant’s home at Yee Yan House, Yee Ming Estate, Tseung Kwan O, New Territories, the defendant asked X if they could have sexual act. Out of curiosity, X agreed. The defendant then removed his pants and underpants as well as the pants of X. After wearing a condom, the defendant used his penis to rub against X’s vagina over her underpants for some time (1^st charge and 2^nd charge respectively).

(b)  On a day unknown in September 2021, X and the defendant went to the residence of the defendant’s father at Chun Wu House, Chun Yeung Estate, Fo Tan, New Territories. The defendant asked X if they could have sexual act and X consented. The defendant again removed his pants and underpants and put on a condom. He then removed X’s pants and underpants and his penis penetrated X’s vagina from behind. As X was feeling pain, the defendant withdrew his penis after 1 to 2 minutes (3^rd charge).

(c)  On 1 October 2021, X and the defendant went to the residence of the defendant’s father again. The defendant asked X if they could have sexual act and X consented. Then the defendant removed his pants and underpants as well as X’s pants. After putting on a condom, he held X’s underpants with one hand exposing X’s private part while holding his penis with another. The defendant’s penis then penetrated X’s vagina and the intercourse lasted about 5 minutes. As X was feeling pain, the defendant withdrew his penis and masturbated himself and ejaculated (4^th charge).

5.The defendant was later arrested on 29 December 2021 and the defendant admitted the offences.

6.Later, he attended 4 cautioned video-recorded interviews and his version was the same as that recounted by X for 1^st to 4^th charge. The defendant further admitted that he knew that X was at the age of 12 at all material times.

Criminal Record

7.The defendant has a clear record.

Mitigation

8.The defendant is now aged 17.  He is a Form 5 repeater student. 

9.He came to Hong Kong with his mother from the mainland in 2014 to reunite with his father.  Before he came to Hong Kong, his mother alone had to work hard to take care of the defendant and she did not have enough time to give the defendant guidance and support.  After the defendant came to Hong Kong, the defendant’s parents got divorced in 2018 and his father died in August 2022.  Since 2018, the defendant and his mother lived on government subsidy.

10.The mother, now aged 48, suffers from minor stroke, depression and anxiety disorder, and has to attend and receive psychiatric treatment.  Due to the mental illness, the mother found it difficult to give proper guidance to and take care of the defendant.

11.Although the defendant has not been performing well in school and has to repeat Form 5, his mother considers him a filial son.  He has also performed social service in his spare time and has received a Certificate of Appreciation from a youth institute.  It is said that although the defendant’s academic performance is not good, his conduct in school is good.

12.The defendant is now very remorseful for what he has done, in particular the harm caused to the victim X. 

13.In mitigation, the defendant has handed to this court mitigation letters from himself, his mother, social workers as well as a church pastor and teacher.

14.Defence counsel submitted that the defendant has a clear record and that he committed the offence due to impulse, ignorance of the law and lack of family support. 

15.It is said that the case is not the most serious of its kind and that it is actually at the lowest rank of the seriousness of the same type of offences.

16.Defence counsel also submitted that the defendant, when committing the offence, had sought the victim’s consent and did also use protective measures to avoid the victim getting pregnant.  The defendant thought that they were lovers and he did not exercise any violence, threat or inducement, nor taken advantage of the victim by reason of his position or status.

17.The 4 offences took place within 2 months.

18.Defence counsel also submitted that there is no tariff for these type of offences and that the sentence in each case is dependent very much upon the facts of each particular case.  He referred this court to 5 cases.

19.Defence counsel now urges this court to adopt the recommendation by the probation officer and put the defendant on probation with special conditions as suggested by the probation officer in her probation report, and not to send the defendant to Training Centre or Rehabilitation Centre. 

20.He further submitted that the defendant’s mother, social workers, pastor and church friends are all supportive of the defendant in his rehabilitation, and that the defendant has now learned a bitter lesson, will not reoffend in future, and is in deep need of supervision and guidance in his rehabilitation.

Discussion

21.For the 1^st and 2^nd charge, upon conviction on indictment, the maximum sentence is 10 years’ imprisonment. 

22.For the 3^rd and the 4^th charge, upon conviction on indictment, the maximum sentence is life imprisonment.

23.There is no sentencing tariff for these offences as both the facts of the case and the personal background of the defendant can vary immensely.  Further, when the cases went on appeal, as the court would mainly deal with the grounds of appeal in the judgments and only briefly mention the circumstances of the case, the judgment in these cases could therefore only serve as a reference.

24.In the case of HKSAR v Tsang Chiu Tak, [2013] 1 HKLRD 427, Cheung JA (as he then was)  in the judgment says that,

“8. The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.

9. The Court of Appeal pointed out that where the court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:

(1)  The age difference between the victim and the defendant;

(2)  The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;

(3)  Whether the defendant had used threats or inducements to make the victim succumb;

(4)  The number of occasions of committing the offences and the duration of the offences;

(5)  Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6)  Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7)  Whether the sexual abuses have caused physical or psychological trauma to the victim;

(8)  Whether the offences have impact on the family members of the victim;

(9)  Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and

(10)  Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of reoffending.”

25.In this case, at the time of the offence, the defendant is aged 15 and that of X is 12.  It is agreed that the defendant knew X was aged 12 at the time.

26.It was said the defendant committed the offence out of impulse and he lost his control.  He committed the first 2 offences in 2 consecutive months, ie early August and September 2021, and the 2 unlawful sexual intercourse offences in September and 1 October 2021.  The whole episode therefore lasted 2 months.  He had also sought consent of X before he committed the offences. There was no aggravating factor.

27.Before sentencing, this court has considered the mitigation submissions by defence counsel, all the mitigation letters, Certificate of Appreciation from the Hong Kong Federation of Youth Groups, medical reports of the mother as well as the reports that this court has called for, ie victim impact report, suitability report for Detention Centre/ Training Centre/ Rehabilitation Centre, Community Service Order and Probation Order.  These reports set out the personal background of the defendant and the circumstances under which he was brought up.

28.It is clear from the reports that the defendant was mostly taken care by his mother who had worked hard very much to support the defendant in his early years, and then she contracted depression and psychological problem since year 2007 when the defendant was aged 2. She has not been able to render sufficient support and guidance to the defendant, in particular on sexual issues.

29.Although the defendant has not been performing well in his studies, his conduct in school was good.  As said by the defence counsel, and supported by the Certificate of Appreciation, he had been performing volunteer work.

30.According to Ms Lam, the clinical psychologist, the victim X was not significantly disturbed by the sexual abuse incident.  Instead, she was disturbed about the possible legal consequence caused to the defendant as a result of the case, and she felt annoyed that the father disclosed the incident to the paternal family members.  X said she had no further contact with the defendant and X had actually suffered adjustment disorder which is precipitated by ongoing parental conflict.

31.The suitability report said that the defendant is medically unfit for detention in Detention Centre because of his poor exercise tolerance, but he is physically fit for Rehabilitation Centre and Training Centre. 

32.The probation officer’s report said the defendant had committed the offence out of curiosity for sexual pleasure, and that he had underestimated the chance of being caught and had neglected his legal responsibility.  It was said that the defendant is now deeply remorseful and regrets for his action.  He understood that as an older teenager he should have protected the victim. 

33.The probation officer said that she believed the defendant had learned a lesson and had been adequately deterred from further reoffending.  The probation officer considers that taking into account the defendant’s tender age, clear record, guilty plea, remorseful attitude, the mother’s support and most important of all, his genuine need for counselling for sex appropriate behaviour, a Probation Order which is counselling oriented is considered a constructive disposal to help him acquire a proper sex attitude and strengthen his self-control and law-abiding sense. 

34.It was said that Community Service Order, which is work oriented, is less suitable and is therefore not recommended.

35.The probation officer suggested to this court to put the defendant on probation for 12 months with special conditions.

36.Whilst noting the seriousness of the charges, in particular the 3^rd and 4^th charge, but considering the facts of the case with reference to the factors in Tsang Chiu Tak case:

(a)  the defendant himself was an underage person at the time;

(b)  age difference between the defendant and X is 3 years;

(c)  the defendant has a clear record;

(d)  the defendant has pleaded guilty and had been full and frank with the police upon apprehension;

(e)  the offences were committed within a period of 2 months;

(f)  there is no aggravating feature;

(g)  “consent”, albeit from an underage person, was sought before the commission of the offences;

(h)  no force, threat or coercion was exercised;

(i)  there was no abuse of position or status; and

(j)  the defendant used precautionary measures in the sexual acts.

37.This court accepts the defendant is deeply remorseful as to what he has done out of impulse and insufficient regard to the law, and he has now learned a bitter lesson as he had been remanded for 17 days. 

38.This court is also aware of the family circumstances of the defendant. It is clear that he has not been receiving adequately guidance and supervision in the past and that he is clearly in need of further guidance and supervision.  The mother and social workers from school as well as church persons are willing to support him in his rehabilitation.

39.Under these particular circumstances this court is willing to put the defendant on probation for 18 months with the following conditions:

(a)  he shall be of good behaviour and keep the peace;

(b)  he shall keep in touch with the supervising probation officer;

(c)  he shall receive scheduled/unannounced visits from supervising probation officer at his place of residence;

(d)  he shall reside and study/work as directed by his probation officer;

(e)  he shall not associate with any persons/group of persons as directed by his probation officer;

(f)  he shall observe curfew requirements from 10:30 pm to 6:30 am unless otherwise authorized by his probation officer;

(g)  he shall participate in any programmes/activities his probation officer deems conducive to his rehabilitation as directed by his probation officer.