HKSAR v. An Kam Fung

DCCC 712/2024

[2025] HKDC 1539

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 712 OF 2024

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REASONS FOR SENTENCE

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1.Mr An pleaded guilty before me to one charge of Attempted unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Cap 200, and section 159G of the Crimes Ordinance, Cap 200.

2.Particulars are that he, on a day unknown between May 2023 and June 2023, at the disabled toilet, 1st Floor, Departure Hall, Lok Ma Chau Spur Line Control Point, Tun Yu Road, Lok Ma Chau, New Territories, in Hong Kong, attempted to have unlawful sexual intercourse with X, a girl under the age of 13 years.

Facts admitted by Mr An

3.At the material time, Mr An was aged 16, a Secondary 3 student; X was a girl aged 11 (born February 2012), a Primary 5 student.  Both of them resided in the Mainland but attended adjacent schools in Hong Kong. They shuttled between Mainland and Hong Kong every school day.

4.Around November 2022 or December 2022 (when X was aged 10), they met each other on their way home after school and began dating soon after. They broke up in February 2023 but resumed dating in around April or May 2023.

5.In the morning of a day unknown between May and June 2023, Mr An gave X a condom as a gift. They met each other after school in MTR Sheung Shui Station and went to MTR Lok Ma Chau Station together.

6.At about 4 pm, Mr An took X to a disabled toilet on 1/F, Departure Hall, Lok Ma Chau Control Point. X sat on the toilet bowl at the request of Mr An. Mr An took from X’s schoolbag the said condom and put it on.

7.Mr An pulled down X’s underwear to her knees and lifted up her dress before he took off his pants and underwear. Mr An touched X’s vagina with his hand(s). Then, Mr An sat on the floor and X sat on top of him.  Sexual interaction took place between them during which X put her hands around Mr An’s neck while Mr An pressed his hand(s) on X’s back. X felt pain around her private parts during the 10 minutes or so interaction. Afterwards, Mr An removed the condom and ejaculated into the toilet bowl.  X then put on her underwear and left the toilet alone feeling upset.

8.Mr An was arrested on 8 December 2023.

Criminal record

9.Mr An has a clear record.

Antecedents

10.Mr An is aged 18 (16 at the time of the offence), receiving secondary education in Hong Kong, was a F3 student when he was arrested. Mr An is single and lives with his parents and younger sister in the Mainland.

Mitigation

11.Mr Chan Siu Ming of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr An. The following is a summary of the mitigation submissions.

12.The offence of USI with a girl under 13 is a serious one.  However, there are no sentencing guidelines. One has to look at the whole circumstances of the case.

13.Mr Chan referred to HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 which laid down the sentencing principles and factors that needed to be taken into consideration:

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

(b) 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;

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

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

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

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

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

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

(i) 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

(j) Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.

14.In HKSAR v Lai Wing Tat, CACC 363, 364 & 370/2009, at para 29, the Court of Appeal accepted the above factors mentioned in the case of Tsang Chiu Tak as useful reference when considering the circumstances of the case.

15.Mr Chan then referred to a number of District Court sentencing cases involving USI 16/13 in which the sentencing judge in each case sentenced the corresponding defendant to either probation or community service order.

16.Mr Chan urged the court to adopt the rehabilitative approach when passing sentence.  Mr Chan emphasized Mr An’s clear record; that he pleaded guilty; that the offence was inchoate in nature; that it happened only once.

17.Mr Chan, applying the principles laid down in Tsang Chiu Tak, submitted:

(a) The age difference was not great;

(b) The two young persons could be regarded as lovers;

(c) No threats or violence was used;

(d) The offence took place only once and was brief;

(e) Safety measures were taken;

(f) The girl did not appear to have suffered any trauma;

(g) The offence did not appear to have impacted the girl’s family;

(h) No other inappropriate behaviour was made;

(i) There was nothing to show the defendant is psychologically imbalanced or paedophilic; and

(j) The chance for re-offending is very low.

18.Mr Chan submitted this case is at the low end of the spectrum of seriousness.

19.Mr Chan submitted that the offence was committed due to curiosity in sex; that Mr An is now 18 and in his secondary education (to begin F4 in September); that it would be harsh to stop his studies because of a custodial sentence.  Mr Chan asked the court to obtain reports before sentencing.

20.Mr Chan submitted on behalf of Mr An two mitigation letters written in Chinese (with English translation) by respectively Mr An himself and his parents.  The contents generally are that Mr An would like to say sorry to all relevant parties including the victim; that he is regretful for what he has done; that he is determined to change his ways and not to re-offend.  The letter writers asked for a chance for Mr An to reform and for a lenient sentence. In addition, the parents asked for a non-custodial sentence for Mr An so that he may further develop and learn in a normal and family setting which would be more beneficial to his rehabilitation.

21.Mr Chan submitted a number of certificates of Mr An’s achievements in the arts and Tug-of-war activities.  However, these certificates mostly relate to activities taken post-offence.

22.Mr Chan also submitted a number of medical documents to show that Mr An has had a recent minor operation on his right knee.

23.Upon receipt of copies of the two reports (see below), Mr Chan further submitted that the reports have been explained to Mr An and his parents and they have no dispute as to their contents.  Mr Chan relayed the parents’ wish that their son be allowed to reform in a non-custodial setting.

Reports

24.Because of Mr An’s young age, I called for suitability reports for Detention Centre, Training Centre, Rehabilitation Centre, Community Service Order, and Probation Order.

25.The Reports came back with the first three being combined into one report, and the last two being combined into another report.

26.The three centres combined report considered Mr An medically unfit for detention in a Detention Centre; but 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, the reporting officer considered Mr An more suitable for detention in a Rehabilitation Centre.

27.The CSO cum Probation Order report did not recommend CSO as a way of disposal but recommended a 15-month probation supervision with special conditions.

Sentence

28.Prosecution informed me that the victim is unwilling to give a victim impact statement.

29.Unlawful sexual intercourse with a girl under the age of 13 years is a serious offence.  The maximum imprisonment penalty is life imprisonment.

30.However, having considered the circumstances of the case and contrasting them against the list of factors identified in Tsang Chiu Tak, I am satisfied that this case belongs to the category of cases lower down in the spectrum of seriousness.

31.I note Mr An has a clear record. I am willing to give him a chance to rehabilitate.

32.He has spent 3 weeks in custody pending reports. This should be enough to deter him from re-offence.

33.I will therefore accede to counsel’s submission and the wishes of Mr An’s parents to allow Mr An to reform himself in a non-custodial setting.

34.I am satisfied that having regard to the circumstances, including the nature of the offence and the character of Mr An, it is expedient to make a probation order against him.

[I then explained to Mr An through the interpreter the order proposed to be made including the additional requirements and the consequences if he fails to comply therewith or commits another offence. Mr An indicated he understood and expressed his willingness to comply with the requirements thereof.]

35.For the sole charge that Mr An has been convicted of, I make a probation order against him of 15 months’ duration with the requirements that he shall:

(a) Study/work and reside as directed by the probation officer;

(b) Participate in any programmes/activities conducive to his rehabilitation as directed by the probation officer; and

(c) Abstain from taking all illicit drugs and submit random urine samples as directed by the probation officer.