HKSAR v. Chung Kwan Leong

DCCC1043/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1043 OF 2008

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Before:   Deputy District Judge A. Wong

Date:     16 February 2009 at 10.03 am

Reasons for Sentence

1. Defendant is convicted upon his guilty plea of one charge of unlawful sexual intercourse with a girl under the age of 13 years. 

2. In sentencing I take into account the whole circumstances of the case including its nature and facts, personal background of the defendant, mitigation put forward on his behalf by learned defence counsel as well as the information and recommendation contained in the reports.

3. The defendant is a young person now 16 years of age.  He was born on 9 June 92.  He came to know the victim through the Internet in mid-May 2008.  They then started going out dating.  The victim was 11 years and 4 months in age.  All along the defendant knew her age.

4. On 29 June 2008, upon invitation by the defendant to celebrate his sister’s birthday, the victim went to his home.  There the defendant asked her for sexual intercourse.  She at first refused.  Soon upon his second request, they engaged in sexual intercourse.  The defendant used a condom.  The matter came to light when the victim told her friend. 

5. In mitigation, learned defence counsel stressed that the defendant had just reached the age of 16 at the time of the offence.  It was also submitted that the defendant though only 11 years of age looked quite more mature than her age.  The court was invited to view the last minute of the video recording of her interview and the medical report of her.  The observation of the defence is a reasonable one.

6. Learned defence counsel stressed that what happened was between two adolescents.  The defendant committed the offence out of curiosity.  There was no element of exploitation of any sense on his part.  The intercourse was consensual.  The defendant used a condom.

7. Learned defence counsel also sought to impress the court that committing of the offence was totally out of character of the defendant.  It was submitted that the defendant was a young boy of good character.  Not only that he is a first offender, it is evidenced by the material provided by the defence which include letters from his headmasters and teachers, his academic reports as well as certificates, awards and documents in relation to his community service and school achievements both in academic studies and extra-curricular activities.

8. I was told that the defendant tried his best endeavour to excel himself in various fields and has been studying hard with the wish of serving the community as a medical doctor.  I am satisfied that it has all along been his desire and not something said for the purpose of mitigation.  He is preparing to sit in the HKCEE this summer.  I am mindful of the implication to his studies if the defendant is to lose his liberty. 

9. I was told that the defendant is remorseful.  I have no reason to doubt that in all the circumstances of the case.  The offence is a serious one, it carries a maximum sentence of life imprisonment.  Young girls have to be protected from their own foolishness or naivety.  There is no sentencing tariff for this nature of offence.  As the Court of Appeal said in the case of HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432, when one comes to sentence, one has to take into account all the circumstances including, for example, the attributes of the girl as well as the man, the younger the girl one would expect the sentence to be heavier, also the age of the man is relevant. 

10. In the case of HKSAR v Lai Yip Sing [2001] HKLRD 601, the court said that the difference in age between the offender and the victim was one of the important factors to be taken into  account.  Although the girl looks more mature than her actual age, an immature soul with a relatively mature body often is vulnerable.  Besides, the defendant all along knew her age.  The defendant despite only turned 16 at the time of the offence was receiving education in senior secondary level.  There is nothing to indicate that he was not at least amongst the average in terms of maturity.  The difference between the defendant and the girl cannot be said to be insignificant in the circumstances of this case. 

11. There is nothing to show that the girl was precocious sexually.  Indeed she refused the defendant’s first intimacy request.  Soon, the defendant made another request and the girl acceded to it.  It was the defendant who took the active role.  To his favour, he used a condom. 

12. Although the two of them had gone out dating, it lasted about two months only before the incident.  The defendant told the CSD officer that what they did were actually watching movies and window-shopping.  Bearing in mind relationship sometimes develops fast nowadays, I am not convinced that the two young people have developed a relationship of any real depth.  I do not believe the girl could fully appreciate what exactly was going on. 

13. Having regard to the circumstances of the invitation and the use of condom, without neglecting the latter fact is a factor favourable to the defendant, I am of the view that the incident was not beyond the contemplation of the defendant beforehand.

14. Prior to sentence, the court asked for a whole range of reports.  The defendant had been advised before the matter was adjourned for reports that all sentencing options remained open and the court was not under an obligation to follow any particular recommendation and would impose the most appropriate sentence in the circumstances of the case.

15. The probation officer’s report is favourable.  According to the report, the defendant’s relationship between parents is good.  His academic performance has improved over the time and was awarded a scholarship.  He maintained very good conduct at school.  The officer was of the view that the defendant committed the present offence out of simple mindedness and misinterpretation of love and sex without giving careful consideration to the serious consequence.  The probation officer did not recommend a probation order because, in his view, long-term counselling is not necessary for the defendant. 

16. Taking into account the remorseful attitude of the defendant towards his law-breaking behaviour, his manifested efforts in his studies and promising academic performance in the last few years, his decent life pattern in all the years, his lesson learned from his present detention and court experience and the support from his parents and the school authority, the officer opines that the chance of the defendant’s re-offending is apparently slim.  He considers the defendant a suitable candidate for CSO. 

17. The Correctional Services officer considers the defendant suitable for detention in a rehabilitation centre.  In his opinion, a period of disciplinary training including intensive counselling coupled with a term of supervision would be beneficial to the defendant to enable him to develop more insight into his problem and for his rehabilitation. 

18. I have given very anxious consideration as to what is the appropriate sentence to be imposed on this young man in the circumstances of the case.  The defendant is a young first offender.  As far as his personal attribute is concerned, it satisfies the criteria for consideration of a Community Service Order.  As far as the nature of the offence he committed is concerned, it is very serious, in particular, bearing in mind the age of the girl.  If the offence was committed by an adult, a substantial imprisonment term is almost inevitable and Community Service Order can hardly be regarded as appropriate. 

19. The defendant is only 16 years of age, in all the circumstances I am satisfied that sentencing the defendant to any imprisonment term is not appropriate.  I have considered what is the appropriate sentence.  Section 4(1) of the Rehabilitation Centres Ordinance provides that:

“Subject to subsection (2), where a person who is apparently a young offender is found guilty of a relevant offence, the court may, in lieu of any other sentence, make a detention order against him if the court is satisfied that having regard to the character and conduct of the person and the circumstances of the case, it would be in the interest of the community and the person himself that he should undergo a period of detention in a rehabilitation centre.”

20. In consideration I bear in mind the need of retribution, deterrence, prevention and rehabilitation.  These factors carry different weight in different circumstances.  In sentencing a young offender, the court is under a duty to reconcile the competing needs of proportionate punishment and reform or rehabilitation of the defendant.

21. A sentence of detention in a rehabilitation centre though involves depravation of liberty is largely rehabilitative in nature.  There are pros and cons of the rehabilitation centre training programme.  Some young offenders are more obviously suitable candidates for rehabilitation centre training than others.  In consideration I bear in mind the opinion of the probation officer on this young man and that long-term counselling is not considered necessary for him. 

22. In the book Cross on Sentence, the learned author said the followings:

“The purposes of the rehabilitation centre may be defined as including the following: (a) deterring young offenders from committing further offences; (b) correcting the delinquent values and behaviour of young offenders; (c) helping young offenders to develop socially acceptable behaviour and respect for law; (d) equipping young offenders with social and other skills; (e) preparing young offenders for a successful reintegration into society upon discharge.”

23. In recommending rehabilitation centre order, the officer meant he considered such an order the most appropriate measure provided by CSD and not necessarily the most appropriate measure to deal with the defendant in this particular case.  It appears to me that the above-said purpose of the rehabilitation centre can be achieved, not only by means of a detention order in rehabilitation centre.  The offence is serious, however, I am of the view that Community Service Order should not be ruled out as a possible sentencing option as a matter of course.  It depends on the circumstances of the case.

24. Bearing in mind the case of Brown [1981] 3 Cri App Rep (S) 294, the personal attributes of the defendant makes him a suitable candidate for a Community Service Order.  The court has to take into account the circumstances pertaining to the defendant as well as the circumstances pertaining to the  offence.

25. The court now has the benefit of the professional assessment of the Young Offenders Assessment Panel.  Community Service Order is recommended.  The panel opines that it is a means to increase the lawful concept of the defendant and help him to start afresh.  Although the court is not under an obligation to follow its recommendation, in the circumstances such as the present case, the opinion of the panel is weighty.

26. During the remand period the defendant was put under close observation by professional eyes.  I share the view that supervision need of the defendant appears to be low.  He is not a deep rooted offender.  The risk of his re-offending is low.  He is doing reasonably well in his academic studies.  I am convinced that the defendant is not one of those juvenile delinquents who need a strict rehabilitative regime to assist him to reform and reintegrate into the society.

27. I share the view of the probation officer that the defendant can stay in the right track with his own effort, support of the family and performing unpaid work under a Community Service Order.  I am also convinced that it is most advantageous for his rehabilitation that the defendant can continue his studies.  Whilst an imprisonment term is appropriate for the offence, after careful consideration, I found Community Service Order an appropriate alternative as far as this young first offender is concerned.

28. He has lost about 25 days of liberty already.  It may not have the same short sharp shock effect of a detention centre order, he has a sufficient taste of the clang of the prison gate.  I order the defendant to perform 180 hours of unpaid work under a Community Service Order.