CRIMINAL CASE NO. 353 OF 2009
I have to sentence the defendant, after his plea of guilty, to two counts of incest. He admits that on two occasions, between dates in 2003 and 2005, he had sexual intercourse with his sister. It is all so long ago in the minds of the parties in this case that the date of these incidents cannot be fixed with any degree of certainty but it happened when the girl was either nine, 10 or 11, and when the defendant was 14, 15 or 16. It happened between five and seven years ago. At the extremes of that earliest date they were, in effect, little more than children.
The case is presented on the basis that there were two incidents and the admission made to the police by the defendant was that they were on consecutive days, the incidents of intercourse being of very short duration.
The matter only came to light because of the fact that the sister had taken up Christianity and she felt that she wanted to make a clean breast of anything that could be seen to be detrimental to her moral welfare that was in her past. She wanted to start afresh as a Christian. She made it absolutely clear in the interview that she gave in the court papers there was no compulsion and there was no hostility between her and her brother and her concern was that nothing detrimental happen to him.
I have a separate Victim Impact Statement from her and that demonstrates the lack of aggravation in respect of any effect that the criminal conduct had upon the victim.
It amounts, in effect, to some sexual experimentation by very young people a long time ago. In those circumstances, there is no prospect, in my judgment, of a custodial sentence being called for. The Victim Impact Statement is a plea by the sister that the family get on with life as one again. There is a very sensitive letter from the mother asking for the same thing and the terms of that letter are grounds for the court to take an encouraging view of what will happen to this family from now on.
Once the decision is made that a custodial sentence is not called for, the sentencing options present no clear disposal and the important thing that any court has to remember in these circumstances is that it is dealing now with a man that is grown up. He is 21 years old and he is to be dealt with for something that happened when he was a boy of about 15. To him, this is something coming back from what must appear to be a completely different world to haunt him. It is a fact that the approach to the social worker occurred a year ago now and this family has had the tension of these proceedings hanging over them for that time.
He has spent 13 days in custody and the terms of his bail have kept him apart from his sister. In all of those circumstances, I shall impose a conditional discharge. In effect, it means there is no punishment now, but if something occurred in the next 18 months, to make it right the defendant could be brought back here and be sentenced for this.
I hardly need say it but Hong Kong, like England, acknowledges the very substantial difference between incest between brother and sister, especially in those who are youthful, as compared with incest between parents and son or daughter.
Accordingly, the order I make is that the defendant enter into recognizance in the sum of $1,000 to come up for sentence if called upon in the next 18 months. You cannot pass the English conditional discharge here because we do not have the legislation to support it. That is why it has to come in that way, via the recognizance. So what it means, Mr Tse, is this: you sign a document saying, “I will lose my $1,000 if I do not come to court in the next 18 months, if the court calls you.” If you did not come, in fact, you would be arrested and brought here and what the court is doing is this, is saying that it is going to reserve to itself the power to sentence you should it become appropriate in the next 18 months for this.
I cannot think that in your case there is any question of you being called back because I am confident there will be no repetition of this sort of conduct and, other than that, from what I know about you is you left school, you have had jobs. You have got a job now. You are living a perfectly respectable law-abiding life. So you just need to stay here and sign a document and when that is done you are free to go and get on with your life.
I make that order on each of the counts.