HKSAR v. Nip Ho Fai

DCCC603/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 603 OF 2010

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Reasons for Sentence

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1.Defendant, please stand up.  You have pleaded guilty to one charge of unlawful sexual intercourse with a girl under the age of 13. 

2.This victim was one week shy of her 13th birthday.

3.You are 21 years old, and had clear record.  The facts are that you met the victim online.  Before you even met face-to-face, you were calling each other little husband and little wife.

4.The first time you met you had sexual intercourse.  It is agreed by all parties that you thought she was 15 years old, because that is what she told you.

5.I called for a background report because mitigation on the last occasion was very thorough and very good.  Normally this offence will attract an immediate custodial sentence. 

6.Now I have read your background report. It is a very good report.  You come from a very humble background.  Your family are not well-off, but you are a close and loving family.

7.Due to financial constraint, your parents could not even afford to send you to secondary school in Shenzhen.  You attended a vocational training course instead. 

8.But you did not give up, and when you came to Hong Kong, you went back to school and tried very hard, which is not usually the case when teenagers from Mainland China come to Hong Kong and try and integrate into the school system.  Often they find it too difficult and give up, but you did not and you have come through the education system and have now been offered a place to do a degree.  It would be a degree course in business administration starting this September.

9.On the last occasion, I received many mitigation letters.  In particular, there were letters from a Miss Anna Lam, from Society of Rehabilitation and Crime Prevention.  She says that you have been helping her doing voluntary work.

10.Your previous school’s social worker has written a very long letter asking the court to be lenient on you.

11.Another member of staff, a teacher, has written a letter telling me that you at school were diligent, honest, and a sincere student.

12.Your parents have written a letter, and you have written me two mitigation letters.

13.You are 21 but you are not a mature 21. You are certainly not a sexually mature 21-year-old.

14.I have looked at the facts of the case, and I do not believe this is a case of you setting out to deliberately exploit the victim, not such a case.

15.Sadly, this victim is not an immature 13-year-old.  From what I have been told, it is very likely she was more sexually mature than you.  However, the court’s view is that even if such a young girl is sexually mature, she still deserves protection.  Young girls of this age may think they know what they are doing, but they actually do not.

16.I am sure you have learnt your lesson, and I am not of the view that you are a defendant or a young man that deserves to go to prison, even though it is a serious offence. 

17.I am prepared to consider another form of punishment.  I have in mind a Community Service Order, but I need to ask you whether you are willing to do a Community Service Order.

DEFENDANT: Yes.

18.The reason we had to start late was because I had to speak to the probation officer who wrote your background report.  She is of the view that you are suitable to do a Community Service Order.

19.I am sure you are aware that this is a lenient approach to this offence.  I am only open to this Community Service Order because your background is so good, and I think it would be a great shame if you were unable to start this degree course. 

20.I am also convinced that you will in the future be very careful who you strike up a relationship with, and will stay away from the internet to meet friends or girlfriends.

21.Do you agree with my view, am I correct?

DEFENDANT: Agree.

22.For this offence, I am going to order you to do 180 hours of community service.  You have to be warned that if you do not complete this 180 hours or the probation officer is not happy with your work, then she will refer you back to court, and I will have the power to discharge this Community Service Order and re-sentence you again.  If re-sentence is required, it will be a term of imprisonment.