HKSAR v. Mok Ka Chun

DCCC942/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 942 OF 2011

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Reasons for Sentence

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1.The defendant has entered a plea of guilty to one charge of unlawful sexual intercourse with a girl under the age of 13 years, a charge that was preferred against him under section 123 of the Crimes Ordinance, Cap.200.

Facts

2.The facts to which the defendant agrees are as follows.

3.The defendant first met the victim in January 2011, and they became boy- and girl-friends.  On 12 February he brought the victim home to have dinner with his parents.  After dinner the defendant and the victim went to the rooftop of a building where they had consensual sexual intercourse.  The defendant did not use a condom and ejaculated inside the victim.  The victim had told the defendant that she was 12 years old.

4.Fearing that she might get pregnant, the victim made a report to the police about a week later.

Conviction

5.The court finds the defendant guilty as charged. 

6.The defendant has had two previous records of theft before his current conviction and is now serving a 12 months’ probation. 

Pre-sentence Reports

7.In view of the defendant’s age, the court has commissioned a psychologist’s report, a Probation Officer’s report, and a pre-sentence report, contents of which are as follows. 

8.The defendant’s parents are reported to be hard-working, and the defendant, the only child of the family, has always been well-provided for.  The defendant has his own room at home, a flat that overlooks the panorama of Ping Shan.  The family enjoys a harmonious relationship.

9.At primary school nothing too serious was noted of the defendant.  His conduct and performance were satisfactory.  But when promoted to secondary school, his school performance deteriorated. He stole property of the teaching staff, bullied classmates, and engaged in gang fights.  He showed an excessive interest in outdoor activities. 

10.He was referred to the Juvenile and Adolescent Psychiatric Centre of the Queen Elizabeth Hospital and was diagnosed to be suffering from Attention Deficit/Hyperactivity Disorder (ADHD). 

11.Despite treatment the defendant’s misconduct continued.  On one occasion he became so violent that he threatened his classmates with a cutter and hit them with a tray, and was so sexually aroused that he attempted to kiss a female classmate and touched the private parts of a male classmate. 

12.His misbehaviour in school continued, his academic performance worsened.  Time and again his parents had to look for new school placements for him.  In the end he dropped out without completing his Form 5 studies. 

13.During the latter years of his secondary schooling, the defendant frequented cyber cafés and lingered in public parks or playgrounds.  He got acquainted with and came under the protection of older youths with triad connection. 

14.In late 2010 he was caught stealing snacks and beverages from a shop, for which he was fined $1,000. 

15.Subsequent to his arrest for this offence of unlawful sexual intercourse with the girl, the defendant was charged with and convicted of another count of theft and was sentenced to probation for 12 months. 

16.The Probation Officer’s report shows that the defendant identifies himself with the triad sub-culture and is imbued with its values.  The Officer’s view is fully supported by what the defendant told the clinical psychologist who examined him: he compared himself unfavourably with his triad friends because they had multiple girl-friends. 

17.The psychologist opines that the defendant is undergoing two important development challenges: (1) personal identity; and (2) intimacy with persons of the opposite sex.  His self-esteem has been weakened, however, due to years of negative social feedback arising from his ADHD-related behaviour.  

18.The defendant seems unable to achieve a normal relationship with girls about his age.  Coupled with this is the peer pressure he has experienced due to his adherence to persons with triad connection - who are generally promiscuous.  It is probable, the psychologist says, that the defendant has resorted to much younger girls as an easy way out.

19.The defendant exhibits no paedophilic tendency, but his inferiority complex and social immaturity may render him prone to courtship with young girls.  Guidance and counselling to enhance his self-improvement and moral development and to pursue meaningful life-goals are recommended.

20.The assessment officer of the Correctional Services considers that the defendant is suitable for detention at the Rehabilitation Centre or the Training Centre.  He recommends the Rehabilitation Centre for the defendant in view of his attitude and behaviour observed during the remand period.

Mitigation

21.In mitigation, the defence puts forward the following matters for the court’s consideration. 

22.The defendant, a young person, has pleaded guilty to the charge.  The clinical psychologist finds that the defendant is not paedophilic, and the Commissioner for Correctional Services recommends a Rehabilitation Centre Order.  

23.The court is shown a clemency letter written by the defendant, who vows to turn over a new leaf and asks for a chance to resume his studies.  He realises now he has not treasured the care and attention his parents have given him throughout the years, and that his parents continue to support him and have not abandoned him. 

24.The defence referred to the case of HKSAR v Lee Hing Wai DCCC661/2009, in which a Rehabilitation Centre Order was imposed in an offence committed in similar circumstances. 

25.The court is urged to adopt the recommendation of a Rehabilitation Centre Order.                                  

Discussion

26.The offence of which the defendant stands convicted is a most serious offence, carrying as it does a statutory maximum of life imprisonment. 

27.The court has a duty to protect vulnerable persons, to give effect to the clearest legislative intention that offenders who take advantage of girls of young age must be dealt with severely so as to achieve deterrence. 

28.The victim in this case is but 12 years old, and the defendant 18.  They were boy- and girl-friends at that time.  The defendant had unprotected sexual intercourse with her. There is therefore a possibility of an unwanted pregnancy to the victim, who could hardly at that stage of her development look after herself, let alone having to take care of an infant child. 

29.The prosecution rely on the case of the R v Cheung Hon Ki CACC28/1996 to demonstrate that a starting point of around two years’ imprisonment would be appropriate. 

30.The District Court case referred to by the defence is distinguishable, in the court’s view, from the instant case in that the defendant in that case had been told the victim was 15 years old.

31.There is an international norm that a prison sentence should be imposed on a young person only as a last resort.  Hong Kong gives effect to this international standard by way of section 109A of the Criminal Procedure Ordinance, Cap.221.

32.The defendant has had previous records prior to his current conviction.  But he has chosen to enter a guilty plea, firstly, to express remorse, and secondly, to spare the victim the embarrassment of having to give evidence in open court. 

33.The court has taken note of the defendant’s developmental problems and has considered all matters in mitigation advanced on his behalf.

34.The court agrees that every favourable consideration should be given to the rehabilitation of the defendant.         

35.While a prison sentence can be avoided, the court is of the view that an order for the defendant’s detention at the Rehabilitation Centre would be inadequate to reflect the gravity of the crime. 

36.A period of detention at the Training Centre would, on the other hand, provide the defendant with the opportunity to acquire useful skills to enhance his prospects of a regular employment, and with that, it is hoped, he would stand a better chance of severing his adherence to triad values.  Further, the defendant’s conduct can be closely monitored during the supervision period.  

Conclusion

37.In all the circumstances, the court finds that the defendant’s case can be suitably dealt with by way of a Training Centre Order.

Order

38.The defendant is sentenced to detention at the Training Centre.  

39.Psychological guidance and counselling are recommended for the defendant while he serves the period of detention at the Training Centre.