HKSAR v. Wong Cheuk Hei

DCCC1079/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1079 OF 2011

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant enters a plea of guilty to two charges of unlawful sexual intercourse with a girl under the age of 13 and 16 years, respectively, preferred against him under section 123 and section 124(1) of the Crimes Ordinance, Cap.200.

Facts

2.The defendant first met the victim in a playground in early October 2010, and they became boy- and girl-friends. He knew the victim was 12 years old. 

3.On 20 October 2010, that is, seven days short of the victim’s 13th birthday, the victim did not attend school, but went to the defendant’s home instead. There they had consensual sexual intercourse, during which the defendant used a condom (Charge 1). 

4.In early November 2010, the victim, who had just turned 13, went to the defendant’s home and had consensual, protected sexual intercourse with him in the bathroom (Charge 2). 

5.In late November 2010, the victim’s teacher came to know about the victim’s precocious sexual activities.  A report was made to the police. 

6.On 29 November 2010, the defendant surrendered himself to the police and admitted to having sexual intercourse with the victim earlier that month. 

Conviction

7.The court finds the defendant guilty as charged. 

8.The defendant has no previous records. 

Pre-sentence Reports

9.The defendant was born in April 1995 and was fifteen and a half at the time of the offences.  In view of the defendant’s age, the court has commissioned a number of pre-sentence reports, the contents of which are as follows. 

10.The defendant’s parents are never married and have always been living apart.  His father has little contact with him, and his mother shoulders the responsibility for his upbringing. 

11.At primary school, nothing remarkable was noted of the defendant.  He behaved himself and his academic performance was satisfactory. 

12.When promoted to the secondary level, the defendant could not catch up with the curriculum.  He spent a lot of time swimming and playing basketball after school.  He misbehaved on repeated occasions and has earned himself a number of demerits.  In the end, he had to repeat his Form 4 studies in September 2011. 

13.That said, the defendant has no triad affiliation and exhibits no sign of any drug abuse. 

14.The assessment officer of the Correctional Service considers the defendant suitable for detention at the Rehabilitation Centre, the Detention Centre or the Training Centre.  He recommends the Rehabilitation Centre for him in view of his attitude and behaviour observed during the remand period.

15.The probation officer recommends, on the other hand, a Community Service Order.

Mitigation

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

17.The defendant accepts and agrees with the contents of the pre-sentence reports. 

18.Counsel for the defence submits that apart from the lack of advancement in his academic pursuit, the defendant, who has had a clear record before his current conviction, has managed to behave within bounds.  The demerits recorded against him at his school related mostly to late submission of homework or disputes with classmates, which are not unusual among students.

19.Counsel stresses that the probation officer has spoken favourably of the defendant.  It is the officer’s assessment that no probationary supervision is required.  This, it is submitted, shows that the probation officer is confident that the defendant has the ability to behave himself. 

20.The court is urged, therefore, to accept the recommendation of a Community Service Order, to give the defendant a chance to resume his Form 4 studies, a chance that will inevitably be dashed if a custodial sentence is imposed.

21.A number of clemency letters have been submitted to court.  They show that the defendant has the support of his mother, teachers, and relatives. 

22.The defendant has written the court some letters in which he said he has reflected deeply on his wrongdoings and expressed his wish to continue formal studies.

Discussion

23.The offence of unlawful sexual intercourse with a girl under 13 is a most serious offence, carrying as it does a statutory maximum of life imprisonment. 

24.On the other hand, the defendant has committed Charge 2 when the victim has barely turned 13.  On this ground alone, the offence can be considered the more serious of its kind. 

25.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. 

26.The case of The Queen v Cheung Hon-Ki CACC28/1996 shows that a starting point of around two years’ imprisonment would be appropriate. 

27.In SJ v ChauChi-yan CAAR7/2008, the Court of Appeal detailed the usual aggravating as well as mitigating circumstances that a sentencing court should bear in mind. 

28.Having considered all material advanced on the defendant’s behalf, the court accepts the defence submission that serious as the offences may be, not only is there an absence of any aggravating circumstance, but there are also powerful mitigating factors in the defendant’s favour. 

29.The defendant was and still is himself a young person.  He and the victim were boy- and girl-friends at the time of the offences.  He had provided no financial inducement to her.  He had protected sexual intercourse with her; chances of an unwanted pregnancy to her were therefore reduced.  He claimed full responsibility for his wrongdoings by surrendering himself to the authorities. He has had a clear record prior to his current conviction.  He pleads guilty to the charges to show remorse, and by doing so, he has spared the victim the embarrassment of having to testify in court.  

30.Further, 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. 

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

32.While a prison sentence can be avoided, the court is of the view that a Community Service Order would be inadequate to reflect the gravity of the two offences. 

33.The court understands that a sentence with a custodial element will cause interruption to the defendant’s studies, but this is a normal incident of criminal proceedings. 

Conclusion

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

Order

35.The defendant is sentenced to detention at the Rehabilitation Centre for each of the two charges of which he stands convicted, to run concurrently.