HKSAR v. Cheng Tsz Fung, Gordon

DCCC793/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 793 OF 2011

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of unlawful sexual intercourse with a girl under the age of 13.

2.He admitted to the facts and was duly convicted.

3.The defendant was just two months shy of being 22 years old at the time of the offence, whereas the victim was 12 years and 6 months old at the time of the offence, although on her Facebook page, according to counsel for the defendant, she passed herself as 14 years old, and which apparently, the defendant believed.

4.The gist of the facts are that the defendant and the victim got to know each other through the Internet.  They met a few times, then the defendant invited the victim to his home for a visit.  That is how the incident happened.

5.They were in the defendant’s flat.  They kissed and then had consensual sexual intercourse.  The defendant did not wear a condom.

6.According to the psychologist’s report obtained on the defendant, it seems that because he knew about his physical condition - that is, his being sterile - he considered it unnecessary to wear a condom.

7.The victim on the following day told a social worker about the sexual intercourse and eventually police was involved and the defendant identified and arrested and charged.

8.The defendant has a clear record.

9.Having heard mitigation from Mr Souyave, I ordered a victim impact report to be prepared on the victim and a psychologist’s report to be prepared on the defendant.

10.According to the victim impact report, the victim does suffer some post-traumatic stress disorder.  She is, however, improving and the symptoms are gradually lessening with the support of her family as well as learning that she will not need to testify in court.

11.In relation to the defendant, the psychologist confirmed the lack of confidence and low self-esteem in the defendant’s situation.

12.The psychologist is, however, of the view that the risk of re-offending is between low and moderate.  The defendant seemed to be more reckless in his behaviour rather than any pre-meditated act of getting some girl to have sex with him over the Internet.

13.I was referred to two cases by Mr Souyave in mitigation:  one is Lau Chi Cheung [2008] 4 HKLRD 432 and the other is Lai Yip Sing [2001] HKLRD 601.  I shall not repeat the details of the cases here, and I will move on to the sentence.

14.Now, first of all, I find there is no evidence of the defendant grooming the victim over the Internet for sex.

15.There is no attempt to corrupt the victim by the defendant, as there was in Lau Chi Cheung, where $2,200 was given to the victim after they had sexual intercourse.

16.From the facts of our case as well as from the psychologist’s report, it would appear that the defendant was genuinely trying to enter into a relationship with the victim.

17.Be that as it may, as observed in the case of Lai Yip Sing, given the age difference between the appellant and the victim, which was 24 and 14 in that case, an immediate custodial sentence is not wrong in principle.

18.Our defendant had a clear record.  He pleaded guilty to the charge and saved the victim from having to give evidence in court. As seen from the victim impact report and as I have referred to above, this granted considerable relief to the victim and her condition continued to improve as a result.

19.Bearing in mind all the circumstances of the case, including the personal circumstances of the defendant and the victim, I find that there is a need for a term of imprisonment to punish the defendant as well as to deter others from engaging in sexual intercourse with someone of such young age.

20.Bearing in mind the starting point of 2 years’ imprisonment adopted by the court on appeal in Lau Chi Cheung and the lack of any similar serious aggravating factor of corrupting the young in our present case, I find that a proper starting point for the defendant is that of 15 months’ imprisonment.

21.I will grant the defendant the full one-third discount and sentence him to 10 months’ imprisonment.  This is my sentence.