HKSAR v. He Jiehui

DCCC205/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 205 OF 2012

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Reasons for Sentence

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1.The defendant pleas guilty before me to a charge of unlawful sexual intercourse with a girl under the age of 13 years old.

The Facts

2.The prosecution’s case is that the defendant came to know the young victim, PW1, in this case in December 2010 via an online game.  PW1 told the defendant that she was 12 years old but in fact she was only about to turn 12 years old at the material time which was two months after they first came to know each other.  On the day when the offence took place, the defendant invited PW1 to his home and further invited PW1 to have sex when PW1 arrived and led to a bedroom in defendant’s home.  PW1 agreed to have sex. The defendant ejaculated outside PW1.  PW1 noticed that her private parts bled as a result of the sexual intercourse.  PW1 and the defendant continued to chat online a few days after this incident but it was the only occasion where PW1 and the defendant met each other before the defendant was arrested.

3.Counsel for the defendant in mitigation urges me to consider a number of factors.  In short, they are, namely;

a) the guilty plea of the defendant;

b) PW1 was not required to testify in court;

c) this saves court’s time;

d) the defendant is extremely remorseful;

e) it is unlikely that the defendant will re-offend;

f) at the time of offence, the defendant was only 18;

g) he was co-operative during the investigation;

h) he has a stable job working in a Japanese restaurant;

i) he has strong family support; and

j) he prays in aid of a number of letters.

4.Counsel also urged this court to call for Community Services Order Report.  Having carefully considered the nature of this case and the backgrounds pertaining to this case and those to the defendant, a “Rehabilitation Centre, Detention Centre and Training Centre suitability report” was called for.

5.The report suggests that the defendant is not suitable for Detention Centre because of his physical condition.  It recommends sending him to the Rehabilitation Centre.  It is also disclosed that the defendant was born in China, he received education in China and moved to Hong Kong when he was about 14 years of age.  He received two years education in Hong Kong up to Form 2 and he had done work in various fields in the past.  It transpires that the defendant did not receive sufficient parental guidance and supervision because both parents of him had to work.  His father is unemployed and his mother has to work hard to earn a living.  Both of them have certain medical problems and require constant treatments or medications.  During the interview, the defendant claimed that he had developed “love relationship” with PW1 albeit they had not met each other in person before the incident.  He continued to spend much of his time playing computer game after his arrest in June 2011.  He expressed his remorse and blamed himself for his naïve character.  He claimed he will live a healthy life and stay away from crimes.

Discussion

6.This case is a serious one.  PW1 was a few days short of 12 years old although the defendant was caused to believe that she was 12 at the material time.  The offence is created to protect girls who are under 13 years of age. 

7.There was no long‑term established relationship between them.  There is no evidence to suggest that PW1 was sexually precocious and/or promiscuous that had driven the defendant losing his self‑control.  The defendant is seven years older than PW1.  Though not substantial, it is a significant difference as compared to the difference between those who are close in age and in the same level of study at school.  In many regards the defendant was already an adult.  He started to enjoy the right to vote in our society. 

8.Neither the prosecution nor the defence seeks to rely on any report in relation to possible impact on the victim.  I am prepared to take a neutral stand in this regard.  However, the defendant did not seem to be apologetic towards the girl according to the report.  It is doubtful as to whether the defendant is genuinely remorseful or merely regretful about being arrested and concerned about his own liberty. 

9.The sexual intercourse was consensual in nature but nothing suggested that PW1 was prepared to or anticipated to have sex with the defendant before she agreed to pay visit to his home.

The Law

10.This court is referred to the Court of Appeal case of HKSAR v Lau Chi-chung CACC427/2007, and the reasons for sentence of HKSAR v Li Ming-kit DCCC1340/2009.  There is no tariff in this kind of offence.  In Lau Chi-chung which referred to a number of other authorities, it was expressed that,

“A man who has unlawful sexual intercourse with a girl the day before her 13th birthday is likely to receive a lower sentence than a man who had unlawful sexual intercourse with a girl who is substantially younger. Indeed the younger the girl, one would expect the sentence to be heavier. Also, the age of the man is relevant. Here the applicant is 22 years old, a student, and not a mature man.”

The Court of Appeal further noted that;

“There is no evidence that the applicant had used the internet to groom the girl into believing that she was more mature than she was or to give her the false confidence that she could have behaved and should be treated as if she were an adult.”

It went on to stress, however, that “Young girls have to be protected form their own foolishness”, and in the circumstances of that case the Court of Appeal expressed that a Community Service Order was “completely out of fashion”.

11.This court also brings upon another Court of Appeal case referred to in Li Ming-kit, that is Secretary for Justice v Chung Yui Hung [2007] 1 HKC 440, the facts of which were different from those of the present case on a number of aspects.  I found the case of Lau Chi-chung to be factually proximate.  I note that there is an aggravating factor in Lau Chi-chung, that is the large payment of $2,200.

Consideration and Conclusion

12.Having carefully considered all the circumstances, I found this case to be slightly less serious than that of Lau Chi-chung and that of Li Ming-kit in that it does not involve payment and ejaculation inside a girl in the present case.  Besides, Lau and Li were over 21 years of age at the time of commission of offence.  However, it is clear that girls have to be protected against the opposite sex from taking advantage of their age and thus their immaturity and sometimes curiosity about sex.  I find Community Service Order is simply inappropriate and fails to reflect the gravity of the offence in the present case. 

13.I do not find that the defendant had real and meaningful reflections upon his misdeeds.  This is supported by the fact that he continued to live a loose life after the arrest.  It had to be obvious to him that his family required him to be as constructive and responsible as possible in order to improve their living standard, yet the defendant failed to demonstrate that he was a reliable son that the family could count on even after the arrest.  This indirectly indicates how much reflections he managed to have before he pleads guilty before me.  I refuse to give much weight to his words in his letter in mitigation.  I do not believe there exists a relationship between them which could properly be described as “love relationship” as claimed by the defendant during the interview. Suffice it to say, it was the very first time they met. 

14.Counsel on his behalf tries to make further submission and place much reliance on other letters in mitigation.  In short, both Mr Chan on the last occasion and Ms Wong on the present occasion asked for the most lenient sentence on their client’s behalf.  I have taken into account of all submissions made by both counsel on both occasions.  I have considered imposing at least a starting point of 21 months upon this defendant having taken into account of all factors in this case.  This resembles approximately 9½ months’ imprisonment should a defendant in this situation be entitled to early release for good conduct from the prison.  However, for the age of the defendant and the relevant consideration of the effect of section 109A of the Criminal Procedure Ordinance for dealing with offender under 21 years old, I have to consider other sentencing options in law before deciding whether this defendant’s case calls for a term of imprisonment.

15.Rehabilitation Centre is prepared to take this defendant and so does the Training Centre.  Experience tells that Training Centre would at least deprive the liberty of an inmate for 18 months.  In addition to that, there is a supervision period.  Rehabilitation Centre would keep the defendant in a remand setting for months that would enable him to reflect more deeply upon his misdeeds and negative impacts upon his family. The defendant will receive programmes that are designed to help his reintegration to the society and hopefully help him to rebuild his self-identity and values that are acceptable to our society.  Section 4(4) of Rehabilitation Centre Ordinance Cap. 567 provides that the maximum detention period in a Rehabilitation Centre is 9 months.  I accept the recommendation in the report and order the defendant to serve Rehabilitation Centre.