HKSAR v. Chan Min Wing

DCCC683/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 683 OF 2012

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges of having unlawful sexual intercourse with a girl under the age of 13. The girl, who is referred to as Miss X throughout these proceedings, was 12 years and 9 months old at the relevant time. The defendant was 23 and working as a motorcycle transportation worker.

2.On 7 June, he made contact with Miss X via the Internet.  They met the following day at a park and had a chat which lasted for about half an hour.  The following morning which was a Saturday, Miss X visited the defendant at his residence in Ngau Tau Kok and no one else was present.  They listened to music and played on the computer for a while.  Subsequently, the defendant began hugging and kissing Miss X and carried her to his bedroom.  After removing his clothes and those of Miss X, they engaged in consensual sexual intercourse.  He ejaculated inside her and no condom was used.  Afterwards, Miss X took a shower, chatted briefly and left.

3.A few days later, on the morning of 12 June, the defendant visited Miss X at her residence which is also on an estate in Ngau Tau Kok.  No one else was present.  They chatted with each other and played with the computer on Miss X’s bed.  They subsequently began hugging and kissing, clothes were removed and there was a sexual intercourse. Again he ejaculated inside her and no condom was used.  And not long afterwards, Miss X’s father returned home and discovered the defendant sleeping in his daughter’s bed wearing just T-shirt and underpants.  He was alarmed, confronted the defendant and asked him to write down his name and contact details and he subsequently left the place of residence.

4.Miss X’s father subsequently told the mother what had happened and she made inquiries with the daughter and the daughter admitted that she had engaged in sexual intercourse with the defendant.  The mother telephoned the defendant on the evening of 12 June to discuss the matter and they subsequently met up.  The defendant admitted that he had engaged in sexual intercourse with her daughter and apologised and offered $50,000 as a gesture to show his care and affection towards the daughter.

5.On the following day, under escort by her school teacher, Miss X made a report to the police.  Under police supervision, a meeting was arranged the following day and the defendant was arrested.  The defendant admitted the offences with which he is now charged, and Miss X was examined by a forensic pathologist on 13 June.  There was no recent bodily injury or injury to her private parts.  However, according to the pathologist, the dilatable nature of Miss X’s hymen and the size of her vaginal opening could admit two fingers, indicating that penal penetration could have occurred in the manner described by Miss X.

6.The defendant has a clear record.  He is aged 23.  He was born in Hong Kong and educated to Form 4 standard.  His counsel, Miss Wong, has very kindly submitted written mitigation.  The court is grateful to her for that.  In her mitigation, she states that the defendant left school to help his father in running a fruit stall.  At the time of the offence, he had a stable job, working as a motorbike delivery worker earning $18,000 per month.  He gave $10,000 out of that to his mother to cover household expenses.  His father is in employment but his mother who is aged 50 is, sadly, suffering from depression for which she is receiving medical attention.  He has a younger sister aged 21.

7.According to the plea in mitigation, the reasons for committing the offence were that the defendant and Miss X were boyfriend and girlfriend and he committed the offences out of momentary loss of self-control.  The court rejects that.  You do not become boyfriend and girlfriend on a half-hour meeting in a park, and this was not a momentary loss of self‑control.  You contacted this young girl via the Internet.  You arranged to meet her the following day.  The next day, you invited her to your home when there was nobody else present.  This is not a momentary loss of self-control.

8.I do accept that you come from a stable family background and I have the greatest sympathy for your parents.  You admitted the offences both when confronted by the girl’s father and mother and by the police. You pleaded guilty at the first opportunity and by pleading guilty in a case such as this, you saved the victim from the embarrassment of having to give evidence.

9.As regards the offer of money to the mother of the victim, I am told in mitigation that the sum was offered by way of betrothal money you offered the victim’s mother to marry the victim when she turns 18.  The court has the greatest scepticism about that suggestion.  You have now been remanded in custody for 3 months and 28 days, and I accept you are now remorseful for your crime and hope to be able to work soon so that you can continue to support your parents financially.  I have read your letter which has been submitted to the court where you repeat your remorse for having committed these offences. 

10.These offences are serious offences.  Underage girls require the protection of the court.  It is a matter of public policy that girls should be protected, girls who cannot truly give their consent to acts of this nature.  Their immaturity is not to be taken advantage of by older men.  The courts take a particularly serious view where the girls are under 13.  This is not a case where the defendant is a young offender or of a similar age to the victim.  The defendant engaged in unprotected sex.  On both occasions, he ejaculated inside the victim.  As well as the real risk of pregnancy, there is risk of sexually transmitted diseases being acquired by the victim.  This is yet another case of a man using the Internet in order to meet up with an underage and vulnerable girl.

11.The normal sentence for offences of this kind after plea would be 18 months’ imprisonment.  I have considered the aggravating features in this case.  In my view, the aggravating features are that there was unprotected sex and you ejaculated inside this young girl on two occasions.  In my view, after trial, the appropriate starting point for offences of this kind would be 3 years’ imprisonment.  You are entitled to a full discount for your guilty plea.

12.The sentence I impose upon you is 2 years’ imprisonment for each offence, those sentences to run concurrently.