HKSAR v. Su Derong
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DCCC 248/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 248 OF 2013 --------------------------
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-------------------- RESONS FOR SENTENCE -------------------- 1.The defendant appeared before me two weeks ago and pleaded guilty to a single charge of “unlawful sexual intercourse with a girl under the age of 13 years”, contrary to section 123 of the Crimes Ordinance, Cap 200. The particulars of offence avers that the defendant:
2.According to the facts which have been admitted by the defendant, he was about 5 years older than the Girl X. As of 26 March 2012, the Girl X was aged 12 when the defendant was aged 17. They were both students at the time of the offence, studying at different schools. At the time of the offence, they were lovers. 3.The facts of the case were indeed very simple. The father of the Girl X left home at about 11 pm on 25 March 2012. The defendant later arrived at the girl’s home and they consumed apparently some cans of beer and became tipsy. They had sex and after which they took shower separately. The defendant slept in the bed of X’s father. The father later came back home at about 6.10 am and discovered the defendant on his bed and he told the defendant to leave. Later on, the Girl X told her father that she had sexual intercourse with the defendant. A report was then made to the police. 4.Defendant received a call from the father of the Girl X and over the telephone, he apologised. It was the defendant who later surrendered himself to the police and he was arrested on 5 May 2012. Under caution, he admitted the offence. 5.The defendant admitted that he had sexual intercourse with the Girl X and he ejaculated on her abdomen. He also admitted that he did not use a condom during the sexual intercourse. 6.Before sentencing the defendant, I have ordered a set of reports and they include the Probation Officer’s Report, the Rehabilitation Centre Report, the Detention Centre Report, the Training Centre Report as well as the Young Offenders’ Assessment Panel Report. 7.Today, I have the opportunity of reading all the reports. The Probation Officer’s Report does not recommend probation. The Correctional Services was of the view that because of the underweight of the defendant, he was not considered a suitable candidate for the Detention Centre. Between the regime of Training Centre and the Rehabilitation Centre, they considered the defendant more suitable for detention in a Rehabilitation Centre. 8.The Young Offenders’ Assessment Panel, however, is of the view that the defendant has displayed some determination to start afresh and has developed a good insight into his misdeeds and the unruly lifestyle during his current remand period. In the end, the panel considers that the defendant deserves a chance to rehabilitate in the community under a period of professional supervision. Coupled with his clear record, the panel finally recommends that the defendant be put on probation supervision for 24 months with additional requirement that he shall submit urine samples for random tests as directed by his probation officer. 9.The charge with which the defendant is convicted is of course serious. Undoubtedly, underage girl requires the protection of the court. Girl X was only 12 years old when this offence took place. Her immaturity is not to be taken advantage of. But in considering the seriousness of the offence, the relationship of the defendant with the girl as well as his own age is also a matter of consideration. If both the girl and the defendant are young, the court is always more able to adopt a more lenient approach and particularly as in this case, as they were then in a loving relationship. 10.In mitigation, Mr Tsang, the solicitor acting for the defendant, had urged the court to consider giving the defendant a last chance perhaps to reform in an open setting first because the defendant had a clear record and he had not been in trouble with the law before. He told the court that the defendant was very remorseful and submitted to the court a letter written by the defendant himself. I have also seen the letter myself in which the defendant had expressed remorse and had promised to turn a new leaf and asked the court to give him a chance to receive probation. 11.I can understand why the Probation Report is not favourable to the defendant. The defendant was brought up in a broken family and he was the only child of his parents. The couple was divorced in the mainland and the defendant’s mother only immigrated to Hong Kong in 2007. A year later, the defendant followed the mother and came to Hong Kong. 12.The defendant did not receive adequate parental supervision and he did not perform well in his studies. He fell in love with the Girl X in the present case in early 2012 and then out of sex impulsiveness, he committed the present offence in March 2012. Although the defendant was arrested not until May of the same year, he was reported to mingle with some dubious peer, and he even started sniffing ketamine in April 2012. 13.The picture that was painted by the probation officer has described a unruly young man who, after dropping school, lost his life directions. 14.My task here is to decide between the competing needs for rehabilitation of a young man on the one hand and also the deterrent effect on the defendant when he had committed a crime like the present. 15.Given the conflicting recommendations, I have considered the matter very carefully. In the end, I considered that the Young Offender Assessment Panel is really a special board jointly established by the Social Welfare Department and the Correctional Services Department, and it provides co-ordinated professional views to the court on the most appropriate rehabilitation programmes in the sentencing of young male offenders. I am sure when the panel came to the decision, they had already spent time in studying the reports both from the Probation Service as well as the Correctional Service. Although they did not spell out very clearly in detail why they came to the conclusion, I think it must be that during the interview, the defendant had displayed his determination to turn a new leaf so much so that they were impressed and considered that he deserved a chance to rehabilitate in the community under the supervision of a probation officer. 16.Mr Tsang also reminded me that if the defendant should fail in his performance under the probation order, he can always be brought back to the court and dealt with accordingly. In the end, I am persuaded that I should give the defendant a very last chance. 17.The defendant agrees to be placed on probation and he understands the consequences of a breach of the Probation Order. 18.The sentence for this charge is therefore probation supervision for 24 months with an additional requirement that the defendant shall submit urine samples for a random test as directed by the probation officer.
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