HKSAR v. Lau Man Hin

[ENGLISH TRANSLATION – 英譯本]

CACC 240/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 240 OF 2013

(ON APPEAL FROM HCCC 120/2013)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the reasons for judgment of the court):

Introduction

1.Before Madam Justice Poon, the applicant (Lau Man Hin) pleaded guilty to 4 charges, including one count of procuring an unlawful sexual act by threats or intimidation, one count of unlawful sexual intercourse with a girl under the age of 16, one count of assault occasioning actual bodily harm and one count of criminal intimidation. For these charges, he was sentenced to imprisonment for 32 months, 8 months, 4 months and 12 months respectively. The judge also ordered that some of the terms of imprisonment were to run consecutively to each other, arriving at a total term of 56 months’ imprisonment.

2.Mr Bruce Tse of counsel applied on behalf of the applicant for leave to appeal against the sentences. At the end of the hearing and having received the Training Centre report, we granted the applicant leave to appeal against the sentences and treating the hearing of his application as the appeal proper, we allowed the appeal, set aside the original sentences and substituted them with an order that he be placed in a Training Centre in respect of all charges. Our reasons are set out below.

The facts of the case

3.The victim of this case was born in September 1995. She was about 15 years old at the material time. She and the applicant studied in the same secondary school. They became lovers in May 2010 and had engaged in intimate sexual acts on numerous occasions. In mid-2011, they had quarrels over trivial matters and their relationship turned sour in early 2012. They often had quarrels and finally she revealed their relationship to her teacher, resulting in police investigation.

4.After investigation, the police confirmed that in August 2010, the applicant forced the victim to have sexual intercourse with him by way of inflicting harm to himself when visiting her home. Meanwhile, he slapped her and did not use a condom during the sexual intercourse.

5.On a day in December 2010, the applicant and the victim returned to her home and had sexual intercourse during which he did not use a condom.

6.On a day in April 2012, the applicant visited the victim’s home. Meanwhile, he demanded that she remove all her clothes and stand up. Then, he kept pinching and twisting her arm(s) and inner thigh(s) for as long as 15 to 20 minutes, causing multiple bruises to her body.

7.When he was dating the victim, the applicant took 9 nude photographs of her, including 3 close shots of her breasts, 5 close shots of her private parts and one photograph showing sexual intercourse. However, the photographs did not show her face.

8.On 24 April 2012, the applicant sent a message to the victim to which a photograph of her naked breasts was attached. The message was “Send it to your mom, shall I?” After she had said “No”, he then responded, “How on earth could you say ‘No’?” and “You’re doomed.”

9.After arrest, the applicant admitted all the allegations.

The Applicant’s background and mitigation

10.The applicant was born on 14 October 1993. He was about 17 years old at the material time and had a previous clear record. He claimed that he had no idea that having sexual intercourse with the victim was unlawful. The Psychologist’s report said that he was unlikely to reoffend. According to the Psychologist, his violent conduct was due to his immaturity in handling gender relationship. Further, he had a wrong view that sex and love was extremely important, and his dictatorial behaviour resulted from his inability to properly control his emotion and sexual urges, coupled with his highly possessive and jealous nature.

11.The Probation report and the Training Centre report are both positive. The applicant’s academic performance is not bad and he is quite talented in sports. According to the Training Centre report, he is suitable for training in a Training Centre.

The Judge’s reasons for sentence

12.When passing the sentences, the judge stated that although the age difference between the applicant and the victim was only 2 years, he manipulated, controlled and influenced her in their relationship. The judge emphasized that the victim had already asked for a breakup one year after they had become lovers. However, the applicant threatened to commit suicide and even used violence on her and threatened her with her nude photographs. The judge commented that the applicant’s offences had profound adverse effect on the victim, traumatizing her physically and emotionally.

13.The judge took the view that in sentencing him, the court must take into account the public disdain and abhorrence of the applicant’s offences and more weight should be put on deterrence rather than the rehabilitation of the applicant.

14.In the judge’s opinion, a total starting point of 7½ years’ imprisonment was appropriate. However, in view of the applicant’s guilty pleas and other mitigation factors, she reduced the sentences to 56 months’ imprisonment.

Grounds of Appeal

15.On behalf of the applicant, Mr Tse contended that the starting points adopted by the judge and the final sentences she passed were manifestly excessive and wrong in principle.

16.He argued that in view of the applicant’s previous clear record and background, etc, the judge should have attached more weight to the factor of rehabilitation instead of placing too much emphasis on deterrence.

17.He submitted that the judge was wrong to assume that the applicant threatened to send the victim’s nude photograph to her mother, and argued that the applicant deserved a more lenient sentence.

Discussion

18.First of all, we should state that the main purpose of sentencing a young first offender of the age of 16 or 17, unless in very exceptional circumstances, is to give him a chance to rehabilitate himself. The court should not pass a deterrent sentence on a young first offender and ruin his life.

19.This is not a case where an experienced male adult toyed with a girl’s affections, manipulated her and used her as a means to gratify his own sexual urges or fulfil other inappropriate purposes.

20.According to the Psychologist’s report, the victim came from a single parent family. Both her parents had to work long hours and no one took care of her. The applicant’s parents were sympathetic to her and allowed her to stay in their home after school for a long time, after which the applicant would accompany her home after dinner, so that there were opportunities for them to stay together for a long time.

21.At the material time, the applicant and the victim studied at the same secondary school and became lovers as they had got together for a long time. They even engaged in intimate acts out of love.

22.We do not want to play down the seriousness of the applicant’s offences. He had sexual intercourse with a girl under 16 on many occasions over a long period of time. Meanwhile, he even used violence on her and threatened to harm himself and send her nude photograph to her mother. His offences were not minor.

23.However, we do not think that the purposes of the applicant’s inappropriate conduct were to control the victim, deprive her of her freedom or achieve some corrupt goals. In our opinion, it was extremely likely that he acted inappropriately because he was obsessive about the victim and unwilling to lose her, and thus he committed some unlawful acts immaturely and irresponsibly out of jealousy and strong possessiveness.

24.The above view is countenanced by the Psychologist. Although the applicant’s offences are serious, the present case is of a less serious nature when compared with other similar cases.

25.The applicant is young and has a previous clear record. He was not yet 17 at the material time. His academic performance is not bad and he is excellent in sports. We are of the view that he should be given a chance to rehabilitate himself.

26.Having considered the Training Centre report, we think that it is appropriate to sentence the applicant to a Training Centre for training, so that he can return to the right track and start afresh.

27.Therefore, we grant the applicant leave to appeal against the sentences and treating the hearing of his application as the appeal proper, we allow the appeal, set aside the original sentences of 56 months’ imprisonment and substitute them with an order that he be detained in a Training Centre for appropriate training in respect of all charges.

Mr Bruce Tse, instructed by Betty Chan & Co and assigned by the Legal Aid Department, for the applicant

Mr Derek Lai AADPP, of the Department of Justice, for the respondent (26 March 2014)

Mr Gary Leung ASPP, of the Department of Justice, for the respondent (10 April 2014)

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.