HKSAR v. NG KA FAI

DCCC 950/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 950 OF 2013

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REASONS FOR SENTENCE

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1.  Ng Ka Fai you have pleaded guilty to indecently assaulting X, a boy of the age of 13 and inciting X to commit an act of gross indecency, contrary to sections 122 and 146 of the Crimes Ordinance, Chapter 200.

2.  In August this year you were employed by the MTR Corporation as a platform assistant.  In summary in the afternoon of the 14 August whilst you were off duty you stopped two children as they left Locwood Station without paying their fares, notwithstanding your duties did not include stopping passengers for not paying the fare.    

3.  One of the children was the boy X.  After sending the other child away you asked X to provide you with his home phone number.  You then called his mother telling her that you were a staff of the MTR and that you had caught her son not paying the fare. 

4.  You next grabbed hold of X’s hand and took him to the Tin Yat Station.  During the journey you asked for X’s personal information including his date of birth from which you learnt he was only 13.  On arrival at Tin Yat Station you again grabbed X’s hand and took him into a cubicle of the male toilet in the Tin Chak Shopping Centre. 

5.  Inside the cubicle you requested to search X and told him to take off his trousers and underpants.  X was scared and took of his trousers and lowered his underpants. You then put your right hand inside his underpants and touched his penis one to two times for 1-2 seconds each time.  Afterwards you told X to look at your penis and unzipped your trousers and showed him your penis.  You then told X to close his eyes when you kissed him twice on his cheek.  X felt humiliated.

6.  Before leaving the cubicle you told X that if he would do the same thing again you would pay him compensation saying that you used to have a ‘partner’ who you paid $10,000 per month and who you gave a mobile telephone as a birthday present. 

7.  Afterwards you telephoned X’s mother again and told her that as her son had no similar record he had already been released.  When X returned home he told his mother what had happened and a report was made to the police.

8.  Over the next three days you made 35 phone calls inciting X to have oral sex with you.  When X refused you offered to pay X $5,000 compensation if he would agree to let you touch his penis.  X again felt humiliated and reported the phone calls to the police. 

9.  You were arrested on the 17 August when under caution and in a later interview you admitted what happened on the 14 August, including that you kissed X and touched his penis and that afterwards you called X on his mobile phone and at his home.

10.  In passing sentence I take into account everything said on your behalf by Mr Chan together with your letter and the letter written by your mother.  I take into account your family circumstances, in particular that your younger sister has heart disease although I note from the probation report called for last year that the health of both your sister and father were stable and that they were not dependant on others for their daily living. 

11.  I have also carefully considered the psychologist and psychiatric reports called for before passing sentence.  The clinical psychologist assesses you to have sub-average intelligence and poor social judgment (see paragraphs 17-19 of the psychologist report).

12.  There is no usual tariff for indecent assault because the circumstances of each offence can vary considerably (see HKSAR v See Tak Man [1998] 1 HKLRD 794).  Nevertheless the principles established in the cases are of guidance to the courts in passing sentence.  In the Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136 the Court of Appeal set out the principles to follow in sentencing cases of this nature, the most important of which is the protection of young children.

13.  One important consideration in sentencing is to redress the grievance suffered by the victim and their families.  The mother of X has quite understandably declined to have her son interviewed by a psychologist, no doubt to avoid further stress and trauma to X by recounting the events of that day.  As was said in HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 it is not necessary to call for a victim impact statement which may well serve only to agitate painful memories.  As very properly accepted by Mr Chan in the vast majority of cases the trauma, distress and psychological harm caused to young children and their families from this type of offence can be assumed (see HKSAR v Chow Yuen Fai [2010] 1 HKLRD 35). 

14.  The court in Chow Yuen Fai also said that the risk off re-offending is an aggravating feature as is a poor previous record (see paragraph 28).  Daisy Yeung, the clinical psychologist, says there is a strong indication of paedophilic tendency and that the risk of sexual re-offending is very high (see paragraphs 21 and 22 of the psychologist report).  The psychiatrist Dr Choi is of a similar opinion saying that there is very likely deviant paedophilic sexual interest and that the risk of re-offending is high (see paragraph 5 of Dr Choi’s report).   

15.  You are 23 next month and have already been sentenced to probation in 2010 for an offence of theft and in February last year to a total of 8 months imprisonment in TMCC 4592/2011 for three offences of indecent assault and one of impersonating a public officer.  I must say in my view, as expressed last time in court, you were sentenced extremely leniently on that occasion.

16.  I have had the opportunity of reading the file and the reports called for in TMCC 4592/2011.  The facts of the case are very similar to the present case.  On that occasion you impersonated a Tobacco Control Officer and stopped a 13 year old boy you had seen smoking.  You took the boy into a toilet where you molested his penis for about 20 seconds.  This conduct was repeated on two further occasions with the same boy.  After the third time the boy told his brother and a report was made to the police. 

17.  You have obviously not learnt any lesson and have not been deterred by the previous sentence.  Also to be noted is that you show little remorse for your offences. Dr Choi states you showed limited remorse and even requested him to write a favourable report mentioning you were co-operative and did not have a very high risk of re-offending (see paragraph 2 of Dr Choi’s report).  The clinical psychologist is of the view that your remorse is superficial at best (see paragraph 21 of the psychologist report).

18.  The cases make clear that this kind of conduct gives rise to great abhorrence on the part of the public, who look to the courts for protection of children from those who seek to gratify themselves by taking advantage of young children.  That you took advantage of this young boy is clear telling the clinical psychologist that you could not resist the urge to take advantage of X because he was so vulnerable (see paragraph 14 of the psychologist report). 

19.  The sentence of the court must mark the public abhorrence of such crimes and at the same time deter others from committing similar offences.  I am satisfied a deterrent sentence is required in this case.  

20.  Whilst far more serious than the present case involving charges of indecent assault, homosexual buggery, making child pornography and possession of child pornography, one of the indecent assault charges (charge 9) in Chow Yuen Fai also involved putting hands in the trousers of a young boy.  In Chow Yuen Fai the defendant invited two young boys he had acquainted with through online games to come to his home.  The defendant put his hands down the trousers of a young boy, aged 10, and fondled his penis albeit in that case for a longer time, namely for five minutes.  The Court of Appeal said the appropriate sentence after trial was three years imprisonment.  I note the defendant in that case had no previous convictions for sexual offences.

21.  Taking into account that whilst the indecent assault did not last long and the degree of indecency is not the most serious of its kind, youtook advantage of the young age of X and your position as a staff of the MTR to take X into a toilet; you offered X money and followed this up with repeated phone calls requesting to commit further indecent acts with X in return for money; you have similar previous convictions; your risk of re-offending is assessed to be high and the assumed trauma, distress and psychological harm to X, I am satisfied a starting point of 3 years imprisonment is appropriate for the indecent assault and 2 years for the incitement to commit gross indecency. 

22.  Giving you full credit for your pleas of guilty reduces the sentences to 2 years and 1 year and 4 months respectively.  I take into account by pleading guilty at the earliest opportunity this has the consequence that X has not had to relive the trauma of these events.  The court in Chow Yuen Fai said an additional discount must only be given in exceptional cases.  In See Tak Man the court said that as the victim, a twelve year old boy, was spared the considerable ordeal of having to give evidence, together with the fact the offender was a first offender (which is not the case here) the sentence should be reduced by a little more than one-third.  In the circumstances, X not having to testify, I am satisfied the sentences can be further reduced by 1 month to 1 year and 11 months and 1 year and 3 months respectively.  

23.  In my view a consecutive sentence is appropriate for inciting X to commit an act of gross indecency to reflect your continued behaviour by persistently ringing X to incite him to commit acts of indecency in return for money.  I am satisfied your overall culpability will properly be reflected by making 3 months consecutive and 1 year concurrent making a total sentence to be served by you of 2 years and 2 months imprisonment.

24.  You are convicted and sentenced as follows:

Charge 1 - 1 year and 11 months imprisonment;

Charge 2 – 1 year and 3 months imprisonment with 3 months consecutive and 12 months concurrent to charge 1;

The total sentence to be served by you is 2 years and 2 months imprisonment. As both the clinical psychologist and the psychiatrist are of the view that psychological treatment is indicated I recommend that you receive psychological treatment whilst serving your sentence.