HKSAR v. LAM YU WAI

DCCC 216/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 216 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of indecent conduct towards a child under the age of 16 years, contrary to section 146(1) of the Crimes Ordinance, Cap 200, and the particulars of offence show that occurred in Sau Mau Ping on 8 January 2017 at a rear staircase in a community centre, and the child in question was a boy of the age of 7 years. We know that the boy concerned is a primary school student who on the facts is said to be aged 6 at the material time. He is living with his parents and was taken out on 8 January 2017 sightseeing.

2.  The child was on his way home when he met the defendant who approached him and said he was acquainted with a relative and then took the child to the rear staircase of the community centre.  There, the offence was committed.  The indecent conduct towards the child took place, the defendant unzipping his pants, taking off his underwear, asking the child to touch him.  He also indicated the child should touch his penis.  He did so, and then the defendant used his hand to touch the child’s penis.

3.  The child was clearly distressed and shocked by this conduct.  There were calls made to the child’s mobile phone which caused the defendant to flee the scene.  Eventually, the child was found and taken to a social worker where the case was reported.

4.  The defendant was identified from CCTV footage and arrested.  He admitted under caution the offence and the indecent conduct towards the child both at the time of his arrest and in a subsequent video-recorded interview.  He admitted there touching the child intimately and getting the child to touch him intimately.

5.  The medical examination of the child showed no relevant physical harm.  There is a statement from his mother that says the incident has caused him psychological impact, and at present, he is attending regular follow-up consultations at a child psychiatry department at a hospital.  So it would appear there is continuing psychiatric treatment necessary, but the mother has not permitted the child to be seen in respect of making the victim impact assessment for these proceedings.

6.  As far as the defendant is concerned, his antecedents are concerned, he is aged 44.  He has an education background until lower secondary and has worked as a delivery man.  He is single.  He has a number of previous convictions both for this offence and for offences of dishonesty.  He was convicted as far back as 1993 for indecent assault on a male, receiving a sentence of probation on that occasion.  In the year 2000, for the same offence, indecent conduct towards a child under 16, he was sentenced to 1 year’s imprisonment; in 2004, for the same offence, sentenced to 16 months’ imprisonment; in 2006, for the same offence, sentenced to 3 years and 9 months’ imprisonment.  And then more recently, in 2014, for the same offence, on that occasion, after review of sentence, his sentence was increased to 4 years’ imprisonment for a single offence of indecent conduct towards a child under 16.  There was a breach of a suspended sentence which was also activated consecutively.   

7.  Because of the nature of the offence, I obtained psychiatric and psychological reports on the defendant.  There is also a background report.  In summary, the psychiatric report shows the defendant functions in what is described as a mild grade mental handicap range.  The psychological report goes into more detail as to the defendant’s paedophilia and also previous psychosexual history.  The report shows that as the antecedent history shows the defendant has five prior sexual offences, including a conviction of indecent assault on a male and four convictions of indecent conduct towards a child under 16, and the defendant was most recently discharged from custody for the last offence in May 2016.

8.  The defendant has mild grade intellectual disabilities.  He understands sexual molestation is an unlawful behaviour.  He is said to be immature and carefree individual with poor problem-solving ability and inadequate personal skills.  He has experienced difficulty in developing and maintaining meaningful social relationship with adults and constantly preoccupied with boredom and loneliness.  He satisfies and handles his own ungratified needs through socialising and molesting underage boys who are an easy target of manipulation.  He displayed little genuine remorse for the offences, blaming the victims and minimising his failing.

9.  The present assessment finds evidence that the defendant has paedophilic disorder, recurrent sexual behaviour against prepubescent boys.  His risk of sexual recidivism is very high with reference to international actuarial assessment tools.  Underage boys are likely to be potential victims of his re-offending.  So given his very high risk of sexual re‑offending against underage boys, psychological treatment on his offending behaviour is highly recommended.  His prognosis is pessimistic in view of his inadequate motivation for change, his intellectual disabilities which significantly impeded the treatment effectiveness and responsivity.  After he was discharged from custody, social services facilitating his development of appropriate social skills could be beneficial.  Close supervision of community is necessary to prevent re-offending.  Any association with children under 16 could contribute to a high-risk situation of re-offending and should be avoided as far as possible.

10.  The background report deals with more of the social aspects of his life but does not significantly differ from the opinions expressed by the clinical psychologist.  So I must treat the defendant as suffering from paedophilic disorder and exhibiting a high risk of sexual recidivism and a high risk to children under 16.

11.  As far as sentencing the defendant is concerned, the offence is a serious offence, and in fact the defendant himself was dealt with in the case of Secretary for Justice v Lam Yu Wai [2014] HKCA 320 where the Court of Appeal set out a series of principles that were appropriate for the sentencing of offenders of this offence and also in particular for this particular defendant.  It said:

“The sentence on the defendant must serve the following purposes: to reflect the seriousness of the offence committed by the respondent; it must be deterrent in order to prevent others from committing similar offences; it must be able to deter the defendant from committing similar offences; and if it fails to deter the defendant, at least it can prevent him from committing similar offences again within a length of time.”

12.  The court went on to observe and give details of other offences involving similar conduct towards children and showing the level of sentencing that had been laid by the court in those cases.  Of course, each case must to a certain extent rely on certain particular facts, and the court observes that:

“The trauma caused to a child by indecent assault and long-term adverse impact is difficult to calculate but trauma may safely be assumed in the vast majority of cases, perhaps all.”

13.  I believe that is appropriate in this case.  One can assume trauma to the child victim in this case.  So that it was known that the respondent in this case:

“...is mentally handicapped. However, his commission of the offence has nothing to do with his mental capacity. Nor is there any information to show his mental handicap has resulted in his failure to be aware of the seriousness of the offence committed by him.”

14.  The nature of the outrage on the child in this case is perhaps less serious than the case for which the defendant was sentenced in case 925 of 2013.  However, it is still a serious intrusion into that child’s life.

15.  The court also observed in setting the starting point for sentence for the last offence the defendant was involved in, they said:

“Looking at the nature of the case, particularly the age of X and the previous similar records of the respondent, even if it is an application for review of sentence, the appropriate starting point should not be lower than 6 years. We have to stress that if that starting point still fails to deter the respondent from continuing to sexually abuse children, the court will consider a lengthier sentence to prevent the respondent from endangering the society again.”

16.  Again in this case, looking at the age of the child here, 6 years of age, the nature of the case, again the perhaps abusing the trust of the child in an adult and then abusing him sexually and again looking at the previous convictions of the defendant to which now must be added his conviction in 2014, it would appear to me the starting point for sentence in this case must not be lower than 6 years and in fact must be higher than the starting point adopted by that of the Court of Appeal in 2014.

17.  What I should do is adopt a starting point in this case of 81 months’ imprisonment, that is 6 years and 9 months, and the defendant is entitled to a one-third discount which by my calculation leads to a final sentence of 4 years and 6 months’ imprisonment in respect of this offence.  

18.  Now, I would also note at this stage that if the defendant were to continue re-offending, this court may no longer be the appropriate venue in which he is to be sentenced.  Yes, so the sentence should be one of 4 years and 6 months’ imprisonment, the final sentence after deduction of one-third for his plea of guilty.