HKSAR v. MOK KEVIN

DCCC 257/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 257 OF 2017

------------------------

------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.  The defendant pleaded guilty before me for a charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200.

Summary of facts

2.  X was a girl aged 15 at the material time.  She lives in a domestic building without lift.  Before entering the building, there is a long and narrow stair of about 20 steps leading up to the gate.

The first incident

3.  At about 9:45 pm, X noticed the defendant walk up the stairs behind her.  Suddenly, the defendant overtook X, turned around and bumped onto X’s whole body.  Defendant continued to rush downstairs.

The incident

4.  At around 9:30 pm on 30 November 2016, X walked up the stair to the metal gate of the building.  She saw the defendant walk up behind her.  Believing the defendant was also a resident in the same building, she continued to press the passcode to open the metal gate.

5.  When she reached the 2nd floor, the defendant suddenly put both of his hands on her shoulders from behind and pulled her down two steps.  X recognised the defendant from the previous occasions.  She wanted to scream, but her mouth was covered by his hand.  Defendant used his left hand to rub her breasts outside her school uniform for about 5 to 10 seconds.  X eventually struggled free.  The defendant fled down the stair while X went home. 

6.  The incident was reported to the police.

The third incident

7.  At around 9:43 pm on 10 January 2017, when X was entering the passcode of the metal gate, she heard the footsteps and turned around to find the defendant was running upstairs.  X immediately went in and shut the gate.  The defendant then fled.

8.  On each occasion, the defendant was wearing a face mask.  CCTV footage showed that the defendant had followed X for about three minutes before the two incidents on the date of offence and also on the January incident.

9.  When the defendant was arrested by the police on 23 January 2017, he admitted under caution that he had molested X.  One face mask was also found in his pocket.

10.  In the subsequent video-record of interviews, the defendant admitted that：-  

(a) On 24 November 2016, he saw X and started to follow her to check out the surroundings before he committed the offence. He saw X enter her flat. He left.

(b)On the date of offence, he saw X again. He followed her into the building. When they reached the 2nd floor, he put his left hand over X’s mouth from behind and touched her breasts with his right palm.

(c) As to 10 January 2017, he saw X again and followed her, but she shut the metal gate before he could enter into the building.

(d)On 23 January 2017, he wanted to try his luck as he did not know when X would appear. He carried a face mask to cover his face if he molested X again.

Previous conviction

11.  He has one previous conviction for causing wasteful employment of police in May 2011 and was fined for $1,000.

Mitigation

12.  Defendant is 23, single, lives with his parents.  An elder brother lives in Australia.  His parents always compared him to his successful brother.

13.  Defendant is a Year 4 student and is due to graduate this summer, but because of the present offence, he dropped out in February 2017.

14.  He committed the present offence to relieve his stress and anxiety.  He was co-operative to the police investigation and make full and frank confessions.  He pleaded guilty and saved the embarrassment of the victim to recount the incident in court. The incident was a few seconds and was on the lighter scale.  The defendant started to receive counselling programme since February 2017.

15.  The defendant in his mitigating letter says that he is now remorseful.  He felt sorry for what he had done to the victim.  He asks for a lenient sentence such as probation officer report and CSO report so that he could continue his studies.

16.  His friends from the church also mitigate on his behalf, saying that he is now truly remorseful and ask for leniency in passing sentence.  Today, his friends from the church, social worker and his mother are in court to support him.

The psychologist’s report of X

17.  At the time of assessment for this report, when she talked about the indecent-assault incident, she still cried.  She is still experiencing stress.  The psychologist assessed that, “fortunately, it is not clinically significant.”

18.  She believed that the defendant had planned for the commission of the offence.  When the defendant followed her for the second time after making a police report, she thought that the risk of reoccurrence is still high.

19.  The psychologist concludes that the indecent-assault incident has caused her “fear and self-blame”.  However, there is no indication that she is suffering from a significant level of post-traumatic stress disorder symptoms.

The psychologist’s report of the defendant

20.  The report stated that the defendant committed the present offence “by the use of sex to cope with his academic stress and work frustration.  His risk of sexual recidivism of offences with similar nature is at the high end of moderate risk”.  He expressed worry about the impact of the offence on his career prospect. Psychological treatment is recommended.

Psychiatrist’s report

21.  Dr Liu opined that the defendant’s choice of victim during the current index offence and his repeated choices of young girlfriends, “paedophilic tendency towards teenage young girls is highly suspected.”  Dr Liu also considered that “his stalking behaviour is worrying”.  His job as “private tutor for young children also places him in high-risk environment and could increase the risk of re-offending. Psychological treatment could be beneficial to him”.

22.  Today, in mitigations, the defence told me that the defendant no longer maintained his position as stated in paragraph 5 of the psychiatrist’s report that he denied following the victim.  He agreed that “he was attracted to the victim because of her age”. 

23.  As to the paragraph 10 of the psychologist’s report, he no longer denied that he bumped into the girl and he checked out the surrounding to plan for the commission of the offence.  He affirmed the content of the Summary of Facts.

Sentence

24.  There is no doubt that the defendant committed a very serious offence.  There is no set tariff for this kind of offence.  Each case depends on its own fact and circumstances. The maximum sentence is 10 years.

25.  In passing sentence, this court has called for three reports: one psychologist’s report of the victim, two reports of the defendant, namely, psychiatrist’s and psychologist’s reports which have been summarised in previous paragraphs.

26.  The parties also referred me to a case of HKSAR v Cheuk Ho Kit DCCC 363/2016. The defendant followed a 22-year-old young woman to a stair landing, covered her mouth from behind and squeezed her breasts for about five seconds.  The victim feigned an asthma attack.  The defendant comforted her.  Then he left. The defendant had other convictions, among which was another incident of indecent assault.  At the end, he was sentenced to 22 months’ imprisonment.

27.  However, in the present case, it is far worse than DCCC 363/2016.  There are a number of aggravating features in this case.

28.  The victim is a 15 years old student. 

29.  Before the commission of the offence, the defendant had followed the victim to the building where she lived.  Clearly, that was to check out the surrounding environment of the building and the route of escape.

30.  He was wearing a facial mask.  The purpose was to cover up his facial features.

31.  One cannot dispute that it was a well-planned, calculated and premeditated act.

32.  One week later, he followed the victim back to her building and indecently assaulted her.

33.  The incident took place behind the gate of a building.  That was on the 2nd floor.  It was away from the street so that the public could not see what happened upstairs , but was close to the gate.

34.  In both incidents, it was about 9:30 pm.  This was a domestic building.  Most residents should have gone home after work.  It should be quiet at that time.  However, if anyone opened the gate, the defendant could hear the noise and it was easy for him to make an escape.

35.  When the victim reached two steps up the staircase on 2nd floor, the defendant suddenly put both hands on X’s shoulder from behind and pulled her down to the landing and covered her mouth to prevent her from screaming.  He used his other hand to rub her breasts for 5 to 10 seconds.  That must be an alarming and frightening experience for the victim.

36.  There was a gate in her residential building.  She must have considered it safe to go upstairs and did not expect that to happen.  This traumatic experience has caused her crying spells, flashback and great distress.  It is fortunate that she did not suffer from a significant level of post-traumatic stress disorder symptom.  While the psychiatric report says that the defendant had very little empathy for the victim, he went for counselling because he worried about his own future.  The defendant is in fact a cold-hearted person.  He has no regard to the feelings of the victim. 

37.  Both reports say that the defendant carried out the commission of the offence was to release his own stress from schoolworks and his part-time job.  As his counsel rightly pointed out, he is a selfish person. 

38.  There was another incident, the third incident, that the defendant came back to the victim.  It was a narrow escape for X as she was quick enough to shut the gate before the defendant could go into the building.  The defendant admitted to the police that he wanted to molest the victim again.

39.  Anyone can easily understand why the victim has such a worry that she did not feel safe.  The defendant was simply dauntless.  On the fourth occasion, when he was arrested by the police, he told the police that he wanted to try his luck again.

40.  He repeatedly preyed on the same young, lone and vulnerable victim.  His behaviour/conduct imposes a high risk to the society.  

41.  The prosecution has been generous to him for not laying any further charges against him for at least the first and the third occasion.  In passing sentence, I bear in mind that he only faced one charge.

42.  In his own mitigating letter, he apologised to the victim for what he had done to her, however, it was purely lip service. He is asking for a non-custodial sentence.  This is his wishful thinking.  When he planned for this crime, he should have thought about the consequences.

43.  Finally, I agree with the defence that the defendant’s criminal record in 2011 was a spent record under the Rehabilitation of Offenders Ordinance, Cap 297.

44.  Having considered all the above factors, there is only one mitigating factor in his favour, that is his guilty plea.

45.  To this end, I consider that a 3 years’ sentence is necessary to bring home to the defendant that the court will not tolerate this kind of conduct.  I reduce the sentence to 2 years because of his guilty plea.  He should continue to receive psychological treatment during his term of imprisonment.

46.  Should he re-offend again, he can only expect a heavier sentence.