HKSAR v. LEE PAK TO

DCCC 533/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.533 OF 2012

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of indecent assault, contrary to s.122(1) of the Crimes Ordinance, Cap.200. Particulars of the charge state that the defendant indecently assaulted X, a 15 year old girl, on 27^th April 2012, at the lift lobby on the 18^th floor of Yue Shun House, Yue Wan Estate, Chai Wan.

Facts

2.  At around 11:35pm on the day in question, X was on her way home after studying at the Chai Wan Youth Square. The defendant started to follow her when she walked past the Chai Wan Police Married Quarters.

3.  X walked in Yu Shun House which was about 100 meters away and entered a lift. The defendant followed X into the lift. X pressed for the 18^th floor while the defendant pressed for the 20^th floor.

4.  When the lift doors opened on the 18^th floor and just as X was walking out of the lift, the defendant rushed out and hooded X’s head from behind with an orange plastic bag. The defendant dragged X onto the floor and fondled her private parts under her school uniform for 4 or 5 times. X screamed. The defendant fled and escaped.

5.  X immediately went home and told her mother about the assault. Her mother saw that X was frightened and disheveled. X reported the matter to the Police shortly afterwards.

6.  Closed circuit television footage were examined and the defendant was identified. The defendant was arrested 19 days later. The defendant admitted under caution that after having a lot of alcohol during dinner that evening, he followed the victim into the lift and committed the offence.

Previous convictions

7.  The defendant had a clear record.

Mitigation

8.  The defendant is 28 years old. According to him, his girlfriend had told him on the day of the offence that she was having a sexual relationship with another man. That made him angry and frustrated and the defendant drank 5 large bottles of beer when he had dinner with his colleague that evening. The defendant then bought 6 cans of beer and drank alone in Chai Wan Park. While he was drinking the beer, he saw the victim walked past. She reminded the defendant of his girlfriend. The defendant felt angry but at the same time he wanted to hold the victim. He therefore followed her into the lift and committed the offence.

9.  A psychological report was prepared by Mr. Hau, clinical psychologist of the Correctional Services Department on the defendant.

10.  It is Mr. Hau’s opinion that the defendant is a person with low tolerance of frustration and poor mood management. The defendant became sexually violent and disinhibited under the influence of alcohol, with his self-control and social judgment impaired. There is however no evidence to suggest any paedophilic tendency. It is Mr. Hau’s conclusion that, in consideration of the defendant’s age, the nature of the offence and the characteristics of the victim, the defendant’s risk of re-offending is moderate to high.

11.  A victim impact report was prepared on X. According o Ms. Lam, Clinical Psychologist of the Social Welfare Department, with X’s family’s emotional support, their moving to a new home and X’s resilience in overcoming the negative impact of the assault, X has made significant adjustment. She suffered no significant level of emotional or behavioral disturbances and she is able to function normally. It is Ms. Lam’s conclusion that given the resilience she had observed in X, no further psychological intervention would be necessary.

Sentencing cases

12.  The prosecution drew the court’s attention to 2 cases.

HKSAR v Chan Chi Hou, CACC 1/1997

13.  In HKSAR v Chan Chi Hou, the applicant was convicted after trial in the High Court of 2 counts of indecent assault:

“The modus operandi in the two offences was the same. The victims were young school girls at the age of 10 and 15 respectively who lived in the same Housing Estate. They were returning home after school. The applicant went to that housing estate armed with a metal ruler and a cord. In each case, he followed the victim into a lift. When she was getting out, he grabbed her from behind and dragged her to a staircase. There he threatened the victim with the metal ruler. He told the victim to take off all her clothes and to cover her head with such clothes. The applicant then sexually assaulted her by fondling her breasts and private parts. He also forced the victim to perform oral sex.

The applicant was 18 years old at the time of the offences. He had a clear record. He was a student studying Form 7. He came from an ordinary family living in the Sau Mau Ping area.”

14.  The Court of Appeal in considering the appeal noted the gravity of the offences:

“7. These were no ordinary indecent assaults. As the trial judge correctly pointed out, these were two grave attacks on young girls. They were premeditated and planned. The applicant deliberately went to that housing estate, apparently to look for easy and vulnerable targets. He was equipped with a metal ruler which he had actually used to threaten the victims. Some degree of violence was also used. The victims were young school girls. They were stripped and subjected to sexual indignities. The applicant ordered them to cover their heads so that they would not be able to recognise him.”

15.  In considering the proper starting point for those 2 offences, the Court said this,

“8. The maximum penalty for indecent assault is 10 years imprisonment. There is no tariff for this type of offence because of the often significantly different circumstances in each case. However, we would emphasize that young girls must be protected. Parents are entitled to expect that their girls would go to school happily and return home safely. It is the duty of the court to protect these young children and to assure their parents of their safety. A sufficiently heavy deterrent sentence is required for sexual offences of this nature against young girls.”

16.  The total sentence of 8 years’ imprisonment that was imposed by the trial judge was in the end undisturbed, but the Court was of the view that the sentence was already on the lenient side.

HKSAR v Mak Chun Man, CACC 86/2009

17.  In HKSAR v Mak Chun Man, the applicant pleaded guilty to two counts of indecent assault. He was sentenced to 2 years’ imprisonment on count 1 and 4 years’ imprisonment on count 2. One year of the sentence in count 1 was made consecutive, resulting in the total sentence of 5 years’ imprisonment.

18.  In count 1, the applicant followed the victim, a young woman, into a lift of an office building in Central in the afternoon. He tried to engage her in conversation and asked for her phone number but was ignored. The applicant moved to a position behind her and as she was leaving the lift, he placed his hand inside her dress and touched her on the thigh. The victim pushed his hand away, left the lift, and made a report to the police.

19.  In count 2, a 15 year old school girl was going home after school at around 4pm when the applicant followed her into the building where she lived. He followed her into the lift and asked her for her telephone number.  The girl refused and told him to stay away.

“When the lift reached the 7th floor she alighted. The applicant followed her and as she opened the door to her home he forced his way into it. She attempted to get away from him but to no avail. The applicant placed his hand over her mouth to prevent her crying out. He unzipped her school dress from behind and inserted his hand inside the dress touching her breasts. The victim continued to struggle and eventually managed to pull off the applicant’s eyeglasses and slapped his face. She eventually succeeded in pushing the applicant away and made her escape. She sought assistance from a neighbour. A report was made to the police. The victim was treated at the Queen Mary Hospital for bruises and abrasions that she suffered in the struggle with the applicant.”

20.  The applicant was described by the Court of Appeal as being a “sexual predator” based on his previous conviction records.

21.  In considering the 3 years imprisonment starting point that the trial judge had adopted in relation to count 1, the Court of Appeal said this,

“19. In the normal course of events it can properly be said that the act of indecency in Count 1 was not the most serious of its kind. However it is to be remembered that the fact that the offence was committed inside the lift of a building is of itself an aggravating factor. It is apparent that the applicant had followed his victim into the lift with the express intention of indecently assaulting her. The starting point for sentence of 3 years was in the circumstances entirely appropriate.”

22.  The Court further observed that,

“23. In both of these cases it is apparent that the applicant had followed the victims with the intention of assaulting them. They were, in both cases, alone and vulnerable. In both cases they were unable to call for or obtain assistance.”

23.  The Applicant did not question the starting point of 6 years’ imprisonment for count 2 adopted at trial, just that the principle of totality for the 2 counts should have led to a lower eventual sentence. The Court of Appeal disagreed and upheld the original sentence.

Sentence

24.  Unlike the applicant in Mak, the defendant is of clear record.

25.  I find that although the defendant had assaulted X just when she was stepping out of the lift, there is no difference in term of seriousness of the offence between this and the assault actually happening inside the lift.

26.  It was late in the evening, X just finished studying and was going home. It was the last thing she would have expected to happen to her, to be stuck inside the lift with an assailant. She was no doubt at her most vulnerable.

27.  I find that the use of the plastic bag on X an aggravating factor. It was fortunate that the defendant appeared not to have been completely successful in hooding X with the bag or she might have suffered more serious injuries, both physically and psychologically. It is a harrowing experience to be hooded with a plastic bag with the fear of suffocation.

28.  There was obviously some premeditation and planning in the defendant’s commission of the offence. He did not assault X right away when they were alone in the lift. He knew to press for 20^th floor after seeing X pressed for the 18^th floor, obviously planning to follow her out on the 18^th floor. He had with him the plastic bag ready. It was not the case that he suddenly decided to assault X and when X struggled he just grabbed the bag to try to control X. According to the facts, the defendant rushed out of the lift just as X was walking out and hooded X from behind. He knew exactly what he was going to do.

29.  As the Court of Appeal stressed in Chan Chi Hou, it is the duty of the court to protect young children and to assure their parents of their safety, “a sufficiently heavy deterrent sentence is required for sexual offences of this nature against young girls”.

30.  Bearing in mind all the circumstances of the case, I find that an appropriate starting point in the present case is that of 3 and a half years’ imprisonment. I will give the defendant the full one third discount in recognition of his guilty plea and sentence him to 28 months’ imprisonment.