HKSAR v. LAM NGAI FUNG

DCCC 495/2019

[2019] HKDC 1291

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 495 OF 2019

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Indecent assault". The victim, X, was a 13-year-old girl at the time of the offence. She was a stranger to the defendant.

Summary of Facts

2.  About 11:00 a.m. on 4 April 2019, X was on her way home from school.  She was in her school uniform (a one-piece dress).  As she was walking up the stairs of her home building ("the Building"), she felt someone pulling the lower part of her dress from behind.  She was scared.  She turned around and saw a male (later confirmed to be the defendant) holding a mobile phone in his left hand with the camera lens facing upward.  No third parties were present at that time.

3.  The defendant caught X's arm.  She struggled free and ran downstairs.  The defendant chased after her. X tripped and the defendant held her down, restraining her hands and legs.  He then pulled her underpants down to her upper thigh and rubbed her vagina with his fingers for 1 to 2 seconds.  The defendant did not say anything and fled. X was very scared.  She went home and told her father about the incident.

4.  CCTV footage from locations near the Building captured the defendant following X on the street.  CCTV footage of the Building captured the defendant following her into the Building.

5.  The defendant was arrested on 9 April 2019.  Under caution, he admitted the offence.  In his video recorded interview, the defendant admitted having followed X on the street and in the staircase of the Building.  When there was no one around, he pulled up her dress from behind.  He also used his right hand to touch her breasts and abdomen for a few seconds.  When X tripped and fell, he caught up with her.  He used his hand to touch X's leg and vagina.  Then he fled from the Building.

Mitigation & Sentence

6.  The defendant is 25 and has a clear record.  Defence counsel Mr. McGuinniety first submitted to me a psychiatric report on the defendant written by Dr. Sylvia Chen.  The report sets out in details the defendant's background and Dr. Chen's opinion on why the defendant committed the offence.  I have no basis to doubt the validity and credibility of Dr. Chen's report.  Hence, I decided not to call for any pre-sentencing reports on the defendant as I would normally do when dealing with this type of cases.

7.  The defendant graduated from a local university in 2016 with a bachelor's degree in Applied Chemistry. From July 2016 to November 2017, he worked as a Sales Executive in a company selling medical products.  In December 2017, he switched to work in a pharmaceutical company selling drugs.  He resides with his parents and a younger sister in Sham Shui Po.  He has a steady girlfriend; they were classmates in university.

8.  The defendant disclosed to Dr. Chen that he was a high achiever at work and managed to exceed his sales quota in March and April 2019.  He described to Dr. Chen that he was constantly on his way to pay sales visits to doctors, virtually non-stop.  In terms of hobbies, the defendant was an active basketball player in secondary school and has developed a keen interest in body building in the recent years.

9.  To cut a long story short, in addition to rigorous training and adherence to muscle-gaining diets, the defendant followed his coach's advice by self-administering male hormone injections since October 2018[1]. His blood sample taken on 23 April 2019 (about 3 weeks after the offence) was found to have a total testosterone blood level of >1498 ng/dL, whereas the normal range for a male in the 20-49 age group is 249 to 836 ng/dL.  His blood sample taken on 1 June 2019 was still showing a total testosterone blood level of 911.0 ng/dL.

10.  The defendant told Dr. Chen that in the morning of the offence date, he completed some paper work in his office in Lai Chi Kok and was on his way home for lunch before commencing his sales visits to doctors.  After exiting the MTR, he saw X walking in front of him on the street.  He suddenly experienced an impulse to follow her and to touch her.  Dr. Chen considered that the defendant's markedly increased libido and increased sexual potency were a result of his receiving male hormone injections in gross over-dosage.

11.  Dr. Chen commented that the defendant has taken active steps to minimize his chances of re-offending.  He has stopped all his testosterone injections.  His body weight dropped from 93 kg on his first visit to 88 kg on his last visit in just 33 days.  In her concluding remarks, Dr. Chen wrote "He had learnt a painful lesson, and he had earnestly resorted to practical and realistic steps to help inhibit his sexual impulses.  He reported effectiveness in controlling himself."

12.  In mitigation, Mr. McGuinniety submitted that the defendant accepts that he made a big mistake.  He informed me that an ID parade was held, but no positive identification was made by X.  In other words, the defendant's admissions constituted a critical piece of evidence for the prosecution; his own admissions sealed his fate but saved X the embarrassment and anxiety of giving evidence in court.  Having heard from counsel for both sides, I accept that the evidence against the defendant came primarily from his admissions.  Without his own admissions, there may not be sufficient evidence to bring the charge against him.  The CCTV footage can only prove his presence in the Building.

13.  Mr. McGuinniety further submitted that the attack on X was relatively minor with no aggravating features such as breach of trust, detention of the victim or physical injuries. Finally, Mr. McGuinniety boldly suggested that but for the defendant's excessive testosterone level, the incident may not have had happened.

14.  A Victim's Impact Assessment Report (dated 22 August 2019) was placed before me.  The clinical psychologist made these comments:

"4. Victim reported poor appetite, frequent dreams, startled response, and flashback of the traumatic memory during bedtime. Those symptoms continued till now. Moreover, she experienced depressed mood and increased tendency of social withdrawal. Her parents blamed her failure to shout for help during the assault. In the Children's Impact of Event Scale, the elevated profile revealed clinically significant symptoms in avoidance and intrusion.

…

7. The sexual attack was totally unexpected, particularly in day time. Victim was so shocked that she became frozen and dissociated, a mental state under overwhelming emotion. Information from self-report, informant and test data consistently revealed that victim continued to suffer from a number of the post-traumatic symptoms, which disturbed her mood and functioning. The crime also disrupted the family arrangement and living plan. In a family with poor resources, the recovery would be difficult.

8. Psychological treatment is highly recommended. Victim agreed to receive treatment after the assurance of no fees required."

15.  When determining the appropriate sentence, I have borne in mind the sentencing principles for the offence of indecent assault on young children laid down by the Court of Appeal in SJ v HUANG Long Wei [2009] 3 HKLRD 136.

16.  I accept what the defendant did was out of his character, which was probably attributable to his misuse of testosterone injections.  I do not consider him a paedophile with perverted sexual desires.

17.  It is not an easy task to send someone like the defendant, a hardworking young man who appears to have a promising future and has never lost his freedom, to prison.  I have considered long and hard what the appropriate length of imprisonment should be.  I understand the adverse impact of a prison term would have on him, his girlfriend and his family.  The court, however, must send a clear message to the general public that the protection of young children is paramount.  It is disturbing that the offence took place near the doorsteps of the victim's home, which must have been particularly terrifying for X.

18.  In the sentencing process, the court needs to bear in mind the principles of retribution, deterrence and denunciation in order to arrive at a punishment which is balanced, proportionate and just.  I must also consider the trauma and hardship caused to X and her family as a result of the defendant's attack as well as their grievances and resentment.  X comes from a family with limited resources.  Seeking professional support of various types on her road to recovery may not be easy for her.

19.  Taking into consideration of the defendant's acts, their degree of indecency, the impact of his indecent attacks on X as well as his background, I adopt a starting point of 20 months' imprisonment.  The timely guilty plea has spared X from having to recall the traumatic experience[2].  Furthermore, I accept that the evidence against the defendant came primarily, if not solely, from his admissions[3].

20.  In other words, I have 2 reasons to grant the defendant a discount more than the usual one-third.  I consider a 40% discount appropriate.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 12 months' imprisonment.