HKSAR v. CHUN KWONG KAU

HCCC 8/2024

[2024] HKCFI 2602

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 8 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to the following charges before Magistrate Mr. TSANG Chung-yiu and was committed to the Court of First Instance for sentence.

2.  Count 1: Indecent conduct towards a child under the age of 16 years, contrary to sections 146(1)  and 153P(1)  of the Crimes Ordinance, Cap.200.

3.  Particulars of the charge are that the defendant, on a day unknown in about April or May 2005, at Room 601, No.43 Le Qun Ting Xiang Village, in Shenzhen, People’s Republic of China, committed an act of gross indecency with or towards girl “X”, a child under the age of 16 years.

4.  Count 2: Rape, contrary to sections 118(1)  and 153P(1)  of the Crimes Ordinance.

5.  Particulars are that the defendant on a day unknown between 2005 and 2006, at Room 301, No.45 Le Qun Ting Xiang Village, in Shenzhen, People’s Republic of China, raped girl “X”.

6.  Count 3: Indecent conduct towards a child under the age of 16 years, contrary to sections 146(1)  and 153P(1)  of the Crimes Ordinance.

7.  Particulars are that the defendant on a day unknown between 2005 and 2006, at Room 601, No.43 Le Qun Ting Xiang Village, in Shenzhen, People’s Republic of China, committed an act of gross indecency with or towards girl “X”, a child under the age of 16 years.

8.  The defendant is liable for the criminal acts in counts 1, 2 and 3, which were committed outside Hong Kong, through the application of s.153P(1).

9.  Count 4: Rape

10.  Particulars are that the defendant on a day unknown in about October 2007, at a flat in Block 9, Pak Tin Estate, Sham Shui Po, Kowloon, in Hong Kong, raped girl “X”.

11.  Count 5: Indecent assault on another person, contrary to section 122(1)  of the Crimes Ordinance.

12.  Particulars are that the defendant on a day unknown in about September or October 2008, on the podium of Cheung Hong Commercial Centre No.2, Tsing Yi, New Territories, in Hong Kong, indecently assaulted girl “X”.

13.  Count 6: Indecent assault

14.  Particulars are that the defendant on a day unknown in about October or November 2010, at a flat in Block 9, Pak Tin Estate, Sham Shui Po, Kowloon, in Hong Kong, indecently assaulted girl “X”.

SUMMARY OF FACTS

15.  A summary of the facts that the defendant had admitted to are as follows.

16.  X was born in mainland China in 2000 and resided at Room 301, No.45 Le Qun Ting Xiang Village, in Shenzhen with her mother.

17.  X’s father is a Hong Kong resident.  He would visit X and her mother in Shenzhen on Saturdays and spend the night there, returning to Hong Kong the next day.

18.  One day in 2004, the mother brought home a man and told X to address him as “uncle”.  The man was the defendant, who was a Hong Kong resident living in the same village in Room 601.  Since then, the defendant visited mother and daughter almost every day and would sleep over.

19.  X’s mother was a heavy drinker and habitual mahjong player.  She entrusted the defendant to take care of X.  The defendant would take X to kindergarten and look after her daily living.  The mother told X to call the defendant “daddy” when she was about 4 and a half years old, which X did.  

20.  Between 2005 and 2007, the defendant spent about 5 days each week at X’s home.  Almost every time that the defendant had visited, he would touch X’s breasts or vagina, or ask her to perform oral sex on him.  The defendant also raped X about once every fortnight.

21.  In the same period, the mother brought X to the defendant’s home at Room 601 about once every two week.  The defendant would touch X’s breasts or vagina or ask X to perform oral sex every time.  The defendant had also raped X on these occasions, and had inserted a vibrator into X’s vagina for about 3 times.  

Count 1: Indecent conduct towards a child

22.  The offence in count 1 took place when X was 5, in around April or May of 2005, at the defendant’s Room 601.

23.  The mother left X alone with the defendant while she went to play mahjong.  The defendant told X that he was going to show her something, but that she could not tell her mother.

24.  The defendant played two pornographic videos to X.  He then removed his trousers and told X to perform oral sex on him like in the video.  

25.  X refused.  The defendant asked if she was being naughty and refusing to listen to “daddy”.  Out of fear X complied.

26.  The defendant held his penis and pushed X’s head towards it.  X licked it a few times, found it gross and refused to continue.

27.  The defendant reminded X not to tell anyone.

28.  That night, X told her mother about the incident.  The defendant denied when questioned by the mother.  The matter was not pursued further.  

Count 2: Rape

29.  Count 2 took place when X was about 5 and half to 6 years old, between 2005 and 2006, at X’s home at Room 301.

30.  The defendant brought X home.  The mother was out playing mahjong and they were alone.  After the defendant removed all of X’s clothes and was naked himself, he told X to lie on the bed and spread her legs to play a “chicken poking” (吉雞雞)  game.  The defendant rubbed his penis against X’s vagina for a while and then inserted it.  X felt painful and said she did not want it.  The defendant ignored her and continued.

31.  The defendant stopped when X repeatedly said she was in pain and almost cried.  He then lay on the bed and told X to masturbate him.  X complied but stopped shortly afterwards because she felt tired.  The defendant masturbated and ejaculated.

32.  The defendant told X not to tell anyone as it was their secret.

33.  X told her mother about what happened.  The defendant denied when questioned by the mother, who then told X that X had misunderstood the defendant, that he was just playing with her, and asked X not to say these things casually.  

Count 3: Indecent conduct towards a child

34.  Count 3 took place when X was still 5 and a half to 6 years old between 2005 and 2006, at Room 601.

35.  The defendant was alone at his home.  After he helped X showered, he did not let her put on clothes, but took out a vibrator, put it in her hand, and then had her inserted it into her vagina.  X felt weird and uncomfortable and shook her head.  The defendant retrieved the vibrator and said to X that she will feel very comfortable when she grew up.

Count 4: Rape

36.  Count 4 took place in Hong Kong, after X father successfully applied for her and her mother to reunite here in 2007, when X was 7 and in Primary 2.

37.  The 3 of them lived together in Tsing Yi.  The defendant had also moved back to Hong Kong and resided at a flat in block 9 of Pak Tin Estate, Sham Shui Po.  

38.  The mother would bring X to the defendant’s home in Pak Tin Estate every Saturday.  Each time the defendant would touch or lick X’s breasts or vagina.  The defendant also raped her about twice a month, but X can no longer recall the details or dates, except the following incident.  

39.  One Saturday in around October 2007, the mother brought X to the defendant’s home.  With the mother’s consent, the defendant helped X to shower.  During the shower, he rubbed body wash all over X’s body and said he will massage her.  The defendant rubbed X’s breasts and inserted his finger into her vagina.  The defendant then seated X on top of the toilet seat cover, spread her legs and said they were going to play the chicken poking game again.  

40.  The defendant inserted his penis into X’s vagina.  X said it was very painful and told him to stop.  The defendant then squatted and licked her vagina as he squeezed her breasts.

41.  X told the defendant that his beard was stinging her and it was uncomfortable, and that she had to go out.  The defendant ignore her and kissed X on the mouth.  X remembers the defendant’s mouth as foul-smelling from his smoking.  X kept turning her head away but the defendant persisted and started to lick her neck.

42.  After a while, the defendant left the bathroom and told X not to come out so soon, because he did not want the mother to see that X’s body had some red marks.  X complied.  

Count 5: Indecent assault

43.  Count 5 took place on a day in around September or October 2008, when X was 8 and in Primary 3, after her mother and the defendant had picked her up after school.  They went to the podium of a shopping mall in Tsing Yi.  The defendant told the mother to go get some beer.  

44.  When they were alone, the defendant told X to sit on his lap.  X was reluctant but complied when the defendant insisted.  

45.  While X was on his lap, the defendant put his hand underneath X’s school uniform, pushed aside her underpants and inserted his finger into her vagina.  X tried to pull his hand out but she was not strong enough.  The defendant stopped after a while, knowing that the mother was returning soon.  

46.  It was in the same year of 2008 that X came to be aware after sex education classes that what the defendant had done to her amounted to sexual abuse.

Count 6: Indecent assault

47.  Count 6 took place on a Saturday in around October or November 2010 when X was 9 or 10 years old, when the defendant, X and her mother were at the defendant’s home.  

48.  The defendant took X into the kitchen, held her up and kissed and licked her neck, and kissed her on the mouth.  He pulled down her dress and licked and sucked her breasts.  Then he squatted and licked her vagina.

THE ARREST

49.  Sometime between 2011 and 2012, after the defendant had moved to Shek Kip Mei Estate, when the mother would continue to bring X to the defendant’s home every Saturday, the defendant continued with his sexual assaults on X while the mother was not at home or not paying attention.  

50.  On 26 May 2012, X had an argument with her mother.  In the heat of the moment, X revealed the defendant’s sexual abuses.  Her mother felt sorry about it and promised to stop seeing the defendant.  From then on, X was no longer required to go to the defendant’s home.  

51.  X never told her father about the defendant’s abuses, worried that her mother might be arrested, and X did not want her parents to be divorced.  

52.  However, X eventually found out that her mother was still seeing the defendant.  On 24 June 2022, X told her father what the defendant had done.  The case was then reported to the Police.  

53.  The defendant was arrested on 9 August 2022.  Under caution, he admitted to having indecently assaulted X.  He also admitted to having touched her body, buttock and private parts (sometimes underneath her clothes), and had kissed or licked her face, neck, limbs, breasts and private parts.

54.  He admitted to touching and kissing X when she was in primary school P3 to P6 and had helped her to take showers.

55.  The defendant said that he had kissed X on her mouth, face and neck at his home in Pak Tin Estate while X was asleep.

56.  X’s mother told the Police that she started an extra-marital affair with the defendant in 2003. She had a drinking problem and had entrusted the defendant with caring for X from Monday to Friday.  She had been drinking very heavily and was drunk all the time.  She continued her affair with the defendant after coming to Hong Kong, and would make up excuses to her husband in order to stay overnight at the defendant’s home with X.

PREVIOUS CONVICTIONS

57.  The defendant has 4 previous convictions.  The first is a spent conviction[1] for loitering when he was fined in 1972.  Four years later he was convicted for attempted theft and imprisoned for 6 months.  3 years later in 1979, he was jailed 6 months for loitering.  His latest and last previous conviction was 40 years ago when he was given a sentence of 1 year’s imprisonment, which was ordered to be suspended for 2 years, for one charge of theft.  

BACKGROUND AND MITIGATION

58.  The defendant was born in Hong Kong in 1949 and was about 54 at the time of the first offence.  He is now 75.  He was educated up to Form 3 level in Hong Kong, and was retired at the time of his arrest.  He had been married in the 1970s, and got divorced in the 1980s.  He has 3 children.  

59.  The defendant, through his counsel Ms. Lam, expresses that he deeply regrets what he had done to X and is very remorseful.  He understands a lengthy custodial sentence is inevitable.  

60.  Ms. Lam fairly submits that the only effective mitigating factor is the defendant’s pleas of guilty, saving X from giving evidence and reliving the trauma.

THE DEFENDANT’S PSYCHOLOGICAL REPORT

61.  According to the psychologist’s report prepared on the defendant by PhD Clinical Psychology Trainee Ms. Lam and endorsed by Clinical Psychologist Ms. Yeung, the defendant’s offending behaviours were likely related to his impoverished ability to maintain meaningful interpersonal relationships, poor emotion regulation, impulsivity, strong sense of loneliness and desire for intimacy.  

62.  While it was possible that he had pedophilic interest towards the victim at the time of the index offences, there is currently no evidence suggesting that he has ever been sexually attracted to children other than the victim, or that his pedophilic interest has persisted after he has ceased contact with the victim.

63.  They are of the view that the defendant had shown genuine remorse, acknowledging the impact his offending behaviour has on the victim and her family.  It is their finding that, considering the above and the fact that the defendant does not show any significant sign of antisociality and sexual preoccupation at present, his risk of sexual re-offending falls within the low range.  

VICTIM IMPACT ASSESSMENT REPORT

64.  Clinical Psychologist Ms. Tso interviewed X in February 2024 to assess the impact of the offences on her.

65.  X was anxious and tense throughout the interview and burst out in tears after she was told about the procedure of the assessment.  She was nevertheless honest, cooperative and compliant.  

66.  X felt disgusted and extremely afraid about what had happened to her.  She perceived herself as being broken and traumatized.  There is a strong sense of helplessness because she felt she was not protected even after she had told her mother about the incidents.

67.  X hates the defendant and wishes she had never met him.  She wants justice and perceives the defendant being sentenced as a kind of treatment for her sufferings.  

68.  X has reported volatile mood, sleeping problem, nightmares, irritability, difficulty in concentration, anxiety as well as fears.  She began self-harm behaviors in secondary school to release pressure.  She also had suicidal ideations in the same period.  She told Ms. Tso that she did have two suicide attempts in 2022 and 2023.  

69.  X felt even more stressed after reporting the matter to the police.  Her psychological responses became so severe that she had to consult a psychiatrist.  She was diagnosed with depression, anxiety disorder, obsessive compulsive disorder and post-traumatic stress disorder.

70.  Through the tests conducted, Ms. Tso finds that X is exhibiting depressive and anxiety symptoms at severe levels.

71.  X is found to have very low self-esteem, perceiving herself as a “clown” suffering from unfairness and torture.  Her self-descriptions include terms of “not pure”, “dirty”, “abnormal”, “sick” and “broken”.  She feels that her family and friends think her inferior to them.  She has tried to please people since young since she has always felt that she was not deserved to be loved.  

72.  X suffers from recurrent nightmares since primary school.  She also suffers from flashbacks about the offences at least several times a day, affecting her daily functioning.  She has trouble falling asleep and when she does, quality is always poor.  

73.  X would have trouble breathing, feel nauseated, with her heart pounding when recalling the traumas.  She is highly sensitive about being touched to the extent that she would stand in the corner of an MTR carriage.

74.  Ms. Tso finds X manifests post-traumatic stress symptoms, including intrusive thoughts, avoidance behaviour and arousal responses.  She finds that X’s immune system might have been suppressed as a result of the severe impact the offences have on her, which might in turn explain her poor physical health.

75.  X told Ms. Tso that she is afraid to trust people, since her own mother did not trust, help or protect her.  X has been afraid of adults, males and strangers since she was 4 or 5.  As a result, X does not have many friends and has difficulty maintaining friendship, preferring to be alone most of the time.

76.  X is always doubtful of a man’s intention, associating her past experience with any sexual matters and interactions with the opposite sex.  

77.  X feels extremely painful every day and struggles to lead a normal life.  Although she studied hard and is qualified for a better job, her fear of interactions with others, especially men, has made it difficult for her to consider changing jobs.  

78.  Her emotional distress also affects her work since she would not be able to concentrate when her mood is low.  Ms. Tso finds X’s various symptoms persistent and are affecting her quality of life and ability to function normally.  

79.  X recalls being very stressed in the statement taking and forensic examination process, to the extent that she slashed her leg for a period of time after returning home and hid in her room for several days.

80.  It is Ms. Tso’s conclusion that X displays severe and chronic psychological symptoms, with which she has suffered over a long period.  There are significant traumatized symptoms and emotional disturbances.  X’s lack of trust for others and her sense of insecurity have a negative effect on her interpersonal and heterosexual relationships.  X has very low self-esteem and perceives herself as not deserving to be loved or cared for.  Her daily functioning is disrupted and she is unable to enjoy day to day activities.  

81.  Ms. Tso recommends psychotherapy, which X has indicated that she is hesitant to receive because she considers herself not ready for rehabilitation.  

SENTENCE

82.  The maximum sentences on conviction upon indictment for Indecent conduct towards a child under the age of 16 years is imprisonment for 10 years; that of rape is imprisonment for life; and of indecent assault imprisonment for 10 years.  

SENTENCING PRINCIPLES

83.  Ms. Lam for the defendant referred to the case of HKSAR v Tsang Chiu Tak (曾昭德)  [2013] 1 HKLRD 427, CACC 386/2011 where the Court of Appeal reiterated the following factors to be taken into consideration when sentencing offences of sexual assault on a child:

(1)  The age difference between the defendant and the victim;

(2)  The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;

(3)  Whether the defendant had used threats or inducements to make the victim succumb;

(4)  The number of occasions of committing the offences and the duration of the offences;

(5)  Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6)  Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7)  Whether the sexual abuses have caused physical or psychological trauma to the victim;

(8)  Whether the offences have impact on the family members of the victim;

(9)  Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and

(10)  Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.

84.  These principles are applicable to the offence of indecent conduct towards a child and indecent assault.

85.  In the case of HKSAR v KKK [2013] 2 HKLRD 676, the appellant was the father of 3 girls, victims 1 to 3.  He raped victim 1 without using a condom on 4 occasions when she was 12, 13 and 14.  She became pregnant and the appellant arranged for an abortion.  

86.  The appellant raped victim 2 without using a condom on 2 occasions when she was 10 and 11.  

87.  When victim 3 was 9, the appellant forced her to pluck his pubic hair, for which he was charged with indecent conduct towards a child under 16.

88.  The appellant was in his mid to late 40s at the time of the offences, and 51 at the time of sentence.

89.  Psychiatric and psychological reports of the appellant suggested a lack of remorse, high degree of psychopathic traits with a very high risk of reoffending and a moderate to high risk of sexual recidivism.  The victims required long-term psychotherapy.

90.  On appeal, for the rape against victim 1, which took place in Shenzhen, the Court noted the gross breach of trust of a girl aged only 12, and the failure to use a condom, which caused the victim to suffer extra trauma from the pregnancy and abortion, and found that a starting point of 12 years imprisonment was appropriate.  A slim discount in addition to the 1/3 discount was granted for saving the victim from having to give evidence.  

91.  For the rape where the appellant forced victim 1 to have sexual intercourse in the presence of her mother, the Court found a starting point of 14 years appropriate, and that the mother’s presence was an added aggravating feature.  

92.  For the third rape against victim 1, a starting point of 12 years was adopted and reduced to 7 years and 9 month’s imprisonment.  The fact that it was a repeat offence on the same victim was a matter relevant to totality.  

93.  The Court found the fourth rape of victim 1 particularly serious given the resulting pregnancy. 15 years was found to be the appropriate starting point, reduced by one-third to that of 10 years’ imprisonment after plea.  

94.  For the two rapes committed against victim 2, which took place in Shenzhen, given her young age of 10 and 11, a starting point of 13 years was adopted and reduced to 8 years and 6 months each after plea, with a slim discount (2 months)  added for the victim not having to give evidence.  For these two offences, a total of 10 years’ imprisonment was imposed.

95.  For the offence of indecent conduct towards a child, with victim 3 aged about 9 years old at the time, the Court did not disturb the learned trial judge’s sentence, which was a starting point of 12 months’ imprisonment, with a 1 month additional reduction given after the full one-third discount, resulting in a sentence of 7 months’ imprisonment.

96.  Lastly, the Court found that the appropriate totality was 18 years’ imprisonment, lowered from the original 23 years and 7 months’ imprisonment.

97.  In their analysis of the suggestion put forward by the appellant that offences of this nature are not as serious as offences of rape of strangers, the Court of Appeal had the following to say:

“28… The suggestion does not compare like with like. The rape of the stranger has its own horrors for the victim. But the fact of the matter is that girls in the position of the victims in this case are innocents, who commence their young lives instinctively trusting, and entitled to trust, the families into which they are born. They have no option but to live in the places to which they are brought after birth and to which from time to time they are taken. They are wholly at the mercy of their parents. The fundamental right of the child is to expect from its parents protection and love….. But actual abuse of a child through physical violence or deliberate neglect is not merely at odds with that to which a child is entitled; it is a damnable breach of the trust which the child and society at large places in a parent. And since the child is not in a position to protect itself or to seek relief, society at large — ultimately through the courts — takes upon itself the duty proactively to protect the child and to visit condign punishment upon those who so abuse that trust as deliberately to harm the child. In the circumstances of a case such as the present, the child is a captive, physically and emotionally, and it is in that light that the seriousness of a sexual offence of a child by its parent, or by a person in the position of a parent, is to be viewed.”

98.  The Court referred to the case of HKSARv Chan Kim Kwan, CACC 405/2004, where it was accepted that the three “dimensions” referred to in R v Millberry and Others [2003] 2 All ER 939 are important and relevant considerations in assessing the gravity of a rape offence:

“The panel begins its proposals by suggesting that –

‘there are, broadly, three dimensions to consider in assessing the gravity of an individual offence of rape. The first is the degree of harm to the victim; the second is the level of culpability of the offender; and the third is the level of risk [posed] by the offender to society.’

We accept that courts should consider each of these dimensions whenever a sentence for rape is imposed. We endorse what was stated by Lord Lane CJ in R v Billam, and repeated by the panel in its advice, that while rape will always be a most serious offence, its gravity will depend very much upon the circumstances of the particular case and it will always be necessary to consider an individual case as a whole taking into account the three dimensions to which we have already referred.”

99.  In Chan Kim Kwan, the applicant was convicted by a jury on 13 counts of rape.  A total sentence of 15 years was passed.  The 13 rapes occurred in a 7 month period when the victim was 9 years old.  They took place on 6 different days, sometimes in the applicant’s flat, and other occasions in his parents’ flat.  

100.  The applicant became acquainted with the victim when his wife became her tutor.  He grew fond of her and with the consent of the victim’s mother, he became her “sworn father”. The applicant made up excuses so that he could take the victim to one of the two addresses to rape her, telling her not to say anything to others about his activities.

101.  Reports prepared on the applicant concluded that he suffered from the sexual disorder of paedophilia.  The trial judge took into account the young age of the victim; the breach of trust as the husband of her tutor as well as sworn father; the lack of remorse, and that the applicant had intended theirs to be a long standing relationship rather than a casual encounter and imposed the sentence that he did.  

102.  The Court of Appeal concluded that “the judge was entitled to take the view that 15 years’imprisonment was appropriate in its totality for a series of rape over this period of time, on a victim as young as this and in circumstances where the applicant, as a paedophile, regarded what he was doing as “natural”.  The Court found that the sentence was at the top end of the range for offences of this kind committed by a first offender but opined that it was not manifestly excessive.  The application was dismissed accordingly.  

103.  In Chan Kim Kwan, the learned trial judge had regard to HKSAR v Kwan Hoi, CACC 415/2002.  There the defendant was aged about 73 at the time when he was sentenced to a total of 13 years’ imprisonment after being convicted by a jury of 3 sexual offences.

104.  The applicant was an immediate neighbor of the victim and her father.  Between September 1996 and July 1998, when the victim was between 3 and 5 years old, the applicant committed buggery as well as had unlawful sexual intercourse with her.

105.  The learned trial judge referred to the young age and the applicant’s knowledge of her young age, and his total lack of remorse by claiming it was the victim who made overt sexual advances to him as aggravating features.

106.  Reports were obtain on the applicant.  There was no suggestion of psychiatric impairment.  The only adverse comments by the psychologist related to his denial of having committed the offences.  

107.  The judge found him to have been around 68 or 70 at the time of the offences.  He found that even if his age was a matter, it was for the Executive to consider in determining his release date, it was not a matter which availed the applicant in mitigation of the sentence to be passed on him.  

108.  The judge found the fact that the applicant was of previously clear record of hardly any relevance in this type of offence, although he did bear that in mind when determining the starting points.

109.  The learned judge pointed out that “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 the extremely young.  It must be made quite clear that anyone who is convicted of sexual abuse or exploitation of children of very tender years will face substantial custodial sentences, be they young or old, male or female, of clear record or otherwise.”

110.  A starting point of 12 years’ imprisonment was adopted for each of the charges.  The judge observed that they were not isolated incidents and that in principle the sentences would be ordered to be served consecutively.  However, having taken into account the criminality in its entirety and the offender’s individual circumstances and that he was sentencing for a multiplicity of offences, the judge sentenced him to an overall sentence of 13 years’ imprisonment.  

111.  In their dismissal of the applicant’s application for leave to appeal against sentence, the Court of Appeal expressed their agreement with the findings of the learned trial judge.

THE PRESENT CASE

112.  Applying the applicable sentencing principles and taking into consideration the circumstances of the commission of the offences as well as the defendant’s personal background I make the following general findings that are applicable to all 6 counts.

113.  There was a huge age difference between the defendant and X of 50 years.  The defendant was in his 50s when he committed the offences, while X was in kindergarten, and then primary school.  

114.  The defendant was in serious breach of the trust reposed in him as the carer of X, who addressed him as “daddy”.  The defendant was effectively a father to X.

115.  There was some form of threat made against X in the sense that the defendant was suggesting that X would be naughty if she did not listen to “daddy” and comply with his request for oral sex in count 1.  While it may not be as threatening to a person of more mature age, to a 4 or 5 year old, this would amount to a threat.

116.  Based on the summary of facts that the defendant had admitted to upon his pleas of guilty, he had committed the types of offences in this case against X on numerous occasions.  The defendant is, of course, not being sentenced for any uncharged acts.

117.  There is no evidence to suggest that the defendant had used inappropriate and unnecessary violence against X in his commission of the offences.  

118.  The defendant did not use any protection when he raped X, increasing the risk of the transmission of any disease that the defendant might have had.

119.  According to the impact assessment report referred to in some details above, X suffers from significant and long lasting psychological trauma.  Her recovery will be a long, arduous and uncertain process.

120.  X told her father 10 years after the abuses had finally stopped.  She had hidden this from him because she worried that her mother might be arrested, and she did not want her parents to be divorced.  The impact of the criminal acts of the defendant on X’s family can only be adverse and profound.

121.  There is no evidence that the defendant had invited people to watch or take images of the offences he committed.

122.  Lastly, based on the defendant’s psychologist report, the risk of his re-offending falls within the low range.  

INDIVIDUAL STARTING POINTS

Count 1: Indecent conduct towards a child under the age of 16 years

123.  X was 4 or 5.  The defendant played pornographic video to X and then made her perform oral sex on him.  

124.  Taking into consideration X’s extreme young age, and how the defendant had pushed X’s head towards his penis, as well as how this abuse must have contributed to the psychological trauma X suffered, but bearing in mind that the actual licking must have lasted a short time, I will adopt a starting point of 4 years’ imprisonment for count 1, reduced to 32 months after plea.

Count 2: Rape

125.  X was 5 and a half to 6.  The rape happened at X’s own home.  The defendant only stopped upon X’s repeated complaints of being in pain.  The defendant asked X to masturbate him after pulling out, which X did.  The defendant then masturbated until ejaculation in her presence, and then told X not to tell anyone.  

126.  Given the extreme young age of X, the huge age difference, and the breach of trust, which I find are the most serious aggravating factors of all, and having considered the sentencing principles and the other relevant findings referred to above, I adopt a starting point of 12 years’ imprisonment for count 2, reduced to 8 years after plea.

Count 3: Indecent conduct towards a child under the age of 16 years

127.  X was 5 and a half to 6.  This offence took place in the same year as the rape in count 2.  

128.  The defendant showered X and then put a vibrator in her hand and then had her inserted it into her vagina.  When she stopped, the defendant took it back and said she will feel very comfortable when she grew up.

129.  For the extreme young age of X, the age difference, the breach of trust as well as the other relevant findings referred to above, I adopt a starting point of 3 years’ imprisonment, reduced to 2 years after plea.

Count 4: Rape

130.  X was 7 and had moved to live in Hong Kong with her parents.  The rape took place in the defendant’s home.  The defendant showered X, assaulting her in the process, then seated her on the toilet cover and inserted his penis.  The defendant did stop when X complained about the pain.  The defendant then licked X outside her vagina and squeezed her breasts.  

131.  Taking into consideration the extreme young age of X, the age difference and the breach of trust, as well as the other relevant findings referred to above, I adopt a starting point of 12 years’ imprisonment, reduced to 8 years after plea.  

Count 5: Indecent assault

132.  X was 8.  They were in a public place.  The defendant sat X on his lap and put his hand underneath her school uniform and inserted his finger into her vagina.  X tried to pull the finger out but was overpowered.  The defendant stopped only when the mother was about to return.

133.  Given the extreme young age of X, the age difference, the serious breach of trust, together with all the relevant findings made upon applicable sentencing principles, I adopt a starting point of 3 years’ imprisonment, reduced to 2 years after plea.  

Count 6: Indecent assault

134.  X was 10 and the offence took place in the defendant’s home.  The defendant kissed and licked X’s neck, mouth, pulled down her dress and licked and sucked her breasts, and then licked her vagina.

135.  Given X’s extreme young age, the huge age difference, the breach of trust, and all the relevant findings referred to above, I adopt a starting point of 3 years’ imprisonment, reduced to 2 years after plea.  

TOTALITY

136.  Taking a step back, given all the circumstances of this case, I find that a proper global starting point would be 15 years’ imprisonment for all 6 offences.

137.  Taking into consideration the defendant’s present age, and the lapse of time between his last assault on X in 2010 and the time of him being exposed and arrested in 2022, I would reduce this global starting point by 9 months, taking it down to 14 years and 3 months’ imprisonment.

138.  I have taken into consideration how it would have been extremely traumatic for X to have to go through the trial process had the defendant chosen to plead not guilty.  It is possible that X might not have been able to come up to proof due to her mental condition as depicted in the impact assessment report.  Therefore, for the defendant’s decision to not put X through all this, I will grant him an additional reduction of 9 months, taking the global starting point to 162 months.

139.  The defendant would be granted the full one-third discount for his timely guilty pleas and the discounted global sentence after plea would be 108 months, or 9 years.

140.  To achieve this global sentence after plea, I will order 12 months of the sentence in count 1 to be served consecutively to the 8 years sentence in count 2, the balance and the sentence of all the remaining counts to be served concurrently, resulting in a final sentence after plea of 9 years’ imprisonment for the 6 counts.