HKSAR v. W.D.C.

DCCC 260/2019

[2019] HKDC 1234

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 260 OF 2019

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REASONS FOR SENTENCE

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1.  In this case the defendant is convicted upon his plea and admission of facts of one count of indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance, Cap 200.

2.  The incident occurred at the dawn of the new millennium, in the year 2000.  At about midnight on 1 January 2000, the victim, then a 12-year-old girl, was sleeping in her room when she suddenly found her 49-year-old stepfather (“the defendant”) kneeling beside her bed, the top of her tracksuit having been pushed up to her collarbones and the bottom down to her ankles. The defendant touched her nipples with his thumbs before moving his hands up and down her person.  His hand and tongue at some point went inside her vagina. The victim immediately went crying to her mother and told her what happened. When confronted, the defendant initially denied the allegation.  Later the victim found blood in her private part.

3.  Since 2002 the victim had been suffering from eating disorder, depression and anxiety.  She was married in about 2010.  She recovered from her conditions in 2016.  It was not until 2017 November that she decided to make a formal complaint in Hong Kong leading to the present hearing.

Sentencing considerations

4.  Since 12 July 1991, the maximum sentence for indecent assault on another person has been increased from 5 years to 10 years.  In this case the following are aggravating factors:-

(1) The victim was a young girl of 12 years old, the stepdaughter of the defendant, therefore a minor under the defendant’s care.

(2) The defendant’s action was a serious breach of trust on the part of the guardian to his charge.

(3) The crime took place in the privacy of the victim’s bedroom.

(4) The act itself was serious.

(5) As a result of the indecent assault, the victim suffered from immediate physical injuries.

5.  As was disclosed in the letters by the defendant, there was also evidence to suggest that the incident had a long-term psychological effect on the victim.  For this reason the undersigned ordered a victim impact report to assess the effect of the crime on her before sentencing.  Despite requests for an interview, the victim had indicated that she had no plan to come to Hong Kong in the near future.  It was therefore impossible to comply with the court order.

6.  On this morning, 9 September 2019, the prosecution furnished a (presumably) faxed letter from the victim in which she elaborated the effect on her as a result of the crime.  As much as I wish to take into consideration of the factors stated there, this is hearsay evidence and, without the assistance of a qualified psychiatrist, what the defendant or the victim stated was a personal view unsupported by the other evidence.  The prosecution very fairly conceded that she was not aware of any authority, any legal basis or any way for this statement can be admitted.  This nonetheless is part of the circumstances of the case the court ought to consider.  This was not even a statement, this is but hearsay evidence and normally hearsay evidence are not admissible in this court.  I have taken into consideration of what has been stated there and I found myself unable to justify putting any weight on it.  In so saying, I regret to point that under our legal system for the evidence to be admitted must go in via a proper channel.  I therefore can only take into account of the facts admitted by the defendant in court and the matters he revealed to the probation officer.

The defendant’s own explanations

7.  The defendant told the probation officer that shortly after the incident - on 31 December 1999, in celebration of the new millennium, the family had joined a night-long celebration: When the defendant came home it was after midnight and he was inebriated.  In such a state he entered the victim’s bedroom, mistook the person sleeping there to be his wife.  It was only after the initial physical contact that he realised his mistake.  He had no recollection of what he actually did.

8.  This explanation, though inadequate as a defence, is consistent with his subsequent behaviour and what he wrote to the victim.  I note that in one of the emails sent to the victim in around Easter 2012, the defendant fully admitted what he did was “a mindless, spontaneous horrific act of indecency” but was “borne more out of curiosity than any other sinister motive” (see Exhibit 3).

9.  In short, the defendant stated he was drunk at the time.  The indecent assault was preceded by a mistake and he innocently believed that he was touching his wife.  He also explained that behaviour, though inexcusable, was motivated by the curiosity for a young girl’s body other than any other sinister motive.

10.  The defendant’s explanation of course was made with a view to minimise his culpability.  The court would be vigilant in scrutinising it before accepting the same.  Being drunk is no defence.  I also found it incredible that he was aware of his ‘mistake’ at such a late stage.  At his age, after two marriages, it was difficult to imagine he would act out of impulse and motivated by curiosity for a young girl’s physical attributes.

11.  I found, however, the explanation was not only uncontradicted by admissible evidence, it was also consistent with circumstances of the case and his subsequent behaviour, namely:-

(1) The incident happened 19 years ago. There was no evidence of prior transgression or subsequent repetition of similar behaviour.

(2) Although the defendant denied the allegation when first confronted by his wife, a few days later the defendant wrote to the victim to apologise and to ask for forgiveness. Throughout the years from 2003 to 2013, the defendant had written repeatedly to the victim apologising, explaining that he was drunk at the time, that he understood the pain he had caused to the victim and the shame he felt for what he did.

(3) In 2002, the defendant admitted to his wife for what he had done.

12.  I also note that financially he continued to provide for the victim as a father would.  While there could be no doubt that the incident had blighted a young woman’s life (see Exhibit 1, the victim’s letter to her mother), there is evidence to suggest that it had also been tormenting the defendant’s conscience and the defendant had made attempts to make amends.

13.  On the facts stated, I found that while the offence was committed in breach of trust, was serious and morally offensive, had caused irreparable damage to a young girl of tender age; it was a one-off incident and the defendant has shown his remorse by his subsequent behaviour and his plea of guilty; thereby sparing the victim from further traumatisation of having to relive her unpleasant experience in court.

Sentencing

14.  Since the offence can arise from a multitude of circumstances, and culpabilities, the sentence order of each case could vary substantially.  There is no clear sentencing guideline (see HKSAR v Chan Chi Hou, CACC 1/1997). Precedents are fact based, could be of little value in the sentencing exercise for a defendant case (see the judgment of J Yeung in Hau Kei Chung, CACC 186/2001 at paragraph 112).

15.  Sexual offences against children are “inherently” serious offences and “call for a substantial term of imprisonment” (HKSAR v Kong Yun Chiu [2007] 4 HKC 391).  The law must protect young girls and to this end the sentencing principle to be adopted is one of deterrence.  The sentencing order must also serve to reflect the abhorrence of the public and to address the grievances suffered by the victim and her family (see HKSAR v Chan Ching Ho [2000] 3 HKLRD 476, HKSAR v Tsang Chiu Tak, CACC 386 of 2011, [2013] 1 HKLRD 422).

16.  As in the sentencing exercise for other offences, the court must strike a balance between the public interest in punishing the offender for abusing his position of authority and trust and in regard for his remorse and plea which obviated the victim’s trauma or having to give evidence in court (Attorney General v Ho Yu Ping [1996] 1 HKC 555).

17.  As stated above, this is a serious offence of indecent assault committed by a 49-year-old stepfather on his 12-year-old charge.  The assault caused immediate physical injuries and brought about long-term physical and psychological issues.  The combined effect of the above factors warrants a substantial term of imprisonment.

18.  On the other hand, this is a one-off incident which took place 19 years ago.  While it is no consolation to the victim, throughout the years the defendant has done his futile best to make amends.  His remorse and regrets have also manifested in his plea of guilty before me.  From the Admitted Facts and in the absence of other admissible evidence, I could only infer that the victim’s health issue had been resolved since 2016.  I also note that it is unlikely that he would commit further offences of a similar nature, either on the victim or other people.

19.  Having considered the evidence as a whole, I considered a term of imprisonment for 24 months sufficient to reflect the public abhorrence to such behaviour and redress the grievance suffered by the victim.

Mitigation

20.  The defendant is now a retired 70-year-old British National.  He was a professional accountant leading an otherwise exemplary life.  These personal circumstances are not normally in sentencing offences of this nature.  The only relevant mitigating factor is his plea of guilty.  His sentence is therefore reduced to 16 months’ imprisonment.

21.  Having considered the available evidence as a whole, I do not find any other matters which may justify my further exercise of leniency.

22.  For the above reasons, the defendant is sentenced to 16 months’ imprisonment.