HKSAR v. CHAN YUK MAN

DCCC1238/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1238 OF 2008

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Reasons for Sentence

1.  Indecent assault on young children, especially those cases committed by the children’s own elderly relatives, are very serious offences that call for a severe sentence.  The sentence must reflect the public abhorrence of such conduct, the need to redress the grievance suffered by the victims, their relatives and friends and also to reflect the court’s determination to deter such offences. 

2.  There is no tariff for indecent assault on children but the sentence must definitely reflect the seriousness of the offence in each of these cases.

3.  In the present case, the defendant was the victim’s biological father.  He is now 52.  He had a drug addiction and he suffered erectile dysfunction after a heart operation.

4.  Charge 1 occurred in 2005 when the victim was in primary 5, about 11 years of age and while the victim’s mother and brother were sleeping in one of the bedrooms and the defendant and the victim were watching TV in the living room.  The defendant asked the victim to sleep with him on the floor of the living room.  On the floor, the defendant pulled his own pants and underpants down to his knees, put his hand into the victim’s underpants and fondled her private parts.  Seeing that the victim did not respond, he pulled the victim’s upper garment above her chest, removed her shorts and underpants.  He then squatted on top of the victim, pulled her legs apart and rubbed his penis against the victim’s vagina for a long period of up to 10 minutes.  In the course of this offence, he had looked times and again at the bedroom where his wife was sleeping.  After this, the defendant went into the bathroom.

5.  When the fact of this charge was put to the defendant, he denied this charge saying that he could not remember the event. 

6.  Charge 2 occurred when the victim was at home during the school holiday in primary 6.  The victim was then about 11 or 12 years old.  Her mother was at work.  The defendant asked the victim’s brother to go out.  When the victim was alone in the house with the defendant, the defendant asked the victim to massage him in bed.  He hugged the victim, slipped his hand into her underpants and used his fingers to penetrate the vagina of the victim.  He also slipped his hands into the victim’s upper garment and fondled her breasts.  He hugged the victim tightly and asked her to sleep with him. 

7.  When the fact of this charge was put to the defendant, the defendant admitted and said what the victim had narrated were true.  The defendant also admitted that he had inserted his fingers into the victim’s vagina.  The victim retreated, but he continued his sexual advances. 

8.  Charge 3 was an offence made on the defendant’s own admission.  In 2006 or 2007 when the victim was about 12 or 13 years old, he asked the victim to massage him.  He became sexually aroused.  He took off his own underpants.  He told the victim to strip and he ordered the victim to sit and rub her vagina on his penis.  The victim obeyed.  The defendant said after his illness, his penis was incapable of an erection, and he did what he did to the victim in Charge 3 to see if he could feel anything.

9.  Charge 4 occurred in the afternoon of a Sunday in October 2008.  This was about 3 months ago, 3 to 4 months ago.  The victim’s mother was at work.  The defendant asked the victim’s brother to go out.  He then asked the victim to massage him.  After half an hour, the victim returned to do her homework.  The defendant told the victim to come back and massage his legs.  He then pulled the victim to the bed, fondled her back and breasts over her clothing and tried to kiss the victim on her mouth, but the victim resisted.  At this juncture, the defendant’s phone rang and he answered the phone.  The defendant pulled the victim’s upper garment up to her breasts and bit the victim on the waist. 

10.  Under interview, the defendant admitted his conduct in the 4th charge.

11.  This was a very serious case indeed.  Firstly, the defendant was the victim’s biological father and this was a severe breach of trust by a father on his own daughter.  Secondly, the offences continued from early 2005 to late 2008, a period of over 3 years.  Thirdly, the victim was of a very young age, it all started when she was about 11 years old and it continued up till she was 14.  All these offences were conduct which were just short of incest and rape, if not for the defendant’s impotence.  Fifthly, there were occasions when the victim’s clothes were removed and the defendant used his fingers to penetrate the victim’s vagina; and sixthly, these offences were obviously premeditated and had formed a persistent pattern of conduct to a family member under the same roof. 

12.  I took notice of a rather similar case, the case of Kong Yun Chiu, Court of Appeal case, CACC315/2006.  In that case 6 years was taken as a starter for the offence.  The offence was perpetrated by an uncle, a 28 years old young man, who indecently assaulted a niece on two occasions.  The niece was then 8 years old at the time of the first offence and 10 years old at the time of the second offence.  The Court of Appeal considered that 6 years’ starter was a bit high and reduced it on appeal to 5 years on the facts of that case.

13.  In that case the appellant was first sentenced to 4 years’ imprisonment on each count, the judge ordered 2½ years on the second count to run consecutively, making a total of 6½ years’ imprisonment.  On appeal, the starter was reduced from 6 years to 5 years and the sentence on the appellant was reduced from 4 years to 3 years and 4 months on each count.  And the Court of Appeal ordered 1 year 2 months on the second charge to run consecutively to the first, making a total of 4 years and 6 months. 

14.  I do consider this case before us far more serious and do warrant a starter of 6 years' imprisonment for all four charges.  On account of the defendant's plea, I therefore sentence the defendant to 4 years' imprisonment on each of Charges 1, 2, 3 and 4.  On Charge 4, although the degree of indecent assault on the victim was not severe as the events in Charges 1, 2 and 3, I am of the view that the pain and the anguish suffered by the victim was of a continuing nature and the harm on her was perpetuated. 

15.  On account of totality, I order 8 months of the terms in Charges 2, 3 and 4 to run consecutively to the 1st count, the remainder of the terms in these counts, or in these charges, to run concurrently, and in total, a term of 6 years' imprisonment is imposed on these four charges.