HKSAR v. W.M.H.

DCCC 3/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to four charges of indecently assaulting X, a girl, when she was aged 11 and 12, contrary to section 122 of the Crimes Ordinance[1].

2.  Full particulars of the offences are set out in the facts admitted by the defendant on 13 April 2017.  In summary the defendant married Madam Y in China in 2007. In 2010 X was formally adopted by Madam Y and the defendant.  In 2011 and 2012 Madam Y and X emigrated to Hong Kong and lived with the defendant in a flat in Sham Shui Po. 

3.  In December 2015 the defendant indecently assaulted X twice.  The first time, while X was in bed, he touched her private part over her pyjamas.  The following day the defendant threatened X he would hit her if she told anyone about what had happened the day before.

4.  Two or three days later, when X was again in bed, the defendant inserted his hands in her underwear and touched her private part.  X tried to push the defendant away 2-3 times but failed.  The following day the defendant again threatened X he would hit her if she told anyone.

5.  The next occasion was in May 2016.  The defendant woke X up while she was sleeping, climbed on top of her and removed her shorts and underwear.  The defendant also took off his shorts and underwear and used his penis to rub the outside of X’s private part without penetrating X.   The following day the defendant again threatened to hit X if she told anyone. 

6.  The fourth occasion was in November 2016 when the defendant touched X’s private part over her clothing for several minutes.  While doing this Madam Y entered the room and witnessed what happened.  X pushed the defendant’s hand away and left the room.  The following day the defendant again threatened to hit X if she told anyone.   

7.  Madam Y did not confront the defendant at the time because relatives were in the home. A few days later Madam Y confronted the defendant and later reported the matter to the police.  Under caution and in a video recorded interview the defendant admitted indecently assaulting X out of impulse, sexual urge and curiosity.   

Mitigation

8.  In passing sentence, I take into account everything said on behalf of the defendant by Miss Cheung together with the defendant’s mitigation letter and letters from his family and friends. 

9.  I take into account the defendant is 67 and has one minor conviction for gambling in 1980, which conviction is spent.  I sentence the defendant on the basis that he is a person of good character.   

10.  I have also carefully considered the psychological and psychiatric reports.  The psychological report reveals that the defendant has had exposure to child pornography with girls in early puberty.  The defendant told the psychologist that he was curious because his friends commented child pornography was interesting[2].

11.  Although the psychologist finds no evidence suggesting diagnosis of paedophilic or other psychological disorders, the defendant has displayed significant problems that warrant clinical attention including social and intimacy deficit, inadequate control of sexual urges and propensity to resort to sex to cope with loneliness[3]. 

12.  The defendant no longer living with X the risk of sexual recidivism is assessed to be low[4]. In view of the defendant’s social and intimacy deficit and propensity to resort to sex to cope with loneliness psychological treatment is recommended to prevent re-offending[5]. The defendant is said not to suffer from any psychiatric disorder, no psychotic symptoms having been noted[6].

Sentence

13.  In Secretary for Justice v Huang Long Wei[7] the Court of Appeal set out the principles to follow in sentencing cases of this nature, the most important of which is the protection of young children.

14.  There is no usual tariff for indecent assault because the circumstances of each offence can vary considerably.  The cases, however, make clear that this kind of conduct gives rise to great abhorrence on the part of the public, who look to the courts for protection of children from those who seek to gratify themselves by taking advantage of young children.  The sentence of the court must mark the public abhorrence of such crimes and at the same time deter others from committing similar offences.  

15.  One important consideration in sentencing is to redress the grievance suffered by the victim and their families.  The prosecution submitted to court impact assessment reports on both X and Madam Y. 

16.  The report prepared by Dr Chang reveals that after witnessing the defendant molest X, Madam Y was in great shock, felt angry and betrayed.  Her mood became depressed and seeing no way out developed suicidal ideation.  In December last year Madam Y, acting out of desperation, cut both her wrists.  Madam Y blamed herself for not preventing her daughter from being abused.

17.  Madam Y was referred to Dr Chang for psychological treatment.  By January this year Madam Y no longer had suicidal ideation. Madam Y’s mood improved and she was forward looking and determined to have a better future.  Continuous psychiatric and psychological treatment is recommended for Madam Y.

18.  The report of the clinical psychologist Kwok Chung Sze reveals that X felt very frightened, helpless, disgusted and confused by what happened to her.  X felt shameful and embarrassed and dare not tell her mother for fear her mother could not cope with the distress.  Although trying to cope with the suffering by suppression, minimization, denial and avoidance X still had broken sleep and difficulty in concentration at school. 

19.  X was fearful and traumatized by her mother’s attempted suicide and blamed herself for putting her mother in a difficult position.  Madam Y observed that X had become more withdrawn with a reduced appetite and lowered activity.  X and Madam Y are both anxious of retaliation. 

20.  The clinical psychologist concludes that X’s unresolved distress and shame could gradually intensify as she enters puberty and affect her capacity to develop proper heterosexual relationship in the future.  Psychological treatment is also recommended for X when she is ready to start receiving the treatment.

Case law

21.  Miss Cheung refers the court to two cases.  In HKSAR v Chen Guojin[8] the appellant was entrusted by the parents to take care of their son and 9-year-old daughter while they were out.  On two occasions when looking after the children the appellant climbed on the bunk bed and slept next to the daughter.  The appellant used his fingers to molest the breast and private part of the girl for a few minutes, despite her protest.  The Court of Appeal held that starting points of 3½ years were appropriate for each offence with a total sentence of 3 years after plea. 

22.  In the second case submitted by Miss Cheung, Secretary for Justice v Lam Yu Wai[9], the respondent pleaded guilty to one charge of indecent assault on a boy who was under 6 years of age.  The respondent touched the boy’s penis and then induced the boy to kiss his penis.  Taking into account the respondent had three similar convictions, including a sentence of 3 years and 9 months for inducing a 5-year-old boy to perform oral sex on him; the nature of the indecency; and the age of the boy; the court held that the starting point should not be lower than 6 years.    

23.  I am satisfied the present case is more serious than HKSAR v Chen Guojin, not only because there are more charges but also the nature of the indecency is more serious, in particular charge 3 and that on each occasion the defendant threatened X with violence if she told anyone. Equally I am satisfied by reason of the defendant’s clear record and the age of the boy in Secretary for Justice v Lam Yu Wai that case is more serious.

24.  In both cases the Court of Appeal referred to HKSAR v Kong Yun Chiu[10].  The appellant, aged 28, was the maternal uncle of the victim. Sometime in 1999 when the girl was eight the appellant asked her to take a bath.  After the girl removed her clothing except her knickers the appellant got in the bath having also removed his clothing apart from his underpants.  The appellant touched the girl’s breasts and private part.   

25.  Afterwards the appellant watched a pornographic video during which he rubbed his penis through the girl’s trousers.  The appellant then took off the girl’s trousers and knickers; took off his own trousers and underwear; rubbed his penis on the outside of the girl’s private part and masturbated and ejaculated. 

26.  3-4 years later the defendant committed similar acts on the girl.  The girl did not tell anyone about what had happened until 2005 when she complained to a school teacher.  A couple of months later the appellant made contact with the girl. The girl became frightened and consequently the family reported the matter to the police.  

27.  The Court of Appeal noting that the acts of indecency were themselves most distasteful; the case was one of a breach of trust and that there was an attempt to contact the child with a view to persuade her not to report the matter, held that a starting point of 5 years for each offence was appropriate. After discount for a plea of guilty the court ordered that 1 year and 2 months be served consecutively, making a total sentence after plea of 4 years and 6 months’ imprisonment.

28.  In my view the facts of the present case are similar to those in HKSAR v Kong Yun Chiu.  The defendant touched the private parts of X and on one occasion rubbed his penis on the outside of X’s private part.  Further, on each occasion the defendant threatened X not to tell anyone otherwise he would hit her.  The defendant was the adopted father of X, who should have been taking care of X not abusing her.  I am satisfied that the defendant took advantage of X to gratify his sexual urges for which a deterrent sentence is to be imposed.

Remorse

29.  The defendant says he is remorseful and that he acted out of stupidity.  I am not satisfied the defendant has shown genuine remorse having on two occasions sought to blame X for what happened.  The defendant told the psychologist that on one occasion X accidentally touched his penis which led to him being sexually aroused and on another occasion X lifted up her buttock so as to make it convenient for the defendant to pull off her pants[11].

Sentence

30.  Taking into account that the defendant is the adopted father of X; the nature of the indecent acts; that each time the defendant threatened to hit X if she told anyone; the trauma suffered by X and Madam Y; the defendant is 67 and has a clear record; and that the risk of re-offending is assessed to be low, I am satisfied a starting point of 3 years and 6 months’imprisonment is appropriate for charges 1, 2 & 4 and 5 years’ imprisonment for charge 3. 

31.  Giving the defendant full credit for his pleas of guilty reduces the sentences on charges 1, 2 & 4 to 2 years and 4 months; and on charge 3 to 3 years and 4 months respectively. 

32.  By pleading guilty at the earliest opportunity this has the consequence that X has not had to relive the trauma of these events.  The court in HKSAR v Chow Yuen Fai said an additional discount must only be given in exceptional cases[12].  I am satisfied this is not an exceptional case in which to give the defendant additional discount. 

Totality

33.  I am satisfied partly consecutive sentences are appropriate to reflect there were four separate indecent assaults over a period of about 12 months.  I am satisfied the defendant’s overall culpability will properly be met by imposing a total sentence of 4 years and 4 months’ imprisonment.

34.  The defendant is convicted and sentenced as follows:

Charge 3 – 3 years and 4 months’ imprisonment;

Charges 1 & 2 – 2 years and 4 months’ imprisonment concurrent with 8 months consecutive to charge 3 and 1 year and 8 months concurrent; and

Charge 4 – 2 years and 4 months’ imprisonment with 4 months consecutive to charges 1, 2 & 3 and 2 years concurrent.