HKSAR v. YUEN CHUNG HIN

DCCC 175/2019

[2019] HKDC 1103

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 175 OF 2019

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REASONS FOR SENTENCE

1.  The defendant faces 2 charges of "Attempted indecent assault". He pleaded guilty to both charges. The 2 victims, X and Y, were both 17-year-old females at the time of the offences.

Summary of Facts

Charge 1

2.  About 1:15 a.m. on 6 March 2017, X was waiting for the elevator to go home in the lobby of Ping Sin House, Ping Tin Estate.  She noticed a male (later identified as the defendant) also waiting for the elevator.  When the elevator arrived, the defendant entered and pressed the button for the top floor.  X also pressed the button for her floor.

3.  When the elevator reached her floor, X went out and walked towards home.  When X was about 4 to 5 metres away from her flat, the defendant used his jumper to cover her head from behind and grabbed her hand.  X struggled and screamed for help.  She managed to free herself, but the defendant used his hand to cover her mouth from behind.  X screamed again.  The defendant tried to slip his hand from X's collarbone towards her chest.  X resisted and ran home.

4.  CCTV footage of Ping Sin House captured the defendant taking off his jumper in the elevator, following X out of the elevator and leaving the building from the Ground Floor lobby.

5.  X told a social worker about the incident, who then accompanied her to make a report to the Police on 8 March 2017.

Charge 2

6.  About 11:30 p.m. on 12 October 2018, Y, who was in school uniform, alighted from a Route 214 bus at Ping Tin Shopping Centre.  She then walked towards home at Ping Tin Estate. She noticed a male (later identified as the defendant) following her.

7.  The defendant followed Y into Ping Wong House and then into the elevator.  Y pressed the button for her floor, but she could not recall if the defendant pressed any button or not.

8.  When the elevator reached the floor of Y's home, the defendant exited and turned right.  Y turned left and walked towards home.

9.  When she was about to open the door of her flat, Y heard sound of footsteps approaching from behind.  When she turned around, Y saw the defendant moving swiftly towards her.  He used his hand to cover Y's eyes and mouth from behind, causing her glasses to fall off. The defendant also tried to drag Y to the staircase behind them but failed since Y screamed for help and alerted her neighbour Mr. Leung.  The defendant then fled towards the lift lobby.  Mr. Leung notified a security guard and alerted the Police.  Y was sent to the hospital to treat the pain around her mouth.

10.  CCTV footage of the Route 214 bus captured the defendant following Y and boarding the bus in Sham Shui Po.  He alighted at Ping Tin Shopping Centre.

Arrest and Admissions

11.  The defendant was arrested on 19 October 2018.  In relation to Charge 2, he admitted that on the day in question, he saw Y outside his company.  He then put on a mask and followed her onto a bus.  He intended to follow her home to squeeze her breasts.  He also intended to drag Y to the staircase to touch her but failed.  When he heard someone shouting, he ran upstairs through another staircase and took the elevator to the Ground Floor.

12.  Regarding Charge 1, the defendant admitted that one day in March 2017, he saw X in Yue Man Square, Kwun Tong, thinking of touching her chest.  He then followed her onto a minibus. When X alighted from the minibus, he continued to follow her home.  He used his jumper to "hood" her, but she resisted and screamed.  He panicked and ran to the Ground Floor.

Mitigation & Sentence

13.  The defendant is 22.  He has 2 conviction records, which involved a total of 4 offences and one being "Indecent assault" (dated 2013 when he was 16).  He resides with his mother, his 18-year-old cohabitee and their baby daughter (who was born in September 2018).  Defence counsel Mr. Chong informed me that the defendant is the only child in the family. He moved to Hong Kong from the mainland in 2003. His parents were divorced in 2015.  He received education up to F.3 level.  He was a kitchen worker earning about $8,400 per month.

14.  In mitigation, Mr. Chong submitted that the defendant was cooperative with the Police upon arrest.  He frankly admitted that he stalked the 2 victims intending to touch their breasts.  He committed the offences out of momentary sexual impulse.  His guilty pleas spared the victims the trauma of giving evidence in court.  The defendant is remorseful and promises not to re-offend.  Furthermore, the victims did not sustain serious physical injuries.

15.  Both X and Y have expressed their wishes through prosecuting counsel Mr. Hui that they do not want to be interviewed for the purpose of obtaining their Victim's Impact Assessment Reports.  I respect their wishes.  However, without such reports, I can only assume, by giving the benefit of doubt to the defendant, that X and Y have recovered physically and psychologically from the incidents.

16.  I have called for a Psychiatric Report and a Clinical Psychologist's Report on the defendant.

17.  The psychiatrist takes the view that the defendant does not suffer from formal psychiatric illness. However, repeated stalking behaviour and escalation in the level of violence was observed in the present offences.  The risk of re-offending and further escalation is significant.  Psychological support is likely to be necessary.

18.  The clinical psychologist's opinion is "Considering his criminal history, his young age, the victim characteristics (i.e. stranger and unrelated victims), and the dynamic risk factors of impulsivity, poor emotional regulation, poor stress management, unsatisfactory interpersonal relationship, sexual preoccupation and using sex as coping, his risk of sexual recidivism was assessed to be very high.  In view of his stalking behaviour, the risk of recurrence was also assessed to be high with the risk factors of his stalking history, lack of plan to cease stalking, the victim being stranger, his non-compliance to supervision requirement, and his antisocial traits."  On this basis, intensive psychological intervention on his emotional regulation, stress coping, impulsivity, social skills, repair of family relationship, intimate relationship and healthy sexuality is highly recommended.

19.  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, which, in my view, still have some relevance in the present case despite the relatively older age of X and Y at the material times. 

20.  I am most concerned with and disturbed by the defendant's stalking behaviour after he identified a "target".  Furthermore, both offences took place near the doorsteps of the victim's home, which must have been particularly traumatic and alarming for both young ladies.

21.  Taking into consideration of the defendant's acts, their degree of indecency, the possible impact of his indecent attacks on X and Y as well as his background, I adopt a starting point of 10.5 months' imprisonment for each charge.  I am not prepared to grant a discount more than the usual one-third[1] to the defendant.  An element of deterrence is required in view of his high risk of re-offending. With the timely guilty pleas, the sentence for each charge is reduced to 7 months. I sentence the defendant to 7 months' imprisonment for each charge.  The 2 offences are 17 months apart.  Bearing in mind the totality principle, I order 5 months in Charge 2 to run consecutive to Charge 1, arriving at a total prison term of 12 months.

22.  As recommended by the clinical psychologist, I invite the Commissioner of Correctional Services to arrange for the defendant to receive the necessary psychological treatment.