HKSAR v. LEE YIU KEUNG

DCCC1275/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1275 OF 2011

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Reasons for Sentence

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1.  The defendant enters a plea of guilty to four charges of indecent assault, preferred against him under section 122(1) of the Crimes Ordinance, Cap.200.

Facts

2.  The facts to which the defendant agrees are as follows.

3.  The defendant and his ex-wife have a son and two daughters.  The complainant, born in December 1999, is the youngest of the three children.  Following his divorce in 2006, the defendant left the matrimonial home while his ex-wife continued living there with the children. 

Charge 1

4.  In July 2009, the defendant moved back to live with his ex-wife and the children, by which time the complainant was nine.  The defendant and his ex-wife would normally sleep in the lower bunk of a set of bunk beds and the complainant slept in the upper bunk. 

5.  One day between July and August 2009, the defendant asked the complainant to sleep in the lower bunk with him.  On that occasion, the defendant locked the complainant’s legs with his, pulled up her dress, fondled her breasts and nipples for about five minutes, then touched her private parts over her underpants for five more minutes, and finally released her. 

6.  The complainant did not comprehend the defendant’s criminal acts on her, so she made no attempt to resist him. 

Charge 2

7.  On another occasion between January and March 2011, the defendant and the complainant (who was then 10 years old) were on the lower bunk when the defendant once again locked her legs in between his and pulled up her dress to fondle her breasts and nipples for about five to seven minutes.  Further he put his hand inside her underpants to touch her private parts for another five minutes. 

8.  This time the complainant resisted but to no avail.  

Charge 3

9.  Once in September 2011, when the complainant was in the lower bunk, the defendant held her legs tightly between his, pressed her hands down with one of his hands, fondled her breasts and nipples with the other hand, for seven to eight minutes, and then pressed his hand against her private parts for two minutes before inserting a finger into her private parts. After about five minutes, the defendant’s finger went deeper, causing her a lot of pain. 

10.  The complainant said ‘No!’ and resisted. 

Charge 4

11.  On the evening of 8 October 2011, the defendant pulled the complainant onto the lower bunk.  With one of his hands, he held her hands tightly together, pulled up her dress with the other hand, and sucked her nipples for about 30 seconds.  The complainant resisted without success. 

12.  Afterwards, the defendant removed his saliva off the complainant’s body and tided up her clothing.  The complainant took a shower immediately. 

13.  The complainant observed two patches of red mark near her nipples, which disappeared after a few days.  She felt shameful and was unhappy about it.  

The defendant’s arrest

14.  On 11 October 2011, the complainant told her elder sister the defendant had molested her.  Helpless, the elder sister bid her to be cautious and to protect herself.  Next day, the complainant disclosed the matter to her teacher.  A report was then made to the police, leading to the defendant’s arrest on 13 October 2011.  

Conviction

15.  The court finds the defendant guilty of the four charges. 

16.  The defendant has had a clear record prior to his current conviction. 

The defendant’s background

17.  Born on the Mainland where he received up to lower secondary education, the defendant came to live in Hong Kong in 1979 when he was 23 and became a delivery worker and later a metal worker.  In 2005, when the factory at which he worked closed down, the defendant started to work as a causal worker and a part-time taxi driver, making about $9,000 a month.

18.  In 2005, the defendant was suspected of having an affair on the Mainland, an accusation he vehemently denied.  His marriage of 18 years’ standing broke down that year and the defendant left the matrimonial home and became, he said, practically a street-sleeper. The couple divorced in 2006.  (His ex-wife has told a clinical psychologist that the defendant had lived alone in a public housing unit in Tuen Mun, instead.)

19.  The defendant has no vice habits whatsoever.  He attributes the commission of the offences to sexual impulse.   

Psychologist’s opinion

20.  A clinical psychologist has examined the defendant and concludes as follows:

“…Mr Lee was a dishonest and defensive person. No deviant sexual interest was detected in Mr Lee. Concerning the present offence, Mr Lee tended to regard his offensive behaviour as playing with the victim, who was his youngest daughter. He failed to be aware of the seriousness and negative consequences of his repeated assaults to the victim. He was found to have distorted sex attitudes. His insight into his problems was inadequate. He had planned to continue to live with the victim. In consideration of his future living arrangement, his psychological profile and the nature of the present offences, his risk of reoffending was assessed to be moderate to high. Psychological treatment focusing on his sex attitude, victim empathy, and behavioural control is highly recommended to him.”

Mitigation

21.  In mitigation, the defence puts forward the following matters for the court’s consideration.

22.  The defendant agrees with the contents of the Background Report and of the Psychologist’s Report. 

23.  Counsel for the defence submits that the defendant, now aged 55, has had a clear record before his current conviction.  He pleads guilty to the four charges, claiming responsibility for his criminal conduct towards his youngest daughter, and expresses full remorse. 

24.  By pleading guilty to the offences, the defendant has saved valuable court time and has made it unnecessary for his youngest daughter to re-live the horrible events by giving evidence in court.  This, counsel submits, constitutes the defendant’s major plea in mitigation. 

25.  A bundle of clemency letters has been submitted to court, showing the defendant’s family has forgiven him and remains supportive of him. 

Discussion

26.  As her father, the defendant is under a sacred duty to protect the complainant from harm and injuries.  Yet, he defiled his sacred duty towards his young daughter and indecently assaulted her on repeated occasions.  In his letter to court, the defendant himself describes his acts as beastly and disgusting.

27.  In sentencing the defendant, the court takes into account the following factors (see HKSAR v Chen Guojin CACC112/2010): 

(1) children must be protected;

(2) there was a grave breach of trust inherent in the commission of the offence;

(3) others of the like mind must be deterred;

(4) grievances the victim and her relatives and friends suffered must be redressed;

(5) public abhorrence of this crime must be addressed, and

(6) the degree of indecency must be adequately reflected.

28.  In Chen Guojin’s case, the Court of Appeal considered at length the appropriate level of sentence to be imposed in a case in which the defendant indecently assaulted his daughter, and in which a global starting point of four and a half years was adopted for the two charges of indecent assault.  Paragraph 4 of the judgment reads:

4. On two occasions in 2009 when the applicant was looking after the son and the daughter, who was then about 9- year old, he climbed up to the upper bunk bed and slept next to her. He used his fingers to molest her vagina and her breasts for a few minutes, despite the daughter’s protest. The daughter had complained to Madam T, but Madam T ignored her and just told her to lock the door. The matter was only exposed when the daughter made a complaint to her god-mother and a report was made to the police on 23 December 2009.

29.  There is little difference between the facts in Chen Guojin’s case and those of the instant case.  In the result, a global starting point of four and a half years’ imprisonment should be adopted.   

30.  Apart from his pleas of guilty and clear record, nothing in the defendant’s personal and family background would warrant any further discount in sentence.  The psychologist whose report has been placed before the court makes no reference to the defendant suffering from any serious psychological condition. 

31.  The court notes that the defendant’s family, including the complainant, has forgiven him.  However, in the context of this case, public interest lies heavily in favour of a deterrent sentence. 

32.  In terms of the degree of indecency, Charges 3 and 4 are worse, but then when the defendant committed Charges 1 and 2, the complainant has been younger.  In these circumstances, a starting point of three and a half years is adopted for each of the four charges of which the defendant stands convicted, which is reduced by one-third on account of the defendant’s guilty pleas and clear record to one of two years and four months’ imprisonment. 

33.  Having considered the principle of totality, the court orders that the sentences for Charges 1 and 2 should run concurrently, and those for Charges 3 and 4 should also run concurrently.  Eight months of the sentence for Charges 3 and 4 should run consecutively to the two years and four months’ sentence for Charges 1 and 2, making a final sentence of three years’ imprisonment. 

Order

34.  The defendant is sentenced to a term of imprisonment of three years. 

35.  Psychological treatment and counselling are recommended to the defendant while he serves his prison term.