HKSAR v. C.W.H.

DCCC 14/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 14 OF 2017

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REASONS FOR SENTENCE

1.  The defendant faces 2 charges of "Indecent assault". He pleaded guilty to Charge 2. In respect of Charge 1, the prosecution applied to leave it in the court file; not to be proceeded against the defendant without leave of court. I granted the application.

Summary of Facts

Background

2.  X is a mentally incapacitated girl born on 6 December 2000.  She now attends F.4 at a special school.

3.  PW2 is X's mother.  She gave birth to X and X's twin sister during her previous marriage.  X's twin sister resides with her natural father.  PW2 married the defendant in 2012 and they have 2 children.  X resides with PW2, the defendant, her 2 stepsiblings, her maternal grandmother and 2 maternal uncles in Sau Mau Ping, Kowloon ("the Flat").

4.  In the early hours on 4 November 2016, PW2 was quarrelling with the defendant outside the Flat.  The defendant confessed to PW2 that he had molested X before.  PW2 threatened a divorce and the defendant attempted to commit suicide.  The Police was alerted.

Arrest and Admissions

5.  The defendant was arrested on 7 November 2016.  Under caution, he admitted that he had molested X before.

6.  In his video recorded interview, the defendant admitted that on a day unknown in the summer of 2013 (when X was 12), he was sitting on a mattress placed on the floor in the living room of the Flat; X sat on his left.  When everyone else in the Flat was asleep, the defendant used his left hand to touch X's private parts over her pants for a few minutes.  He and X both had their clothes on at that time.  X's maternal uncle (PW3) went to the living room and saw the defendant touching X.  PW3 pulled the defendant out of the Flat and warned him never to touch X again.

Mitigation & Sentence

7.  The defendant is 36.  He has 7 conviction records, which included 1 "Homosexual buggery" offence (dated 2001 when he was 19).  He relies on social welfare and works as a janitor earning $2,200 per month.  Defence solicitor Ms. CHAN informed me that owing to the present case, the defendant is separated with PW2 and their 2 natural children.

8.  In mitigation, Ms. CHAN submitted that X was relieved upon learning that she needs not give evidence in court.  Only touching of X's private parts over her pants was involved; no penetration by fingers.  Ms. CHAN further submitted that the defendant acted out of impulse. He was arrested 3 years after the incident and he did not re-offend prior to his arrest.  No violence, force, intimidation or inducement was used against X.  It was a one-off incident.  A letter written by the defendant was placed before me; its contents are duly noted.

9.  A Victim's Impact Assessment Report (dated 18 April 2017) was submitted by prosecuting counsel Ms. YUEN.  The Clinical Psychologist made these comments:

[X] has distress about the abuse and is afraid of [the defendant] will abuse her again. But her negative feelings have subsided. At the time of assessment, [X] expressed that she has no worry after having no encounter with [the defendant]. She enjoys her school life and relates well with peers. Data gathered from informants do not observe that [X] displays significant traumatized symptoms or significant emotional disturbances. In view of her situation, no psychological treatment is required."

10.  I have called for a Clinical Psychologist's Report on the defendant.  The report revealed that the defendant is of borderline intelligence.  In terms of personality, he appeared to be irresponsible, defensive, reckless and self-indulgent.  He showed difficulty in understanding and observing rules and regulations.  In order to avoid punishment and criticism, he tended to externalize the blame to other people. He has poor social judgement and interpersonal skills.  Regarding the present offence, the defendant took advantage of the victim's innocence to gratify his sexual desire.  Yet, he accused the victim for his own wrongdoing.  The report concluded that the defendant displayed features of Paedophilic Disorder.  In consideration of his age, criminal record, victim characteristics, deviant sexual interest and the nature of the present offence, his risk of re-offending is well above average.  Psychological treatment targeting his deviant sexual interest, impulse control and prevention of sexual re-offending is highly recommended.

11.  What the defendant did was very wrong.  He took advantage of X, who is still a minor and suffers from Mild Intellectual Disability.  The legislature takes the view that persons like X cannot protect themselves, so the law steps in.

12.  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, are also applicable in the present case.  I have also considered a few other cases[1].

13.  Taking into consideration of the defendant's act, its degree of indecency, the impact of his indecent act on X as well as his background, I adopt a starting point of 18 months' imprisonment.  I am not prepared to grant a discount more than the usual one-third[2] to the defendant.  An element of deterrence is required in view of his risk of re-offending.  With the guilty plea, the sentence is reduced to 12 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 12 months' imprisonment.

14.  As recommended by the Clinical Psychologist, I invite the Commissioner of Correctional Services to arrange for the defendant to receive the necessary psychological treatment.