HKSAR v. K.K.F.

DCCC897/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 897 OF 2008

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Reasons for Sentence

1.  Defendant, I have convicted you after trial of four sexual offences against your own victim daughter.  You as the father were convicted of two charges of gross indecency and two charges of indecent assault against her.  The offences were committed in two separate years.  In 2002, you committed the 1st charge of gross indecency on a day unknown; and in the 2nd charge, in a day unknown in 2002 of indecent assault.  The 3rd charge also is one of gross indecency on 15 August 2008, and the 4th charge of indecent assault again on the same date.

2.  Charges 1 and 2 in 2002 were committed against your daughter when she was aged 8.  The 3rd and 4th charges in 2008 were committed against your daughter when she was aged 14.  Those offences were all committed at the home that you shared with your daughter, your son and your ex-wife whom you were living with, who is also the mother of the victim.

3.  In brief, the gross indecency charges refer to the daughter masturbating you at your direction, and the indecent assault charges refer to the touching by you of your daughter’s breasts and lower private parts.

4.  Turning to the charges themselves, the 1st charge was committed whilst your daughter was studying in Grade 3 in primary school.  You told your daughter to go into your bedroom.  When she went into your bedroom, you locked the bedroom door.  You laid down on your bed and took off your briefs.  Your daughter saw your lower private parts.  You told her to “help you”.  You taught her how to masturbate you.  You took her hand and told her to hold your penis.  You then instructed her to move her hand upwards and downwards.  She did so accordingly.  At that time, your penis was erect, and she did that until you finally ejaculated.

5.  Shortly after you had taught her to masturbate you, on another date she cannot recall, while your daughter was sitting on the sofa at home, you told her to go into your bedroom.  She went into your bedroom.  At that time, you were both fully clothed.  You stuck your hand inside the collar of her T-shirt to touch her breasts.  You used your moving fingers to touch her breasts.  You then stuck your hand inside the waistband of her pants.  You also used your fingers and the centre of your palm to touch the front of what she describes her lower parts not quite reaching the part for urinating.  The caressing of her breasts and lower parts, however, were not done simultaneously. 

6.  In August 2008, again you told your daughter to “help you”.  She knew that when you asked her to “help you” that meant masturbate you.  She did as she was told.  On that occasion, you were lying on your bed and you again took off your briefs.  At that time, your penis was not erect but she masturbated you until you ejaculated, and she thinks that was for about 15 minutes.

7.  On the same day, a short while later, at about 6.30 pm, after she had masturbated you and while she was in the living room, you came out and touched the bare flesh of her lower parts with your fingers for about one to two minutes. 

8.  The time period between these two blocks of offences was some six years.  Although your daughter gave evidence that you had continuously indecently assaulted her or asked her to masturbate you between these period of times, she could not remember the dates and furthermore you are not here charged with or convicted of those other alleged acts.

9.  Your daughter gave evidence that she had told her mother, who was called by you as a defence witness in this trial, about the sexual incidents that you had committed on her when she was in Grade 3 approximately one month after the first incident.  Her mother asked you if you really caressed her and you denied it.  You pretended to be angry, accusing her and pointing your fingers at her, and thereafter the mother did not pay any heed to her complaint.  That was the only time she told her mother.

10.  In the meantime, however, she had told her schoolmate when she was in Primary 5 about your sexual incidents against her.  She had also told her schoolmate in 2008 after the August offences.  She had not told her brother and she had said that she did not dare make a report or complaint about your sexual offences against her.  It was not until September 2008 when on a regular visit to the school social worker and as a result of the social worker’s enquiries with her did she tell the social worker about your acts upon her.  It was not your daughter’s intention at that time to make a complaint about you.  In fact, the social worker even said that your daughter was a little willing to relate the incident to her as your daughter found it very difficult to talk about it.  Eventually, the social worker reported the matter to the police and the matter came to court.

11.  At this trial, your daughter gave evidence and was cross-examined by your counsel, Mr Keith Fung.  She was cross-examined to the extent that she was a liar, was rebellious, was dishonest, was untrustworthy and had deliberately fabricated these allegations against you because she hated you and that she wanted you out of her home. 

12.  Your ex-wife, her mother, was called as your defence witness and she also gave very damning evidence against her own daughter whom she said she loved.  She attempted to support your case that her own daughter was dishonest, rebellious, naughty, disobedient, untrustworthy and was deliberately framing you up.

13.  I found there to be no substance in these complaints against the daughter that she was fabricating any of this evidence against you.  I in fact rejected the mother’s evidence.  I found her to be an evasive and unreliable and dishonest witness.

14.  Prior to sentencing you, I called for background and psychological reports.  When time came to sentence you, you have been represented by now a different counsel, Mr Kwong Ki-tack.  When the first background and psychological reports were ready, I was informed by Mr Kwong that your position and stance had changed in that you were now very remorseful for what you had done and that you did in fact admit that you had committed these acts on your daughter. 

15.  As a result of your about-face, I adjourned and called for background and psychological reports as I considered that this might have an effect or impact on the victim which I had also called for a victim impact report upon her.  All those reports are now before me.  I have taken into account all the contents and mitigation put forward on your behalf.

16.  You are 65 years of age and have two previous convictions: in 1987 of assault occasioning actual bodily harm, and 1990 of theft, for which you were sentenced to a compensation order of $1,000 and fined $300 respectively.  I am informed that the offence for assault occasioning actual bodily harm was as a result of an argument with your first wife.  That is not the mother in this case.

17.  You have worked as a security guard since 1999 and you divorced the mother of your daughter in 1999, but you continued living with her and your daughter and your son until the date of your arrest in respect of these offences. 

18.  The supplemental psychological report and further background report have not in fact changed, in my view, your stance towards the present offences.  In respect of the admissions you say you now make, it is that when your daughter was in Primary 4 or Primary 5, your daughter told you that the nipples of her breasts did not protrude out and asked you for the reason.  You then touched the breasts of your daughter for a short while to check the condition.  At that time, your daughter removed her clothes. 

19.  You had told your ex-wife about this and asked your ex-wife to bring her to see a doctor.  You had admitted then to touching your daughter’s breasts for about four to five times after that to check the condition of her nipples, but you had not told your wife about this touching.  However, since then, you say you have not further touched your daughter’s breasts.  You deny ever touching your daughter’s private parts and you have also denied that you had asked your daughter to masturbate you.

20.  Your allegations against your daughter remain that she is rebellious and that she has made up these allegation against you.  The psychological report confirms much the same in respect of your admissions.  The psychologist says that there is no indication that you are suffering from any psychiatric problem, your risk of offending is estimated to be low to moderate, and you still degraded your daughter by betraying her as an untrustworthy girl with a lot of conduct problems and use this to justify your belief that your daughter made up the accusations against your strict disciplinary style so that she just wanted you to leave the home.  You blamed your daughter and showed no remorse or empathy for your daughter.

21.  The victim impact report on your daughter by the psychologist is very moving.  It is clear that the disclosure of the abuse by you on her to the social worker was not well thought-out.  Having made the complaint, she was immediately removed from her home and placed in an emergency placement in Po Leung Kuk.  That is in a closed environment with a long-term placement, and she was put under a care-and-protection order of 18 months by the Juvenile Court from 3 December 2008.  She is receiving psychological treatment to help her recover from her traumatic experience.

22.  It is your daughter’s feeling that she herself is being punished by being taken out of home and confined to residential training.  She feels that she has lost the support from her mother as no concrete action was taken from the mother when she told her about your abuse.  Furthermore, the mother denied that she had told her about the abuse, and more so that she had learnt that the mother had made very negative remarks about her in court.  She had not expected her mother, who had shown love to her, to take such an open stance against her.  She was sad, disappointed and pained by her mother’s choice to side with you whom she had divorced already for many years.  Her mother still today disbelieves her and blames her for your predicament.

23.  Notwithstanding the mother’s disbelief and non-supportive attitude, your daughter still loves her own mother, quite understandably as she sympathised with the hardship the mother faced in her work to solely support her and her brother.  Clearly, as I have said in my judgment and as confirmed in the psychological report, your daughter has a strong dislike towards you and finds you unreasonable and authoritative.

24.  It appears that as a result of the sexual abuse, your daughter had thoughts of wanting to kill herself since the sexual abuse had started.  However, when she was older, she tried to defy you and protested against you but was eventually beaten by you.  It appears that she is, however, free of traumatic symptoms as a result of this sexual abuse.  However, the negative family experience together with the sexual abuse experience and the experience of being disbelieved, unprotected, pressured to shut up and ultimately betrayed in court have shaped significantly the way your daughter perceives family and her self identity.  

25.  There are concerns expressed by the psychologist that there are less than explicit long-term relational impacts of the sexual abuse on your daughter, such as her sense of self, her relationship with others, her trust towards people especially regarding close and intimate relationships.  Your daughter has been in a state of confusion, dilemma and turmoil for a considerably long time on whether to tell or not tell about this abuse.  It is not clear in fact how the sexual abuse experience may have shaped her intimate relationships in the future.

26.  This, overall, is a very sad case in that the daughter obviously feels deceived by her own family and has received no nurturing whatsoever from her mother who is closest to her on this disgraceful sexual abuse upon her.  She is effectively left on her own. 

27.  As Mr Kwong, your counsel has said today in mitigation, you wish mostly to see your old mother again who is 91 years of age and therefore ask for a lenient sentence.  This is of course stated in your letter to me of 20 March 2009.  In that letter, you have said you have done retrospection and feel remorse and compunction.  However, I do not see any remorse shown from you.  As is clearly said in the background report and psychological reports, you still consider your daughter has fabricated these allegations. 

28.  In sexual offence cases, there are no guidelines.  There are cases which the court can refer to, which may sometimes be of assistance.  I refer to the case of HKSAR v Kong Yun Chiu CACC315 of 2006, a judgment delivered on 6 August 2007 by Stock JA.  In that case, the uncle had indecently assaulted his niece.  He was 28 or 29 years of age and she was 8.  They lived in the same premises.  On the first occasion, he asked his niece to take a bath.  She removed her clothing and left her knickers on.  While she was in the bath, the defendant went in, took off his clothing except for his underpants and touched her breasts and private parts.  Later, they watched a pornographic video showing sex acts, and the defendant then rubbed his penis through his trousers, experiencing an erection.  Later, he stripped the victim’s trousers and knickers to below her knees, took off his trousers and underwear and rubbed his penis on the outside of her private parts.  He masturbated and ejaculated at that time.

29.  On the second occasion, whilst the victim was asleep, he pulled down her underpants, touched her private parts.  The defendant pulled down his own trousers and underwear and rubbed his penis against her private parts and masturbated and ejaculated.  The judges took a 5-year starting point after trial and ordered part of the sentence to run consecutively. 

30.  It must be borne in mind that in that case the defendant had pleaded guilty, so the 5 years was reduced to 3 years 4 months, and 1 year and 2 months was to run consecutively, making a total of 4 years 6 months’ imprisonment.  I stress that was after a plea of guilty.

31.  In this case, the most aggravating factor is of course the fact that your daughter was 8 years old at the time you asked her to masturbate you and you had indecently assaulted her.  This was and must have been a most discouraging and distasteful act upon your daughter.  Your daughter at the time in fact said that she felt awful.  However, she did not dare tell you as she was scared of you, that you would hit her and you were authoritative.  She also complained that she was unhappy and uncomfortable.  This would no doubt have been a traumatic experience upon her.

32.  It was said in Kong and citing Chan Ching Ho the importance of punishing crimes against children of this kind with a sentence severe enough to deter others from acting like the defendant and also to show the abhorrence of members of the public to crimes of this nature and also to redress the grievance suffered by the victim.  It should go without saying that children are particularly vulnerable members of society.  It is too easy for those to prey on their naivety and trust to succeed for children are by nature trusting and a deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly.  Trauma is caused to the child, immediate and long-term.  Particulars in cases of breach of trust, children are much more likely than adults to suffer the trauma in silence rather than report as specifically the case in this case.

33.  Of course, as I said, the fact this child was so young is a severely aggravating feature.  I consider that this case calls for substantial terms of imprisonment.  Please stand up.

34.  On Charge 1, Defendant, you are sentenced to 4 years’ imprisonment.  On Charge 2, you are sentenced to 18 months’ imprisonment.  On Charge 3, you are sentenced to 4 years’ imprisonment.  On Charge 4, you are sentenced to 18 months’ imprisonment.  I take into account the principle of totality.  These were each and every case a separate and distinct offence committed over at least a period of six years.  That is in 2002 and in 2008.  I consider that a total term of 5 years’ imprisonment is appropriate.  In the circumstances, 12 months of Charge 3 shall run consecutive to Charge 1, and all other charges are to run concurrent with each other.

35.  You are so sentenced to 5 years’ imprisonment.