HKSAR v. HO CHUNG WAH

DCCC 1232/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1232 OF 2010

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Reasons For Sentence

1.  The defendant, a forty-year-old man, was the stepfather of the victim, a six-year-old girl and they were living under the same roof at the address as particularized in the charge.

2.  He was found guilty after trial of 3 counts of indecent conduct towards a child under the age of 16 years contrary to section 146(1) of the Crimes Ordinance.

3.  The first incident occurred when the girl was only 6 years old. One day while the defendant was alone with the girl at home, he put his hand under her underpants, touched her private parts and asked if she felt comfortable to which she replied “comfortable”.

4.  The second incident took place about a year later on a day in the summer holiday 2010 at the same address. This time the defendant not only put his hand under her pants and touched her private parts (the girl described the defendant’s action as if he was giving her a massage), he also told his stepdaughter to touch his private parts and rub it which she did as told.

5.  After the second incident, there was another one which occurred in the same summer holiday, this time both of them were lying on the bed covered with a quilt, the defendant took off the daughter’s pants and his pants, inserted his private parts into her buttocks and then ejaculated.

6.  The defendant co-habited with Madam Ng and her daughter (the victim) at the time of the offences; apart from the victim, two more children were born out of their relationship. Ever since the matter came to light, Madam Ng has moved out with the 3 children.

7.  The defendant has only a previous drink driving record. The court adjourned the sentence to enable a victim impact report and a psychologist report to be prepared on the girl and the defendant respectively.

8.  The court was told in mitigation that the defendant ran a company which employed 10 people; without him the company would likely close down and the employees would therefore lose their jobs.

9.  It is stressed by defence counsel that although the defendant pleaded not guilty, and thus the little girl had to give evidence, the cross-examination was conducted as gentle as it could possibly be and in a brief manner confining to very few matters. 

10.  Defence counsel also points out that according to the victim impact report the incidents do not seem to have any serious repercussions on the victim that one would usually expect from a victim of this type of case and in fact the court experience helps the victim address some of her anger at being hurt and wronged by her stepfather. 

11.  Among the various letters handed up to court pleading leniency on behalf of the defendant, there is this letter from Madam Ng, the girl’s mother, who has written of her own accord. In the letter she describes the defendant having been a responsible father and a caring husband in the past and is hoping that he could be out soon to take care of his children who are missing him very much.  

12.  In the concluding paragraph of the defendant psychologist’s report, it is reported, “the defendant was found to have no major psychopathology, but he was impressed to be defensive and tended to externalize his responsibilities to the victim. In view of his total denial of the index offences, no psychological explanation could be made for his current offending behaviour. His risk of sexual recidivism was estimated to be low. No recommendation regarding his need for psychological services could be made at this juncture.” Defence counsel stressed that the risk of re-offending is low.

13.  Being a stepfather, the defendant has a position of trust; he stands in loco parentis to the victim. He was supposed to protect the little girl; not only did he fail in his duty but in breaching the trust reposed in him, he harmed her by molesting her.

14.  In his psychologist’s report, apart from denying all the accusations, the defendant even went so far as to accuse the little girl of once holding his hand and placing it on her private parts but he stopped it immediately. He blamed the victim wrongfully accused him.

15.  The defendant of course has every right to maintain his innocence even though he was convicted following a trial, that in itself will add no aggravation in terms of sentence but by the same token, he has not benefited from showing remorse for his crimes.

16.  In Kong Yun Chiu CACC 315/2006, in dealing with child molestation, the Appellate Court has this to say: “the fact that the victim is a child is always a severely aggravating feature. Children are vulnerable members of society. It is too easy for those who would prey on their naïveté and trust to succeed, for children are by nature trusting and the 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. ”

17.  Although the report confirms a lack of traumatic symptomatology on the girl’s part, it is not to be suggested that the events the girl had gone through were not traumatic to the victim and her family at the time. By not admitting his guilt, the girl had to re-live the experience in the witness box.

18.  As stated in the report, the girl found the most difficult part of the whole process of testifying in court to be the viewing of the video-recorded interviews time and again, she said she felt so distressed that she avoided looking at and listening to the tape; she only wished to forget and put behind what had happened rather than being reminded of the details. She also felt some shame to talk about the sexual abuse incidents publicly in court even though she knew clearly that she was not the one to blame.

19.  The mother also suffers. It says in the same report that at the initial meeting, Ms Ng was still very much in shock, bewilderment and distraught over the disclosure of the sexual abuse. She found her life shattered overnight. 

20.  In Huang Long Wei CAAR 5/2008, the court held that there were 3 crucial considerations for the offence of indecent assault on young children by adults:

(a):- To deter others from committing similar offences;

(b):- To show the abhorrence of members of the public to offences of this nature:

(c):- To redress the grievance suffered by the victim and his or her friends and relatives.

21.  The defendant did it not once but 3 times over a period from January 2009 to July 2010, and the nature of the assault had escalated each time. The facts are very serious.

22.  In Chan Ching Ho Owen CACC 549/1999, the appellant in his 40s was convicted after trial of 4 charges of indecently assaulted his 6-year-old niece. Consecutive sentences of 9 months imprisonment on the first two charges and 18 months imprisonment on the third were imposed making 3 years in all; on the last charge, he received a 2 ½ years sentence of which 2 years was ordered to run consecutively making a total sentence of 5 years’ imprisonment.

23.  The prosecution case was that for the first two charges, the appellant touched the victim’s vagina under her clothing with the second touching lasting for a longer time than the one before; on the third occasion, he told the victim to take off her trousers and he also removed his own, then he touched the victim’s vagina and said, “I often massage you, you should massage me back”, she then massaged the appellant’s penis. For the final offence, the appellant licked her vagina “like a dog”.

24.  In dismissing the appeal against sentence, the Court of Appeal says, “the offences were entirely separate and distinct. There was no requirement on the part of the judge, subject to the principle of totality, to have made any of the sentences to run concurrently unless it had been alleged that two of the offences had been committed in the course of what is often referred to as a single transaction”.

25.  In Kong’s case CACC 315/2006, the applicant in his late 20s was the maternal uncle of the 8-year-old victim. On the first incident, he stripped the victim’s trousers and knickers and rubbed his penis on the outside of her private parts; he masturbated and ejaculated at that time. On the second incident, he pulled down her underpants and rubbed his penis against her private parts and masturbated and ejaculated. In reducing the sentence originally imposed, the Appellate Court was of the opinion that such facts warranted a starting point of 5 years.

26.  Taking into account all the mitigation put forward, for the first two offences, I take 2 years each and for the third, the most serious one among the three, I take 5 years as the starting point. These are separate and distinct offences, in principle the terms should run consecutively to one another, but for the totality principle, I order that the term of charge 3 should run consecutively to 6 months of charge 2 and to 6 months of charge 1 and the rest concurrently, making a total term of 6 years.