HKSAR v. CHEUK HO KIT

DCCC 363/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 363 OF 2016

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REASONS FOR SENTENCE

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INTRODUCTION

1.  Upon his arraignment on 6 June 2016, the defendant entered a plea of guilty to, and was convicted of, one charge of indecent assault, a charge which was preferred against him by the prosecution under section 122(1) of the Crimes Ordinance, Cap 200.

FACTS

2.  The parties agree before this court that the complainant is a lady of 22 years of age.

3.  In the early evening of 13 March 2016, the complainant entered an elevator on Ground Floor, Chi Mei House, Choi Hung Estate, Wong Tai Sin, Kowloon, Hong Kong.  She did not notice who else had gone inside the elevator with her as she was pre-occupied with her mobile phone.  When the elevator arrived at the 12^th floor, she went out of the elevator only to find that she had gotten off at the wrong floor.  She went to the staircase and when she arrived at the landing between the 12^th and 13^th floor, the defendant covered her mouth from behind and wrapped his left hand across her body to reach over her right breast and squeezed her right breast three times for around five seconds.  The complainant screamed. The defendant told her to stay quiet and to follow him down the stairs, whereupon the complainant feigned an asthma attack and collapsed to the ground, gasping for air.  The defendant asked her if she was alright, patted her in the back for around a minute, and fled.  The complainant made a telephone  call to her mother who reported the matter to the police. 

4.  On 19 March 2016, the police intercepted the defendant near a park in Choi Hung Estate, whom the police observed to have acted in a suspicious manner.  The police found the defendant’s feature matching the CCTV image of the assailant who had assaulted the complainant and cautioned him.  Under caution, the defendant admitted having on 13 March 2016 followed a female person into Chi Mei House and, in the staircase,  hugged her waist once; the defendant said further that subsequently, the female appeared unwell, and that he left only after he had assured himself that she was feeling better.  In a subsequent video-recorded interview, the defendant told the police the following.  On 13 March 2016, he saw the female near a bakery next to a 7-11 convenience store and found her attractive.   He followed her, on impulse, into Chi Mei House.  When she got to the staircase, he covered her mouth from behind with his right hand and hugged her with his left hand, touching her breast once.  She put up a struggle, said the defendant, and fell to the ground.  Trembling, she said she had asthma; so he comforted her.  He left only when she appeared to be better.

MITIGATION

5.  The defendant was born in Hong Kong in December 1985 and is, at the time of his sentence, 30 years old.  According to his Antecedents Statement, the contents of which are not in dispute, he has received education up to secondary four level and has since leaving school been working as a lorry and taxi driver.  He lives with his parents, a sister, and his girlfriend in a unit at a public housing estate.  An important feature insofar as sentencing is concerned arises from his criminal records.  At 17, he was convicted of four charges of indecent assault for which he was sentenced to probation.  Four years later, that is, when he was 21, a conviction record for a serious offence of an attempt to commit robbery and for another charge of indecent assault was entered against him, for which offences he was sentenced to a term of imprisonment of 34 months.   In April 2011, he was again convicted of an offence of indecent assault, and a prison term of 20 months was imposed on him. 

6.  In connection with the April-2011 conviction, Mr Simon Kwong, Senior Public Prosecutor (Ag), produces to the court a copy of His Honour Judge Longley’s Reasons for Sentence in DCCC115 of 2011, which showed that the defendant had followed a young girl of 12 to the 12^th floor of a residential block, and when “she was just about to open the door to her home, … [the defendant] grabbed her mouth from behind … grasped her around the waist through her clothing and tried to drag her towards the staircase.  She shouted out for help and eventually [the defendant] let go of her and fled.”  His Honour Judge Longley adopted a starting point of 30 months’ imprisonment and reduced it to 20 months on account of the defendant’s guilty plea, saying: “As I have said, if you re-offend you can expect even longer sentences in the future.”

7.  In his plea in mitigation, Mr Leung Jackson-Lipkin appearing for the defendant tells the court that the defendant realizes the extreme seriousness of the offence he has committed.  Mr Leung Jackson-Lipkin asks the court to accept that the defendant has acted out of an uncontrollable impulse, which has resulted in this “ugly offence”.  In spite of the seriousness of the offence, of which the defendant has always been aware, continues Mr Leung Jackson-Lipkin, the defendant never sought to escape immediately after the completion of the offence.  Instead, as soon as he realized that the complainant appeared to have an asthma attack, he remained at the scene to comfort her.  This, says Mr Leung Jackson-Lipkin, affords some evidence of a glint of light in the defendant’s character, a spark in the dark moment of his soul.  In addition, Mr Leung Jackson- Lipkin stresses that the defendant has pleaded guilty to the offence, thereby saving the court’s time and sparing the complainant the unpleasant experience of having to relive the trauma in giving evidence in open court.  Finally, Mr Leung Jackson-Lipkon says that there has been an “improvement” on the defendant’s part, so to speak, in that the subject offence did not involve an attack on a minor. 

8.  Mr Kwong for the prosecution protests against Mr Leung Jackson Lipton’s somewhat unfortunate choice of expression. As the court understands it, in essence, it is Mr Kwong’s complaint that no sexual offences committed on innocent victims could sensibly be described as an “improvement”.  On this issue, while it seems clear to the court that Mr Leung Jackson-Lipkin means no disrespect to the complainant whatsoever, the court agrees with Mr Kwong that greater sensitivity should have been given to the proper choice of expressions in cases involving innocent victims of sex offences, and Mr Leung Jackson-Lipkin is reminded in this regard.      

9.  According to the Psychiatric Report prepared by Dr S H Lui dated 16 June 2016, the defendant is not suffering from any mental illness. On the other hand, in her report dated the same date, Clinical Psychologist Ms Sarina Lam opines: “Mr. Cheuk had undergone Moderate Intensity Program twice in Sex Offender Evaluation and Treatment Unit … in 2007 and 2011. …  After he returned to the community, … [o]ver the years, the treatment gain of Mr. Cheuk had been lost substantially …  According to widely research and used risk and needs assessment, Mr. Cheuk was at very high risk of recidivating into similar offense.  Pertinent risk factors included his relatively young age, multiple history of sexual re-offending, loneliness, sexual preoccupation and the presence of deviant sexual interests, namely Frotteruistic Disorder.”  Psychological treatment is recommended, as “[p]resently, Mr. Cheuk appeared motivated to change and indicated motivation for treatment.”

CONSIDERATION

10.  There can be no argument that the defendant is a recidivist, and Mr Leung Jackson-Lipkin does not seek to argue otherwise.    The court is particularly concerned with the modus operandi used by the defendant in the commission of his previous as well as the present crime: he sought to remove the victims elsewhere, the only purpose of which must be to harm the victims further.  The entire incident must have extremely frightening to the complainant – a young female, all by herself at the time – who has fortunately retained that degree of presence of the mind and was quick-witted enough to pretend to have a seizure of  some sort, which has prevented the defendant from removing her elsewhere.  For his part, the defendant has been sternly forewarned by His Honour Judge Longley his sentence will be enhanced if he re-offends.  In addition, the clinical psychologist who has provided the court with an in-depth report on the defendant considers him having a very high risk of “recidivating into similar offense.”  In light of all these, it is the court’s view that the defendant does represent a clear risk to the society.

11.  Noting that the subject offence did not involve an attack on a minor, the court is of the view that the proper starting point should be one of three years’ imprisonment.  The court accepts Mr Leung Jackson-Lipkin’s submission that the defendant has at least shown some sign of goodness in him in that rather than fleeing immediately, he has stayed behind and has attempted to comfort the complainant when she collapsed in the guise of having a seizure.  The court is prepared on this score to grant him a three-month discount in sentence, thus bringing down the starting point to one of two years and nine months’ imprisonment.  The defendant is of course entitled to the usual one-third discount for his guilty plea.

CONCLUSION

12.  For the offence of which he stands convicted, the defendant is sentenced to a term of imprisonment of 22 months.  Psychological treatment is strongly recommended during the period of the defendant’s incarceration.

13.  Should the defendant re-offend, he can expect that the sentence will be further enhanced.