HKSAR v. NG YUN SUM

DCCC 8/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 8 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant (male) (aged 75 years), appeared before me on 18 March 2014 and faced three counts of “indecent assault on another person” (Count 1, Count 2 and Count 5) and two other counts of “indecent conduct towards a child under the age of 16 years” (Count 3 and Count 4).

2.  In the end, the defendant pleaded guilty to Count 1, Count 3 and Count 4 but not guilty to Count 2 and Count 5.  As a result of plea bargaining, the pleas tendered by the defendant were accepted by the prosecution and the two counts of “indecent assault” were therefore left in the court file and ordered not to be proceeded without the leave of the court.

3.  The series of sexual offences in this case covered the period from 7 August 2013 to 1 October 2013 and the places of offences were at the defendant’s residence in Mei Foo Sun Chuen at Lai Chi Kok, Kowloon and also in his another village house in Tuen Mun. 

Facts

4.  According to the Summary of Facts which were accepted by the defendant which I shall adopt herein below, the victim of this case, “X”, is a 15-year-old boy.  “X” was assessed as a minor and mentally incapacitated person under Mental Health Ordinance, Cap 136.  “X” was brought up in Po Leung Kuk and foster home since infancy and “X” is currently living in a boarding school.

5.  During 6 August 2013 and 9 August 2013, “X” was found missing.  He was then located in Tuen Mun.  He later told the social worker of his boarding school that he bumped into an old man (later positively identified by “X” in an identification parade as the defendant) at a bus stop on 6 August 2013. He was checking the bus information board in order to search for a bus returning back to his boarding school.

6.  At this juncture, the defendant approached “X” and asked if he needed help.  The defendant also asked if he needed money for transportation and if he was hungry.  The defendant then brought “X” back to his home in Mei Foo.  “X” took a shower in the defendant’s home.  The defendant kept getting in and out the bathroom when “X” was having a shower, and he told “X” that his prepuce was too long.  At that night they slept together naked.

7.  On 7 August 2013, the defendant masturbated “X” with his hands when they woke up in the morning at the offence location 1.  “X” did not like, but he did not tell the defendant.  In the evening at the offence location 1 they slept together naked (Count 1).

8.  On 8 August 2013, the defendant brought “X” to a village house in Tuen Mun.  They watched pornography video together.  They then imitated the sexual intercourse.  The defendant also masturbated himself in front of “X” without ejaculation (Count 3).

9.  They went to Mong Kok to have dinner together and returned to Mei Foo and slept together naked.  Then, on 9 August 2013, the defendant told “X” that they should masturbate separately and they did (Count 4).

10.  The defendant then brought “X” to Tuen Mun as he needed to work.  He gave “X” $100 for haircut.  The defendant told “X” that he loved him and would not hurt him.

11.  The defendant was later arrested by the police on 9 September 2013 and was released on court bail.  Later the defendant was arrested again on 3 October 2013.

Criminal record and the background of the defendant

12.  The defendant had a clear record.  He is 75 years old and he is a retired businessman living in the investment of the properties.  He was born in Guangzhou and, at the age of 17, he arrived in Hong Kong to study, having received education up to Form 3 level in the mainland.  He studied here for another two and a half years but did not complete Form 5 education.

13.  After leaving school, he later worked as a salesperson in a printing company before starting his own printing company in 1962.  He sold the company in 1979 and then he started his real estate business.  He was married and had four children.  The family emigrated to the United States in 1986.  During his time in the United States he also worked as a real estate agent.  In 1996 the defendant returned to Hong Kong to manage and develop his properties.

14.  Since 1989, his wife also returned to reside in the United States, leaving the defendant living in Hong Kong alone.  Since then, the defendant and his wife only lived together three and four months a year.

Mitigation

15.  Mr Peter Wong, counsel for the defendant, did not fail to recognise the seriousness of the present offences committed by the defendant.  He reiterated the fact that the defendant is now aged 75 and has a hitherto clear record and good character.  He pleaded guilty, and he attributed to the defendant’s fall from grace to the fact that he was physically separated with his wife and his family for so long.

16.  Mr Wong also emphasised the fact that although the psychological report of the victim spoke of the need of him to receive continuing psychological treatment, the impact could not be described as so serious.  On the other hand, in a separate psychological report of the defendant, the psychologist had described the defendant as “slippery and unreliable”.  He was impressed to be manipulative during the assessment and had displayed a huge effort to portray a positive image of himself.

17.  After taking instructions from the defendant, Mr Wong assured the court that the defendant is now very remorseful and would accept fully his misdeed as reflected in the Summary of Facts.  The defendant had foolishly shifted the blame to the victim during the interview.  The defendant apologised to the court for giving his misleading information in the report.

Sentencing considerations

18.  Before I came to sentence the defendant, I took into account everything that was said on his behalf by Mr Wong, his clear record, the contents of the Summary of Facts, and also the two psychologists’ reports in respect of both the victim as well as the defendant.

19.  No doubt the present offences related in this case as committed by the defendant are very serious indeed, as it involved an underaged boy who is mentally incapacitated.  The recent judgment by the Court of Appeal shows that there is a clear duty by the court to take a serious view of the matter.

20.  In this case, I have no doubt that the victim, who, according to the psychologist’s report, came from a very disadvantaged and unfavourable family background, was so easily lured and groomed by the defendant, who had all along played a kind and fatherly figure in order to attract the attention of the victim.

21.  In the case of Huang Lung Wei CAAR 5/2008, the Court of Appeal has succinctly summarised the sentencing principles in relation to these kind of offence and I cannot do better than repeating the same principles here:-

“12. In 1999 the maximum term of imprisonment for the offence of indecent assault was increased from 5 years to 10 years in order to reflect the gravity of the offence. The court has to make it clear that indecent assault on young children by adults are serious offences, see HKSAR v Yau Kin Wai CACC 398/2003.

13. The sentencing principle laid by the court for the offence of indecent assault on young children by adults have highlighted the following three crucial considerations:-

(1) To deter others from committing similar offences;

(2) To show the abhorrence of members of the public to offences of this nature; and

(3) To redress the grievance suffered by the victim and his or her friends and relatives, see HKSAR v Chan Ching Ho [2000] 3 HKLRD 476.”

22.  Having considered the above principles and authorities it is clear that the court shall regard the protection of children as the most important consideration.

23.  In Count 1, the “indecent assault” charge, the defendant masturbated the victim with his hands.  Although in terms of the seriousness of the offence, that cannot be considered as the most serious type of this kind, I shall still bear in mind the fact that the victim is an underaged boy and is mentally incapacitated.

24.  Despite the single act of masturbation by the defendant over the victim with his hands, I shall still use 3 years as a starting point.  The defendant pleaded guilty which entitles him one-third discount.

25.  The sentence is therefore reduced to 2 years.  On top of that, I shall also give a further 4 months’ discount on account of his advanced age and also his contributions to charity as an act of mercy.

26.  In Count 1, the sentence is therefore 20 months’ imprisonment.

27.  For the remaining two counts of “indecent conduct”, in Count 3, the charge involved the defendant masturbating himself in front of the victim while they were both watching pornographic videos and in Count 4, the defendant told the victim that they should masturbate separately, which they did. In terms of these two counts, I shall use 2 years as a starting point.

28.  After giving the defendant one-third discount on account of his plea, the sentence is reduced to 16 months’ imprisonment.  Similarly, in each count, I shall also give 4 months’ further reduction on account of his advanced age and his contribution to charity.

29.  Thus in each case, in Count 3 and Count 4, the sentence is 12 months’ imprisonment.

30.  Finally, as a matter of totality principle, I order that the sentences on Count 3 and Count 4 to run concurrently.  I further order that 4 months of the 12 months’ imprisonment on Count 3 and Count 4 to run consecutively to Count 1, making a total sentence for these three counts 24 months’ imprisonment.

31.  I shall refer the defendant’s psychologist’s report to the Correctional Services for follow-up action.