HKSAR v. IP CHI SHING

DCCC 298/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 298 OF 2010

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has been convicted after trial of two counts of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200. He has shown no remorse.

2.  At the time of the offences the victim, referred to as X in the particulars of the charges, was 5 years old. She is now aged 7 years old. On two occasions the defendant had indecently assaulted her inside his residence. He was a friend of her father’s and her father had sent her up to the defendant’s flat to borrow money from the defendant while the father waited for her downstairs of the building.

3.  On each occasion the defendant had laid the child on a bed in his flat, removed her clothing and touched her breasts and private parts and inserted his finger into her vagina. Afterwards, he gave her the money to hand to her father as well as about $20 for her.

4.  The offences came to light more than a year later because X was being taught what was inappropriate behaviour towards her and disclosed what had been done to her.

5.  I have carefully considered all that has been urged upon me in mitigation on behalf of the defendant. I have before me also a letter written by the defendant himself as well as the background, psychiatric and psychologist and medical reports that I have called for in respect of the defendant as well as the psychological report in respect of X. I have duly considered the contents of all of these.

6.  The defendant is now aged 66 years and he has a previous clear record. His background is set out in detail in the reports I have called for and I do not intend to rehearse the contents herein.

7.  He is now retired and has been retired for about 4 years now. He is married with two grown-up children. His daughter lives apart while his son lives with the family. His wife has been suffering from psychiatric problems for many years which have on occasion necessitated hospitalization. He has a good relationship with his wife and his children. Since his retirement, the family has been supported by contributions from the children.

8.  The medical report discloses that his general health condition is satisfactory. The psychiatric report discloses no history of mental illness and no overt mental disturbances. The psychologist’s report indicates that the defendant has been under major stress and experiencing negative emotions for years because of his wife’s serious mental problems, but he was impressed to be free from major psychopathology and the risk of re-offending was low, but counselling was recommended to help him deal with his stress and to manage his negative emotions.

9.  As to the report from the clinical psychologist on X, the psychologist was more concerned with X’s unstable family environment and the perceived abandonment by her mother and the actual neglect and physical abuse by her father which she viewed were things that had implanted a more negative impact on X’s psychological functioning than the abuse experiences at the hands of the defendant. But clearly she has been affected by her experiences of having been sexually assaulted.

10.  In my view there is little mitigation of weight before me. The defendant has been convicted after trial and he has shown no remorse. Nor is there any indication of remorse on his part when he was interviewed for the various reports.

11.  It is generally accepted that old age, unless extremely advanced in age, is generally not a mitigating factor. Here, the defendant is 66 years old. In my view, that is not an extremely advanced age and little weight can be placed on that for the purposes of mitigation.

12.  There is no usual tariff for offences of indecent assault because the circumstances of each offence can vary considerably. See HKSAR v See Tak Man [1998] 1 HKLRD 794. Nevertheless, the principles established in the cases are of guidance to the courts in passing sentence.

13.  In the Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136, the Court of Appeal set up the principles to follow in sentencing cases of this nature, the most important of which is the protection of children. Other crucial considerations include the need to deter others from committing similar offences and to show the abhorrence of members of the public to offences of this nature.

14.  In HKSAR v Lau Chi Cheung CACC427/2007, the Court of Appeal quoted a passage in HKSAR v Lai Yip Sing HCMA1104/2000 in which Deputy Judge McMahon, as he then was, said:

“One of the important factors to take into account is any marked difference in age between the offender and the victim.”

Here, the child was 5 years old at that time; the defendant was a man in his 60s.

15.  The Court of Appeal also said that it was difficult to detect this type of offence because child victims of sexual abuse would normally be at a loss and feel too embarrassed to complain to their parents or teachers about the molestation.

16.  In passing sentence I have carefully considered everything said by counsel on behalf of the defendant together with the reports and the letter written by the defendant. In deciding the proper starting point, I take into account the defendant’s previous clear record and his family circumstances.

17.  The Court of Appeal has said that for offences of this kind, the previous good character of an offender can only be of minor significance. Here, the defendant was a friend of X’s father and she was sent by her father to the defendant’s flat. Clearly, there is also an element of breach of trust involved and I have borne that in mind when determining sentence.

18.  I view the indecent assault here to be a serious one. It involved the inserting of his finger into the vagina of a 5-year-old child. On each charge, the defendant is sentenced to 3½ years’ imprisonment. Although these are separate and distinct offences, I have considered the principle of totality, I shall order that the sentences be served concurrently.

Deputy District Judge Chainrai