HKSAR v. CHEUNG NGAI KAN AND OTHERS

DCCC841/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 841 OF 2010

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Reasons for Sentence

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1.  Cheung Siu-keung, the 2nd defendant in this case, pleaded guilty before me to one count of indecent assault on another person (Charge 1).

2.  The defendant admitted that on an unknown date between the 8th day of May 2010 and the 15th day of May 2010, inside the male public toilet, Ground Floor, Block 9, Charming Garden, Mongkok, indecently assaulted “X”, a girl of the age of 15 years.

3.  Girl X, the victim in this case, was aged 15 at the material time.  She came to know the 1st defendant in early May 2010.  On 9 May, she left home without return.  The victim’s mother made a report to the police on the same day.  X was subsequently located on 14 May.  On 20 May, she was brought to Kowloon City Magistracy for a Care and Protection Order.  She was then admitted to Tuen Mun Girls’ Home.

4.  In the Girls’ Home, X confided to a staff member that she had performed oral sex for a man while she was away from home.  The police were alerted.

5.  In the video-recorded interview conducted on 11 June 2010, X told the police that at around 1.00 am on a day in May 2010 while she was staying in the Tit Shu Street Park, D1, D2 and D3 appeared.  D1 asked X why she was in the park.  X replied that she was going to leave.  At this juncture, D1 grabbed X’s hands from behind.  D2 tugged her hair.  D1 and D2 then dragged her along the street with D3 following from behind.

6.  Subsequently, X was brought into a male public toilet at Charming Garden.  D1 and D2 pushed X into a toilet cubicle.  D1 and D2 then entered and locked the cubicle.

7.  Inside the cubicle, D1 grabbed X’s hands and D2 stripped off his pants.  D2 also pulled X’s hair and forced her to perform oral sex with him.

8.  After about 15 minutes, D3 shouted outside the cubicle that there was a policeman.  D1 and D2 immediately opened the door of the cubicle and ran away.

9.  D2 was eventually arrested by the police on 27 June this year.  In a video-recorded interview conducted on the same day D2 admitted that when he, D1, D3 and X arrived at Charming Garden, D1 suggested going into the public male toilet to play.  X declined.  D1 then grabbed X’s hands and D2 pushed X from behind.  Having pushed X into the toilet, D1 forced X to perform hand job for him.  D2 also admitted having demanded X to perform oral sex with him.  X then performed oral sex with D2 until he ejaculated.

10.  D2 was only 15 years old at the time of the offence and he is now 16 years old.  He had a clear record.

11.  Before sentence I called for a Probation Officer’s report, a  DCTCRC report, and also a psychologist report.

12.  The Probation Officer in the Probation Officer’s report set out in detail the background information about the 2nd defendant. In short, D2 came from a broken family and he resided with his mother before his remand.  He was an under-achiever at school.  The Probation Officer had this to say at paragraph 7 of the report:

“The accused came from a broken home and his parents divorced when he was an infant. In the early years he was entrusted to the care of his maternal grandmother in the Mainland. After having studied in a boarding school in Mainland China for two years, he came to Hong Kong for study and lived with his mother since September 2008. However, he had unsatisfactory school performance and led an undisciplined style of life, especially after the summer of 2009. He mingled with dubious friends and indulged in nocturnal activities for merriment. The mother, who had been much occupied by her own business, was unable to render adequate guidance and supervision for the accused other than providing him money to satisfy his material needs. Before the present offence, the accused had exposed to the influence of pornographic movies and had sexual affairs with other girls casually for a considerable period of time. Regarding the present offence, he claimed that he was only involved with a view to seeking fun. As the mother found it difficult to exercise adequate control on the accused, who used to live an unruly life under the influence of undesirable peers, a period of training in a disciplinary environment would be a beneficial measure. Probation supervision is not considered to be an appropriate means of treatment and is therefore not suggested in his case.”

13.  The DCTCRC report sets out the background information about the 2nd defendant in a like fashion.  In the paragraphs titled “Conclusion and Recommendation”, it reveals that the 2nd defendant joined the 14K Triad Society in late 2009, and out of curiosity and under bad peers’ influence he had even taken ketamine and Five Chai for around four times in late 2009.  D2’s curiosity about sex and ignorance of legal consequences eventually landed him in the current offence.  In view of his weak law-abiding concept, a period of disciplinary training coupled with statutory supervision is considered beneficial to D2.

14.  The Intake Officer opines that the defendant is mentally and physically fit for detention in a Detention Centre, a Rehabilitation Centre or a Training Centre.

15.  From the information available and after a general assessment of D2’s behaviour and attitude whilst on remand, the Intake Officer considers D2 more suitable for detention in a Detention Centre.

16.  The clinical psychologist says in the psychologist’s report that D2 is functioning within the borderline range of intelligence and he has weak practical judgment and sensitivity to conventional moral understanding.  D2 is basically law-abiding and socially conforming in attitude.  He tends to be impulsive and verbal aggressive and is sexually active and loose.  However, the clinical psychologist identified no particular deviant sexual interest on the part of D2.  To D2, the indexed offence is an aggressive act on a stranger as an attempt to ventilate D2’s negative emotions.  D2 has low risk of general or violent offending but has moderate risk of sexual re-offending.  The clinical psychologist concludes that D2 is in need of professional concern and input to help him prevent sexual re-offending.

17.  Mr McGuiniety handed up a handwritten letter by the defendant.

18.  In mitigation, Mr McGuiniety said one can finally see light at the end of a very long tunnel.  The period of incarceration is beneficial to the defendant.  He pleads guilty to the offence.  In fairness, Mr McGuiniety says whilst the defendant is entitled to a degree of leniency because of his guilty plea, it pales into insignificance in the light of the serious nature of the offence.

19.  The defendant’s mother is at wit’s end as to what she can do for the defendant.  The mother is clearly concerned about the defendant, but for the reasons stated in the reports, the mother is incapable of looking after the defendant properly.

20.  The present case is a sad case for the defendant. 

21.  The defendant is found to be suitable for detention at a Detention Centre.  On the part of the defendant, he is well-aware of the consequences and the recommendations in the reports.

22.  In sentencing the defendant I have had regard to the nature of the offence, the facts of the case, the background of the defendant and all the pre-sentencing report recommendations.

23.  I agree with the Probation Officer’s recommendation that since the defendant’s mother found it difficult to exercise adequate control on the defendant and the defendant had been living an unruly life under the influence of undesirable peers for some period of time, probation supervision is not an appropriate means of treatment.

24.  I agree with the opinion of the DCTCRC report. It is in the interest of the defendant rehabilitation that he should undergo a period of disciplinary training.  In my opinion, the defendant will stand a better chance of rehabilitation if he is sentenced to be detained at a Detention Centre.  A DC order would have a short, sharp shock effect on the defendant.

25.  For the reasons given, for Charge 1, I sentence D2 to be detained in a Detention Centre.