HKSAR v. C.S.T.

DCCC 707/2020

[2021] HKDC 567

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 707 OF 2020

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REASONS FOR SENTENCE

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The defendant faces 2 charges of "Indecent assault". He pleaded guilty to Charge 2. The prosecution applied to leave Charge 1 in the court file; not to be proceeded against him without leave of court. I granted the application.

2.  The victim, X, is the defendant's daughter.  She was 15 years old at the time of the offence.

Summary of Facts

3.  X was born in July 2004.  The defendant and his wife are her parents.  At the time of the offence, the three of them resided at a flat in Tai Wai, Shatin ("the Flat").  It had no bedrooms; a double bed and a bunk bed were placed in the living room.

4.  About 4:00 p.m. on 5 January 2020, only the defendant and X were home.  X finished studying and lay down next to the defendant on the double bed.  The defendant was sleeping but was woken by X, so he started playing on his phone.  X told the defendant that she was going to take a nap.

5.  The defendant and X played in bed for a while and had some physical contact in a harmless manner.  X then lay on her side with her back facing the defendant and started to nap.  X's feet were cold, so she placed them on the defendant's ankles.  The defendant clamped X's right foot with his legs to warm it up.  He then let go of her foot and X lay on her side.

6.  When X was about to fall asleep, the defendant used his knee to spread open X's legs and pushed his knee against her buttocks several times.  He also touched X's stomach and belly button over her nightgown and touched her waist and back with his left hand.  X thought the defendant was giving her a massage.

7.  The defendant's hand then moved downward from X's waist to her buttocks.  X did not say anything and continued to sleep.  The defendant then pulled up X's nightgown and touched her skin, but X immediately pulled it back down and made a sound to indicate that she did not like it.  She also pushed the defendant's hand away.  The defendant stopped touching her and continued to play on his phone.

8.  Later on, the defendant started touching X's buttocks and right inner thigh.  Thinking that the defendant would stop, X did not say anything and continued to sleep.  The defendant then pulled up her nightgown and started to touch her private parts over her underpants with his middle finger in a fondling and pressing motion. X was terrified but dared not waking up.

9.  After a while, the defendant put his hand inside X's underpants and started to touch the outside of her private parts in a pressing motion.  His finger kept moving downward as if he wanted to insert it into her vagina.  He touched her private parts underneath her underpants for about 15 minutes.  X was awake but pretended to be sleeping.  The defendant was reading a novel on his phone and X saw a pornographic advertisement being displayed.  The defendant was holding his phone in his left hand whilst touching X with his right hand.  About 30 minutes later, he stopped touching X.  He asked X to wake up and went to wash his hands in the toilet.

10.  X immediately sought help from an online counselling service.  She told her mother about the incident in the same evening.  She also told her school social worker on the following day. The Police was alerted.

Arrest and Admissions

11.  The defendant was arrested on 9 January 2020.  Under caution, he admitted that he had molested X.  He knew he was wrong and regretted having done so.

12.  In his video recorded interview, the defendant admitted, inter alia, that he had pulled up X's nightgown and touched her stomach.  Since she did not make any response, he started touching her private parts over her underpants.  He then put his hand underneath X's underpants and fondled her private parts.  The defendant claimed that the incident lasted for over 10 minutes and X did not say anything.

Mitigation & Sentence

13.  The defendant is 51 and has a clear record.  Defence counsel Ms. Hui informed me that the defendant came from the mainland.  He met his wife, a Hong Kong resident, in 1989 and got married in 2004.  Between 2009 and 2012, the defendant ran his own business in the mainland but it failed.  He then moved to Hong Kong with his debts.  He worked 2 jobs and handed over most of his income to his wife who managed the family finances and his previous debts.

14.  In mitigation, Ms. Hui submitted that both his wife and X have forgiven the defendant and are willing to accept him into the family again.  What the defendant did to X was a one-off incident.  He has been isolated from his family since his arrest.  His wife was a clerk with a reasonable income.  She has not been able to work in order to look after X.

15.  A Victim's Impact Assessment Report (dated 22 March 2021) was placed before me.  The clinical psychologist made these comments:

"… The client revealed in the clinical interview that she was very emotional after the sexual abuse and the disclosure. She however declared that most of them had already subsided in 2021, since she claimed it would go to nowhere by keeping on recalling the incident or asking for an explanation for her father's sexual advancement. Nevertheless, she admitted that she was still very sensitive to sexual touching, while she was fearful whenever she encountered a male figure who was of similar age as her father. She would tend to avoid and escape as far away as she could, as she would worry if there would be any danger by coming closer to that person[1].

…

… She admitted that she [feels] anxious facing her father, since she feared that he would abuse her again. She even worried that the father would rape her, instead of molest her, if he could locate her after discharge from prison. She also feared that the father would take revenge for her disclosure too[2].

… Results of the present examination suggested that the client was very ambivalent in handling her psychological responses associated with the sexual abuse incident. She felt angry, frustrated, and fearful towards police, social workers, self, and her father. She had no [confidence] that she could protect herself from any danger, while she did not find those adults in her immediate living environment understanding and reliable. She got assurance and emotional support from her peers only. She felt helpless as she did not know how to handle those symptoms, thoughts, and feelings[3]…"

16.  I have also called for a Clinical Psychologist's Report on the defendant.

17.  The clinical psychologist's opinion is "He assumed personal responsibility and admitted his sexual offending behaviour.  Present assessment finds the remand has been subject to chronic life stress in the past decade of which he had impoverished coping ability.  He failed to regulate his sexual impulse at the material time and had limited understanding of the harm done of his sexual touch on his daughter. Due to absence of sexual deviance and antisociality, his future risk of sexual re-offending is deemed to be in the low spectrum.  Psychological intervention that helps enhance his emotion regulation and problem-solving ability will be beneficial[4]."

18.  When determining the appropriate sentence, I have borne in mind the sentencing principles for the offence of indecent assault on young children laid down by the Court of Appeal in SJ v HUANG Long Wei [2009] 3 HKLRD 136. 

19.  I am most concerned with how the clinical psychologist described X "She [coped] with all the confusion, frustration, fear and anger by numbing and blocking herself up from getting in touch with anything associated with the memory[5]".  It appears that X wants her family back, yet she feels unsure about her personal safety around the defendant.  She has no outlet for her emotions and does not seem to have any solutions to her problems.  I sincerely hope the Social Welfare Department or some welfare NGOs can offer immediate and long-term professional assistance to X.

20.  Taking into consideration of the defendant's acts, their degree of indecency, the impact of his indecent attacks on X as well as his background, I adopt a starting point of 18 months' imprisonment for Charge 2.  I am not prepared to grant him a discount more than the usual one-third[6]. An element of deterrence is required.  With the timely guilty plea, the sentence is reduced to 12 months.  I sentence the defendant to 12 months' imprisonment for this charge.  As recommended by the clinical psychologist, I invite the Commissioner of Correctional Services to arrange for the defendant to receive the necessary professional assistance in re-establishing his relationship with X.