HKSAR v. OU CHENGZHU

DCCC 297/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 297 OF 2017

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REASONS FOR VERDICT

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1.  The defendant was charged with two counts of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200.

2.  The defendant pleaded guilty and admitted the facts.  He was convicted accordingly.  After hearing the initial mitigation, the case was adjourned for the defendant’s background, psychological, and psychiatrist reports.

The facts

3.  The victim X (aged 24) was an Indonesian domestic helper employed by the defendant’s daughter to work at the scene (the flat) since 30 July 2016.  

Charge 1

4.  In the afternoon of 27 September 2016 while only the defendant and X were at the flat, the defendant approached X from behind and patted her buttocks twice with his hands.  X was too scared to tell anyone about the incident. 

Charge 2

5.  At about 2pm on 28 September 2016 while only the defendant and X were at the flat.  The defendant indecently assaulted X again in a much more extended way.  This time the defendant with only shorts on him, faced and hugged X in the front, against her will pulled up her T-shirt and brassiere and then pull down her trousers and underwear to sexually molested her nipples and private part by hands and mouth. 

6.  The incident first took place in the kitchen and at a later stage X was carried and placed on a chair in the living room where the defendant further molested her and took his penis out of the unzipped shorts in front of X, forced her to masturbate for him.  The defendant also tried to push X’s head towards his penis but X struggled and turned her head away.

7.  During the incident, X attempted to push away and stopped the defendant but to no avail. Once X left the flat, she made a complaint to her agent.

8.  The defendant was arrested on 28 September 2016.  The defendant admitted the offences under caution. 

Mitigation

9.  The defendant aged 69, married with one daughter.  He has retired and lived in mainland with his wife.  He obtained his Hong Kong ID card in April 2016 and lived with his daughter’s family in Hong Kong.  He returned to mainland during the summer holiday and returned on 22 September 2016 after the school term started to take care his two grandchildren, 6 and 11 years of age respectively.

10.  It was just a random act when he pushed X’s head towards his penis, he did not attempt to achieve anything.

11.  He has committed a serious offence, but he has been co-operated with the police investigation, indicated his plea at the earliest opportunity, and saved the victim to testify in a trial.  He would like to apologize to the victim.  He had a clear record. He was remorse and felt immense regrets that he brings disgrace on himself and his family.  He has prepared for the legal responsibility to the wrong he committed.

12.  The wife, the daughter and the son-in-law shown their support to the defendant by submitting mitigation letters and urged for leniency on his behalf.  The content of the letters shown that the defendant had a close relationship with his family and all along been looked up by them.

13.  I have mentioned on the last occasion that X lost her employment because of the wrong committed by the defendant.  In response to this, the daughter said in the background report that unaware to the defendant she had given one month’s notice to terminate X on 17 September 2016.  That meant the housekeeping arrangement would change on 17 October, should that be the case, why that was not related to the defendant upon his return after the summer holiday.  Even that was the case, X has still lost her employment before the expiry.

14.  I further indicated on last occasion that the facts admitted by the defendant suggested the incident on 27^th was a trial to feel out X, seeing that she kept silence, moved on to commit further on the next day.  The defence withdrew from his mitigation that it was an act out of impulse.  It transpired in the psychologist report that the defendant had habit of drinking two to three taels of Chinese white wine at meal in recent ten years.  He had taken alcohol before both offences, yet he was conscious of his behaviours.  During the interviews with the psychologist, the defendant said X smiled to him on the first occasion and blamed X seduced him on the second occasion, but withdrew this allegation in court.  The defence after taking instruction submitted that the defendant had ignore the feeling of X and did not obtain consent due to the influence of alcohol.

15.  The psychologist observed that the defendant’s ungratified sexual needs, use of sex to cope with boredom and alcohol misuse were major risk factors of re-offending.  However, in view of his supportive family and absent of criminal history, his risk of sexual recidivism of offences with similar nature is low with reference to international actuarial assessment tool.  It should be noted that the risk assessment is based on information currently available; and the risk of recidivism is dynamic with possibility to vary in response to changes in personal and environmental conditions. 

16.  The psychologist was in the opinion that the defendant appeared to commit the crime to gratify his sexual needs and to cope with boredom.  His problem of alcohol misuse could also weaken his behavioural control in offending.  Though his risk of sexual re-offending was low, his tendency to blame the victim was of concern.  While his supportive family and pro-social background were major protective factors against re-offending, psychological services on his appropriate gratification of sexual needs, alcohol misuse and sexual attitudes would be beneficial.  The defendant indicated his willingness to receive such services.

17.  It transpired from the defendant’s background report that the wife and the daughter still unable to accept that it was true and tended to put blame on the victim. Remaining in an environment where the family members also have tendency to blame the victim, in my view, unlikely to be a positive protective factors against re-offending. 

18.  The psychiatrist has examined the defendant, during which the defendant admitted the facts of the case and said he was “sexually curious”.  The defendant was coherent, of stable mood and not showing signs of mental disturbance, the psychiatrist was in the opinion that the defendant was not suffering from mental illness.  

19.  As stated in the background report, the defendant had chronic illness including gout, kidney stone and hypertension.  The family urged the court to consider the defendant’s plea of guilty, advanced age and medical condition in sentencing.  The wife and the daughter went further to plead for non-custodial sentence.

Reasons for sentence

20.  The maximum sentence for the offence is 10 years’ imprisonment.  In HKSAR v ESGUERRA EDWIN SANTOS(M) DCCC 599/2016 HH Judge WK Kwok re-stated the matters to be considered in assessing the sentence for an offence of indecent assault upon another person:-

“Since this offence may be committed in vastly different circumstances, there is no sentencing tariff, and the sentence of each case must depend on its own facts. Nevertheless, the sentencing purposes are clear. First, the sentence must reflect the seriousness of the offence committed by the offender. Second, it must be deterrent in order to deter the offender from re-offending, and to prevent others from committing a similar offence. Third, the sentence must mark the public abhorrence of the offence. Fourth, the sentence must redress the grievance suffered by the victim, her family members and friends.”

21.  Being a member of the family which X worked for, the defence did not argue this is not a case involved breach of trust but submitted the defendant only returned to the flat on 22 September 2016 after X reported duty in July.  The defendant and X resided in the same flat less than a week.  The offences were committed on 27^th and 28^th September (Tuesday and Wednesday) while the daughter and son-in-law were at work and the children were in school. 

22.  X left her home country and family to work for a foreign family, the flat was not only her place of employment but also her place of residence.  Although the employment contract was signed by the daughter, the defendant being the father and the most respected and senior person in the family was a de facto employer to X. She entitled to a safety working environment and be safe with her employer instead the defendant sexually molested her in circumstances in which she was alone and vulnerable.  The defendant would not have failed to notice that X simply was unable to call for or obtain assistance within the flat at the material times. 

23.  From what the defendant has admitted, this was not an act out of impulse, but a calculated one.  X was his target.  The incident on 27^th was a trial to feel out X, seeing that she kept silence, to take advantage of her timorousness, moved on to commit a far more perverse and disgraceful act on the next day. The defendant admitted he has committed serious offences.

24.  Further to the indecent assault upon her body and dignity, X lost her employment because of the wrong committed by the defendant.  She was required to live in temporary shelter provided by her employment agent since 28 September 2016 and she left Hong Kong after the defendant indicated his plea of guilty in April 2017.

25.  Having considered the facts of this case and the sentencing purposes to be achieved, I have no doubt whatsoever that the only appropriate sentencing option is one of imprisonment, even though the defendant has pleaded guilty and had a clear record.

26.  I consider the appropriate starting point for charge one to be 6 months and 3 years for the second charge. 

27.  The defendant has indicated his plea of guilty on the Plea Day.  He is entitled to 1/3 discount, and reduce it to 4 months and 2 years respectively.  The defendant was approaching 70 and had a clear, the chronic illness suffered by the defendant was not uncommon to those in his age group.  Taking into account of his age, I allow a deduction of 1 month and 3 months respectively to charge one and charge two.  And a further deduction of 3 months for charge two for his clear record at this age.

28.  I do not consider there to be any other mitigating factors that call for further deduction. After considering the overall criminality, I order the sentence to run concurrently making a total of 18 months’ imprisonment and with the defendant’s consent, the Correction Services Department is recommended to arrange psychological services for the defendant on his appropriate gratification of sexual needs, alcohol misuse and sexual attitudes.

Order

29. Charge 1 sentenced to 3 months’ imprisonment;

Charge 2 sentenced to 18 months’ imprisonment, concurrent to charge 1, making a total of 18 months.

30.  And the CSD is recommended to arrange psychological services for the defendant on his appropriate gratification of sexual needs, alcohol misuse and sexual attitudes.

31.  Further, the CSD is to be notified that the defendant had chronic illness including gout, kidney stone and hypertension.