HKSAR v. POON KAR YUE

DCCC 269/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 269 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to three charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200.

Summary of facts

2.  The three victims and the defendant’s girlfriend all reside at the students’ hall of residence in the University.  The defendant was not a resident of the hall.

Charge 1

3.  On 14 October 2015, at about 7:10 am, the defendant entered PW1’s room and locked the door.  The defendant slept next to her, hugged her from behind tightly, while PW1 tried to push him away repeatedly.  When the defendant molested her belly for about three seconds, PW1 pushed him away.  The defendant then hugged her again.  PW1 tried to push the defendant away, but in vain.  PW1 told the defendant she was not feeling well.  She went to the toilet.

4.  When PW1 was about to open the door of the room, the defendant told her not to.  PW1 sat on the chair.  When the defendant asked PW1 to lie on the bed, she refused.  She sat on the bedside.  The defendant told PW1 about his relationship problem with his girlfriend.  The defendant then held PW1 and put her on the bed.  PW1 sat up at the bedside, the defendant hugged her again. PW1 said that she wanted to throw up.  The defendant brought a rubbish bin near to her.  They both sat at the bedside.

5.  Later, the defendant pushed PW1 onto the bed again, but PW1 sat up.  The defendant hugged her and tried to bite her neck, but PW1 avoided him.  The defendant used his right hand to touch PW1’s thigh.  Then PW5 came in.  The defendant stopped hugging PW1.  They chatted for a while. The defendant hugged PW1 again. PW5 saw the defendant lying on the thighs of PW1.  At about 8 am, PW1 left the room and related the incident to PW2.

Charge 2

6.  On 18 October 2015, at about 11 am, PW2 was sleeping.  The defendant entered her room and molested her belly.  PW2 told the defendant to stop and tried to push him away. The defendant then hugged her from behind.  PW2 pushed him away and asked him to leave.

Charge 3

7.  On 21 October 2015, at about 8 pm, PW3 was studying inside her room.  The defendant entered her room and locked the door, picked her up and put her on the bed.  PW3 asked him to stop and tried to push him away.  The defendant lay on top of her, kissed her, molested her breasts and her private part.  He put his fingers inside her vagina.  PW3 was shocked and was shaking.  The defendant stopped and apologised to her.  PW3’s roommate returned and told the defendant to leave.

8.  PW3 reported the incident to the hall warden and the defendant was prohibited from entering the hall again. The defendant sent WhatsApp messages to PW1 and 3 to apologise on 14 and 23 October respectively.

9.  This matter was reported to the police on 28 October.  The defendant was arrested on the same day.

10.  In the subsequent cautioned interview, the defendant admitted that:-

(1) he lay on the thigh of PW1, touched her thigh. He stayed in the room for an hour;

(2) on 18 October 2015 he entered the room of PW2, hugged her from behind. PW2 pushed him away. He stayed for about five minutes;

(3) 21 October 2015, at about 8 pm, he entered PW3’s room and told her he would like to sleep with her. He kissed her mouth, molested her breasts and private part. When the defendant noted PW3 was shaking, he stopped and he felt remorseful after the incident.

Previous conviction

11.  The defendant had a clear record.

12.  Before passing sentence, this case has been adjourned to call for one psychiatric report and one psychologist report of the defendant.  I also called for three victim impact reports.

The psychiatrist’s and psychologist’s report

13.  Prior to the present offences, the defendant had a stormy relationship with his then-girlfriend.  The defendant used sex and acts of intimacy to cope with his emotional stress.  He exploited the trust of the victims for personal gratification and displayed poor consequential thinking. 

14.  The psychologist considered that the risk of re-offending with similar nature is “at the low end of moderate risk”.  She also said that “the risk of recidivism is dynamic, with possibility to vary in response to changes in personal and environmental condition”.  The defendant is not suffering from any kind of psychiatric or paraphilic disorder.  He needs to deal with his stress-coping and mood-management problem through counselling.

Mitigation

15.  The defendant is now 23, graduated this summer and obtained a degree in mechanical engineering.  His parents separated 20 years ago, but he came to know about this three months ago.  His mother has to work to support the family while his father only came to see them once or twice a year.  As the report described, he had very little “family warmth”. 

16.  His mother’s letters said that the defendant is a very independent person, he solves problem by himself, without troubling her.  In a way, she feels sad about it.  She asks this court to pass a lenient sentence on her son.

17.  Nonetheless, his parents were in court to demonstrate their support to him and that they still care much about him.

18.  Since the commission of this offence, he had opened up to the University’s social worker, who encouraged him to continue his study and also provided counselling to him.  I understand that the social worker has been in court to support him.

19.  He obtained a job after graduation and also has established a relationship with his new girlfriend. 

20.  As to the commission of the present offence, it was due to the emotional stress he faced at that time when he had a relationship problem with his then-girlfriend.  He looked for intimacy comfort to relieve his emotional problem.  He is fully aware of the content of the three victims’ reports. 

21.  In his mitigating letter, he said that he is remorseful for what he had done to them.  He understands he has done a great deal of damage to them.  On the other hand, he is also worried about his future.  The University informed him that he may be subject to a disciplinary hearing.  He is now worried that they may take away his degree.  He vows not to re-offend again.

22.  He has more than 20 mitigating letters from his school friends and his teachers.  They all ask for leniency on his behalf.  Some of them found out this matter from the newspaper and went to visit him recently in Siu Lam.

Sentence

23.  In passing sentence, I take into account all the mitigating factors which have been advanced on his behalf.  His counsel rightly points out that he has committed a very serious offence. 

24.  There is no usual tariff for indecent assault charges, as the circumstances of each charge may vary considerably.  However, bearing in mind the serious nature of the acts in the present case, a deterrent sentence has to be imposed.  Out of the three offences of which the defendant was convicted, the most serious offence was Count 3. 

25.  All the offences involved intruding into a private room of each student in the resident hall in the University.  This hall is for female students.  The defendant had no right or place to be there.

26.  The level of indecency escalated from touching belly to molesting breasts, private part, inserting his finger into vagina.  The three offences took place within a period of one week, from 14 October to 21 October, in 2015. 

27.  Charge 1 lasted for one hour in 14 October 2015. 

28.  As to Charge 1, when the victim wanted to open the door, he told her not to do so, because he did not want others to know his presence inside her room. Clearly, the victim did not want him to be there, but he imposed himself on her.  He continued to hug her, tried to bite her neck, touch her thighs and put his head on her thigh.  He told the victim he had relationship problem with his then-girlfriend to gain the sympathy of the victim to talk to him.  The victim was subject to one hour of unpleasant sexual abuse. 

29.  Although the defendant did not use any violence against her, to keep her inside the room was clearly against her will.  She used different ways to get out of the situation.  She said she was sick, went to the toilet, one time she wanted to throw up.  In one way or the other, she did not want to lie down on the bed to give the defendant any opportunity to advance on her.

30.  Four days later, the defendant committed Charge 2 on 18 October 2015. The victim was sleeping at the material time.  Her room door was unlocked. This showed the victim did not expect anything of this sort to be happened. The resident hall must be a safe place in her mind.  He molested her belly and tried to hug her from the back.  Each time, he was pushed away.  The victim was firm and told him to leave.  That lasted for five minutes.

31.  The second time showed the defendant was simply dauntless, walked in a student room and did what he wanted to do with the victim, regardless of the victim’s feeling and what she was doing at the material time. 

32.  Another three days later, he committed Charge 3 on 21 October 2015.  The victim was studying in the room with the door open.  The defendant simply walked in and locked the door.  He did what he wanted to do, picked her up, lay on top of her, kissed her, molested her breasts, private part, and inserted his finger into her private part.  The victim was totally shocked.  Her body was shaking, as she did not expect this to happen to her.  The defendant then stopped.

33.  That must be an alarming and frightening experience for all the victims concerned.  It was a right decision to report this matter to the police.  The resident hall should be a safe place for the students to rest and to study, not a place for the defendant to enter freely and to do what he wanted to do to harm the victims.

34.  From both psychologist’s and psychiatrist’s reports, it was clear he had a relationship problem with his then-girlfriend at the material time and he used those victims to release his own emotional stress.  What he did was totally selfish and disregardful of the others’ feeling.  It was a momentary relief of emotional stress, at the expense of the victims.  The defendant preyed on his acquaintances repeatedly to gratify his own personal problem.

35.  All the three offences had taken place inside the resident hall, a place where those victims considered to be safe to such an extent that they did not lock their doors.  In such circumstances, those offences were akin to take place in their homes.  That was an aggravating factor.  The defendant was allowed to enter into the resident hall as a guest, not to take advantages of those victims.  That amounts to a breach of trust, another aggravating factor.

36.  From the victim impact reports, I know that this is a talking subject among the circle of the students.  The defendant has been explained of the reports.  The defence agreed that the content of the report should be respected and not to be disclosed.  However, in passing sentence, I would not disregard the content of these reports. 

37.  I accept that by pleading guilty to the three charges have spared the victims from giving evidence in court, he demonstrated his remorse.  This is the only mitigating factor in his favour.

38.  I was told that the defendant had received a letter from the University Student Discipline Committee that the University might take disciplinary action against him.  That is still an unknown factor at this moment.  This court will not take it into account when passing sentence on him.

39.  Having taken all the above factors into consideration, I consider that an overall sentence, after trial, should be 3 years 6 months.

40.  As to the individual charge, the sentence is as follows:-

(1) Charge 1: starting point 21 months, reduced to 14 months after one-third reduction;

(2) Charge 2: starting point 15 months, reduced to 10 months after one-third discount;

(3) Charge 3: starting point 3 years, reduced to 2 years after one-third discount;

41.  2 months from each charge of Charge 1 and Charge 2 to run consecutively to Charge 3, a total of 4 months.

42.  The final sentence is 2 years 4 months.