HKSAR v. W.Z.W.

DCCC 1128/2022

[2023] HKDC 1798

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1128 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant was convicted on his own plea and agreement to Amended Summary of Facts of:

(i)  1 count of wilful assault causing injury to a child, contrary to section 27(1)  of the Offences against the Person Ordinance, Cap 212 (1^st charge);

(ii)  3 counts of indecent assault on another person, contrary to section 122(1)  of the Crimes Ordinance, Cap 200 (2^nd, 3^rd and 5^th charge); and

(iii)  1 count of assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212 (7^th charge).

2.  Upon the prosecution’s application, the 4^th charge and 6^th charge were both left on court file and not to be proceeded with without leave of the court.

Facts

3.  X and Y are sisters. X was born on 22 June 2006 while Y was born on 14 May 2004. They were born in Hong Kong. Their parents are mainlanders and reside in Guangdong. Soon after their births, the children were taken to Guangdong and taken care by their parents.

4.  Until August 2014, the 8-year-old X and 10-year-old Y came to Hong Kong and lived with their paternal grandfather, the defendant (born on 5 July 1949)  and paternal grandmother Z, in a public housing estate. A few months after X and Y came to Hong Kong, the defendant started to abuse them.

1^st Charge: Wilful assault causing injury to a child (X)

5.  On a day between 2014 and 2015 (when Y was in Primary 4 and X was in Primary 2), Y had a dispute with the defendant in the flat after the defendant tried to commit an indecent act towards her. X was present while Z was out of home. X tried to stop the fight between the defendant and Y. The defendant then grabbed X’s neck and lifted her off the ground. X’s feet were about 10 cm above the ground. As a result, X had difficulty in breathing and her neck was hurt by the defendant’s nails. X and Y both felt scared and they kept crying. As the wooden door of the flat was open, a neighbour passed by outside the flat and looked at them. Then the defendant released his hand. After that, he took out a chopper and pushed the two girls to the toilet where he threatened to kill them if they complained to their mother or paternal uncle.

2^nd Charge: Indecent assault on Y

6.  On a day between 2014 and 2016 (when Y was in Primary 3 or 4 and aged between 10 and 12), at around 9 pm, only X, Y and the defendant were in the flat. While Y was taking a shower in the toilet, suddenly, the defendant used a screwdriver to prize open the locked toilet door and looked at Y who was naked. Y immediately screamed and used both of her hands to cover her upper body and knelt down. The defendant scolded Y for crying aloud. After that, the defendant went away. Y closed the door and put on her clothes.

3^rd Charge: Indecent assault on X

7.  On a day between 2016 and 2017 (when X was in Primary 3 and aged about 10), at about 4 pm, only X and the defendant were in the flat. While X was sitting on her own bed and watching TV, the defendant pushed her onto the bed and removed her pants and underpants while grasping her wrists. Then, the defendant used his index or middle finger to touch X’s genitals and further inserted it into her vagina. While doing so, the defendant smiled and said it was very narrow and had no water. X felt very painful and disgusted.

8.  After that, the defendant took out his penis and placed it on the outside of X’s vagina. He flung his penis around a few times. Finally, after removing X’s upper garment, the defendant held her up and put her on his bed where he tried to lick her left breast. X immediately pushed away the defendant’s head and went out of the flat. The whole process lasted about 15 minutes. X dared not disclose the incident to others as she felt very painful.

5^th Charge: Indecent assault on X

9.  The most recent sexual abuse on X took place on or about 6 May 2022. At that time, X was 15 years old. At around 6 am that day, X was sleeping on her bed in the flat. The defendant came home from work. He slipped his hands into X’s blanket and stuck his right hand inside the collar of her clothes to grab and fondle her right breast for 2 to 3 seconds underneath her bra. X felt painful and uncomfortable, and she was woken up by that. The defendant then withdrew his hand. X scolded the defendant but the defendant just ignored her.

7^th Charge: Assault occasioning actual bodily harm on Y

10.  In the afternoon of 10 May 2022, Y came home from school. The defendant and X were at home. The defendant scolded Y for saying things damaging the family relationship. The defendant and Y had a verbal dispute. Soon later, the defendant had dinner and he continued to scold Y. When Y was sitting on her bed and using her mobile phone to record what the defendant was saying, the defendant came towards her and used his left hand to push her right shoulder. As a result, Y was pushed down onto the bed. She picked up a clothes hanger to defend herself. The defendant then held chopsticks in his right hand and punched Y’s right arm with his left fist. Y defended by hitting the defendant’s left arm with the clothes hanger but the defendant continued to hit her 10-odd times. Finally, X came up to stop the defendant and then went away with Y. In the incident, Y suffered bleeding on her right index finger and bruising over her left forearm and both knees. No medical treatment was sought.

Criminal Record

11.  The defendant has a clear record.

Mitigation

12.  The defendant is aged 74, married and his wife aged 73. Defence counsel said the defendant is in ill health and has been suffering from diabetes, hyperglycaemia, hypertension as well as diabetic retinopathy. He needs to attend regular follow-up treatments. It was said that he was admitted to hospital twice this year.

13.  Defence counsel said the defendant is now deeply remorseful as to what he has done, and he took the earliest opportunity to plead guilty to the offences. He asked this court for leniency.

14.  Defence counsel referred this court to cases which set out the sentencing principles in indecent assault cases: HKSAR v Kong Yun Chiu, CACC 315/2006, Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136, HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239 as well as HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427.

15.  Defence counsel also referred this court to cases for consideration of the sentencing: HKSAR v L.W.K. [2023] HKDC 116, HKSAR v Y.J.F. [2023] HKDC 1009, HKSAR v W.Y.M. [2021] HKDC 1220, HKSAR v K.K.L. [2022] HKDC 1515, and HKSAR v Ng Ngok Wai [2008] 1 HKLRD 546.

16.  He suggested that the sentencing range for the defendant in the present case should be within 20 to 28 months’ imprisonment. He submitted that as the 1^st charge and 7^th charge are closely related to the indecent assault charges, the sentence of the 1^st charge and 7^th charge should run concurrently with the sentence for the indecent assault charges. He further urged this court to consider the totality principle.

Victim Impact Report

17.  Before sentencing, this court has the benefit of considering the victim impact report called for victim X and Y.

X

18.  The report says X, now a 17-year-old girl, is a victim of both physical and sexual abuse by the defendant over the years since the age of 8. It is said that not long after X moved to Hong Kong, her paternal grandfather, ie the defendant, started the inappropriate and indecent touching. She tried to approach her father back in mainland but she was told by her father that these were only ways that grandfather showed his love to her. She felt confused and helpless.

19.  For the 1^st charge incident, when the incident occurred, X could only close her eyes and dissociate herself as it was too overwhelming and shocking. The defendant only stopped grabbing her neck off the ground with his hands when a neighbour passed by. Then, X and her sister ran away from home and hid in the corridor outside the flat. The defendant also threatened X that if she disclosed what happened, he would kill her by chopping her to death.

20.  According to the report, this traumatic experience including the sounds and the imaging were too overwhelming and also imprinted in X’s mind. She would involuntarily hear those grabbing sound even until now, particularly when she felt stressed. As a young child, she hoped that someone would save her but the reality was not as expected, which shocked and changed her view of the world.

21.  For the 3^rd charge incident, X avoided mentioning this incident as it was overwhelmingly painful to do so. There were intrusive memories and flashback arising from this particular incident up till now. Her sleep had been disturbed with frequent nightmares, and only when she was removed from home and arranged residential care did she start to sleep better.

22.  X tried to talk to her grandmother and her parents about these incidents but they tended to side with the grandfather, the defendant. X’s father blamed her and commented that she should be grateful that the grandparents took care of her and paid for the expenses. Her grandmother told her that these scandals should not be made known to outsiders when X tried to call the police for help. X also worried about the living arrangement and safety of herself and her elder sister if she really reported the incident to the authority as the defendant constantly threatened her. She was confused whether it was right to report to the authority and worried that it would be shameful to disclose her sexual and physical abuse incidents. As a result, she kept these secrets to herself.

23.  She had also thought of committing suicide by jumping from height when she was in Primary 3 to 4, but she thought of her mother whom she loved so dearly, and her suicidal thought fortunately vanished.

24.  However, not knowing anyone trustworthy to turn for assistance, she started to stay away from home to avoid meeting the defendant. She often stayed for hours in community centre or public library after school and during weekends until the defendant went to work. She had a home which she considered not safe.

25.  Not only did the physical and sexual aggression the defendant exerted on her left her with intrusive and distressing memories until now, it also affected her sexual and psychosocial development. She grew to have fear of the opposite sex when she reached adolescence. She did not know how to relate with male and felt distressed and unsafe if she had to. She intentionally chose to study in a girls’ school in order to avoid interaction with the male.

26.  Concerning the reporting to police, X was blamed by her father and paternal relatives. They blamed her for creating trouble to the family and potentially putting the defendant to jail. She was disappointed as to their responses, and she did not know how to relate with her mother and grandmother with such responses.

27.  X’s self-esteem was found to be negatively affected by the incident. She felt shameful and painful to recall what happened.

28.  The clinical psychologist concluded that result of the present examination suggested that X was encountering emotional distress arising from the incidents and the aftermath. She was blamed by the family members even though she gathered her strength to disclose to them what happened. She learnt that no one would protect her and save her from the ordeal. She sadly had to learn to run away from home and fought against the sexual and physical abuses almost on a daily basis all on her own to protect herself. She was deprived of a loving and supporting childhood which each child is expected to have. She was left with trauma and abuses. Her psychosocial development was jeopardised. She was deprived of a normal development of sexuality which affected her views on intimacy and romantic relationship as she was sexually abused before she could receive a proper sex education.

29.  It was fortunate that she did not commit suicide because of her thought of her mother, but this loving relationship with her mother and grandmother was inevitably affected after the case was reported. The blaming from her paternal relatives further imperilled her mental well-being.

30.  It is said by the clinical psychologist that the impact of the abuse is indeed extensive across different areas of X’s life and development, in the past, the present and likely the future. The intrusive and distressing memories of the past are still affecting X. She also tended to adopt avoidant coping due to the emotional stress provoked. It is said that X needed psychotherapy to help her make sense of what happened and to handle the psychological responses emerging throughout the rehabilitation process.

Y

31.  Y is the elder sister of X. Again, it is said in the report that not long after Y moved to Hong Kong with X, the defendant started sexually abusing her. He also threatened that if she disclosed to others what happened, she would become an orphan and no one would support her and her sister’s living. She was very scared that she would become homeless if she disclosed what happened to others. It appears to Y that the defendant seemed gratified by annoying and harassing Y as Y reported that even though she screamed and cried and begged him to stop doing the indecent actions, he would look pleased and continue to do so.

32.  Y stopped having to endure all of the above only after she was removed from home when the incidents were reported to police. She could only feel safe sleeping in bed, not worrying the defendant would harass her anytime when arranged the out-of-home residential care.

33.  Y said that she had tried to tell her grandmother, yet she did not believe her and tended to side with the defendant. But later her grandmother would talk to the defendant and ask him to stop as the actions became too frequent as reported by both X and Y.

34.  Presently, Y felt scared having to interact with male, and same as X, she chose to study in a girls’ secondary school. Y could not imagine developing any intimate heterosexual relationship in the future. She felt stressed and unsafe when men were around, such as when she was taking the public transport and when she was in crowded area. She felt shameful as being abused sexually by the defendant and perceived herself as “a dirty person”. She believed that if she had to develop an intimate relationship later in life, she must tell the other party her past which would drive people away as she was a victim of incest, which she believed to be dirty and others would not accept her.

35.  Her views on her own sexual need and intimacy were distorted by these abuses. Her self-esteem was found to be negatively affected due to years of aggression she endured. She felt inferior to her peers in school as she thinks that her peers are psychologically healthy without abuse experiences. She perceived herself to be a pessimistic and introvert person compared to her peers due to all these adverse experiences. She believed that if the incidents did not occur, she would have been a more cheerful and open person and not in fear of getting close with others or establishing a meaningful relationship.

36.  Facing aggression on a daily basis without any support and with no one to talk to, Y often had intrusive thoughts and memories regarding the incidents. She tried to preoccupy herself with different things and avoid thinking about the incidents. But she would involuntarily recall the incidents when she came across similar incidents when watching news, seeing some campaigns relating to sexual abuse or even when sleeping on the bed. She would exhibit dissociative symptoms and reported difficulties concentrating at times. Her studies were believed to be inevitably affected. She was repeating Form 4 currently for the second time. She felt lost about her future due to her academic performance.

37.  Y encountered a lot of stress and had to endure a lot of blaming from paternal relatives since the disclosure, and some of them asked her to withdraw from the legal procedures. She felt that all the relatives tried to protect the defendant and blamed her for potentially putting the defendant in jail, and almost none of them genuinely cared about her and her sister.

38.  Considering all the information gathered, the clinical psychologist said that it appeared that suppression and avoidance had been Y’s strategies in view of the aggression that the defendant exerted on her over the years. Y’s self-esteem was found to be negatively affected.

39.  The clinical psychologist concluded that living from the secret of sexual abuse and physical aggression for years without anyone trustworthy she could locate, affected how Y sees herself and relates to others. Her psychosocial development was jeopardised. She was deprived of a normal development of sexuality, which affected her views on intimacy and romantic relationship. She exhibited some dissociative reactions in order to cope with the overwhelming emotional and physical pain, which also affected her studies as her attention was affected.

40.  Y did ask for help from her mother and grandmother but they failed to protect her. Her relationship with her mother and grandmother, the two relatively more supportive figures in her life, was also inevitably affected and became ambivalent post-disclosure. She was left alone with her sister to face all the aftermath despite being the victims of years of abuse.

41.  It is said that the impact of the abuse is indeed extensive across different areas of Y’s life and development, in the past, the present and likely the future. It is said that Y required psychotherapy to help her make sense of what happened and to handle the psychological responses gradually emerging during the rehabilitation process.

Discussion

42.  Before sentencing, this court has considered all that was submitted on behalf of the defendant by defence counsel, including the authorities, mitigation letters and the medical treatment documents.

43.  This is no doubt one of the very serious case of abuse, physical and sexual, by the defendant on two very young girls entrusted in his care over a prolonged period of time, which affected the life and development of these two victims extensively in different areas. They now both require psychotherapy in the rehabilitation process.

44.  The defendant has treated them as sex toys, readily available for fun and use whenever he felt like it, and physically abused them even when they refused. The defendant actually derived joy when he saw these victims being put in fear, pain and anger.

1^st Charge

45.  On conviction upon indictment of this charge, a person is liable to imprisonment for 10 years.

46.  X was then only aged 8 and the defendant was then aged 65. X was subject to grabbing of the neck to the extent that she was lifted off the ground and had difficulty in breathing, with the defendant’s fingernails hurting her neck. This happened when X tried to prevent the defendant hurting her sister Y (then aged 10). According to X, the defendant was trying to sexually abuse her sister and was angered when X intervened. X was so overwhelmed and shocked at the time that she closed her eyes and dissociated herself, as she said in the victim impact report. It is only lucky that the defendant stopped when their neighbour passed by because the flat then had the door open.

47.  Further, the defendant even took the chopper out and pushed the two girls to toilet, threatening to kill them if they told.

48.  One must remember the age of both X and Y at the time, the tremendous fear instilled in X and Y during the incident, the threat to X’s life when she was held and choked by the defendant, and the fact that they had no one to turn to or no place to take refuge. They in fact hid in the near staircase of their flat after the incident. X told of the impact on her by this incident in the report.

49.  Immediate imprisonment is the only appropriate sentencing option, even considering the defendant’s clear record. In this case, the court considers that the appropriate sentencing starting point is 3 years and 6 months’ imprisonment.

50.  The defendant has pleaded guilty and that is the only valid mitigating factor. He is therefore sentenced to 2 years and 4 months’ imprisonment for the 1^st charge.

2^nd, 3^rd and 5^th Charge

51.  A person upon conviction on indictment of this offence is liable to imprisonment for 10 years.

52.  In the case of Tsang Chiu Tak, it is said that sexual assaults on children were serious offences which warranted deterrent sentence to show abhorrence of the public to this kind of crime and to redress the grievance suffered by the victims and their family.

53.  Cheung JA (as he then was)  in that case said that when the court dealt with offences of sexual assaults on a child, the factors that it needed to take into consideration included:

(a)  the age difference between the defendant and the victim;

(b)  the relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;

(c)  whether the defendant had used threats or inducement to make the victim succumb;

(d)  the number of occasions of committing the offences and the duration of the offences;

(e)  whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(f)  whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(g)  whether the sexual abuses have caused physical or psychological trauma to the victim;

(h)  whether the offences have impact on the family members of the victim;

(i)  whether the defendant was involved in other inappropriate behaviour such as inviting other people to watch or take photos or videos of the offence he committed; and

(j)  whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.”

54.  In the present case:

(a)  The age disparity between the defendant and X is 51 years, and that between the defendant and Y is 49 years.

(b)  There is clearly breach of trust as these victims were placed in the care of the defendant and his wife whilst their parents continued to reside in the mainland.

(c)  The defendant has used threats and violence on the victims. According to Y, the defendant told her not to report the incidents or else she would become an orphan and become homeless with no one to look after her and her sister. According to the facts of the 1^st charge, he had used chopper to threaten them not to tell anyone of the incident.

(d)  The sexual assaults on X and Y lasted for a number of years which, according to the victim impact report, affected the lives and development of the two victims extensively in all areas.

(e)  According to the facts of the 3^rd charge, the defendant did grasp X’s wrists after pushing her to the bed.

(f)  The defendant did not stop offending despite being told by his wife and his son.

55.  There are two very young victims involved in this case, and they were both very seriously affected. One even had the suicidal thoughts. This court notes in particular when the defendant committed the offences such as the 2^nd charge, the defendant had deprived Y of her dignity and privacy even when she was just taking a bath. He committed the offence when he felt like it. Even though Y locked the door, he prised the same open with a screwdriver. This is an outrageous act on a small child, especially when the defendant knew exactly that the child had no one to turn to and no other place she can stay in Hong Kong. He clearly knew how Y would be scared as she screamed and covered herself and knelt down.

56.  Considering the above, for the 2^nd charge, the court adopts 18 months’ imprisonment as the sentencing starting point. The same is reduced to 12 months’ imprisonment by reason of the defendant’s guilty plea.

57.  For the 3^rd charge, this is the most serious of all charges. The defendant had not used his penis to penetrate the vagina which made the offence short of rape. After removing all the clothes of X and inserted his fingers into her vagina for some time, the defendant then carried X to another bed in the more interior part of the housing unit and he tried to lick her breast. It is lucky that X then managed to escape to prevent the incident escalating.

58.  It is also noted that when committing the offence, the defendant smiled when the victim X, then aged about 10, was in fear and pain, and he even made comments during the process. The whole incident lasted for about 15 minutes, and up till this day, X was still traumatised by the incident.

59.  This court considers that 4 years and 6 months’ imprisonment as an appropriate sentencing starting point for the 3^rd charge. The same is discounted to 36 months’ imprisonment by reason of the defendant’s guilty plea.

60.  For the 5^th charge, X was aged about 15 and the defendant was aged 72 then. The sentencing starting point for this offence is 21 months’ imprisonment. The defendant is sentenced to 14 months’ imprisonment by reason of his guilty plea.

7^th Charge

61.  On conviction upon indictment, a person is liable to imprisonment for 3 years for this charge.

62.  The defendant used his fist whilst holding chopsticks in the other hand when assaulting Y. As a result, Y suffered bleeding on the right index finger and bruising over her left forearm and both knees. Y was aged 17 and the defendant was aged 72 then.

63.  The sentencing starting point for this charge is 9 months’ imprisonment. The defendant is therefore sentenced to 6 months’ imprisonment by reason of his guilty plea.

Totality

64.  As said earlier, the court considers that instead of giving the victims a loving home, the defendant, the paternal grandfather of these two very young children, has turned the flat into a horror house for them. According to the impact report, they were unable to sleep tight in the flat because they were in fear of being assaulted at any time. They felt safe only when they were relocated. And over the years, they were only able to stay away from home, either going to the public libraries and community centres, or hiding in the near staircase after incidents of assault.

65.  Considering the circumstances of the case and the overall culpability of the defendant, the court finds that 4 years and 7 months’ imprisonment after plea is a just and proportionate sentence, even considering his age.

66.  Accordingly, sentence for the 7^th charge is to run totally concurrent to the sentence for the 1^st charge. 15 months’ imprisonment of the sentence for the 1^st and 7^th charge is to run consecutive to the sentence for the 3^rd charge. 2 months’ imprisonment each for the sentence for the 2^nd and 5^th charge is to run consecutive to the sentence for the 3^rd charge, the rest to run concurrently.

67.  This court praises X and Y for their courage in bringing these incidents to light. They must know that they have done the right thing and that they should not feel guilty for what happened to their paternal grandfather. This court urges the Social Welfare Department and the Housing Authority to do all that they can to assist these two victims in their rehabilitation process, including but not limited to giving them assistance financially and in respect of the housing placement.

68.  The court also advises the family members to adopt the same attitude towards X and Y and be supportive to them in their rehabilitation. They are the victims and should not bear the blame and the betrayal. The family members who know the incidents, especially the parents, should have done much more to prevent the reoccurrence of these incidents when the girls reported the incidents. They have clearly failed their duty as parents and relatives, and they should now amend their wrongs.