HKSAR v. TPD

DCCC 1014/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1014 OF 2015

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Reasons for Sentence

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1.   The defendant was convicted after trial of three charges of indecent assault. 

2.   The 10-year-old victim is the defendant’s daughter.  She was referred to as “X” in the trial.  At the relevant time, she was 9 years of age. 

3.   The offences took place at the family home on one night in July 2015, when X’s mother (the defendant’s wife) was out of Hong Kong for a few days. 

4.   At the family home, there were a bed and a mattress which was placed on the floor parallel to the bed during sleeping times. 

5.   At about midnight on the relevant date, the defendant was sleeping on the bed with X and her younger sister, who was two years younger.  The defendant used his hand to touch X’s breasts and her private part.  X felt uncomfortable and switched to sleep on the mattress.  The defendant followed her down to the mattress and continued to touch her breasts and private part.  X went back to sleep on the bed, where the defendant continued to touch her breasts and private part.  X eventually asked the defendant to stop.  He apologised and stopped.

6.   The molestation lasted for about an hour.  During the incident the defendant used his hand to touch X inside and outside her clothes.  It was not a penetrative assault.

7.   On the next day, the defendant apologised to X and asked her not to tell anyone about the incident.  X promised. 

8.   X only told her mother about the incident a month later.

9.   The defendant is a 59-year-old man with a clear record.  As revealed in his evidence, he was qualified as an engineer. He was an English teacher at the relevant time.  After he was arrested, he suffered from depression.

10.   I did not call for an impact report of the victim.  I am afraid that it might only rub salt in the wound when she is interviewed to tell her feeling about the terrible incident.  The trauma can be assumed (see HKSAR v Kong Yun Chiu [2007] 4 HKC 391).

11.   I was not asked to call for a psychologist’s report of the defendant.  I do not think that such a report will likely reveal useful information as the defendant denies the offences.

12.   In mitigation, Mr Haynes, counsel for the defendant, responsibly reminds me that the defendant is a person approaching 60, who has not committed any crime in his life.  The out-of-character misconduct in this case, lasting only for an hour, was committed momentarily. The defendant stopped as requested and did not do it again.  X seems to have put the matter behind her already. 

13.   It is submitted that the conviction record will have serious impact on the defendant.  As a sex offender, he will lose his job as a teacher and the contact with his daughters.

14.   Within the family unit, the matter was to some extent already resolved.  In the best interests of the family, it is said that the defendant should not be sent to prison.

15.   There is no tariff for offences of indecent assault because the circumstances of each offence vary considerably. However, indecent assault on young children is always regarded by the courts as a serious offence. 

16.   The sentencing principles laid down by the courts in the past for the offence of indecent assault on young children by adults have highlighted three crucial considerations:  (1) to deter others from committing similar offences; (2) to show the abhorrence of members of the public to offences of this nature; (3) to redress the grievance suffered by the victim and his or her friends and relatives (see HKSAR v Chan Ching Ho [2000] 3 HKLRD 476 and HKSAR v Chow Yuen Fai [2010] HKC 181). 

17.   The Court of Appeal in cases such as HKSAR v Huang Long Wei [2009] 3 HKLRD 136 and HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239) reiterated the factors for consideration when the court has to deal with this kind of offences.

18.   Breach of trust, as in this case, is an aggravating feature (see HKSAR v Wong Ying Ho [1999] 4 HKC 825).  The defendant in this case breached the trust reposed in him by both his wife and the victim. 

19.   His daughter trusted, loved and depended upon him, but he did this kind of outrageous conduct to her.  He did not stop when his daughter indicated her abhorrence by switching to sleep on the mattress.  He persisted in his disgusting and despicable act until she eventually asked him to stop.  The molestation lasted for about an hour.  X felt uncomfortable.  She said she was scared and sad.

20.   While she said in court that the incident does not upset her any more and she can forgive her father, she would not leave it in the past just yet.  It is not difficult to appreciate the dilemma and trauma she experienced.

21.   As Stock JA said at paragraph 11 of his judgment in the case of Kong Yun Chiu:

“The trauma caused to a child by an indecent assault, and the long-term adverse impact, is difficult to calculate, but trauma may safely be assumed in the vast majority of cases, perhaps all.”

22.   I would add that when a girl is sexually abused by her own father, the trauma would be more acute and lasting.

23.   The impact might not only be on the victim but also on her mother.  She might blame herself for her unwise decision in leaving the daughters in the care of the defendant.

24.   With respect to Mr Haynes, I do not see any exceptional circumstances in this case to justify an exceptional sentence. The only appropriate sentencing option in this case is immediate imprisonment.

25.   I have taken into account that nothing found in the defendant’s house suggests that he is psychologically imbalanced or there is a likelihood of re-offending.  The defendant did not use threat or violence in the commission of the offences. 

26.   He is a person of previous good character, who has been involved in some kind of community service, as revealed in his character documents. 

27.   As a result of the conviction, he might not be employed again as a teacher.  He will lose his family too.  He destructed his own life.  He will lose contact with his daughters for a long time.

28.   I will treat the three offences as one transaction. 

29.   Having considered all the submissions, the circumstances of the case and the personal circumstances of the defendant, I take 2½ years’ imprisonment as the starting point for each of the three offences. 

30.   Defendant contested the case, necessitating the victim’s giving evidence in court and recalling this stressful incident which she had been trying hard to forget.  He has shown no remorse. 

31.   I do not find any effective mitigation to reduce the sentence.

32.   On each of the three offences, the defendant is sentenced to 2½ years’ imprisonment.  All the sentences shall run concurrently.