HKSAR v. CHOW CHUN MAN

DCCC 691/2024

[2025] HKDC 645

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 691 OF 2024

________________________

________________________

REASONS FOR SENTENCE

The defendant faces 7 charges of "Indecent assault". He pleaded guilty to Charges 1, 3, 4 and 7. I granted the prosecution's application to leave Charges 2, 5 and 6 in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

Background

2.  The defendant was a private clarinet and saxophone teacher.  He had a studio situated at a unit on 10^th Floor, Tung Nam Factory Building, No.40 Ma Tau Kok Road, To Kwa Wan ("the Studio")  for teaching purpose.  Females X, Y and Z were his students.

Charge 3 (Female X)

3.  In June and July 2023, X was 18 years old.  The defendant had been X's private clarinet teacher since 2015.  He used to teach X at her home.  Since May 2023, X went to the Studio to take lessons.

4.  On 13 June 2023, at the Studio, when X was playing the clarinet, the defendant touched and pressed X's both breasts and the area between her breasts with his hands; and poked both sides of X's breasts near her armpits with his fingers outside her T-shirt.  He repeatedly touched her in the same manners during the lesson whilst X was playing the clarinet.  Each touching lasted 3 to 4 minutes and the lesson was an hour long.

Charge 7 (Female X)

5.  On 12 July 2023, when X arrived at the Studio, the defendant told her that he would teach her a new breathing technique.  He showed her a YouTube video in which a person was lying on the floor to breathe.  After watching the video for about 20 seconds, the defendant asked X to lie down on the sofa to have a try.

6.  X lay down on a 2-seat sofa.  The defendant then walked towards the sofa and lowered himself towards X. They ended up facing each other.  The defendant inserted his hands inside X's shirt and unhooked her bra.  He touched her breasts and nipples for 3 to 4 minutes; and during which, he asked her to keep breathing.

7.  The defendant later moved his hands towards X's abdomen and said X's trouser button would affect her breathing.  X told the defendant that she was having her period and he replied that it did not matter.  The defendant unbuttoned X's trousers and pulled her trousers and underpants down to X's buttocks using both hands.  X felt very uncomfortable and placed her hand on her underpants to stop the defendant's hands.  The defendant stopped taking off X's trousers.  He used his right hand to press X's lower abdomen near her pubic hair continuously for 1 to 2 minutes.  X's pubic hair was completely exposed.  At the same time, X's shirt and bra were lifted up by the defendant.  X's breasts and abdomen were not covered by any clothing, so she used both hands to cover her breasts.

8.  At this point, the defendant stopped what he was doing and helped X sit up.  X immediately tidied up her clothes.  The defendant then asked X to play the clarinet.  After practising for 30 to 40 minutes, X left the Studio at 5:45 in the same afternoon.

9.  About 9:24 in the same evening, X received a WhatsApp message from the defendant asking about the schedule for her next lesson.  Since X did not want to have lessons in the Studio alone again, she requested for online lessons.  X has had online lessons with the defendant since.

Charge 4 (Female Y)

10.  In June and July 2023, Y was aged between 17 and 18.  The defendant had been Y's private clarinet teacher since 2016.

11.  Between 20 June and 25 July 2023, Y had clarinet lessons at the Studio alone on 6 occasions.  During one of those lessons, the defendant placed his right palm on Y's left breast near her armpit, with his fingers pointing to her back.  His palm had touched the side of Y's breast.  Y felt his finger moving slightly and pressing the outside of her T-shirt.  The defendant touched Y in the same manner 5 to 6 times during the lesson.  The total time of touching aggregated to about 5 minutes.

12.  In a gathering with X on 28 December 2023, Y told X that the defendant molested her during lesson.

Charge 1 (Female Z)

13.  In mid-2012, Z was 13 years old.  The defendant was Z's private clarinet and saxophone teacher from 2011 to mid-2015.

14.  One day in mid-2012, Z went to the defendant's old studio situated at 1^st Floor, Tak Shun Building, Nos.442-448 Ma Tau Wai Raod, To Kwa Wan for lesson.  During the lesson, the defendant inserted his right palm inside Z's shirt.  He used his right palm to cover Z's left breast including the nipple for at least half an hour.  The defendant did not move his hand or fingers.  He asked Z to continue to play the clarinet/saxophone whilst he counted the beat.

15.  After lesson on 1 January 2015, Z messaged her friend Madam D (PW4)  via WhatsApp telling PW4 that the defendant had put his hand into Z's bra purportedly to check if Z was breathing sufficiently with her lungs.

Arrest

16.  The defendant was arrested on 4 January 2024.  Under caution, he admitted that X, Y and Z were his students.

Mitigation & Sentence

17.  The defendant is 46 and has a clear record.  Defence counsel Mr. Liu informed me that the defendant is married with 3 children (respectively aged 10, 7 and 8 months).  As revealed in his own letter, the defendant started to play woodwind instruments in secondary school.  He received vocational training in Hotel Management and has worked in the catering business.  In 2000, he went to Japan to study conducting and has been involved in music education since returning to Hong Kong.

18.  In mitigation, Mr. Liu submitted that the present offences are not the most serious type of their kind.  Mr. Liu also pointed out that according to the Victim's Impact Assessment Reports on X, Y and Z, the incidents have no significant negative impact on them.  A bundle of mitigation documents was placed before me; their contents are duly noted.

19.  The Victim's Impact Assessment Reports on X, Y and Z (dated 15, 16 and 15 August 2024 respectively)  were placed before me.  The respective clinical psychologists made the following comments:

… [X] was vulnerable to the defendant's exploitation of trust, power and tactics. Although [X] did not manifest clinically significant posttraumatic symptoms, she became cautious about men and her physical distance from them, changed her social preference and hesitated to trust people in general. She also expressed concern on her personal safety and had related nightmares, should the defendant be discharged some day [1].

…

… Present assessment did not reveal significant post-traumatic stress reactions nor mood disturbances in Y, whilst her daily functioning remained largely intact [2].

…

… Results of the present examination did not indicate clinical level of post-traumatic stress reactions, and [Z] was reported to have maintained her daily functioning to a fair degree over the years. However, it should be noted that [Z] continued to experience intrusions and arousals as aftermaths of the abuse, as well as certain degree of self-blame for not being able to safeguard other girls. Her sense of self-worth was shaken partly due to the belief that she was "stained". She expressed her wish for the defendant to admit his wrongdoing and apologize for the abuse…[3]

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

21.  The clinical psychologist's opinion is "…[the defendant] is impressed to be an introverted man who tends to keep his problems to himself and bottle up his negative emotions all along.  Growing up with low self-esteem, he became over-indulged in teaching music which unprecedentedly fulfilled his basic needs of a sense of mastery, self-recognition, and social company.  With his lifestyle revolving around teaching, he resorted to assaulting female students he valued to gratify his emotional and sexual needs when he experienced accumulated, pent-up negative emotions. …[The defendant's] risk of sexual re-offending was assessed to be low… he is recommended to receive psychological treatment that focuses on enhancing his victim empathy, stress coping skills, emotional regulation skills and relapse prevention skills[4].

22.  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 and HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427.

23.  At the time of the offences, X and Y have just reached adulthood; whereas Z was only 13.  In any event, all 4 charges share a common feature ‒ breach of trust (student-teacher type).  Furthermore, the offences took place in a one-on-one private lesson setting in the defendant's teaching studio.  The victims would no doubt feel more helpless and might even have a false impression of lack of evidence, thus rendering them more reluctant to complain.  In my view, these are all aggravating factors.

24.  For Charges 3 and 7, based on X's age, the degree of indecency of the assault and the aggravating factors, I adopt a starting point of 9 months' and 12 months' imprisonment respectively.  With the timely guilty pleas, I sentence the defendant to 6 months' and 8 months' imprisonment respectively for these 2 charges.

25.  For Charge 4, based on Y's age, the degree of indecency of the assault and the aggravating factors, I adopt a starting point of 9 months' imprisonment.  With the timely guilty plea, I sentence the defendant to 6 months' imprisonment for this charge.

26.  For Charge 1, based on Z's age, the degree of indecency of the assault and the aggravating factors, I adopt a starting point of 12 months' imprisonment.  With the timely guilty plea, I sentence the defendant to 8 months' imprisonment for this charge.

27.  Bearing in mind the totality principle, I consider a global starting point of 21 months' imprisonment appropriate for Charges 1, 3, 4 and 7.  With the timely guilty pleas, the overall sentence becomes 14 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  Hence, I order the sentences for the 4 charges to run in the following manner :

(i)  2 months in Charge 3 consecutive to Charge 1;

(ii)  2 months in Charge 4 consecutive to Charges 1 and 3;

(iii)  2 months in Charge 7 consecutive to Charges 1, 3 and 4.

28.  As recommended by the clinical psychologist, I invite the Commissioner of Correctional Services to arrange for the defendant to receive the necessary psychological treatment and involving his wife in the treatment process should circumstances permit.