HKSAR v. C L T

DCCC 623/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 623 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three offences of indecent assault on another person. They are Charges 1, 4 and 5 on the indictment.

2.  The victim is now aged 27 years old.  The offences occurred in 1994, 1998 or 9, and 2001 when the victim was respectively 8 years old, 12 or 13 years old, and 15 years old.  The defendant indecently assaulted her by rubbing her private parts in Charges 1 and 4 and by caressing her breasts in the allegation in Charge 5.  Although the victim revealed these matters to the school authorities in 2001 and subsequently received counselling between 2001 and 2004, she declined to report the case because the defendant, who was her father, was the sole breadwinner of the family and her mother suffered from mental problems and was very hot-tempered. She did, however, leave home.  She has not had contact with the defendant, her father, since reaching the age of 18.

3.  In 2012, unfortunately, the victim’s mother committed suicide.  The victim decided to report the case in April of 2014. The earlier allegations verge on what could now be described as historic.  On arrest, the defendant admitted the offences and said that he had committed them on impulse. 

4.  The defendant is now aged 63 years old.  He is a person of hitherto clear record.  The defendant has admitted all the facts of the case and pleaded guilty at an early opportunity, thereby saving his daughter the trauma of coming to court today. 

5.  Insofar as the defendant presents mitigation to the court, it is said that he had committed the offences under what is described by counsel as trying circumstances.  The defendant has made clear, however, that he does not say this excuses his behaviour.  The defendant says in mitigation that by the time of the first offence, his marriage was in its tenth year.  His now deceased wife was afflicted by mental and physical illness.  She was prone to fits of anger and hallucinations, he says making life unbearable to him and his daughters.  Part of his case says that his wife’s condition precluded any physical relationship between them. 

6.  It is said he succumbed to impulse for the first offence in 1994 but despite that remained a loving and responsible father.  It was five years later when the next episode occurred, and he again blames the pressures of his wife’s condition and the burdens of his job which he says caused him to succumb again some two years later in 2001.  Since 2001, he has been estranged from the elder daughter.  He concedes that his elder daughter may have been scarred for life by these tragic events.  He is remorseful and expresses his remorse in a letter that he has written to the court. 

7.  It is pointed out that the victim herself has a younger sister.  No allegation has been made in respect of her, and in fact she has written to the court on behalf of her father.  After the events, the younger sister had moved away but she has subsequently moved back.  It is said the younger daughter remains supportive of her father whilst admitting he has behaved wrongly, being aware of the damage to her sister.

8.  In respect of this matter, I did obtain reports on the defendant, both a background report and also a psychologist’s report. The background report involved interviewing the defendant and also talking to the other daughter.  The defendant is aged 63.  He has remarried.  He said to the interviewing officer that he admitted that he committed the offences out of impulsiveness and weakness in self-control.  He regretted his acts and apologised for causing pain and distress to her.  Since arrest, he has made further self-reflection. 

9.  The younger daughter was contacted for inquiry. She was described as being shocked and could hardly believe her father had committed such offences.  She said that her mother had had depression and hot temper.  The father was under tremendous stress in taking care of the family. She viewed her father as a responsible person and a caring father.  He had always maintained a stable working pattern and made regular financial contribution to support the family.  He was a man who lived simply and had no unwholesome habits.  In view of her father’s old age, this daughter sought leniency from the court and she wished that her father could return for family reunion.

10.  As far as the psychological report, that was largely obtained in order to determine whether there was any risk of re‑offending by the defendant.  That report assessed the defendant to be normal in his normal cognitive function.  It was disclosed that the first wife had been suffering from a psychotic disorder, for which she had refused treatment, leaving the defendant to feel helpless, being unable to handle that condition by himself.  They had become detached from each other, and the defendant was lonely and had issues of anger towards his wife.

11.  It is reported in the clinical impression that the defendant has treated his daughter as a sex object, but there was no indication to suggest that the defendant had any deviant sexual interest such as paedophilia. 

12.  The conclusion and recommendation appear to show that the current offences were committed to gratify his sexual need and ventilate his disappointment with the marriage, and there was no deviant sexual interest by the defendant.  It is said in consideration of his age, his criminal record and the nature of the present offence, the victim’s characteristics and the current living arrangements, the risk of re-offending and the need for psychological treatment of the defendant are assessed to be low.  It would appear from this that the defendant poses a minimal risk to the public at large now.

13.  In the present case, the defendant has abused his elder daughter intermittently over a period of 12 years.  This must have caused her severe mental stress, shock and insecurity and has led to this family being broken apart.  The fact that the defendant is her natural father aggravates the situation and, naturally, must be reflected in the sentencing.

14.  Clearly, the first two offences represented by Charges 1 and 4 are the more serious due to the more invasive nature of the assault and the younger age of the victim at the times of those assaults. 

15.  As far as the sentencing principles are concerned, in the Secretary for Justice v Huang Long Wei which is [2009] 3 HKLRD, at page 130 Cheung JA had this to say:

“The sentencing principles laid down by the court for the offence of indecent assault on young children by adults have highlighted the following three crucial considerations: to deter others from committing similar offences; to show the abhorrence of members of the public to offences of this nature; to redress the grievance suffered by the victim and her friends and relatives. Given the diverse circumstances pertaining to this kind of offence, in particular the diversity of the acts of indecent assault, the Court of Appeal has not seen fit to lay down any tariff for this kind of offence. That said, the courts must sentence on the basis of the said sentencing principles. In addition, the courts have to consider three other important factors: firstly, even if no psychological assessment report on the abused victim is available, the court cannot overlook the possibility of the victim suffering psychological damage as a result of sexual abuse. It is difficult to detect these types of offences because child victims of sexual abuse would normally be at a loss and feel too embarrassed to complain to their parents or teachers about the molestation. In dealing with this type of offence, the courts will regard the protection of children as the most important consideration.”

16.  In the present case, the defendant has committed a breach of trust of the most serious kind.  He is the father of the victim. Instead of protecting the victim, he abused her.  The defendant cannot excuse his behaviour by his wife’s condition.  Sexual abuse of one’s own children is intolerable in any civilised society.  Sexual abuse of children especially by someone who is entrusted as a guardian is a criminal act that the court is obligated to deter, and the sentence to some extent should show the abhorrence of members of the public for that particular offence.

17.  In the case of HKSAR v Kong Yun Chiu [2007] 4 HKC 391, the applicant pleaded guilty to two counts of indecent assault.  He was the maternal uncle of the victim who was 8 years old at the time of the first offence, which mirrors the age of the victim in this case at the age of the first offence. 

18.  The Court of Appeal in that case, after hearing the argument, adopted a starting point of 5 years’ imprisonment on the counts.  In considering the appropriate sentence, however, the Court of Appeal made the following comments after setting out the aggravating features of indecent assaults on children.  It said:

“Whilst the range of offences within the category of indecent assault is wide, the fact that the victim in such an offence is a child is always a severely aggravating factor. Viewed in the light of these factors, offences of this kind call for substantial terms of imprisonment. There will be a range of offences against children the facts of which are more serious than the present, for example, where there has been violence or previous convictions of the same type of offence. Yet the absence of such factors in a particular case should not be permitted to derogate from the inherent seriousness of any indecent assault on a child.”

19.  Because the defendant has assaulted one of his daughters, clearly, it makes this case fall within one of the examples as a more serious offence of its kind.  Of course, one cannot ignore the mitigating factors that have been put forward: the defendant’s clear record, the intermittent nature of the offences, the defendant’s continued support of the family, the difficult home circumstances he faced, the continuing support of his younger daughter and the nature of the offences which can be described as not the most serious of the kind that the court can see.

20.  Clearly, the first two offences in Charges 1 and 4 are more serious, the victim being aged 8 and 12 or 13 at the time.  For those offences, I have decided to adopt a starting point of 48 months’ imprisonment.  Those will be reduced to 32 months’ imprisonment.  Having regard to the defendant’s plea of guilty, he is entitled to one-third discount. 

21.  On the third, final offence in Charge 5, I take a starting point of 36 months’ imprisonment.  I reduce that to 28 months’ imprisonment for his plea of guilty.

22.  The offences were committed at different times over a number of years, placing the victim under the stress of this for a considerable part of her childhood.  For that reason, some part of the sentence on these offences should be served consecutively.  I have decided to deal with it as follows.  The first and fourth offences will be served concurrently to one another.  16 months of the fifth offence will be served consecutively, the first and fourth offences from the balance concurrently.  This will lead to a sentence of 48 months’ imprisonment or 4 years’ imprisonment.  

23.  Yes, it would appear I can no longer divide by 3 properly, so it should be on the 5th charge, the starting point is 36.  A reduction of one-third is obviously down to 24 months’ imprisonment. Nothing else is altered but I think I need to say that, and I apologise for my poor mathematics.  The sentence is still 48 months’ imprisonment after calculation.

(T Casewell) District Judge