HKSAR v. CHAN WING PUI

[English Translation ― 英譯本]
HCCC 314/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 314 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above case

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COURT: The defendant CHAN Wing-pui was originally indicted of six counts of offences, namely, four counts of indecent assault on another person (Charges 1, 2, 3 and 5) (i.e. making advances to another person in vernacular terms), contrary to section 122(1) of the Crimes Ordinance, Chapter 200 of the Laws of Hong Kong and two counts of unlawful sexual intercourse with a girl under 13, contrary to section 123 of the same Crimes Ordinance.

The defendant pleaded guilty to three counts of indecent assault on another person (Charges 1, 2 and 5) and one count of unlawful sexual intercourse (Charge 6) and was convicted of Charges 1, 2, 5 and 6 upon his admission to the facts of the case.

In respect of the two charges (Charges 3 and 4) to which the defendant pleaded not guilty, the prosecution applied to leave the charges in thecourt’s file, the court made an order in terms adding that the prosecution shall not continue to pursue those charges against the defendant without leave of the court.

Facts

The facts disclose that the victim in the case was a girl born in April 2001. We shall refer to her as X. X was living in Tuen Mun with her father originally. Thedefendant,who was a friend of X’s father, also lived in Tuen Mun but moved to Tsing Yi in 2009. X’s mother left Hong Kong since 2007 because of her job. The mother only returned to settle in Hong Kong in May 2013. When X was inprimary one, X’s father asked the defendant to take care of X for himbecause he could not take care of X himself. As such, X would stay in the defendant’s home from time to time.

Charge 1

Ona certain day in 2008, when X was together with the defendant in the defendant’s home in Tuen Mun, they played a game called “Superman vs. Monsters”. In the game, X hid herself under a quilt to play monster whereas the defendant playedsuperman. At that time, the defendant extended hishand under the quilt and touched the private parts of X over her pants. The defendantwent on totouch other parts of X’s body before moving on to touchthe private parts of X again. Thisis Charge 1.

Charge 2

On a certain day inthe following year 2009 when X was inprimary two, X was again with the defendant in the defendant’s home in Tuen Mun. Although the elder daughter of the defendant was also in the defendant’s homeat the material time, the defendant was with X alone in the room of his younger daughter. Thedefendant suddenly held X down on the floor with one hand and touched her bosom and private parts over her clothes with the other hand for as long as three minutes. X had tried to push the defendant away but to no avail. These are the particulars of Charge 2.

Charge 5

The defendant was alleged to have touched the head, the back, the thighs, the buttocks and the private parts of X while the defendant was taking a shower with X upon X’s coming back after a swim duringthe summer vacation when X was inprimary four or five.

Charge 6

The incident occurred sometime in May or June, 2013 when X was 12 years old. At the material time, there was no one elsebut the defendant and X at the defendant’s home, now in Tsing Yi. While X was lying on the bed reading a book, the defendant suddenly took off his own pants and then X’s. Although X had tried to stop the defendant from taking off her pants by kicking him, it was to no avail. Thedefendant then penetrated X’s vagina with his penis and had sexual intercourse with X. X had tried to push the defendant away but again to no avail. The sexual intercourse lasted for 20 minutes approximately. At that time, the defendant had used a condom but did not ejaculate.

By 30 December 2013, X’s mother had already returned to Hong Kong. One day, X had an argument with her father and mother at home. It was at that time that X disclosed to her family members that she had been sexually assaulted by the defendant. Complaint was filed with the police the next day but it was not until 2 January 2014 that the defendant was arrested and taken to the police station. Under caution, the defendant said that he deeply regretted having sex with X. In the course of the video recorded interview, the defendant claimed that he did not force X into having sex with him. He further said that he and X had a relationship like grandfather and granddaughter. Although he had given pocket money to X, it had nothing to do with having sex with X. He did not give pocket money to X as an inducement to procure sexual intercourse. He said that he was very fond of X. He also recognized that there had been physical contact between him and X and he admitted to his wrongdoing.

The defendant admitted to having engaged in sexual intercourse with X that constituted the offence in Charge 6. He also admitted that he had thrown X onto the floor and touched her thighs and private parts over her clothes thatconstituted the offence inCharge 2. In addition, he mentioned to the police on his own initiative that he had touched X’s body including her buttocks and private parts when they were taking a shower together after swimming. That constituted the offence inCharge 5. In respect of Charge 1, the defendant admitted in his cautioned statement that he had played “Superman vs Monsters” with X and that he had touched X’s private parts and also X’s bosom inadvertently. However, the defendant clarified in the course of my inquiry that the touch was not inadvertent. Apart from touching X’s private parts, he had also touched other parts of X’s body.

The Defendant’s Background

The defendant was born in January 1952. He is 63 years of age. He has three previous criminal conviction records, two of which are for aiding and abetting the breach of condition of stay and the third failing to keep the employment records of employees. He was sentenced to a fine of $200 for all charges on 14 April 1989. He has two daughters with his ex-wife. The elder daughter is mentally disabled and lives in a home. The younger daughter is married and lives in Japan with her husband and baby girl. As for the defendant himself, he had been a road construction worker, a dim sum worker and a barbecue meat worker. He had also been the proprietor of a barbecue meat shop. It was during that time that hehad committed the aforementioned three offences by employing a person without an identity card to work for him.

However, the defendant can no longer work because of problems with the cartilage tissues in hishands and degenerative joints in his limbs. He is currently receiving Comprehensive Social Security Assistance in the sum of $8,000 a month.

The psychological reports

Before sentencing, I have adjourned the case to obtain the psychological reports of both the defendant and X. I shall first deal with the psychological report of the defendant. According to Mr. Pao, a clinical psychologist of the Correctional Services Department, after he had interviewed the defendant, the defendant left him with the impression that he was a selfish and irresponsible person who regarded women as mere objects for him to satisfy his sexual gratification. The defendantfirst sexually assaulted the girl under the pretext of playing games before taking a further step to engage in sexual intercourse with her. The defendant even put the blame on the girl by alleging that the girl found a condom and asked about its use. He therefore showed the girl how to use the condom by having sexual intercourse with her. However,Mr. Pao was of the opinion that the defendant was not a paedophile and the risk of his re-offending is low.

As I consider that the circumstances under which the defendant engaged in sexual intercourse with a girl under 13 as related to Mr. Pao are inconsistent with those particularized in Charge 6 to which he has admitted, I therefore sought clarification from the defendant. After taking instructions from his client, Mr. Tse, counsel for the defendant, indicated that the defendant admitted the summary of facts as read out by the court earlier on. The defendant explains that his senility might have caused himto have failed to say what he meant to convey and Mr. Pao might have misunderstood him as a consequence.

I shall now come to the psychological impact report of the girl. I do not intend to read out in detail the contents of the report which was prepared by Miss Choi, a clinical psychologist. Simply put, it was reported that X was physically abused severely by her father when she was little and had fallen prey to prolonged sexual abuse later on. Although her mother had returned to Hong Kong and had originally promised to stay, she left eventually and the departure was for good. The father does not trust X even until now. All of these have caused serious generalized emotional and psychological problems that are haunting X. X could only react bynumbing herself in her own ways. She also has lost confidence in adults completely. She needs to receive psychological counseling for a long period of time.

Mitigation Advanced

Mr. Tse, counsel for the defendant, frankly said that the offences committed by the defendant were grave. However, the defendant pleaded with the court to take into consideration that he did not commit these offences consciously and that he had made a frank admission to the police after he had been arrested. In addition, the fact that he pleaded guilty in court had obviated the need for X to go through the trauma of testifying in court and being subject to cross-examination. He asked the court to be as lenient as possible.

Onbehalf of the defendant, Mr. Tse also asked the court to consider that the psychological disturbances experienced by X were not solely caused by the defendant’s sexual abuse against her but were also attributable to her own complicated family background and her father’s physical abuseof her. He therefore pleaded with the court to also take this into account in sentencing.

Sentence

It is a very grave offence to engage in unlawful sexual intercourse with a girl under the age of 13. A person convicted on indictment of such offence is liable to imprisonment for life. Similarly, a person convicted on indictment for the offence of indecent assault shall be liable to imprisonment for 10 years. There are no sentencing guidelines for the commission of sexual offences against children as indicated in cases such as HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354 and HKSAR v Lee Hon Wah and another [2011] 4 HKLRD 307. It was said that fixing a tariff for these offences would be impracticable due to the varied circumstances in which these offences can arise.

Since it is a particularly grave offence to engage in sexual intercourse with a girl under the age of 13, in Secretary for Justice v Chung Yui Hung [2007] 2 HKLRD 771, despite the defendant’s previously clear record, the Court considered that the sentence imposed upon the defendant needed to contain a deterrent element.

In the abovementioned case of Lee Hon Wah, the Court of Appeal haslaid down factors which the sentencingcourt needs to take into consideration when dealing with offences of indecent conduct with or towards a child under the age of 16 years and committing buggery with a man under 21. These sentencing factors were also applied by the court in the case of HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239. Although the present case concerns the offences of engaging in unlawful sexual intercourse with a girl under 13 years of age and indecent assault rather than the offences of committing buggery with a man under 21 and indecent conduct with or towards a child under the age of 16 years, I am of the view that it is also appropriate to take the ten sentencing factors into consideration in this case.

The ten factors are: 1. the age difference between the defendant and the victim; 2. 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 at the time of the offence; 3. whether the defendant had used threats or inducements to make the victim succumb, falling prey to his licentious exploitation? 4. the number of occasions of committing the offences and the duration of the offences; 5. whether inappropriateand unnecessary violence was involved in committing the offences and whether any harm or discomfort was caused to the victim; 6. whether any suitable safety measures were taken in committing the offences and whether any hazard to the health and safety of the victim and the public was caused; 7. whether the offences have caused physical or psychological trauma to the victim;8. whether the offences have impact on the family members of the victim; 9. was the defendant involved in other inappropriate behaviors such as inviting or permitting other people to watch or take photos or videos? 10. whether the defendant is psychologically imbalanced or pedophilic and the likelihood of re-offending.

In order to arrive at the appropriate sentence, apart from taking into consideration the above ten factors along with mitigating factors in favor of the defendant, I am of the view that the court also has to take into considerationin the weighing process that it is more serious to engage in unlawful sexual intercourse with a girl under the age of 13 than a girl under the age of 16 so as to give effect to legislative intent in this regard.

Now I shall apply the above ten sentencing principles or factors to the present case.

First, the case occurred between 2008 and 2013. X was born in 2001. In other words, X had been sexually assaulted by the defendant since she was 7, 8 through 12. In the year when she was 12, the defendant had sexual intercourse with her. The defendant was born in 1952. In other words, he had been sexually assaulting X since he was 56, 57 through 61. At the time when the offence of engaging in unlawful sexual intercourse was committed, he was 61. That is to say, the age difference between the defendant and X is 49 years, almost 50 years. This is the first factor.

Second, X’s father entrusted the defendant to take care of X. He was in a position equivalent to the guardian of X. It was in this position that the defendant helped X’s father to take care of his little girl. However, the defendant was in serious breach of trust by taking advantage of having the opportunity to be alone with X to assault X sexually.

Third, the third factor, although there was no explicit evidence in the present case to show that X was subjected to coercion or inducement,the defendant was taking care of X in place of her father in the material time. Having regard to such a relationship between X and the defendant, I consider that X, to a certain extent, did not really have the ability to put up resistance.

Fourth, when the defendant started to assault X, that is the indecent assault on X to be exact, it was in the year 2008. On the last occasion when the defendant sexually assaulted her, he had sexual intercourse withher and it was in the year 2013. There were altogether four occasions of sexual assaultand spanned as long as 6 years.

Now, the fifth, it appears that the defendant had not used inappropriate or unnecessary violence against X nor caused bodily harm to X.

Sixth, in the commission of this offence of unlawful sexual intercourse, the defendant did use a condom and thereby had taken safety precaution.

Seventh, as it has been quoted earlier, in the psychological impact report of X prepared by the clinical psychologist Miss Choi, it was statedthat this incident had caused serious emotional andpsychological harm to X.

Eighth, I do not have the benefit of reading the statements of X’s family members, I therefore cannot tellthe magnitude of the impact caused by this incident on them. However, it can be envisaged that such incident must have had an impact on X’s family members to a certain extent in particular X’s father who had entrusted the defendant to take care of X.

Ninth, there is no inappropriate behavior involved such as taking photos.

The tenth factor concerns the defendant himself. According to the psychologist, there was no indication pointing to him being a pedophile and the possibility of his re-offending was also low.

X was in a very important stage of child development. Instead of providing a safe home for X, the defendant took the opportunity when he was alone with X to sexually assault her repeatedly for an extended period of 6 years. Beastly acts as such cause abhorrence to the members of the public and warrant a deterrent punishment.

I do not consider that the defendant’s affection towards X is a mitigating circumstance. But if there is evidence to show to the contrary that the defendant has assaulted X physically to make her succumb, it would be an aggravating circumstance for enhancement of sentence. Certainly, there is no such aggravating circumstance in the present case but I do not accept the submission that the defendant’s affection for X is a mitigating circumstance.

The defendant was actually taking advantage of the fact that children as young as X like to play games. It was exactly under this pretext that he sexually assaulted X for the first time. What he did was extremely vile. After getting an inch, he took a mile to sexually assault X on two more occasions and eventually had sexual intercourse with X. When the defendant was interviewed by Mr. Pao, the clinical psychologist, he even put the blame on X. I do not accept the defendant’s explanation that he had not said what he meant to convey. The psychologist had reported what the defendant had said in great clarity. It appears to me that the defendant was trying to rationalize his acts andwas not genuinely willing to accept responsibility for his vile acts despite he pleaded guilty.

On the other hand, although the defendant had three previous criminal conviction records, all of them were not similar in nature to the present case. In addition to the considerable long lapse of time, I shall treat the defendant as clear.

Having taken into account the facts and the various factors aforementioned, I consider the appropriate sentence for a non-guilty plea, that isthe sentence upon conviction after trial as follows:

In respect of Charge 1, X was only 7 when the defendant, as it has been mentioned earlier on, sexually assaulted her by way of playing games. The defendanttouched different parts of her body including her private parts on two occasions that constituted an aggravating feature. Therefore, the sentence is one of 18 months’ imprisonments.

In respect of Charge 2, X was 8 when the defendant sexually assaulted her again and the assault was already extremely grave. When the defendant sexually assaulted her the second time, he held her down and touched her bosom and private parts. Therefore, there also exists an aggravating feature and the sentence is also one of 18 months’ imprisonments.

In respect of Charge 5, I have taken into consideration that this charge was laid upon the defendant’s own admission since X did not mention the defendant had sexually assaulted her in the shower. However, I also have to take into account that that was already the third occasion where the defendant had sexually assaulted X. Even worse, X was not wearing any clothes; she was fully naked when the defendant molested her on this occasion. I therefore consider that the appropriate sentence is also 18 months’ imprisonment.

In respect of Charge 6, it has been mentioned earlier that it is a particularly grave offence to engage in sexual intercourse with a girl under 13. In addition, the defendant was also in breach of trust in the present case. Having also taken into account all the various factors discussed above, the sentence is one of 5½ years’ imprisonment.

As I have said earlier, it appears to me that the defendant is attempting to rationalize his acts and is not genuinely willing toaccept responsibility for the vile acts he has committed. However, he has saved the court’s time by frankly admitting his guilt. He is therefore entitled to the usual one-third discount. In addition, the present case concerns a girl of considerably young age. The defendant’s admission has obviated the need for X to testify in court. Therefore, I further reduce the sentence by two months.

First of all, I shall announce the sentences after a one-third discount. After a one-third discount, Charge 1 would be 12 months; Charge 2: 12 months; Charge 3 (sic) : 12 months; Charge 6 would be 3 years and 8 months, the total sentence is 44 months’ imprisonment.

I now proceed to the overall sentence. I consider the overall appropriate sentence after trial to be 6½ years. Computing on the basis of 6½ years, the sentence is 4 years and 4 months after a one-third discount, that is 52 months. I have given an extra 2 months reduction for X being spared from testifying in court. Therefore, the overall sentence after all the reductions is 4 years and 2 months. In order to arrive at a sentence of 4 years and 2 months, the sentencing is as follows:

In respect of Charge 1: 12 months; Charge 2: 12 months; Charge 3 (sic) : 12 months; Charge 4 (sic) is 3 years and 8 months, 6 months out of the 12 months in respect of Charge 1 is to run consecutively to the 3 years and 8 months in respect of Charge 6 whereas the sentences of Charge 2 and Charge 5 shall run concurrently with the sentences for all charges making a total of 4 years and 2 months, that is 50 months in total.

[Translated by the Judgment Translation Unit of the Judiciary, and vetted by Mr P. Y. Lo, Barrister-at-law.]