HKSAR v. GUAN WA KIT

DCCC 118/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 118 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant is charged with a total of 8 charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200. The defendant now pleads guilty to Charges 3, 4, 7 and 8. The other charges, namely, Charges 1, 2, 5 and 6 are left in the court files.

Summary of facts

2.  There are two victims in this case.  X, a girl born on 29 May 2009, is the victim of Charge 3 and 4.  Y, a boy born on 27 February 2008, is the victim of Charges 7 and 8.  At the material times, X lived with her grandparents in a public housing unit in Sau Mau Ping, Kowloon, Hong Kong.  Grandparents of Y lived in the flat next to X and Y frequently visited his grandparents at the material times.  The defendant lived with his parents in a flat on the same floor of X and Y’s grandparents.

3.  In some Saturday afternoons in 2016, the defendant invited X to go to his flat (“the Flat”).  The Flat was always empty when X went there.  The defendant made X watch pornography on his computer in his bedroom while he masturbated.  X felt uncomfortable but dared not refuse.  The defendant also grabbed the hand of X and made her masturbate him.  Further, the defendant touched the breasts and private parts of X.

4.  Between October and December 2016, the defendant invited Y to the Flat to help Y with his homework.  When Y was playing video game, the defendant took off Y’s trousers and licked the penis of Y.  The defendant made Y watch pornography and kissed Y’s neck and mouth.  The defendant also asked Y to lick his penis and masturbate him. 

5.  On 9 December 2016, a teacher of X noticed X’s behaviour was unusual and referred her to the social worker of the school.  X told the social worker about being molested by the defendant.  A report was then made to the police.

6.  The defendant was subsequently arrested.  Under caution, he confessed that he had sexually assaulted X and Y.

7.  In a cautioned video-recorded interview, the defendant made the following confessions:-

(a) On an unknown day between 1 march 2016 and 30 April 2016, he brought X to the Flat. He put his hand into X’s upper garment and touched her breasts. He also put his hand into her underwear and touched her private parts. He then made X grab his penis to masturbate him. After a while X said no and he let go of her hand. He then masturbated himself until he ejaculated and sent X home. He told X not to tell anyone (Charge 3);

(b) On an unknown day between 1 September 2016 and 31 October 2016, X and Y were playing in the corridor outside the Flat and he invited them to come into the Flat. He made them watch pornography and touched X’s breasts. He then masturbated in front of them. He asked X to remove her pants but X refused (Charge 4);

(c) On an unknown day in November 2016, he brought Y to the Flat. In the Flat, he licked the penis of Y even though Y refused. Y also licked his penis for a few seconds but Y said it was disgusting and walked away (Charge 7);

(d) On an unknown day in early December 2016, he brought Y to the Flat and licked the penis of Y. Y also licked his penis for a few seconds (Charge 8).

8.  X was assessed by a clinical psychologist on 23 March, 11 April and 10 May 2017.  Although X did not manifest significant post-traumatic stress symptoms, she was emotionally distressed from being indecently assaulted by the defendant.  Feeling of fear, anger and disgust was prevalent.  Also, it was found that X had sexual preoccupation and sexualized behaviour such as taking off the pants of her younger sister and imitating adults’ sexual behaviour. Psychological treatment is recommended to monitor the long term impact of the incident on X.

9.  Y was assessed by a clinical psychologist on 25 April 2016.  It was found that Y felt ashamed for having been indecently assaulted and had faced a period of anxiety that his classmates and others might have learnt about it.  Y was reluctant to talk about the incident.  Apart from emotional disturbance, Y was found to have modeled the defendant’s act and he requested his 4-year-old cousin to take off her underwear for him.  Continued counseling from school counseling officer was recommended to help Y to cope with his negative emotions.

Mitigation

10.  The defendant is 17 years old now and the offences were committed when he was only 16.  He is a Form 5 student.  He has a clear record.  He lives with his parents and is the only son of the family.  His father is a construction worker while his mother is a housewife. 

11.  Defence submitted that the defendant is very remorseful for what he did.  He pleaded guilty to the charges and is willing to take the responsibility. He feels extreme sorry for hurting the victims and their families.  He also feels very sorry to his own family.  He knows he had done something terribly wrong and hurt everybody around him.  Defence also submitted that the defendant’s parents feel very sorry for not paying sufficient attention to the behaviour and development of the defendant.

12.  Defence submitted two letters written by mother of X and father of Y. They both expressed shock and anger towards the acts of the defendant.  However, they both indicated that they have forgiven the defendant to a certain extent and they both ask the court to sentence the defendant leniently.

Sentencing consideration

13.  Indecent assault or sexual abuse on children is a horrific crime. Although no actual physical injury may be done, psychological damage to a victim can last a lifetime.  Therefore, court always treats this kind of offence most seriously and severe sentence is always called for, to deter others and to redress the grievance suffered by the victims and their families.

14.  There are clear aggravating features in this case.  Firstly, it was not an isolated incident.  There are two victims and each of them was abused for more than one time.  Secondly, both victims are extremely young.  They were 6 and 7 years old at the time of the offences.  Thirdly, it was a breach of trust case.  Apparently, the victims complied with the requests of the defendant because they saw him as a big brother.

15.  Before I sentence the defendant, because of the defendant’s young age and the circumstances of the case, I have called for a series of reports including psychiatric report, psychologist report and a training centre suitability report.

16.  According to the psychiatric report, the defendant does not suffer from any mental illness and he fully understands the offences he committed.  On the other hand, according to the psychologist report, the clinical psychologist is of the opinion that the defendant’s risk of re-offending is assessed to be moderate.  Lastly, the officer of Correctional Services Department is of the opinion that the defendant is mentally and physically fit for detention in the training centre.

17.  There is no doubt that the defendant did something very wrong and I am sure he is very remorseful now.  The overriding duty of the court in dealing with this kind of cases is to protect the children.  The sentence must be sufficient to deter others to commit similar offences.  Considered all the circumstances, including the aggravating features of the case, if the defendant were an adult, the starting point for each charge should be no less than 2 years’ imprisonment and the global starting point should be about 3 to 3.5 years.  If the defendant pleads guilty, the total sentence should be around 2 years to 2.5 years.

18.  The defendant committed the offences when he was 16 and he is only 17 now.  In sentencing young person like the defendant, the court has to balance the interests of the community and the rehabilitation of the defendant. Training centre is recommended as a suitable sentence.  Considered all the circumstances, in particular the defendant’s young age, his remorse and the support from his family, I agree that a substantial period of disciplinary training together with statutory supervision, will be beneficial to the rehabilitation of the defendant.  The court sincerely hopes that when the defendant is released from the training centre, he will become a better person who really deserves to be forgiven by the victims and their families.

19.  To conclude, for Charges 3, 4, 7 and 8, I sentence the defendant to the training centre and the sentence is served concurrently.