HKSAR v. CHEUNG KWOK-YIP, PETER

DCCC543/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 543 OF 2009

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to a single offence of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap.200. You admitted the Brief Facts, and I convicted you.

2.  The victim is a girl of only 12 years of age. She was born on 21 November 1996. She is a P6 student. At 3.45 pm on 14 April of this year, she was on her way home from school in uniform. As she walked up to the 2nd floor of the building where he residence was located, you approached her. You put your hands on her shoulders from behind and you threatened to kill her if she made any noise.

3.  You then took her to the rooftop where you embraced her from behind for a while. You then told her to turn around and squat in front of you. You lowered your trousers and your underpants to your knees and asked her to perform oral sex on you. She refused. You said she had two choices: either to do as you asked or allow you to molest her. The girl did not want you to touch her, so she performed oral sex for a time on you.

4.  For the second time, you threatened to kill her if she disclosed what had happened to anyone. You ordered her to meet with you at Cheung Sha Wan MTR Station the next day and asked for her name and number. The young victim showing an excellent presence of mind, wrote down a fictitious name and number. You both then left the rooftop. For the third time, you threatened her. You said you would do something to her if the name and number were wrong.

5.  The victim went home and called her mother. She was very distressed. Officers laid ambush at the station and arrested you at 3.06 pm on 16 April. Under caution, you said this, “I did it. I only asked the girl to do a blow job for me for two minutes.” Later interviewed, under caution, you made admissions which said you threatened to hit her if she refused to perform oral sex. You admitted to five previous convictions, two of which involved indecent assaults, one indecency towards a child, and a further one of a related nature. These are conceded by defence.

6.  Being very concerned, I asked the prosecution to provide me with the facts of those previous matters. They are now before me, and I shall make further reference to them later in these reasons for sentence but, unfortunately, for the first conviction, the facts are not available.

7.  On the day of conviction, I adjourned the case for the preparation of a probation officer’s background report, two psychiatric reports and a psychologist’s report. Also, in view of the special and deeply disturbing facts of this case, I ordered a victim’s impact report to assess the psychological damage to the young girl. That latter speaks for itself. She may never recover from the ordeal you put her through, and at this point, I pause to read to you the final paragraph:

“The girl suffered from the offender’s verbal threat and sexual assault. The insecure feeling was still lasting. The offence has caused some impairment to the girl’s daily functioning and disturbed the family routines. With reference to most sexual abuse cases, long-term impairment on a victim’s self concept, social and heterosexual relationship and value system may also be damaged.”

8.  Those reports make chilling reading. You are, and I suspect you always will be, a dangerous and violent paedophile who would resort to any means in your search for sexual gratification.

9.  Mr Tang entered mitigation on your behalf. With respect to Mr Tang and this is no reflection on his abilities, that mitigation is cosmetic and amounts to nothing save an expression of remorse and a hollow promise not to do this again. That is a promise I do not believe, the psychiatrists do not believe, nor does the psychologist.

10.  Mr Tang has referred me to a number of cases, but with respect again, none of which are of assistance. They are wholly different on their facts, and totally different scenarios are presented. Mr Tang acknowledges that you will go to prison but pleads for leniency and asks for an extra discount for sparing the girl the trauma of the witness-box. That, in my opinion, is the sole mitigating factor in this case that you spared the girl the terrible trauma of the witness-box and the need to recall and recount in public the loathsome and harrowing ordeal you put her through.

11.  I pause here to pay tribute to the victim. She is a very brave and resourceful little girl, of whom her parents should be very proud indeed. At just 12 years of age, she met the very personification of perverted evil and she came through that ordeal though in the long term, what the consequences will be, we do not know. Despite the terrible fear and humiliation, she had the presence of mind to give you a false name and a telephone number, and despite your vicious, cowardly threats, went home and informed her mother. Had she not done so, then you would not have been brought to justice and would have been free to hunt down, humiliate and terrorise another young girl.

12.  The other matter of note and concern is that given the vicious and serious nature of this case, coupled with your long and serious history of attacks on young girls, it is as to why this case came before me and not before the Court of First Instance. This case is far too serious in its context for the District Court. In the final analysis, it will make little difference save as a matter of principle. However, if you had pleaded not guilty and been convicted after trial, justice would have been defeated by the decision to place this in the District Court where the maximum sentence is one of 7 years’ imprisonment.

13.  I turn now to the previous convictions and overall criminal conduct. I fully accept that a person should not be sentenced on the previous convictions per se. The reason for that is that a person who has already been punished and served the sentence should not be punished twice. However, against that is the well-established principle that a persistent and repeat offender can expect an increased sentence to deter him from continuing on that path.

14.  Here, we have the added necessity for a substantial sentence for protection of the public, or to be more precise, the protection of little girls of 11 to 14 with whom you are obsessed. The offence itself is, given the nature of the assault, that being an enforced oral sex, the age of the victim, and by your own admission in your psychological report, that you had stalked for three days prior to the commission of the offence, and the repeated threats to kill, is the most serious example of indecent assault that I can envisage. It evokes all the worst fears of parents of young girls. It is a nightmare scenario which cannot be trivialised in any way.

15.  As to the future, there are no words of comfort or hope to be found in any of the reports. You are a dangerous and persistent paedophile. To quote from the psychological report:

“Psychosexually, he has chronic sexual interest in adolescent girls wearing school uniform. Despite the intent to stay away from prison, he admitted very strong sexual preoccupation during off-task periods and under boredom. He had virtually no confidence to control his sexual impulse as evidenced by the quick relapse in this index offence.”

And of particular significance is the following sentence:

“He acknowledged the escalating offence severity and his high risk of sexual re-offending.”

16.  We add to this the psychiatric report, paragraph 6 where it says this and it has already been quoted in this court:

“Cheung is a paedophile. He is of a psychopathic personality marked by self-centredness, unconcern for the feeling of others, and an incapacity to experience guilt.”

17.  These opinions are conclusively supported by the fact that you were released from prison on 7 February of this year and committed the present offence on 14 April, just over two months later. The sentence you had served was one of 4 and a half years’ imprisonment, imposed my colleague, Deputy District Judge Mackintosh as he was then, taking a starting point of 7 years’ imprisonment which he acknowledged to be high and discounted for the plea of guilty and for sparing the girl the trauma of the witness-box.

18.  I have considered the transcript of my colleague’s reasons for sentence in that case. The facts are startlingly similar except that they are not anywhere near as serious as the present offence. In that case, the girl was slightly older albeit only 13, there were threats but not threats to kill, and the assault was that she was forced to masturbate you rather than perform oral sex. The present offence is infinitely more serious.

19.  Defendant, this crime is so vile, indeed your total conduct is so vile that I cannot articulate my disgust for you. In all the years that I have been a member of the judiciary, I have rarely come across an individual for whom I feel such an absolute sense of revulsion. You are not part of the human race. You are a crazed and dangerous predator. You are evil. You are simply evil.

20.  The maximum sentence for this offence is 10 years’ imprisonment. For the victim of this horrendous crime, for all the girls of 11 to 14 in Hong Kong, and for all their parents, I can do no more than remove you from society for as long as possible. Therefore, in the District Court, I take what I believe to be a wholly unprecedented step though one which is fully justified. I take as a starting point the maximum sentence available to me, that is 10 years’ imprisonment. I am bound to acknowledge your plea of guilty, and indeed it is right that I should do so, and to acknowledge that you have saved the girl the trauma of the witness-box by extending to you a one‑third discount and a further 2 months’ discount for the second factor.

21.  You will therefore go to prison for 6 years and 6 months. I express the view that while, in custody for everyone’s sake, that you are offered appropriate and intense psychiatric and psychological treatment in the hope that something can break this evil obsession.