HKSAR v. S.W.C.

DCCC 912/2019

[2020] HKDC 385

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 912 OF 2019

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REASONS FOR SENTENCE

The defendant pleaded guilty to 3 charges of "Indecent assault". The victim, X, is the defendant's daughter. She was about 11, 9 and 5 years old at the time of the respective offences.

Summary of Facts

Background

2.  The defendant and his wife got married in 1999.  They have 2 sons and 2 daughters.  Their eldest son is now aged 18 and suffers from intellectual disability.  X is their 2^nd child; she was born in July 2007.  X has a younger brother (aged 7 now) and a younger sister (aged 1 now).

3.  At the time of the offences, the defendant and his family resided in a 2-bedroom flat in Wong Tai Sin ("the Flat"), which also has a living room, a storeroom, a kitchen and a bathroom.

4.  After X's younger brother was born in 2012, the defendant and X started to sleep on the lower deck of a bunk bed in the bedroom next to the storeroom (X's Bedroom).  The eldest son slept on the upper deck of the same bunk bed in X's Bedroom.  The defendant's wife and the 2 younger children slept in the other bedroom.

5.  Since 2013, X started to attend an after-school care centre in Wong Tai Sin and became acquainted with a female social worker (PW2).

6.  In June 2019, PW2 started to discuss sexuality issues with X.  X disclosed to PW2 that she was sharing the same bed with the defendant, but did not mention any sexual assault against her.  PW2 later suggested to both the defendant and his wife that X should sleep in a separate room.

7.  On 18 July 2019, PW2 met with the defendant and asked him if he was still sharing the same bed with X. The defendant said he needed more time to deal with the matter.  PW2 later asked X the same question and X told PW2 that she was still sharing the same bed with the defendant.  X further disclosed to PW2 that the defendant had sexually assaulted her repeatedly since kindergarten.  The matter was reported to the Police.

8.  In her video recorded interviews conducted on 19 July and 22 November 2019, X disclosed the following incidents :-

Charge 1

8.1 During late night on or about 1 July 2019, X and the defendant were sleeping on the lower deck of the bunk bed in X's Bedroom. Suddenly, the defendant inserted his hand into X's shorts and touched her private parts (over her underpants). The defendant's act lasted for 2 to 3 minutes. X felt angry and told the defendant to stop and leave the bedroom. The defendant got out of bed and lay on the desk in X's Bedroom.

8.2 After the incident, X told her mother that she did not want to share the same bed with the defendant any more (but did not mention the sexual assault). X's mother relayed the request to the defendant.

Charge 2

8.3 In the afternoon on an unknown day (during a weekend) between 1 January 2015 and 31 December 2017, only X and the defendant were in the Flat.

8.4 X was lying on the lower deck of the bunk bed in her bedroom watching her mobile phone. The defendant, who had just taken a bath, was in his shorts only. He entered X's Bedroom and climbed onto the bed. He pulled X's legs apart, climbed onto her body and used his private parts to rub her private parts (over her shorts). The defendant's acts lasted for 4 to 5 minutes. He stopped when the eldest son came home.

Charge 3

8.5 In the evening on an unknown day (before dinner time) between 1 January 2012 and 31 December 2013, X, the defendant and other family members were in the Flat whilst X's mother was preparing dinner.

8.6 X was sitting on the lower deck of the bunk bed in her bedroom. The defendant entered X's Bedroom and closed its door. He made X lying on the bed and took off her shorts and underpants. He pulled X's legs apart and licked her private parts continuously for about 5 minutes. The defendant stopped his acts when dinner was ready. X put her underpants and shorts back on by herself.

Arrest and Admissions

9.  The defendant was arrested on 19 July 2019.  Under caution, he denied having committed any of the offences.

10.  In his video recorded interview conducted on the same day, the defendant claimed that X and his eldest son slept in X's Bedroom; whereas he slept alone in the living room, which had a bed.  The defendant said he had only shared the same bed with X in X's Bedroom once when X was in Primary 3.  He did not sexually assault her on that occasion.  He also denied having sexually assaulted X on any occasion.

Mitigation & Sentence

11.  The defendant is 42 and has a clear record.  Defence counsel Mr. Chan informed me that the defendant was born in Hong Kong and is educated up to Form 3 level.  Prior to his arrest, he was a casual cleaner earning about $4,500 per month.  His wife stays home full time and the whole family receives social welfare in the sum of $14,000 per month.

12.  In mitigation, Mr. Chan submitted that when the defendant's wife was pregnant with their 3^rd child, they refrained from sharing the same bed.  After the 3^rd child was born, the wife was mainly responsible for caring of the baby, whilst the defendant looked after their eldest son and X.  Such division of labour resulted in the rooming and sleeping arrangements in the Flat.  Mr. Chan stressed that the defendant loves X very much and X was close to the defendant.  The defendant suspected that the sleeping arrangements attributed to his deviant behaviour towards X.

13.  A Victim's Impact Assessment Report (dated 20 May 2020) was placed before me.  The clinical psychologist made these comments:

"5. X denied experiencing salient distress after disclosing the abuse incidents. … X told me the only thing she found undesirable after her revelation was that she needed to move to hostel. She stated she did not want to move to out-of-home care if she had a choice. However, if she needed to see her father or live with him again in future, she would rather stay in out-of-home care. While X frequently quoted the term 'disgust' （嘔心）when she talked about her father during the interview, she told me she did not know if she should be angry at him because 'he was my father' （佢係爸爸）. X told me she merely did not want to see him again and rarely thought about what he did to her.

…

7. … it was impressed that X harboured conflicting feelings towards her father. On one hand, she described him as disgusting and stated she did not want to meet with, let alone live with him again. However, on the other hand, it appeared that she was bounded by his role as a father and was uncertain if she should be angry at him for his abuses. … From a psychological point of view, the alternate between abusive behaviours and occasional acts of nurturing behaviours could leave victims of abuse in a conflicting state of rejecting the perpetrator's acts and yet paradoxically feeling attached to the perpetrator. Fortunately, X exhibited no salient disturbances counting towards an emotional disorder or trauma-related disorder at present. Further follow up for X in our unit would focus on fostering her assimilation of the ambivalent and conflicting feelings towards her father."

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

15.  The clinical psychologist's opinion is "Present assessment shows his risk of sexual re-offending falls in the lower end of the moderate range.  Contributing to this risk level are his minimal social support beyond his immediate family, emotional identification with children, and tendency in minimizing his problems, which casts doubt on his insight into his wrongdoings and readiness of change.  While psychological service with a view to address and handle his sexual offending behaviour is recommended, his prognosis rests upon his willingness to open up himself and sustained motivation for treatment.  At the current risk level, preventing him from being alone with his daughters is a strategy to be considered for managing his risk of re-offending."

16.  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. 

17.  I am most concerned with what the clinical psychologist described as the defendant having "deficits in understanding social relationship with minimal ability to maintain healthy adult relationships outside of his marriage[1]". X is only 12 years old and the defendant has another daughter who is just a toddler.  They both need a father, yet the defendant may pose a danger to them.  I sincerely hope the Social Welfare Department or some welfare NGOs can offer immediate and long-term assistance to this family.

18.  Taking into consideration of the defendant's acts, their degree of indecency, the impact of his indecent attacks on X as well as his background, I adopt a starting point of 18 months' imprisonment for each charge.  I am not prepared to grant him a discount more than the usual one-third[2]. An element of deterrence is required in view of his lack of insights and evasive attitude towards his problems[3]. With the timely guilty plea, the sentence for each charge is reduced to 12 months.

19.  The 3 offences spanned over period of 6 years.  Bearing in mind the totality principle, I consider a global starting point of 36 months' imprisonment to be appropriate.  With the timely guilty pleas, the overall sentence is reduced to 24 months.  Hence, I order:  6 months in Charge 2 to run consecutive to Charge 1; and 6 months in Charge 3 to run consecutive to Charges 1 and 2.  Thus, arriving at a total prison term of 24 months.

20.  As recommended by the clinical psychologist, I invite the Commissioner of Correctional Services to arrange for the defendant to receive the necessary psychological treatment.