HKSAR v. CHEUNG LUNG FAI

DCCC 596/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 596 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant (male) (aged 26 years) appeared before me on 12 September 2014 and pleaded guilty to two counts of indecent assault on another person (Charge 1 and Charge 2).

2.  The two indecent assault cases were committed in the same day on 12 April 2014 against the same 8 years old girl X at the staircase of two shopping malls, namely, Hollywood Plaza and Ginza Plus, both situated in Mongkok, Kowloon.

Facts

3.  According to the Summary of Facts which was agreed by the defendant, the case was reported by the mother of X on 20 April 2014 who felt very suspicious when her daughter X suddenly touched her breast and said she would treat her with soft drinks.  A few days ago, on 12 April 2014, X went to Mongkok with her father, brother and grandmother for street performance.  Upon probing from the mother, X then disclosed that the defendant, nicknamed “Little Monkey”, also a street performer on the same street and whom she had met twice before, had molested her on two occasions on 12 April 2014.  Upon investigation and after confession by the defendant, it was revealed that in Charge 1, the defendant brought X to a shopping mall and in the staircase squeezed her breast twice over her shirt for half an hour.  The defendant told her not to tell his father the incident and bought her two candies.  Later in the same day, feeling bored, X went to another shopping mall with the defendant and also in the staircase, the defendant removed his trousers and underpants and told her to remove hers.  X was scared and she followed the defendant.  The defendant then rubbed his penis against her buttock for half an hour without ejaculation despite X had said “no” for three times.  Afterwards, he bought the girl for an ice‑cream and he told X not to tell her family about the incident.

Criminal record and the background of the defendant

4.  The defendant had a clear record before his arrest.  He worked as a leaflet distributor, earning a meagre income of $900 per week.  He is also a street performer during the weekend, earning about $30 per day.  I was told that the defendant has been suffering inborn child problem with dysplasia resulting in very short stature.  He was also said to be a mildly mentally retarded person.  As a result, I decided to first obtain a whole series of pre‑sentencing reports, including medical report, background report, psychiatric report and psychological report as well as a victim impact report before hearing mitigation.

5.  In the medical report, the defendant was described as a young male person of very short stature and size (height 139 cm and weight 34 kilograms), slightly pale in complexion, relevant and coherent in speech and apparently of average intelligence.  He was also confirmed to be sexually mature with normal function of his sex organs.  According to the medical report issued by the Department of Neurosurgery of Kwong Wah Hospital supplied by the defence, the defendant was a known case of fibrous dysplasia and mild mental retardation. 

6.  The psychiatric report related that the defendant has suboptimal intelligence but did not suffer from any formal psychiatric disorder. In-patient psychiatric treatment was considered to be unnecessary.  

7.  The clinical psychologist opined that the defendant was a mildly mentally retarded individual who was sexually preoccupied and impulsive.  The parents of the defendant were too busy with their work and rendered little guidance to him, and the grandmother was in effect unable to control and supervise him. 

8.  He was assessed to be at moderate no risk of sexual recidivism.  He was, however, not noted to be paedophilic.

9.  The defendant had completed his secondary education in a special school.  He went on to receive two-year vocational training, during which he has worked as cleansing worker in different restaurants from 2006 to 2008 on and off.  Apart from his usual employment and street performance, he received a Normal Disability Allowance of $1,755 each month from the Social Welfare Department. 

Mitigation

10.  Mr Stephen Chow, solicitor for the defendant, did not fail to recognise the seriousness of the present offences committed by the defendant.  He reiterated, however, the fact that the defendant was suffering from inborn anaemia and was also mildly mentally retarded at the time when he committed the offence.  The defendant has a hitherto clear record and good character.  More importantly, the defendant pleaded guilty to all the charges and fully co-operated with the police, thereby avoiding the girl X to recall and to relate her ordeal by giving evidence.

11.  Mr Chow also emphasised the fact that although the psychological report of the victim spoke of symptoms such as disassociations and anxiety, there is no need for her to receive further or continuing psychological treatment and the impact on her could not be described as so serious.

12.  Mr Chow also produced two letters of mitigation written by the defendant and his mother.  The mother blamed herself for rendering insufficient supervision to her son.  The son is of course very remorseful.  They both urge the court to be as lenient as possible.  Mr Chow assured the court that the defendant is now very remorseful and would accept fully his misdeed as reflected in the Summary of Facts. 

Sentencing considerations

13.  Before I came to sentence the defendant, I took into account everything that was said on his behalf by his solicitor in mitigation, his clear record, the content of the Summary of Facts, all the pre-sentencing reports, including in particular the two psychologists’ reports in respect of both the victim as well as the defendant. 

14.  No doubt the present offences in this case as committed by the defendant are very serious indeed as they both involved the same underage girl who is only 8 years old.  The recent judgment by the Court of Appeal shows that there is a clear duty by the court to protect children victims and take a serious view of the matter. 

15.  In this case, the girl X has exhibited disassociation and anxiety after she was molested by the defendant.  According to the psychologists’ reports, she was also noted to have nightmares at times that she felt fearful.  She told her mother that she disliked the abuser and that she was fearful about not knowing what to do during the abuse incident.

16.  In Huang Long Wei CAAR 5/2008, the Court of Appeal has succinctly summarised the sentencing principles in relation to this kind of offence:-

“12. In 1999, the maximum term of imprisonment for the offence of indecent assault was increased from 5 years to 10 years in order to reflect the gravity of the offence. The court has also made it clear that indecent assaults on young children by adults are serious offences: see HKSAR v. Yau Kin Wai CACC 398/2003.

13. 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:

(1) to deter others from committing similar offences;

(2) to show the abhorrence of members of the public to offences of this nature;

(3) to redress the grievance suffered by the victim and his or her friends and relatives.

see HKSAR v Chan Ching Ho [2000] 3 HKLRD 476.”

17.  In HKSAR v Tsang Chiu-tak CACC 386/2011 (Chinese judgment), the Court of Appeal listed out the following factors for consideration when the court dealt with offences of sexual assault on a child, and the following are taken out from paragraph 9 of the judgment:-

“(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 in the case;

(3) Whether the defendant had used threats or inducement to make the victim succumb;

(4) The number of occasions of committing the offences and the duration of the offences;

(5) Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6) Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7) Whether the sexual abuses have caused physical or psychological trauma to the victim;

(8) Whether the offences have impact on the family members or the victim;

(9) Whether the defendant was involved in other inappropriate behaviour such as inviting other people to watch or take photos or videos of the offence he committed; and

(10) Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.”

I bear all these factors in mind when I come to sentence this defendant.

18.  Having considered the above principles and authorities, it is clear that the court shall regard the protection of children as the most important consideration. 

19.  In light of the above principles and factors, Mr Chow in mitigation has boldly suggested that as there was no actual physical harm inflicted on the victim and the defendant was also mildly retarded that perhaps the sentences on both charges could still be dealt with by way of a probation order.  He also referred to the case of Secretary for Justice v Wong Tsz Kin [1998] 4 HKC 32 and submitted that even if imprisonment was unavoidable, the overall starting point should be within 9 to 12 months’ imprisonment only.

20.  Although in terms of the seriousness of the offence I agree that the present offences cannot be considered as the most serious type of this kind, I shall still bear in mind the fact that the victim is only 8 years old, and an age gap between the victim and the defendant is as long as 18 years.  The defendant had lured Girl X by using candies and ice-cream, thereby corrupting the value and the mind of the young children.  The offences also have left psychological trauma on the victim.  The duration of each offence has lasted as long as half an hour.  That said, I have to accept that the trauma is regarded as not really serious and long-lasting.  While I accept that the defendant is disadvantaged in that he had a history of chronic anaemia and physically he became unusually short in stature and he is also mildly mentally retarded, that only affected his intelligence.  In fact, according to the defendant’s own account to the probation officers, since his early teens, he started to buy pornographic VCDs for watching at home.  He liked sexual fantasies and had dating experience for about nine times in the past.  He had also a girlfriend at present and their relationship was satisfactory.  To me, despite his physical shortcomings and a somewhat lower mental capacity, this defendant is just an ordinary young man who could not properly control his sexual impulsiveness and committed to assault the underaged girl without thinking the legal consequences.  

21.  Mr Chow relied heavily on the Court of Appeal decision in Wong Tsz Kin.  I pause to observe that the case was decided when the maximum sentence for the offence of indecent assault was still 5 years.  As said, in 1999, it has been revised and increased to 10 years.  Further, the Court of Appeal has already in the past decided that sentence imposed in that case was far too low.  In HKSAR v Kong Yun-chiu CACC 315/2006, Stock JA (as he then was) said at paragraph 11:-

“Whilst the range of offences within the category of indecent assault is wide, the fact that the victim of such an offence is a child is always a severely aggravating feature. Viewed in the light of these factors, offences of the kind in this case call for substantial terms of imprisonment and one is bound to say that some of the sentences imposed in the past for indecent assault on children, for example those in Wong Tsz Kin, above, and HKSAR v See Tak Man [1998] 1 HKLRD 794, have been remarkably low.”

Sentences

22.  In Charge 1, the act of indecency consisted of squeezing the girl’s breast over her upper garment for half an hour and I shall adopt a starting point of 2½ years’ imprisonment. 

23.  For Charge 2, the assault is more serious in that the girl’s underpants were removed and the defendant used his penis to rub against the girl’s buttock from behind for also half an hour despite the girl had said “no” for three times.  In this charge, I shall use 3 years’ imprisonment as the starting point.  The defendant pleaded guilty and he is entitled to the one-third discount. 

24.  After giving the defendant the usual discount on account of his plea, the sentence on each charge is reduced to 20 months’ imprisonment and 24 months’ imprisonment respectively.  Based on the reason above, I shall not give further reduction on account of his physical and mental condition.

25.  Finally, as a matter of totality principle, I order that 6 months of the sentence on Charge 1 to run consecutively to the sentence on Charge 2.  The total sentence for these two charges is therefore 30 months’ imprisonment, and that is 2½ years’ imprisonment. 

26.  I shall refer the defendant’s psychologist’s report to the Correctional Services for follow-up action.