HKSAR v. WU MAN HO

DCCC 873/2021

[2022] HKDC 767

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 873 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant (D)  pleaded guilty before me to 1 count of Indecent Assault, contrary to section 122(1)  of the Crimes Ordinance, Cap 200. Particulars of Offence stated that on 22 April 2021, at the staircase between 5^th Floor and 6^th Floor of a building in Sham Shui Po, indecently assault a woman X.

Facts of case

2.  According to the Summary of Facts admitted by D, at the time material to the case, the victim X was an 18 years old student and lived in a residential building in Sham Shui Po area (“the Building”).  She was not acquainted with D.

3.  At around 12:45 p.m.  on 22 April 2021, X exited Sham Shui Po MTR station and walked along Apliu Street for about 330 metres to the Building where she lived.  She was followed by D during the walk.  Having arrived at the Building, X entered the lift and pressed 10/F.  D followed her into the lift and pressed 5/F.  However, when the lift arrived at 5/F D did not exit, instead, he followed X to exit on 10/F.

4.  When X was walking up the staircase to 11/F, D intercepted X.  He claimed to X that he was a manager of a fashion company and that X was suitable to be a model for his company.  He even spoke on his phone in front of X apparently telling the other side that he had found a model.

5.  D then walked X downstairs to the staircase between 5/F and 6/F.  Upon arrival, D then took out a pen, a notebook and a measuring tape from his backpack to measure X’s body, including her shoulders, legs, chest, waist and hip.  He then requested X to return home to change into T-shirt and shorts.  X did as requested while D waited outside her home.  Both of them then returned to the staircase between 5F and 6/F.

6.  Upon return to the said location D then claimed that he had to conduct a “sensitivity test” on X.  He then instructed X to pull up her T-shirt and unhook her bra to show her breasts, and pressed the breasts of X with his fingers for around 4 to 5 minutes.  X felt scared and repeatedly said “No”.  D then further instructed X to lower her shorts and underwear to her knee level, spread her legs apart and he used his right index finger to dig into her private parts.  He even lowered his facemask and licked her private parts for around 5 to 8 minutes.  During the period X felt very scared and dizzy, and repeatedly said “No”.

7.  X asked D when he would let her go.  D then let her go after she had tidied up her clothing.  He followed her back to the door of her residence and left thereafter.

8.  Shortly afterwards at around 3:10 pm X called her mother and urged the mother to return home.  X sounded very scared at the time.  Upon returning home and learned of the incident, the mother immediately made a report to the police.

9.  CCTV in the vicinity of Sham Shui Po captured D tailing X from the MTR Station to the Building.  CCTV of the Building captured D entering the Building at 12:38 pm, taking the lift with X and subsequently leaving the Building on his own at 3:09 pm. 

10.  D was arrested on 24 April 2021.  In an identification parade conducted the next day, X positively identified D. 

Defendant’s Background

11.  According to the Background Report, D is 47 years old, born in HK on 5 May 1975.  He is the youngest of 5 siblings.  He married in 2010 and had a son who is now 11 years old.  The marriage was dissolved in 2016.  He claimed to have to pay maintenance to his ex-wife and son at HK$5,000 per month.  He re-married in 2018.  His current wife is living in Shenzhen while he lives alone in HK.  He received education up to Form 5 level.  He worked as a casual construction site worker before his arrest.

12.  According to D, his relationship with his parents had not been harmonious.  There were consistent conflicts between his wife and his parents, resulting in his wife suffering from mental stress and had to return to the mainland to receive treatment.  Further, his ex-wife also harassed him and his family consistently and deliberately hindered his contacts with his son.

13.  The defendant has an appalling criminal record.  His first convictions came in 1999 when he was convicted in the Court of First Instance of 3 counts of Robbery, 1 count of Assault with intend to Rob and 4 counts of Indecent Assault.  He was sentenced to a total of 7 years 4 months’ imprisonment.  In 2006 he was convicted on his own plea in the District Court of 4 counts of Indecent Assault, 1 count of Common Assault and 1 count of AOABH, and was sentenced to a total of 6 years’ imprisonment.  He was further convicted twice in 2017, again on his own plea, for Indecent Assault in the Magistrates’ Court and was sentenced to 14 months’ imprisonment in total.  He has accumulated criminal convictions on 6 occasions totaling 17 counts, including 8 for Indecent Assaults and 1 for Attempted Indecent Assault.  I was informed by Ms FONG for the prosecution that D was last discharged from Siu Lam Psychiatric Centre on 27 May 2018.

Mitigation

14.  In mitigation, Mr SO who represented D, submitted that D is remorseful for his misdeed and pleaded guilty to the offence at the first available opportunity.  He attributed D’s commission of the present offence to the stress D experienced as a result of poor family relationship and financial pressure.  A mitigation letter written by the 2^nd elder sister of D also gave the same reason for D’s criminal conduct. 

15.  Mr So accepted that this is a serious offence and cited HKSAR v Yau Kin Wai, unrep.  CACC 398/2003 to assist the Court in assessing the appropriate sentence.  In that case the victim girl was 14 years old and was acquainted with the appellant prior to the incident.  The indecent acts involved were done with full consent of the girl.  The appellant was convicted on the basis that the girl could not in law give consent to the sexual activities involved.  He was sentenced to 3 years and 4 months on his plea by the trial Judge, which was reduced to 14 months by the CA on appeal.  The facts of that case is completely different from those in the present case.  With respect, I do not see how that case could assist me in considering the appropriate sentence in the present case.

Sentence

16.  There is no sentencing tariff or guidelines for the offence of Indecent Assault.  The facts of individual cases must be taken into account in considering the appropriate punishment (see HKSAR v Cheung Man Wai [2016] 2 HKLRD 703, 713 paragraph 32).  The maximum sentence is 10 years’ imprisonment.

17.  This is a very bad case of Indecent Assault.  The victim X was only 18 years old at the time and a secondary school student.  D executed a well-prepared plan by falsely pretending to be a representative of a fashion company and would like to recruit X to be a model.  He took X to the rear staircase of the building, using pre-arranged gadgets to gain the trust of X initially.  He told the psychiatrist that he persuaded X to return home to change from her school uniform to T-shirt and shorts as her uniform was difficult to be taken off.  Using an excuse of conducting a “sensitivity test” he indecently assaulted X, and continued to satisfy his own sexual gratification even when X pleaded him to stop.  The assault by him on X was particularly vile and disgusting, including the insertion of his finger into her private parts.  He stayed in the building for over 2 ½ hours, most of the time no doubt was with X and subjected her to his humiliating acts.

18.  According to the Victim’s Impact Assessment Report prepared by the prosecution, the ordeal had undermined the world view and overall sense of security of X.  Over a year after the incident, X was still vigilant of being followed and needed her mother’s company to feel safe in her environment.  She blamed herself for trusting D and following him to the staircase.  Worse still, X took her DSE examination a week after the incident. The terrible experience had obviously impaired her concentration and thus adversely affected her performance in this all- important examination.  The damage caused to her life as a result thereof cannot be gauged in any meaningful way.

19.  On the facts of this case, I consider that the appropriate sentence after trial would be 4 years’ imprisonment.

20.  However, there is another serious aggravating factor in this case.  This is the 9^th conviction of similar nature on D.  In HKSAR v Cheung Kwok Yip, Peter [2010] 3 HKC 470, a case involving indecent assault on young children, the CA stated (in paragraph 23 of the Judgment)  that previous convictions of an identical or similar nature may constitute a gravely aggravating factor, this to take into account the fact of persistence, the failure of previous sentences to deter, and the court’s duty to protect the public.  Also, insofar as imprisonment is capable of providing a deterrence, it must be accorded high priority as must the court’s duty to protect the public. In HKSAR v Lau Tsz Ho, unrep CACC 144/2014, in the context of Trafficking in Dangerous Drugs, the CA stated:

“18. It is well established that the fact that a defendant is a “persistent re-offender” is an aggravating factor that entitles the court to adjust upward the appropriate starting point of his sentence…. The reason for this is because the applicant has shown by his conduct a need for greater personal deterrence and a need for the court to give greater prominence in its sentence to protection of the community from the offenders’ criminal activity. It has nothing to do with again punishing the offender for the past criminal acts…..”

21.  I have the benefit of reading the records kept by the court in relation to the previous similar convictions of D.  They were all of similar modus operandi and the victims were all teenagers or young girls in their early 20s, most of them students in uniform.  Those cases in 1999 and 2006 involved D using violence or threats to succumb the victims while the 2 cases in 2017 involved the same bogus plan as in the present case.  I do not consider there to be any difference in culpability in either of those 2 ways in committing the vile conducts on the victims.

22.  The Psychiatric Report confirmed that D is not suffering from any formal psychiatric diagnosis.  Both D and his elder sister put the blame on mental stress suffered by D as a result of family discord and financial pressure causing D to re-offend.  The Psychological Report concluded that in face of stress, D inclined to relapse into sexual re-offending and his risk of recidivism of sex offences of similar nature was assessed to be high.  Also, he showed superficial motivation for treatment. 

23.  During the course of the current remand, the Court has received a letter addressed to me purportedly written by the ex-wife of D, one Madam CHEUNG.  The contents of the letter stated that Madam CHEUNG learnt about D re-offending from the news and wrote to refute some of the mitigations put forward by him as reported by the media.  I have informed the parties that I will not take into account the contents of this letter.  However, the letter serves to support D’s claim that part of the pressure causing him to re-offend came from the persistent harassment by his ex-wife.  This in turn reinforces the assessment by the Clinical Psychologist that the risk of D re-offending is high.  On the information available to me, I consider that D definitely poses a serious danger to the society.

24.  Bearing in mind that in cases of this nature, protection of the public is of paramount importance, I consider this aggravating factor warrants an upward adjustment of the starting point by 2 years. 

25.  The defendant pleaded guilty to the Charge and is entitled to 1/3 discount.  I see no other mitigating factor warranting any further discount.

26.  Having taken all relevant matters into consideration, I adopt 6 years as the starting point, and reduce it by 1/3 for the timely guilty plea.  For the offence D is facing, he is sentenced to 4 years’ imprisonment.