HKSAR v. WONG CHEONG

DCCC 71/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 71 OF 2015

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REASONS FOR SENTENCE
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Overview

1. This case concerns 6 indecent assaults committed by an elderly man against 2 sisters who were mentally incapacitated persons by reasons of their mental illness and/or retardation.

The charges and pleas

2. The defendant, Wong Cheong, is a 74 years old man.  He pleaded guilty before me to 6 counts of Indecent Assault on Another Person (Charges 1 to 6). Charges 1 to 4 concern a female victim “X” whereas Charges 5 and 6 concern another female victim “Y”.  X and Y are sisters.

The background of X, Y and the defendant

3. At the material times, X and Y were “Mentally Incapacitated Persons”. The 6 offences took place in Tseung Kwan O district on diver occasions during the period between November 2013 and September 2014.

4. As said, X and Y are sisters, they live together with their mother in a flat in Tseung Kwan O.  At the material times, X was 42 years’ old and Y 39.  X suffered from schizophrenia and moderate retardation, whilst Y suffered from mild grade mental retardation with behavioral problems.

5. The defendant lived in a public housing unit in Tseung Kwan O.  He had been acquainted with the sisters for about 2 years.

The complaint by X

6. The offences came to light when on 22 September 2014, X made a complaint to the medical officers of Tseung Kwan O Hospital that she was sexually abused by the defendant.  Case was reported to the police.  Police investigation revealed that the defendant had committed the 6 offences under complaint against the sisters.

Charge 1

7. At 8 pm on 15 September 2014, the defendant went to the sisters’ residence.  At the time, their mother was not at home.  The defendant gave HK$40 to Y and asked her to go downstairs to buy cigarettes.  That left X home alone with the defendant.

8. The defendant took off X’s trousers and underpants.  He pushed X down to the bed and removed her bra.  He bit the victim’s nipples.  He pulled apart the victim’s thighs and used his fingers to molest her vagina.  Due to the defendant’s old age, no sexual intercourse took place.  The defendant only used his penis to rub against the victim’s private parts, without putting on a condom.

Charges 2 to 4

9. Apart from the above incident, three other assaults took place on days unknown between 1 July and 22 September 2014:-

(i) The defendant took X to a hillside in Tseung Kwan O. He took off X’s bra and bit and squeezed here breast. He pulled down the victim’s trousers and used his fingers to molest her vagina. The defendant then masturbated and ejaculated onto the ground (Charge 2);

(ii) The defendant took X to a park near the residence of X. The defendant squeezed the victim’s breast, put his hands into her underpants and molested her private parts (Charge 3); and

(iii) The defendant took X to a refuse collection point in Tseung Kwan O. The defendant removed the victim’s bra and bit her nipples. After the assault, he paid HK$20 to X (Charge 4).

Charges 5 and 6

10. The defendant had over 20 odd incidents of sexual activities with Y. All took place in the defendant’s residence.  On all these occasions, the defendant called Y and asked her to go to his residence.

11. The first incident took place on a day unknown in November 2013 and the last incident took place on a day unknown in September 2014.

12. On both occasions, Y and the defendant took off their clothing.  The defendant kissed Y’s breast and used his penis to rub against Y’s private parts.  No condom was used and the defendant ejaculated outside Y’s private parts.  On each occasion, the defendant would pay Y HK$50 as reward.  Each incident lasted for about 10 minutes.

Arrest and Record of Interview

13. The defendant was arrested on 26 September 2014.  Under caution, the defendant alleged it was X and Y who took the initiative to have sexual activities with him.  He denied that he had made any penetration against X and Y.

14. In the video record of interview, the defendant admitted that:-

(i) He had been acquainted with X and Y for 2 to 3 years;

(ii) He knew that X and Y suffered from mental illness;

(iii) He had 4 incidents of sexual activities with X;

(iv) The first incident with X took place in July 2014. He rolled up X’s clothing and molested her breast and private parts;

(v) One of the incidents took place at a hillside in Tseung Kwan O and one took place at a refuse collection point in Kin Ming Estate, Tseung Kwan O;

(vi) The last incident took place on 15 September 2014 at X’s residence;

(vii) He had sexual activities with Y on numerous occasions. One of the incidents took place on an unknown date in mid-September 2014;

(viii) The incident took place at the defendant’s residence. After Y took off her clothing, the defendant lay on Y and used his penis to rub against the victim’s private parts; and

(ix) The defendant paid HK$50 to Y as reward.

Clear record

15. The defendant, aged 74 and now retired, had hitherto a clear record.

Mitigation

16. I am grateful to Mr Cheng for his written mitigation.

17. Mr Cheng told me the defendant committed the offences to satisfy his own desire.  His guilty pleas saved a lot of court’s time and spared the victims from giving evidence in court.

18. Mr Cheng submitted that the offences under complaint did not involve breach of trust and no force was used by the defendant.  Looking at the acts of the defendant, Mr Cheng submitted that the acts were not the worst of hit kind.

19. As to length of sentence, Mr Cheng drew my attention to 4 sentencing decisions of the District Court, namely:-

(i) HKSAR v Chu Hey DCCC 1040 of 2010;

(ii) HKSAR v Wong Kam Hung DCCC 440 of 2010;

(iii) HKSAR v Lam Chung Fong DCCC 267 of 2014; and

(iv) HKSAR v Ng Yun Sum DCCC 8 of 2014.

Mr Cheng set out the salient features of these cases and the sentences imposed.

A consideration of the submissions

20. The courts have repeatedly expressed misgivings about the use of, and more regrettably, emphasis on “comparables” in the sentencing process.

21. In HKSAR v Thapa Min Bahadur CACC 284 of 2014, the Court of Appeal observed in paragraph 20:-

“As this court has repeatedly pointed out, a strict comparison with past cases is often unhelpful in reaching the correct sentence in a particular matter.”

22. In HKSAR v Mazhar Taha Ahmed Elmansouri CACC 165 of 2012, Fok JA, as Fok PJ was then, pointed out in paragraph 70 of the judgment:-

“the citation of individual cases for the purpose of comparing sentences is of limited assistance since the particular sentence in anyone case must depend on the individual facts of the case.”

23. In HKSAR v Wong Kam Hung DCCC 440 of 2010, the second case cited by Mr Cheng, the defendant was found to have mild grade mental retardation; in HKSAR v Chu Hey DCCC 1040 of 2010, the defendant was the painting teacher of the victim and hence the case involved breach of trust by the defendant.  These features are absent in the present case.

24. In short I do not find the 4 cases cited by Mr Cheng helpful.

25. In HKSAR v Chan Ching Ho [2000] 3 HKLRD 476, the applicant was convicted of 4 charges of indecently assaulting his six-year-old niece, what Stuart-Moore VP said in paragraphs D to E on page 482 of the judgment is also relevant to the instant case, the three important sentencing considerations in cases of this kind were; (a) the need to deter others; (b) the need to mark the public abhorrence of such crimes; and (c) to redress the grievance suffered by the victim, her relatives and friends.

26. The 2 victims in the present case are sisters.  The pain and sufferings suffered by their mother upon knowing that her 2 daughters had both been repeatedly sexually abused by the defendant over a period of time must be beyond words.

27. For the lack of violence prayed in aid by Mr Cheng, what Stuart-Moore VP said in paragraph C on page 481 of the judgment, to some extent, is also apt to describe the conduct of the defendant:-

“…The lack of violence and pain was because the defendant was looking out for his own interest as he wanted to continue with his sexual assaults of this little girl, and to cause her pain or to inflict violence on her would have stopped this behavior.”

28. Paragraphs E to F on page 481 are also relevant:-

“An aggravating factor in this case is that the defendant repeated his odious actions and a total of three more times after the first occasion, with each occasions increasing in its severity.”

29. The defendant had sexually assaulted X on 4 separate occasions, he sexually assaulted Y on 2 occasions, whilst the assaults on X and Y had not increased in severity, the repeated sexual assaults on the sisters is an aggravating feature.

30. Mr Cheng asked me to order all the sentences to run concurrently as Charges 1 to 4 and Charge 6 all happened within one week.

31. What Stuart-Moore VP said in paragraphs E to F in page 482 of the judgment is also relevant:-

“Here, the offences were entirely separate and distinct. There was no requirement on the part of the Judge, subject to the principles of totality, to have made any of the sentences to run concurrently unless it had been alleged, which it is not, that two of the offences had been committed in the course of what is often referred to as a “single transaction” (See A-G v Cheung Pit Yiu [1989] 2 HKC 12.”

32. In the instant case, the 6 offences were entirely separate and distinct; they were not committed in the course of a single transaction.

33. Whilst Charge 1 was committed on 15 September, Mr Cheng was wrong to suggest that Charges 2 to 4 were committed on 22 September 2014, hence Charges 1 to 4 and Charge 6 were committed within 1 week (Paragraph 11 of Defence Written Mitigation).  In fact, the Summary of Facts admitted by the defendant show that Charges 2 to 4 were committed by the defendant on various days unknown between 1 July 2014 and 22 September 2014.

34. Each of the 6 offences committed by the defendant calls for a term of imprisonment.

35. The defendant had a hitherto clear record and he pleaded to the charges, he is entitled to the customary 1/3 reduction for his guilty pleas.

36. The guilty pleas of the defendant spared the 2 victims from giving evidence in court.  Given the nature of this case and the fact that the 2 victims are mentally incapacitated persons, the guilty pleas of the defendant are all the more commendable.  I am prepared to give the defendant an additional reduction over and on top of the customary one-third reduction for his guilty pleas.

37. The defendant is now 74 years old.  For his advanced age, I am prepared to give him a further reduction in sentence.

38. The acts of indecent assaults on X and Y, though not the worst of its kind, were all very serious in nature and offensive to the mind.

39. For Charges 1 to 4, each offence calls for a starting point of 24 months’ imprisonment.

40. For Charges 5 and 6, each offence calls for a starting point of 24 months’ imprisonment.  The 2 offences were aggravated by the fact that on each occasion the defendant paid HK$50 to Y after the sexual abuse.  Obviously the defendant used payments of money as a means to lure his mentally incapacitated victim to yield to his demands.  In fact, the defendant also paid HK$20 to X after the sexual abuse in relation to Charge 4, as Charge 4 was the last occasion that the defendant sexually molested X, I would not see the payment of HK$20 to X as a means to lure X.  In the case of Y, she had over 20 odd incidents of sexual activities with the defendant, on each occasion, she was paid after the acts, clearly payment of money to the abused victim had become a modus operandi of the defendant’s sexual assaults as far as Y was concerned. Because of the presence of the aforesaid aggravating feature, I would increase the starting point to 30 months’ imprisonment.

41. For each of the offences, the defendant is entitled to one-third reduction for his guilty pleas and clear record.

42. The guilty pleas of the defendant spared the 2 mentally incapacitated victims from the ordeal of testifying in court.  For each of the 6 charges, I would allow the defendant an additional reduction of 2 months.

43. For each charge, as an act of mercy, I would allow the defendant an additional reduction of 1 month in the light of his advanced age.

Sentences for charges 1 to 6

44. For the reasons given:-

On Charges 1 to 4, I sentence the defendant to 13 months’ imprisonment for each of the offences.

For Charges 5 and 6, I sentence the defendant to 17 months’ imprisonment for each of the offences.

Totality

45. I take into account the totality principle, in my view, the 6 offences call for partially consecutive terms.  A total term of 28 months’ imprisonment should adequately reflect the overall criminality of the 6 charges and meet the end of justice.  To achieve that result, I order the sentences for Charges 5 and 6 shall run concurrently with each other.  The sentences for Charges 1 to 4 shall run concurrently with each other but 11 months of which shall run consecutively to the sentences for Charges 5 and 6.

46. The defendant has to serve a total term of 28 months’ imprisonment.