HKSAR v. L.W.K.

DCCC 247/2022

[2023] HKDC 1164

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 247 OF 2022

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REASONS FOR SENTENCE

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A. CHARGES

1.  The defendant (D)  pleaded guilty to Charges 2, 4 and 5, all of indecent assault on another person, contrary to section 122(1)  of the Crimes Ordinance, Cap 200.

2.  He pleaded not guilty to Charges 1, 3 and 6 which are left on court’s file and cannot be proceeded with without court’s leave.

3.  Particulars of Charge 2 are that D, on a day unknown in November or December 2020, at a flat in Ap Lei Chau in Hong Kong, indecently assaulted X, a girl of the age of about 15 years.

4.  Particulars of Charge 4 are that D, on 9 May 2021, at The Arca, No 43 Heung Yip Road, Wong Chuk Hang, in Hong Kong, indecently assaulted X, a girl of the age of 15 years.

5.  Particulars of Charge 5 are that D, on a day unknown in September 2021, at a flat in Ap Lei Chau in Hong Kong, indecently assaulted X, a girl of the age of 15 years.

B. FACTS

6.  D admitted the following facts.

B.1 Background

7.  X was born on 13 November 2005 and about 15 years old at the material times whilst D was born on 24 December 1966.  D and Y are X’s father and mother respectively.

8.  X resided with her grandfather, two younger siblings, D and Y in a flat in Ap Lei Chau (“the Flat”)  which had 2 bedrooms.  The grandfather occupied one room whilst the rest of them shared the remaining bedroom which had a bunk bed, but D usually slept on the sofa.

9.  Z is also D’s daughter who did not live in the Flat.

B.2 Charge 2

10.  In the morning on a day in around November or December 2020, in the Flat, X was in her dress sleeping alone in the upper bunk bed.  D said it was cold, went up to X’s bed and laid down facing her.  D then cuddled X on her waist but X flicked his hand off.  He further touched X’s thigh, inserted his hand into X’s bra and touched her breast including her nipple.  X pushed D’s hand away, left the bed and got changed to go to school.

B.3 Charge 4

11.  Z received a hotel package for the period from 8 to 10 May 2021 at The Arca, No 43 Heung Yip Road, Wong Chuk Hang (“the Hotel”). She was not free during that period and thus gave the package to the family of D and Y.

12.  In the afternoon on 9 May 2021, X left the Hotel to meet her friends.  At night, all of X’s family members except D returned home whilst D remained at the Hotel.  X called D to ask for the way home, but D asked her to take a shower at the Hotel and then decide whether to stay there or not.  X complied.

13.  When X was having a shower at the Hotel, D entered the bathroom, took off all his clothes, stood behind X and poked her buttocks with his erected penis for around 10 times.  He also touched X’s waist and breast.  X moved forward to avoid D who attempted to touch her breast again but failed because X crossed her arms in front of her breasts.  She then quickly finished shower and put on clothes.  D tried to stop her from leaving but she pushed him away.  He then asked X to stay but the latter insisted to go home.  X was disgusted at what D did.

B.4 Charge 5

14.  On an unknown day in September 2021 in the Flat, after having a shower with her younger sister, X opened the bathroom door to let the sister out whilst X stayed behind the door.  X used a towel to cover her breasts as D had previously touched them.  Suddenly, D pushed open the door and molested X’s vagina once with his fingers.  Then he smiled and left the bathroom.  X was disgusted at D’s acts, so she closed the door and took a shower again.

B.5 Discovery of the offences

15.  In the evening on 5 November 2021, when X was having a conversation with her friend, W, about D confiscating her mobile phone, Y heard X telling W that she had yet to report to the police that D had indecently assaulted her.  Feeling shocked, Y asked X who that person was, and X said it was D.  Y asked D if what X said was true, D replied that he had not molested X for a long time as he had been sleeping in the living room of the Flat.  Y reported the case to the police which then arrested D for indecent assault.

B.6 Cautioned statement

16.  On 22 November 2021, during a cautioned video recorded interview, D stated, inter alia, that he, Y and their children shared the same bedroom with a bunk bed in the Flat.  D used to sleep with Y and their youngest daughter on the lower bunk bed.  However, in around 2020, D started to sleep on the sofa in the living room because of his relationship issues with Y. Meanwhile, X occupied the upper bed, and Y and the rest of the children shared the lower bed.  During the winter in 2020 when it was cold, D occasionally slept in the upper bed with X, but he stopped doing so in around March 2021.

B.7. Conclusion

17.  On an unknown day in November or December 2020 at the Flat, D indecently assaulted X who was about 15 years old (Charge 2).

18.  On 9 May 2021 in the Hotel, D indecently assaulted X who was 15 years old (Charge 4).

19.  On an unknown day in September 2021 in the Flat, D indecently assaulted X who was 15 years old (Charge 5).

C. D’S BACKGROUND AND PSYCHOLOGICAL REPORT

20.  D was born in Hong Kong, is aged 56 and has a clear record.

21.  According to his background report:-

(a)  He was married twice. Z aged 30 is from his first marriage. D had found out his first wife’s extra-marital affair before they divorced.

(b)  Y is his second wife. X is now aged 17 and a Form 5 student. D’s youngest daughter is aged 6 and a K3 student. He also has a son. Since D’s arrest for this case, Y and their children have moved out of the Flat.

(c)  D obtained certificate and higher certificate of courses on electronic engineering from Kwun Tong Industry School and Hong Kong Institute of Technology. In 2015, he completed the Certificate of Property Management course in HKU SPACE. In 2019, he graduated from the Master of Business Management at the Business School Netherlands in Shenzhen, China.

(d)  D was the sole breadwinner of the family. Before 2016, he had all along worked in factories in the mainland and went back to Hong Kong only a few days each month. After finding out Y’s extra-marital affair in 2015, D quit his job and returned to work in Hong Kong in 2016 to look after his family. However, the marital relationship remained poor.

(e)  In 2019, D became unemployed. He then started his audio equipment business which was closed down after he had been charged for the present offences.

(f)  D alleged that he did not watch child pornography or have abnormal sexual behaviour. He explained that he was weak in self-control at the material times.

22.  D’s psychological report states, among others, the followings:-

(a)  His relationship with the first wife was distant because he lived away from home for work. His wife’s extra-marital affair led to their divorce.

(b)  After discovering his second wife Y’s extra-marital affair, D retaliated by developing such affair himself and let Y know about it. Thereafter they frequently had verbal conflicts. Y then started to become emotional, alcoholic and sensitive as to whether D had affair again. She has been diagnosed with depressive disorder.

(c)  Since 2019, Y has become an online performer and developed another affair online. She then frequently threatened D with divorce. They have not had sex anymore.

(d)  D considered that the serious marital problem and Y’s frequent oppression had resulted in his huge distress before he committed the offences.

(e)  D’s mood was also greatly affected by his elder sister’s suicide in 2019.

(f)  Z described D as a good father who took care of her well. She has maintained a good relationship and regular contact with him.

(g)  Nevertheless, the psychologist opined that D is self-centered, traditional and strongly sexist. He lacks awareness of and tends to trivialize his problems especially his marital failures by downplaying his responsibility and feeling victimized. D’s commission of the offences was likely related to his accumulated frustration caused by marital problems and life stress since 2019. D’s remorse is superficial. However, his risk of recidivism is low given the age and the absence of sexual deviant interest. Nonetheless, D’s inability to maintain stable intimate relationship and hostile bias towards women are salient risk factors. Therefore, future conflicts with Y may escalate his reoffending risk.

D. X’S VICTIM IMPACT REPORT

23.  X’s victim impact report states, inter alia, the followings:-

(a)  She manifested significant symptoms of post-traumatic stress disorder including persistent avoidance, hypervigilance and mood disturbance. X also showed clinical range of affective and somatic problems including poor appetite, dizziness, frequent headache and recurrent feelings of nausea, etc, for which she was admitted into hospital. Moreover, she had suicidal ideas.

(b)  X self-blamed for Y’s mood deterioration and apprehended at D’s reactions.

(c)  Her trust in people especially males and her view about herself have been shaken.

(d)  X’s mental health and daily functioning particularly her academic performance have been negatively affected.

(e)  She tried hard not to think about the incidents and this was a self-protective measure to the damaged self.

E. MITIGATION

24.  The Defence submitted that since 2019, D has made regular donations to Plan International Hong Kong to sponsor a child. He used to take care of his father now aged 94 who has moved to an elderly home since D’s remand. Under custody, D obtained 2 certificates on life changing and structure courses from a Christian organization. Mitigation letters from D, his elder brother and Z were also submitted.

25.  The Defence argued that this case is not the most serious of its kind because no threat, violence or weapon was used.

F. CONSIDERATIONS

F.1 General principles

26.  The maximum penalty for the subject offences is 10 years’ imprisonment.

27.  HKSAR v Kong Yun Chiu CACC 315/2006 held that the fact that the victim of such an offence is a child is always a severely aggravating feature.[1]

28.  According to Secretary for Justice v Huang Long Wei CAAR 5/2008, the 3 crucial considerations of sentencing for indecent assault on children by adults are to deter others from committing similar offences, show the abhorrence of members of the public to offences of this nature, and redress the grievance suffered by the victim and his/her friends and relatives.[2]

29.  I have considered the relevant factors of sentencing sexual offences involving children as identified in HKSAR v Lee Kwok Wai CACC 199/2011.[3]  Those that feature in the present case are the followings:-

(a)  D was 53 to 54 years old while X was his daughter about 15 at the material times, so there was a huge age difference, breach of trust, and taking advantage of position or status by D;

(b)  the offences were committed on 3 occasions spanning a period from late 2020 to September 2021, but the duration of each was not long;

(c)  they have caused physical and psychological trauma to X;

(d)  they have also had impact on Y;

(e)  however, D did not use threat, inducement or violence or have other inappropriate behaviour; neither was harm or discomfort caused to X, nor hazard to the health and safety of the public resulted; and

(f)  D is not psychologically imbalanced or a paedophile and his likelihood of reoffending is low.

F.2 Case references

30.  The Defence referred the court to the following cases.  In HKSAR v Y.J.F. DCCC 986/2018, the defendant aged 35 at the time of sentence was charged with 1 count of indecent assault for rubbing his private parts over his 10-year-old daughter’s several times, touching her breast a few times, licking her private parts, and kissing her lips, face and neck.  A starting point of 48 months’ imprisonment was adopted.

31.  In HKSAR v W.Y.M. DCCC 413/2021, the defendant aged 47 at the time of sentence was charged with 5 counts of indecent assault on his 11-year-old daughter.  3 of them involved touching her breast and private parts and 2 involved touching her breast only.  The victim impact report indicated that the offences had had serious and long-lasting effects on the daughter.  Starting points of 12 to 21 months’ imprisonment were adopted.

32.  In HKSAR v K.K.L. DCCC 106/2022, the defendant aged 39 was charged with 3 counts of indecent assault for grabbing the breast and touching the private parts of his 15-year-old niece whose intelligence was lower than average.  He also used a mobile phone as an inducement.  The niece was injured in one of the incidents, blamed by her grandfather for the defendant’s arrest, and she had symptoms of post-traumatic stress disorder.  A starting point of 24 months’ imprisonment was adopted for each charge.

33.  I also considered 香港特別行政區 訴 吳岳威 CACC 141/2007 in which the defendant was charged with 5 counts of indecent assault on his 2 nieces aged 13 to 15.  The offences had serious and long-lasting effects on one of the victims.  The Court of Appeal adopted a starting point of 18 months’ imprisonment for the offences involving touching breasts, one of 30 months’ imprisonment for those involving touching private parts, and a global starting point of 48 months’ imprisonment.

G. SENTENCE

34.  Having considered all the relevant facts and the above case authorities, the sentence for this case is as follows.

35.  The starting point for Charge 2 is 18 months’ imprisonment which is reduced by 1/3 for the guilty plea, the only mitigating factor, to 12 months’ imprisonment.

36.  The starting point for Charge 4 is 24 months’ imprisonment which is reduced by 1/3 to 16 months’ imprisonment.

37.  The starting point for Charge 5 is 30 months’ imprisonment which is reduced by 1/3 to 20 months’ imprisonment.

38.  Having considered totality, a global starting point of 3.5 years’ or 42 months’ imprisonment and a global sentence of 28 months’ imprisonment are appropriate.

39.  Hence, the sentence for Charge 2 and Charge 4 is to run totally consecutively, resulting in a sentence of 28 months’ imprisonment.  This sentence is to run totally concurrently with the sentence for Charge 5, resulting in a total sentence of 28 months’ imprisonment for all charges.