HKSAR v. LI CHI MAN

DCCC916/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.916 OF 2010

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Reasons for Sentence

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        The defendant was charged for 10 counts of indecent conduct towards a child under the age of 16 years, contrary to section 146(1) of the Crimes Ordinance, Cap 200.

        The defendant pleaded guilty and admitted the facts, he is convicted accordingly.

Facts

        The victims X, Y, Z are natural daughters of the defendant. They were born on 4 July 1989, 2 November 1990 and 20 July 1996 respectively.

        One day in 2001, the defendant masturbated in the presence of X, who was then aged 12. (Charge 1)

        One day in December 2004, and again on another day in July/August 2006 the defendant masturbated in the presence of Y, who was then aged 14 and 15 respectively. (Charge 2 & 3)

        One day in February, and again on another day in March 2007 the defendant masturbated in the presence of Z, who was then aged 10. (Charge 4 & 5)

        One day in September 2007, in March 2008, and June 2008 respectively the defendant masturbated in the presence of Z, who was then aged 11. (Charge 6, 7 & 8)

        One day in August 2009 the defendant masturbated in the presence of Z, who was then aged 13. (Charge 10)

        One day in 2009, the defendant masturbated in the presence of X, Y and Z. At the material time Z was aged under 16, at most aged 13. (Charge 9)

        On all the occasions, the defendant did the indecent conduct on the sofa when X, Y and Z were using the computer at the computer desk which was just next to the sofa. There was nothing in between the computer desk and the sofa. At all material times, no exchange of words was made between the parties. Under caution, the defendant admitted he did the act out of fun.

        The molestations came into light in August 2009 when the two eldest daughter told their mother about these after the defendant masturbated again in front of them, who was then aged 20 and 19 respectively.

        I noted the defendant was not charged for indecent assault against child under 16, however, I consider both offences are of similar nature and thus called for similar consideration in sentencing.

        In Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 130, Cheung JA had this to say:

“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.

   14. Given the diverse circumstances pertaining to this kind of offence, in particular the diversity of the acts of indecent assault, the Court of Appeal has not seen fit to lay down any tariff for this kind of offence. That said, the courts must sentence on the basis of the said sentencing principles. In addition, the courts have to consider three other important factors:

(1) Even if no psychological assessment report on the abused victim is available, the court cannot overlook the possibility of the victim suffering psychological damage as a result of sexual abuse: see HKSAR v See Tak Man [1998] 1 HKLRD 794 and HKSAR v Kong Yun Chiu [2007] 4 HKC 391;

(2) It is rather difficult to detect this type of offences because child victims of sexual abuse would normally be at a loss and feel too embarrassed to complain to their parents or teachers about the molestation; see Secretary for Justice v Wong Tsz Kin [1998] HKC 32; and

(3) In dealing with this type of offences, the courts will regard the protection of children as the most important consideration; see HKSAR v Kam Wing Yin (unrep., CACC 515/2005, [2006] HKEC 1314).”

        The defendant is the natural father of the victims and these offences happened at home, and some committed when the girls were well under age 13. The defendant committed a breach of trust of the most serious kind, instead of giving protection to the victims, as what any father is obliged to do, the defendant abused them only for satisfaction of his own lust.

        Sexual abuse of children, especially by someone who is entrusted upon as guardian, is a criminal act that any court would feel obligated to deter and be ready to pass a sentence showing the abhorrence of members of the public against it.

        In HKSAR v Kong Yun Chiu, the applicant pleaded guilty to 2 counts of indecent assault. He is the maternal uncle of the victim who was 8 years old at the time of the first offence. On appeal, the Court of Appeal held that the starting point of 6 years’ imprisonment and the resulting sentence of 6.5 years’ imprisonment were manifestly excessive. The court of appeal adopted a starting point of 5 years’ imprisonment for each count and reduced the overall sentence to 4.5 years’ imprisonment.

        In HKSAR v P.Y.F. DCCC 1177/2009 the father committed indecent assault and indecent conduct towards his own daughters under 16. The indecent conduct being causing his 4 years old daughter to hold his penis, for this offence, the court adopt a starting point of 6 years.

        In HKSAR v Lee Hon Wah & other HCCC 269/2009, for two counts of indecent conduct towards a child under 16, where the defendant get the victim a boy aged 14 to performed oral sex on him at public toilet and his home for monetary reward and the age difference was over 20 years; the court adopted a starting point of 2.5 years.

        I noted at time of the offences there was no physical contact and no exchange of words, the indecent conducts in the present case is towards the lower end of the scale when compared with the above mentioned cases. However, in the present case, the defendant has 3 daughters and in a period of about 8 years, he abused all of them.

        Considering the circumstances of the case, I adopt a starting point of 2.5 years for charge 2, 3, 9 and 10. As the age of the victims was much lower at time of the offence in charge 1, 4 – 8, a higher starting point of 3 years’ imprisonment is adopted for each of them.

        The defence referred to HKSAR v Chow Yuen Fai CA 392/2008 in which the court of appeal held that in sentencing the following considerations were relevant:

(a) the individual circumstances of the offender, including the risk of re-offending;

(b) the impact on the victim and the victim’s family; and

(c) the abhorrence with which right-thinking members of society would regard the relevant offences, and thus the need for deterrence.

        The defendant aged 51, a cleaner earning $5,500, and with a clear record. The defence submitted that after the offences were disclosed the defendant had took the initiative to receive psychiatric treatment and moved next door to live with his mother and did not have any contact with the victims. The prosecution informed the court that the victims has resumed their normal live and their emotion are stable, however this should be considered in the light that they are not required to be with the defendant. Undoubtedly, the defendant’s criminal acts had caused negative impact on the victims.

        A psychiatric report was called for the defendant, it revealed that he is a slow learner, and confirmed that after the offences came into light in August 2009, the defendant received psychiatric treatment upon family suggestion; he was diagnosed with unspecified mental retardation and other impairments of behaviour.

        The report stated that the defendant appears to be a man with mental retardation and behavioural problem. The degree of mental retardation warrants detailed psychological test to ascertain. He is mentally stable at current juncture and inpatient psychiatric treatment is not warranted, but recommend further outpatient psychiatric treatment. Psychological counselling might also be helpful in his case, in view of the inappropriate sexual behaviour.

        The degree of mental retardation was yet to be ascertained, but it is noted that the defendant is able to keep stable employment, keep good working relationship with colleagues, raise his own family, and understand the charge and his legal position. Nothing in the report or the mitigation letters from his family and colleagues suggested he failed to appreciate the concept of indecency and the duty of a father.

        But I accept his mental retardation may be one of the factors which caused him slow in seeking professional assistance at an earlier stage, for this I reduce the starting point each by 6 months.

        The defence referred to HKSAR v Hong Yat-ming HCCC424/2009 in which the court allowed a greater discount from the standard 1/3 discount for a guilty plea. In that case, the defendant admitted his guilt to the victim’s mother prior to his arrest, admitted the offences under subsequent caution by the police, and indicated his guilty plea on the return day in the magistracy.

        The defence submitted the defendant was co-operated to the Police and admitted all his charges under caution, indicated his plea in the first mention day in District Court; and urged the court for a greater discount. In my view, the major mitigating factor is the guilty plea of the defendant; and because of this, the victims are not required to go through the ordeal of reciting their tragedies in court. I accept the defendant has indicate his plea and shown his remorse at an early stage. For this I allow a greater discount.

        I do not consider there to be any mitigating factors called for further deduction. However, taking into account of the totality consideration, I order the sentence to run partly concurrent and partly consecutive, making a total of 18 months and 18 weeks imprisonment.

Order

1. Sentenced to 18 months
2. Sentenced to 14 months, 2 weeks consecutive with others
3. Sentenced to 14 months, 2 weeks consecutive with others
4. Sentenced to 18 months, 2 weeks consecutive with others
5. Sentenced to 18 months, 2 weeks consecutive with others
6. Sentenced to 18 months, 2 weeks consecutive with others
7. Sentenced to 18 months, 2 weeks consecutive with others
8. Sentenced to 18 months, 2 weeks consecutive with others
9. Sentenced to 14 months, 2 weeks consecutive with others
10. Sentenced to 14 months, 2 weeks consecutive with others,
    Making a total of 18 months and 18 weeks imprisonment

        And the defendant is to receive appropriate psychiatric treatment and psychological counselling during his remand.