HKSAR v. LAM YEE MONG

DCCC 571/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 571 OF 2010

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Reasons for Sentence

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1.   The Defendant was convicted on his own plea of the first two charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance and the third charge of indecent conduct towards a child under the age of 16 years, contrary to section 146(1) of the Crimes Ordinance.

2.   The Particulars of Offence for the 1^st charge are:

“LAM Yee-mong, on a day unknown in around May 2009, at Room 1705, King Yu House, King Lam Estate, Tseung Kwan O, New Territories, in Hong Kong, indecently assaulted X, a girl of the age of 13 years.”

3.   The Particulars of Offence for the 2^nd charge are:

“LAM Yee-mong, on a day unknown in November 2009, at Room 1705, King Yu House, King Lam Estate, Tseung Kwan O, New Territories, in Hong Kong, indecently assaulted X, a girl of the age of 14 years.”

4.   The Particulars of Offence for the 3^rd charge are:

“LAM Yee-mong, on a day unknown in November 2009, at Room 1705, King Yu House, King Lam Estate, Tseung Kwan O, New Territories, in Hong Kong, committed an act of gross indecency with or towards X, a child under the age of 16 years.”

5.   The facts admitted by the Defendant revealed that:

(i) The Defendant was born in February 1947 and was 62 years old at all material times. Girl X was born in September 1995 and was 13 years old in May 2009 and 14 years old in November 2009. X became acquainted with the Defendant, a security guard of X’s housing estate, in March 2009. The Defendant often treated X to meals and gave her money.

(ii) On a day unknown in around May 2009, X went to the Defendant’s home upon the Defendant’s invitation. The Defendant brought X to his bed and he caressed her breasts. After a while, the Defendant put his hands inside X’s clothes and caressed her breasts directly.

(iii) On an unknown day in November 2009, X went to the Defendant’s home for meal together upon the Defendant’s invitation. In the Defendant’s residence, the Defendant put his hands inside X’s T-shirt and bra and caressed X’s breasts directly with both hands for about 10 odd minutes.

(iv) On an unknown day in November 2009, X went to the Defendant’s home for meal together upon the Defendant’s invitation. In the Defendant’s residence, the Defendant and X were sitting side by side on a sofa. The Defendant put his hands inside X’s T-shirt and bra and caressed X’s breasts directly with both hands for about 10 odd minutes. X asked the Defendant to stop but the Defendant ignored her. The Defendant then pulled X to his bed despite X’s refusal. X lay down on the bed and the Defendant laid himself on X. The Defendant put his hands on X’s jeans and touched her private part. The Defendant then removed X’s jeans and underwear. The Defendant then rubbed X’s private part with his penis directly. X asked the Defendant to stop but the Defendant ignored her. X also tried to push the Defendant away but in vain. After rubbing X’s private part for about five minutes, the Defendant stopped his action and asked X not to tell anyone about what had happened between them.

(v) Subsequently, X complained to a friend and a social worker about the above incidents and the case was reported to the police. The Defendant was arrested on 8^th March 2010. In the cautioned interview, the Defendant admitted all of the above offences and said, inter alia, that in relation to Charge 1, the Defendant had paid X some money after having molested her.

(vi) The Defendant admitted that he was aware of the age of X at all material times.

6.   I was informed by prosecuting counsel that the Defendant had no previous criminal conviction record.  He was born in February 1947.  At the time of the three offences, he was 62 years old.  He used to work as a security guard since 2004.  He has a wife and three grown-up children aged 30, 31 and 33 respectively. 

7.   In mitigation, it was submitted that at the beginning when the Defendant and Girl X met, Girl X looked filthy and asked for money from the Defendant.  The Defendant gave her money.  It was submitted that nothing unusual happened in the first couple of months.  In this connection, I note from the Summary of Facts admitted by the Defendant that the two of them first met in March 2009 whereas the 1st offence took place in May 2009.  I was also informed by the defence counsel that in respect of the 3rd charge, the Defendant never thought of or attempted to have sexual intercourse with Girl X.  I accept that submission.  Indeed, the Summary of Facts does not reveal anything to suggest that the Defendant ever tried to have intercourse with Girl X on the third occasion.

8.   Defence counsel referred me to HKSAR v Yau Kin Wai CACC 398/2003.  In that case, the applicant was 25 and the victim was 14.  In mitigation, it was submitted that the applicant believed that the victim was aged about 17 or 18 and that there was nothing to suggest the contrary.  The Court of Appeal accepted that the victim was not so obviously underage that the applicant must have known it.  The present case is different from Yau Kin Wai in that there is a marked age difference of 48 years in the present case and that the Defendant here knew full well the actual age of Girl X.  I do not find Yau Kin Wai of much assistance for sentencing in the present case.

9.   In HKSAR v Kwok Kau Kan CACC 627/1998, the applicant was convicted after trial of 5 counts of indecent assault.  On appeal against conviction and sentence, the convictions on the 3rd and 4th counts of indecent assault were quashed but the appeal against convictions on the 1st, 2nd and 5th counts was dismissed.  In that case, the complainant was 12 years old whereas the applicant was in his 70s living in the neighborhood of the complainant’s grandmother whom the complainant visited almost everyday.  In respect of the 1st count of indecent assault, the applicant touched the complainant’s breasts over her clothes for a few minutes.  After that, the applicant gave the complainant $50.  Regarding the 2nd count of indecent assault, he touched her breasts over her clothing for a few minutes.  When he was leaving her, his lower part rubbed against her left buttock for a few seconds.  The applicant also gave the complainant $50.  In relation to the 5th count, the complainant stood in front of the defendant with her back towards him.  The applicant then held the complainant’s waist and touched her breasts with his hands.  He also rubbed her back, lifted her skirt and touched her buttocks over her pants.  During the incident, the complainant’s back was touching the front part of the applicant’s body.  Twice, the complainant bent forward at an angle of about 30 degrees and then stood straight again.  In that position, her buttocks were touching the applicant’s private parts and he moved forward and backward.  The whole thing happened for a few minutes.  The Court of Appeal noted that no violence was involved and the complainant was a willing participant but said that the consent of the complainant was not a mitigating factor.  The Court of Appeal remarked that there was the aggravating factor that the applicant had corrupted the mind of a girl of tender age by paying her after the event.  The Court of Appeal considered the offences very serious.  In that case, the applicant had three previous convictions of indecent assault.  The Court of Appeal considered it appropriate to impose 1½ years’ imprisonment each for the 1st and 2nd counts and 2½ years’ imprisonment for the 5 count.  As the first two counts were committed one shortly after the other, the sentences were made concurrent.  The court also made one year of the 5th count concurrent with the sentences of the first two counts, thus making a total of 3 years’ imprisonment after trial.

10.   In HKSAR v Lau Chi Cheung (劉志翔)CACC 427/2007, the Court of Appeal quoted a passage in HKSAR v Lai Yip Sing HCMA 1104/2000 in which Deputy Judge McMahon (as he then was) said:

“…One of the important factors to take into account is any marked difference in age between the offender and the victim.”

The Court of Appeal in Lau Chi Cheung(劉志翔)case also considered the payment of $2,200 to the victim after the sexual intercourse “corrupting influence” and an aggravating factor.

11.   In Secretary for Justice v Huang Long Wei CAAR 5/2008, the Court of Appeal identified three crucial considerations for the offence of indecent assault on young children by adults, namely:

(a) To deter others from committing similar offences;

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

(c) To redress the grievance suffered by the victim and his or her friends and relatives.

The Court of Appeal also said that the sentencing courts had to consider three other important factors:

(d) Even if no psychological assessment report on the abused victim was available, the court could not overlook the possibility of the victim suffering psychological damage as a result of sexual abuse;

(e) It was difficult to detect this type of offence 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; and

(f) In dealing with this type of offence, the courts would have regard to the protection of children as the most important consideration.

12.   Having considered the facts of the present case, the Defendant’s clear record and previous authorities, I am going to adopt a starting point of 18 months’ imprisonment for each of the first two charges, and 3 years imprisonment for the third charge.  In light of the Defendant’s guilty plea, I will give one-third discount thus making the sentences for the 3 charges being 12 months, 12 months and 2 years imprisonment respectively.

13.   As for totality, as the 2nd and 3rd charges happened in the same month in November 2009, I am going to order the sentences for the 2nd and 3rd charges to run concurrently, but 6 months in the 1st charge to run consecutively with the sentences of the 2nd and 3rd charges.  The total sentence is therefore an imprisonment of 2 and a half years.