HKSAR v. CHU HEY

 DCCC1040/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1040 OF 2010

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Reasons for Sentence

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The defendant was charged for 3 counts of indecent assault on another person, contrary to section 122(1) of the Crimes Ordinances, Cap.200; 1 count of unlawful sexual intercourse with a mentally incapacitated person, contrary to section 125(1) of the Crimes Ordinance, Cap 200 and 1 count of attempted unlawful sexual intercourse with a mentally incapacitated person, contrary to sections 125(1) and 159G of the Crimes ordinance, Cap 200.

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

Facts

All charges concerned victim X, who was 36 years old with IQ score of 65, her social skills were equivalent to a normal person aged between 9 and 14. X is classified to be a mentally incapacitated person with mild grade mental retardation. X acquainted with the defendant in August 2009, and started attended the defendant’s painting classes since May 2010, the defendant knew X was mentally incapacitated when he came to know her.

On 5 June 2010, D took X to his home. At D’s home, X took off her shirt and bra as told by D; D also took off his clothes and fondled X’s body. X sent D a text message that she disliked what he did on the following day. (Charge 1)

On 12 June 2010, on the way to D home, D asked to have sex with X, to which she agreed. At D’s home, D fondled X’s breasts while they were sitting on the bed. X took off her clothes and rub D’s penis as told by D. D’s penis could not erect so he rubbed his penis against X’s private part. (Charge 2)

On 14 June 2010, D accompanied X to the West Rail Station after painting class. When they were nearby the Yuen Long West Rail Station, D fondle X’s breast. (Charge 3)

On 19 June 2010, on the way to D home, D asked to have sex with X, to which she agreed. At D’s home, D touched X’s breasts while they were sitting on the bed. X took off her clothes and rub D’s penis as told by D. D had sexual intercourse with X. D did not wear any condom. (Charge 4)

On 23 June 2010 D was told that X was living in a hostel for mentally incapacitated people.

On 26 June 2010, X went to D’s home and D suggested to have sex and X refused. They took off their own clothes; D fondled her breast and X performed oral sex on D as told. (Charge 5)

Those with mental impairment are particularly vulnerable to sexual abuse and exploitation. The court is under a duty to protect the vulnerable against the predator and to send clear message to those minded to abuse them.

The defendant became the victim’s painting teacher after acquainted with her for about 9 months, the defence does not dispute that the sexual abuses involved breach of trust, this amount to an aggravating feature. Further the defendant did not used condom and subject the victim to further risk on physical health and pregnancy, this amount to another aggravating feature.

All the offences committed within about 3 weeks. I consider the appropriate starting point for:

Charge 1 to be 12 months;

Charge 2 and charge 4 to be 30 months;

Charge 3 to be 6 months;

Charge 5 to be 18 months imprisonment.

The defendant entitled to 1/3 discount for his plea.

The defendant aged 58 divorced with 2 children aged 25 and 18 respectively. The defendant receives public assistance and lives alone prior his arrest. The defendant has a clear record and participated in community works. In his mitigation letter, the defendant stated his remorse and apology to the victim. The defendant admitted his guilt after arrest and indicated his plea on the first mention day in District Court, this save the victim from testifying in court, for this and his genuine remorse, I allow a further 2 months discount.

I do not consider there to be further mitigating factor that called for deduction. I consider the offences are separate incidents, however, taking into account of the totality consideration, I order the sentence to run partly concurrent and partly consecutive, making a total of 26 months imprisonment.

Order