HKSAR v. N.K.K.

DCCC 55/2019

[2019] HKDC 1079

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 55 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200.

Summary of facts

2.  The defendant was the boyfriend of the mother of the victim, 12 year old “X”, at the time of the two assaults.

3.  Together with a then 2 year old son born to the defendant and the mother, the 4 of them lived together in a public housing unit in Tin Shui Wai.

4.  In late 2016, X disclosed to her cousin that the defendant had on one occasion climbed into her bed and touched her private parts.  The matter was eventually brought to the attention of the authorities in September 2018.  In a subsequent video recorded interview, X told the police what happened.

Charge 1

5.  At around 11 am on an unknown day between 1^st January 2016 and 31^st December 2017, while X was sleeping alone at home, the defendant came home and tried to wake her up by banging on the side of her upper bunk bed.

6.  The defendant climbed into X’s bed and sat next to her legs. The defendant took away her blanket, pulled her shorts down to her ankle and pulled down her underpants.

7.  The defendant then held up X’s legs and rubbed his penis against X’s private part in a forward and backward motion twice.

8.  During the one to two minutes that the defendant was assaulting X, she could feel the defendant’s hands on either side of her pillow.

9.  The defendant then put X’s shorts back on for her.  He asked X if she knew what had happened and X replied that she did not.

10.  The defendant told X that he was drunk.  X’s mother then came home.

Charge 2

11.  In the same interview, X recounted that on another occasion in the same period, while X was taking a shower at home, the defendant asked her to let him into the bathroom since he urgently needed to use the toilet.

12.  X opened the bathroom door and the defendant entered.  Once inside, the defendant said to X that he wanted to check if she had properly cleaned her head.  X stuck her head out from behind the shower curtain for the defendant but he told her not to cover her body.

13.  After X had complied, the defendant took off his clothes and got into the shower.  He washed X’s hair for a while and then washed her whole body, including her lower body and private parts with soap.

14.  The defendant told X to wash his body.  X was scared but she did wash the defendant’s upper body.  She did not wash or look at the defendant’s lower body.  The defendant then grabbed X’s hand to wash his private parts for about 1 to 2 minutes.  The defendant then left the bathroom while X stayed in the shower.

Arrest and caution

15.  The defendant was arrested on 9 October 2018.  Under caution, the defendant said that he had indecently assaulted X and that he had acted impulsively.

16.  In the later cautioned video recorded interview, the defendant admitted to climbing into X’s bed, inserting his finger and stirring in X’s mouth for a while.  He admitted that he did pull down X’s shorts and underpants and touched her private parts.  He claimed that he also touched X’s breasts 2 to 3 times.  He then put X’s shorts back on for her.

17.  As to charge 2, the defendant claimed that he had never took shower with X.  There was, however, one occasion when he did enter the bathroom to urinate while X was having a shower.  The defendant did ask X if she had washed her hair and to show him if she had done so.  X did show her head but hid her body behind the shower curtain.  The defendant did ask X to let go of the curtain.  After seeing X’s naked body, the defendant said he impulsively touched X’s breasts once or twice for about 1 to 2 seconds.  He then asked X to wash her hair again while he left the bathroom.

Previous convictions

18.  The defendant has a few convictions arising out of an incident where he took a vehicle without authority in January 2012.  He was sentenced to 12 months’ probation, fined $5,000 and disqualified from driving for 24 months.

19.  Given the different nature of those convictions, as well as the lapse of time, his sentence in the present case will not be enhanced on the basis of his past convictions.

Mitigation

20.  The defendant is 27 and not married.  He was educated up to form 1 level in Hong Kong.  He used to work as a truck driver earning about $15,000 per month.

21.  The defendant’s father is 51 and a baker, and his mother is 50 and a housewife.  The defendant has one elder and one younger sister who are both housewives.

22.  The defendant would contribute about $3,000 to $4,000 every month towards his family’s expenses.

23.  Mr Tsoi for the defendant pointed out that the defendant had entered a timely plea and X was saved from having to relive the events in court.  The defendant had confessed in his video recorded interview and shown remorse.

24.  The defendant’s parents and employer wrote in mitigation.  They speak to the defendant being a good son and employee.

25.  The defendant had since moved out of X’s home and he no longer keeps in touch with X’s mother.

The reports

26.  A victim impact report was ordered to be prepared on X.  In gist, the psychologist finds that X suffers from various psychological symptoms, including dissociative disorder and post-traumatic disorder, which are at least partly attributable to the present offences and required clinical attention.  The court is informed that intensive psychological treatment will be arranged.

27.  As for the defendant, the psychologist report suggests that there is only a low to moderately low risk of re-offending.  There is no indication of the defendant being a paedophile.  It is recommended that the defendant should receive psychological intervention on sexual self-control and maintaining of intimate relationships. The defendant accepts this evaluation and is willing to receive treatment.

28.  The background report of the defendant indicates that the defendant himself as having been victim of child abuse and neglect, and that X’s mother has been neglecting her parental duties.

Sentencing considerations

29.  The maximum sentence for the offence of indecent assault on conviction upon indictment is that of 10 years’ imprisonment.

30.  In the High Court case of HKSAR v Kong Yun Chiu (鄺潤釗), [2007] 4 HKC 391, CACC 315/2006, the applicant also pleaded guilty to two counts of indecent assault.  The victim in that case was 8 years old while the defendant was around 28.

31.  The relevant facts as set out in the judge’s remarks upon sentencing are as follows:-

“On [the first occasion which was in 1999] he asked the victim to take a bath. She removed her clothing until she had only her knickers on. While she was in the bath, the defendant came in, having taken off his clothing, except for his underpants, and touched her breasts and private parts and felt excited by that. He later watched a pornographic video showing sex acts. At that time, the victim came over to him; the defendant rubbed his penis through her trousers and his trousers, experiencing an erection. He later stripped the victim's trousers and knickers to below her knees, took off his trousers and underwear and rubbed his penis on the outside of her private parts. He masturbated and ejaculated at that time.”

“The second incident [charged in the indictment as having occurred in the winter of 2002/2003] took place at a different flat, the family having moved. The victim was on her bed, almost asleep, with her night clothes on. The defendant came up and touched her under her nightdress; he touched her breasts and private parts through the underpants she was wearing at the time. He pulled down her underpants and touched her private parts which woke her up fully. The defendant pulled down his own trousers and underwear and rubbed his penis against her private parts and masturbated and ejaculated. The victim, who had seen the defendant take off his clothes, pull down her trousers and feel her private parts with his penis, was frightened and thought the defendant wanted to have sexual intercourse. She resisted him by pushing him and ran out to the living room.”

32.  The judge adopted a 6 year starting point for each of the 2 offences, leading to a 4 year sentence each after plea.  She ordered 2 years and 6 months’ imprisonment on the second count to run consecutively to the sentence for the first count, resulting in a total sentence of 6 years and 6 months’ imprisonment.

33.  The Court of Appeal stressed the need for deterrence in cases like this, but found that the 6 year starting points were too high in the circumstances.  A starting point of 5 years was substituted, leading to a sentence of 40 months after discount.  14 months of the second count was ordered to run consecutively to the sentence in the first count, resulting in a total sentence of 4 and a half years’ imprisonment.

Starting points in the present case

34.  The defendant was 24 at the time of the offence.  The age gap between the defendant and X is 12 years, which is less than the 20 years between the applicant and victim in Kong Yun Chiu.

35.  X was 4 years older than the victim in Kong Yun Chiu at the time of the assaults.  X would probably have been better equipped to deal with the trauma as a 12 year old as compared to an 8 year old.

36.  The nature of defendant’s assaults in the present case can be said to be marginally less serious than those of the applicant in Kong Yun Chiu, in that X did not have to suffer the additional trauma of the defendant masturbating and ejaculating in front of her.

37.  Having said that, what the defendant did to a 12 year old girl who is the daughter of the woman that he was dating is still extremely serious and repulsive.

38.  The psychologist’s report on X shows that she has been having a difficult time since the offences and their being exposed.  She feels helpless and overwhelmed when recalling the incidents, how she was fearful and frozen during the assaults.  She blamed herself for reporting the case to the Police because it resulted in her family being torn apart.  She misses her half-brother and is worried about her mother’s emotional condition.  X would avoid leaving home on holidays because the defendant and his family live nearby and she is frightened of running into them.  When she did go out, she always kept her head down.

39.  What the defendant did to X has a long-lasting and negative impact on her.

40.  To properly reflect the court and society’s disgust towards the defendant’s conduct, and to properly deter those who may find themselves in similar situations and suffer from similar impulses, I find that a proper starting point for each of the two charges is that of 4 and half years’ imprisonment.

41.  The only mitigating factor is the defendant’s timely guilty pleas and for that he is granted the full one-third discount, leading to a sentence of 3 years for each of the two offences.

Totality

42.  The two offences took place on different days and different occasions.  The defendant did not have to commit the second assault if he was truly remorseful after he had committed the first assault.

43.  A wholly consecutive sentence of 6 years for the two offences would, however, be excessive and have a crushing effect on the defendant.

44.  Taking a step back, I order that 12 months of the sentence in charge 2 be served consecutively to the sentence in charge 1, the balance concurrently, resulting in the final total sentence of 48 months’ imprisonment after plea for the two charges.