HKSAR v. Chan King yue

DCCC 1100/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1100 OF 2012

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Reasons for Sentence

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1. Defendant pleads guilty to one count of indecent assault. The victim is girl X born in December 1996. When the defendant assaulted her on 1 July 2012, X was just 15½ years old.

2. On that day, X went with some friends to watch fireworks display.  Defendant was also in the company.  X had come to know defendant through her friends.  According to the background report, defendant said that was the second time he met X. 

3. After the fireworks display, defendant drove X and her friends to Sham Shui Po in a lorry.  X’s friends got off there. Defendant then offered to drive X to Mong Kok to take transit there.  At about 10.10 pm, defendant drove X to a quiet spot in Mong Kok. 

4. Defendant lied to X that he needed help.  He coaxed X to go inside the cargo compartment of the lorry and closed the compartment door.  It was dark inside X felt scared.  She wanted to come out but defendant further lied to her that the door was not working.  Actually, it was defendant holding the door tight to prevent X from coming out.  X nevertheless managed to open the door and tried to jump off.  Defendant grabbed her to stop her.  He even produced a cutter and rubbed it against X.  Inside that compartment, defendant pushed X to the floor.  X struggled with defendant, she managed to throw defendant’s cutter out of the lorry. 

5. Defendant ordered X to take off her clothes and belt.  X refused.  She stood up from the floor.  Defendant pushed her to one corner and attempted to take off her clothes.  X still resisted.  Defendant told X to take off her upper clothes otherwise he would take off her pants.  He told X to take off her bra.  X was so frightened that she acceded to defendant’s demand.  Defendant then squeezed X’s left naked breast 3 to 4 times with a medium force.  The squeezing lasted for a few seconds. 

6. At that time, someone appeared outside the lorry.  Defendant asked X not to make any noise but X shouted for help. Defendant tried to cover X’s mouth with his hand but he failed.  X managed to push defendant away.  She grabbed her clothes and jumped off the lorry; upper body still naked.  Defendant then drove his lorry away.  A passer-by came to help X. 

7. While inside the lorry compartment, X had struggled with defendant for about 5 minutes.  X was injured.  She was found to have patches of erythema and abrasions on both legs, a 3 cm line of abrasion on left upper back and lines of abrasions on the palmer flexures at the levels of the proximal interphalangeal joints of right index, middle and ring fingers. She was treated and discharged.

8. Defendant was arrested on the next day.  X identified him in an identification parade. 

9. Under caution, defendant claimed he had lost his mobile phone.  He threatened X with a cutter to ask her to return his phone. He asked X to remove her clothes to see if she had hidden the phone under her clothes.  Defendant said he touched X’s breast only once and accidentally.  He also told police that he was able to find his phone in X’s handbag which was left by X in the lorry. 

10. It is not in dispute that defendant had his phone with him when he was arrested and X’s phone was found inside the lorry compartment.

11. Defendant is aged 35.  He has two previous convictions.  In March 2011, he was convicted of forging or possessing some forged driving or vehicle documents; he was fined $6,000.  In September 2011, he was sent to prison for 14 days for an offence of obtaining services by deception. 

12. Before passing sentence, I called for a psychologist’s report and a background report in respect of defendant.  I also called for a victim impact report on girl X. 

13. The probation officer details defendant’s background in the report.  Counsel confirms that such personal information of defendant is all true and correct. 

14. Defendant is a divorcee.  He has a son aged 9, now under the care of defendant’s parents.  Defendant himself lived in a rented room prior to his arrest.  Defendant had received education up to Form 3 level.  He did not have stable employment.  His last job was a van driver.  He would contribute three to four thousand to his parents for taking care of his son.  The relationship was however poor.  Defendant last contacted his parents and son in December 2011. 

15. Defendant admitted to the probation officer that he had the habit of visiting prostitutes.  His conviction for obtaining services by deception in September 2011 was actually for his failing to pay a prostitute. 

16. Defendant told the probation officer that he had no intention to indecently assault X.  The girl stole his phone.  He thus asked her to remove her clothes to see if the phone was hidden under her clothes.  He only touched the girl’s breast accidentally.  He did not know how she got her injuries.  He also said he did not know the girl was that young.  He told the probation officer that he knew he was wrong and he was ready to receive punishment.

17. In court, defendant unequivocally withdraws that claim of accidental touching.  He admits that he intentionally assaulted X indecently.

18. The psychologist had interviewed defendant.  The psychologist says defendant was a dishonest and irresponsible person.  He was defensive and evasive.  The psychologist comments that defendant lacks insight into his wrongdoings and his remorse is also superficial.  Defendant tends to rationalize his behaviour and put the blame on others.  He has no empathy for X.

19. Defendant admitted to the psychologist that he knew X had a habit of stealing.  He set her up, allowing X to steal his phone so that he could take advantage of the situation.

20. The psychologist opines that X has no psychiatric disorder.  He has a low to moderate risk of re-offending sex crimes. He thinks defendant needs psychological treatment focussing on the prevention of sexual re-offending criminality and temper control.

21. Another psychologist had interviewed X and her mother.  This is the psychologist’s conclusion - “X has been experiencing traumatic impacts after the sexual assault incident.  She is also depressed and anxious.  She struggles with a multitude of problems, including lack of volition and drive, moodiness, poor concentration, excessive sleep, intrusive memories from the attack, fear towards males, loss of trust towards people and disconnection and isolation.  The multiple problems have taken a toll on the way X sees herself.  She has a negative identity conclusion of herself as being useless and a failure in life which unfortunately would only incapacitate her from taking effective actions to reclaim her life from the negative traumatic impacts of the sexual assault.”  The report discloses that X has been exhibiting social withdrawal symptoms.  Her truancy problem has been getting much worse, attending school for only 8 days since school term began in September 2012.  X even has developed some vague fleeting thoughts of suicide, though fortunately she has no concrete plans of so doing.  The psychologist opines that X requires therapy and she would follow up her case.

22. The present case is a very bad one of indecent assault.  The facts speak for themselves.  Surely, X was extremely scared in the incident.  As a result, she has been experiencing post-traumatic symptoms.

23. Defendant lied to police that he only wanted to find out if X had hidden his phone under her clothes and he only touched X’s breast once and accidentally.  That was a shameless lie.  Defendant maintained that claim of accidental touching to the probation officer.  He only withdrew that false claim when this court pointed out to him that such claim was inconsistent with his guilty plea.  Only then did he unequivocally admit his guilt. 

24. Defendant’s lie was indeed a shameless one.  The truth is what he admitted to the psychologist who interviewed him.  Defendant had premeditated his act.  He set X up, allowing himself to lord over her and to take advantage of the situation.

25. In the case of HKSAR v Tin Siu Hung CACC275/2005, the appellant pleaded guilty to four offences, one was indecent assault, one was common assault and the other two were offences of falsely pretending to be a public officer.  In each case, the appellant pretended to be a police officer and approached young victims aged 7 to 12 in the pretext of investigating crimes.  In the indecent assault case, he took an 11-year-old girl into a room in a church complex.  He accused the girl of having stolen something and then fondled her upper body over her clothes.  He also touched her underpants under her skirt.  The sentencing judge took 4 years’ imprisonment as the starting point.  On appeal, that starting point was reduced to 3 years because the Court of Appeal was of the view that defendant’s assault was confined to touching over the girl’s clothes and over her underpants.  The appellant thus got 2 years for his plea on that indecent assault charge.  He was aged 28 and had a clear record before that case. 

26. In the present case, defence counsel says X was already 15 (actually 15½), and she is now 16.  Counsel suggests that X should feel less frightened than the 11-year-old victim in Tin Siu Hung’s case.  Counsel also says the present case was only one incident contrary to Tin’s multiple acts.  Counsel says though defendant used a cutter, he did not injure X.  Counsel suggests that X might have those injuries when she jumped off the lorry. 

27. Counsel says defendant has no previous similar convictions; his risk of re-offending is only low to moderate. 

28. Counsel is aware of X’s situation now.  He says the girl may recover after seeking help.

29. Counsel says the present case cannot be said to be a worse case than the case of Tin Siu Hung.

30. I disagree.  The present case is much worse than the case of Tin Siu Hung.  In the present case, defendant coaxed X into an enclosed and dark lorry compartment and detained her there for about 5 minutes.  In the course of seeking his own gratification, defendant produced a cutter and rubbed it against the girl, threatening the girl to take off her clothes.  X was forced to strip her upper body naked.  Defendant then squeezed X’s breast 3 to 4 times. 

31. What defendant might further do if X did not manage to escape, that we do not know (thanks to the passer-by appearing near the lorry at that time). 

32. Counsel might say X was already aged 15½ while the victim in the case of Tin Siu Hung was only 11.  But I would only say a girl of 15½ would be more apprehensive of the horror of sexual assault of this nature than an 11-year-old girl.  Although X had suffered no serious physical injuries, she has indeed developed quite severe post-traumatic symptoms to the extent of requiring therapy.

33. This case has more aggravating features than the case of Tin Siu Hung: defendant producing a cutter, rubbing it against X’s body, threatening her to strip and squeezing her naked breast 3 to 4 times.  I will adopt 4 years’ imprisonment as the starting point.  Although defendant’s remorse is only superficial, he indeed has pleaded guilty and saved X from giving extremely unpleasant evidence.  Defendant is thus entitled to a full one-third discount for his plea.  He is sentenced to prison for 2 years and 8 months.