HKSAR v. C. Y. H.

DCCC 606/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 606 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of Indecent Assault, contrary to s 122(1) of the Crimes Ordinance, Cap 200, and to one charge of Unlawful Sexual Intercourse with a girl under the age of 13 years, contrary to s 123 of the said Ordinance.

Facts

2.  The defendant was 16 years old when he committed these offences, whereas the victim X, who is the defendant’s cousin, was only 9 years old.  At the material times, the defendant, whose parents were both working in mainland China, was staying with X’s family while he was pursuing his secondary school studies in Hong Kong.

3.  On an unknown day between March and May of 2011, while both X and the defendant were in the study of X’s home, the defendant, having asked X to sit on his lap, pulled open her pants and underpants and inserted his finger(s) into her private parts.  This insertion, which was resumed after a brief pause because of X’s complaints of pain, lasted for a few minutes.

4.  On an unknown day within the same period of time, again in the study, the defendant, having asked X to take off her pants and underpants and spread her legs, inserted part of his penis into X’s private parts and moved his body about for about 30 seconds.  The defendant’s insertion caused discomfort and some pain to X.

5.  Around 2011 and 2012, finding that X had been crying a lot, X’s mother asked her what the matter was.  X then told her mother about the defendant’s insertion of his finger(s) into her private parts.  Arrangements were then made for the defendant to move back to mainland China.

6.  Around February 2014, noticing that X had been crying and appearing to be emotional, X’s mother asked and was told by X that apart from insertion with his finger(s), the defendant had also inserted his penis into her private parts.  A report was then made to the police.

7.  The defendant came back to Hong Kong and was arrested by the police on 24 April 2014.

8.  Forensic examination of X revealed no abnormality or injury to her hymen.

Defendant’s background

9.  The defendant was born in Hong Kong on 27 June 1995.  He is now 19 years old, single, and was working at his parent’s factory in Shantou prior to his return to Hong Kong in April this year.  He did not receive any more schooling after secondary three.  He has a clear record.

Mitigation

10.  In mitigation, the defendant’s counsel Mr McGowan pointed out that both X and the defendant were quite young when the offences were committed.  At that age, the defendant was curious about sex and wanted to experience sex but was ignorant about the proper form of approach.  He was studying in Hong Kong whereas his parents were working in Shantou.  His parents did not give him any guidance or education in matters involving sex.

11.  After the incidents came to light, the defendant went back to the mainland to work at his parents’ factory.

12.  When he became aware that the matters involving what he had done to X had been reported to the police, he voluntarily came back to Hong Kong and surrendered to the police.  This was followed by his pleas of guilty, which spared the need for X to testify in court.

13.  Through his counsel, the defendant apologized to X and her parents and to his own family for what he had done to X.  A letter written by the defendant expressing his remorse and apologies was produced.

14.  The defence also submitted a letter written by X’s mother in which she expressed her forgiveness of the defendant and asked for the court’s leniency in dealing with him.

Pre-sentencing reports

15.  Sentencing was adjourned pending the availability of the following reports: A) a psychological report on X; B) a background report, a psychiatric report, a psychologist’s report, a training centre report, a detention centre report, and a rehabilitation centre report on the defendant.

16.  These reports are now available.  I have considered their contents.

17.  The psychological report on X says that the assessment findings revealed that X’s prominent sexual concern, pre-occupations and distress, were common symptoms of sexually abused children. X has been markedly traumatized by the sexual abuse incidents and has exhibited symptoms of post-traumatic stress disorders including intrusive thoughts, avoidance behaviour and hyper-vigilance.  She had a strong sense of unhappiness and shame when recalling the incidents.  The psychologist is of the view that X is in need of psychotherapy.

18.  The background report on the defendant says the defendant was brought up in a traditional Chinese family.  He has good relationship with his family members.  He has an introverted personality and does not have many friends.  He did not do well in school, but enjoyed working in his family business.  He heeded his parents’ advice and did not engage in nocturnal activities.  After ceasing going to school in Hong Kong, he went back to mainland China to work in the family business.  He returned to Hong Kong in the early part of this year to face the consequences of his wrongdoings.

19.  The psychiatric report says the defendant is not suffering from any formal psychiatric illness.

20.  The psychologist’s report says the defendant is a self-centred and immature young man who has had loose and inconsistent adult supervision throughout his development.  In the face of strong curiosity towards sex while reaching adolescence and lacking any channel to get proper information, the defendant turned to internet pornography.  Under the influence of pornography and with weak consequential thinking, the defendant committed the present offences to gratify his sexual needs.  His insight into his offending behavior is rather superficial, and the risk of his re-offending in sex offences is assessed to be in low to moderate range for the time being.  The psychologist thinks that the defendant needs counseling to help him develop proper ways to gratify his sexual needs and to increase his consequential thinking.

21.  The Detention Centre/Rehabilitation Centre/Training Centre Suitability Report says the defendant is physically and mentally fit for detention in all these centres, and that there are places available to him.  The intake officer says that in view of the defendant’s weak self-control and weak law-abiding concept, a period of disciplinary training coupled with statutory supervision would be beneficial to him.  In the end, the intake officer considers the defendant more suitable for detention in a Detention Centre. 

Reasons for sentence

22.  The defendant pleaded guilty to two serious offences.  The 1^st charge of Indecent Assault carries a maximum penalty of 10 years imprisonment, whereas the 2^nd charge of Unlawful sexual Intercourse with a girl under the age of 13 years carries a maximum sentence of life imprisonment.

23.  In HKSAR v Cheung Kwai-sang HCMA 47/2002, Gall J said:-

“It is important that in all cases involving indecent assault that there be an element of deterrence of others to mark the public abhorrence and a need to redress the grievance suffered.”

24.  Given that X was only a child of 9 years of age, it is pertinent to note that in HKSAR v Kam Wing-yin CACC 515/2005, the Court of Appeal stressed that:-

“the courts must be conscious of their duty to impose sentences that will in a real way protect children from sexual molestation.”

25.  In our case, the indecent assault on X took the form the defendant inserting his finger(s) into her private parts for a few minutes, causing her pain.

26.  Had the defendant been an adult at the time of the offence, for the type of indecent act he did to X, he could expect a term of imprisonment ranging from 24-30 months: see eg HKSAR v Ng Ngok-wai [2008] 1 HKLRD 546; HKSAR v YHY CACC 351/2003.

27.  In Secretary for Justice v HKL & HTY [2004] 3 HKLRD 236, the Court of Appeal held that generally speaking, when the offence involved an indecent assault on a child by his or her elder, relative or someone responsible for taking care of the child, the court would pass a severe sentence – usually an immediate custodial sentence – so as to serve deterrent purposes.

28.  In the case of HKL & HTY itself, the 2^nd applicant HTY was the victim’s elder brother.  At the time of the offence, HTY was 16-17 years old, whereas the victim was about 14 years old.  HTY was convicted after trial of indecently assaulting his younger sister by putting his hand inside her underpants and inserting his finger(s) into her private parts.  Observing that HTY might have been influenced by his father the 1^st applicant in asserting his innocence at trial, the Court considered that an order for HTY’s detention in a Detention Centre would have been the appropriate sentence, but the court refused to disturb the original sentence of Community Service Order on the ground that HTY had completed his community service and had been detained for over a month.

29.  However, I do not think a detention centre order is an adequate sentence in our case because, unlike HTY who was involved in just one instance of indecent assault on his sister, the defendant, apart from inserting his finger(s) into X’s private parts, went on to commit a second and a more serious offence on X by having unlawful sexual intercourse with her.  According to what the defendant told the psychiatrist, this unlawful sexual intercourse took place about an hour after he had put his finger(s) into X’s private parts.

30.  In sentencing someone guilty of the offence of unlawful sexual intercourse with an underaged girl, all the circumstances should be taken into account.  One of the relevant factors is the age difference between the offender and the victim.  Generally speaking, the bigger the age gap, the more severe the penalty is for the offender.  In the section dealing with the quantum of sentence for such an offence, the authors of Cross and Cheung, Sentencing in Hong Kong, 6^th edition, had this to say, at p 729:-

“If both the girl and the accused are young, the court may be able to adopt a more lenient approach, particularly if they are in a boy/girl relationship.”

31.  I am mindful of the fact that the defendant himself was only 16 years of age at the material time.  However, he is 7 years older than his cousin X and, relative to her, he must have been more cognizant of how wrong it would be to engage in sexual activities with his own cousin who, at that time, was still in primary school.

32.  In HKSAR v Lau Chi-cheung [2008] 4 HKLRD 432, the Court of Appeal considered a sentence of 13 months imprisonment appropriate for the appellant who was a 22-year-old college student and described by Tang V-P as “not a mature man”, who pleaded guilty to unlawful sexual intercourse with a girl who was 12 years 7 months old and who took part in sexually explicit conversations with strangers on internet chatrooms which conversations included boasting about her previous sexual experience and her willingness to engage in such activities.

33.  Whilst X in our case must have been much less precocious and sexually savvy than the victim in Lau Chi-cheung, it is also worth-noting that, compared with the appellant in that case, this defendant was only 16 years old and had received far less formal schooling than that appellant.

34.  Judging from the decision in Lau Chi-cheung, it seems that a custodial sentence, albeit not a long one, would be called for for this kind of offence even in respect of an offender who is considered “not a mature man”, as this defendant clearly was at the time of the offence.

35.  However, given the defendant’s age, his background, and his clear record, I do not think it would be right to sentence him to imprisonment, unless there are no other suitable means of dealing with him.

36.  In light of the contents of the Detention Centre/Training Centre/Rehabilitation Centre Suitability Report, there clearly are ways other than imprisonment open to this court in dealing with the defendant.

37.  As I have indicated earlier, I do not consider a detention centre order an adequate punishment for the defendant’s criminal acts.  In sentencing this defendant, the court must also take note of the serious psychological harm that X suffers as a consequence of what the defendant did to her.

38.  On the other hand, the court is also conscious of the fact that defendant is a young man with a clear record, who has not exhibited any serious deviant or wayward behaviour.

39.  The court considers it possible and likely that the defendant may have committed these offences by allowing his sexual impulse to get the better of him in the course of exploring and experimenting with his sexuality in a wrong and misguided way.  There are no indications that what the defendant did to X was done out of any desire to harm her or to exploit her innocence and immaturity.

40.  The fact that X’s mother, who enjoys a close mother/daughter relationship with X, is willing to forgive the defendant is not lost on this court.

41.  Furthermore, the defendant’s voluntary return to Hong Kong to deal with the present offences, coupled with his pleas of guilty in court, are also indications of genuine remorse and a willingness to shoulder the responsibility for his wrongdoings.  Such pleas would also save his cousin from any embarrassment or agony that she may suffer as a result of having to recount the incidents in open court.

42.  The defendant certainly deserves punishment in the form of custodial sentence for what he did and for the harm done to his cousin.  Given all the circumstances, a short term of custodial sentence would be in order.

43.  This court considers that the defendant is also someone who needs reform and training so that he may acquire a proper sense of value and the right attitude, including law-abiding concepts and proper exercise of self-control, in order that he may be equipped with the necessary social and other skills upon his discharge.

44.  I am satisfied that, having regard to the character and conduct of the defendant, and the circumstances of the case, it would be in the interest of the community and of the defendant himself that he should undergo a period of detention in a rehabilitation centre.

45.  I therefore order that the defendant is to be detained in a rehabilitation centre in respect of both charges.