HKSAR v. L.C.H.

DCCC 886/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 886 OF 2015

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Reasons for Sentence

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Charges

1.  The Defendant pleads guilty to 2 charges of indecent assault on a mentally incapacitated person, X, on a day unknown between July 2014 and September 2014 (2^nd Charge) and on a day unknown in January 2015 (4^th Charge). 

Facts

2.  X, now aged 32, suffers from mental retardation.  She was born in October 1982. For over 10 years, she had worked in an integrated vocational rehabilitation centre (“the Centre”), operated by a voluntary agency to provide employment opportunities and training for mentally retarded persons and mentally handicapped persons.  The Defendant was one of the instructors.   

3.  On 25 January 2015, X told an instructor that earlier on in the same month she had been sexually abused by the Defendant.  Other responsible officers took up the matter and eventually reported it to the police. 

4.  The Defendant was arrested at his residence on 4 February 2015.  In the investigation after caution, he made admissions as follows:

(1) He had worked in the Centre for 13 years as an instructor and known X for 8 – 9 years. He had her phone number and they had phone conversations regularly;

(2) He had sex with X once on a day between July 2014 and September 2014 and another time in January 2015;

(3) On the first occasion, X went to his residence to talk about her personal problems. There he hugged and kissed her, molested her breasts and private parts, took off her upper clothes while she took off her own pants. He brought her to his bed with intent to have sexual intercourse with her. His penis had contacted her vagina but failed to penetrate her as he could not get an erection. He turned to masturbate himself on the bed to ejaculation onto the floor. He did not use any condom;

(4) On the second occasion, X went to his residence to watch TV together. He molested her breasts. X took off her own clothes and went to his bed. He took off his own clothes with intent to have sexual intercourse with her. His penis had contacted her vagina but failed to penetrate her as he could not get an erection. He turned to masturbate himself on the bed.

5.  As the forensic medical evidence was consistent with either penile penetration or the absence of it, there is nothing to disprove the Defendant’s allegation of attempted but failed penetrations.   

Personal background and mitigation

6.  He is aged 57, educated up to P. 6 level.  His wife is a full-time worker.  They reside with a 15-year-old daughter.  Their older daughter is at school abroad. He has a clear record.  He suffers from hypertension and diabetes.   

7.  His solicitor Mr. Lee informs me that there were 28 workers under 3 instructors in the Centre at the time of the offences.  Being an instructor in the Centre, the Defendant had the mobile phone numbers of the workers, including X, for contact in relation to work.   X and the Defendant lived in close proximity.  On the 2 occasions in question, it was X who phoned him up to seek to talk in person. Despite his suggestion of another venue, X had insisted on going to his residence.  On both occasions, it happened to be about 1 – 2 pm, when his wife was out at work and his daughter out at school.  There was no condom available as he had had no sex for several years with his wife. 

8.  After the sexual acts on each of the two occasions, he treated X to afternoon tea in a fast food shop nearby.  On previous days, they had invariably gone Dutch for meals in the company of other workers. 

9.  The Defendant was summarily dismissed as a result of X’s complaints about the offence in question to the Centre.  He was arrested at his residence in the presence of his wife and daughter. 

10.  Mr. Lee seeks to argue that there was no breach of trust because the offences were not committed in the workplace to which trust was attributed.  In his residence, they had to be seen as friends.  I do not agree with this argument. It was essentially X’s family who applied to have X placed in the Centre based on their trust of the staff there, a fact accepted by Mr. Lee.  The trust was attached to its staff, not the venue.  The Defendant’s acts were in serious breach of such trust. 

11.  Mr. Lee also seeks to argue that an instructor is on a lower level of trust as compared to a teacher.  I see no meaningful distinction between the two roles in the level of trust reposed on the offender by either the victim or the victim’s family. 

12.  Mr. Lee concedes that there is an element of exploitation.  I agree that such is the case in light of the Defendant’s ascendency of intelligence and life experience over X.  

13.  There was an attempt to procure a victim impact report but X was against the idea. According to X’s young sister, who gave a witness statement on X’s present condition, X was stressed out and did not want to talk about the matter, was relieved not to have to attend court in view of the guilty pleas, and was in the course of leading a normal life.  The family was supportive of X’s stance to end the matter in this way.      

14.  Mr. Lee suggests a starting point of between 2 ½ years and 3 years for each charge and partly consecutive sentences. 

Sentencing considerations

15.  The prosecution has put forward 2 cases for comparison of sentence.  The first case is Attorney General v Ho Yu Ping [1996] 1 HKC 555.  The defendant was a 40-year-old school teacher.  He pleaded guilty to 5 charges of indecent assault by the stroking of the armpits and breasts, on one occasion the hip, and on two occasions embracing or pressing his body against a pupil.  They were girls studying in his primary school, aged between 10 and 13 years.  The offences spanned over 2 school years.  The Court of Appeal regarded that the current 6-month concurrent sentence was manifestly inadequate.  A starting point of 18 months ought to have been taken.  The sentence was not altered eventually as the defendant had served a substantial part of the sentence and responded favourably to psychological treatment.

16.  The second case is HKSAR v Chan Ching Ho [2000] 3 HKLRD 476.  The defendant was aged 41.  His niece was aged 6.  He was convicted of 4 charges of indecent assault committed on her within a few months.  On the first occasion, he touched her vagina under her clothing for a short duration.  On the second occasion, he did the same for a longer duration. On the third occasion, he told her to take off her trousers while he took off his own.  He touched her vagina and asked her to massage his penis.  On the last occasion, he touched her vagina and then took her to the roof where he licked her vagina lustfully.  The Court of Appeal identified 3 important sentencing considerations as follows:

(1) The need to deter others;

(2) The need to mark the public abhorrence of such crimes;

(3) The need to redress the grievance suffered by the victim, her relatives and friends.

17.  On the issue of concurrent or consecutive sentences, the Court of Appeal observed as follows:

Here, the offences were entirely separate and distinct. There was no requirement on the part of the Judge, subject to the principles of totality, to have made any of the sentences to run concurrently unless it had been alleged, which it was not, that two of the offences had been committed in the course of what is often referred to as a “single transaction” (See: A-G v Cheung Pit Yiu [2989] 2 HKC 12.) It does not help the applicant that he chose more or less the same method to approach his victim in the commission of each offence. These remained separate and distinct offences, each deserving of separate punishment and, on this aspect, we reject [his counsel]’s argument to the contrary.

18.  The total sentence of 5 years after trial was affirmed on appeal.

19.  Mr. Lee puts forward a case in Chinese for comparison of sentence.  It happened to be a judgment of mine.  That defendant in HKSAR v Lam Chung Fong (transliteration) DCCC 267/2014 was 50 years old.  He indecently assaulted a mentally incapacitated person twice and had unlawful sexual intercourse once with the same victim, aged 33 with medium mental handicap.  He was the hairdresser known to the victim’s mother, who allowed him to cut the victim’s hair at the rear staircase from time to time.  He had learned of her mental handicap.  He told the victim that he was a bit in love with her and asked her to be his wife. The victim did not believe him.  On the first occasion, at the rear staircase he molested her private parts.  She felt uncomfortable and asked him to desist, so he did.  On the second occasion, at another rear staircase he asked to see her private parts.  She refused. He groped her buttocks over the clothing.  On the third occasion, at her residence he had sexual intercourse with her for 2 minutes.  She had wanted to object but did not say so.  These incidents took place possibly within a couple of days to two months.  The aggravating factors were the breach of trust, exploitation of the victim’s lower intelligence, coercion, and sexual intercourse without condom.  After the one-third discount for his guilty pleas, the overall sentence was 2 years and 4 months. 

Sentencing this Defendant

20.  The maximum sentence for the offence is 10 years.  Before me is a case of serious breach of trust reposed on the Defendant by X and X’s family.  She had come up to talk about her personal problems or watch TV, as the case may be, while he would rather have sexual intercourse with her.  He had exploited her lesser intelligence and life experience in the solitude of his residence.   Incidental to his sexual molestation, she took off her own clothing.  Except for that part, she had remained passive throughout.  The Re-amended Summary of Facts stated that X first made mention of the experience to an instructor in terms of “being sexually abused” by the Defendant.  That connoted her aversion to the sexual acts.  He was her instructor in the Centre and they had known each other for 8 – 9 years.  He had abused the trust reposed on him by her and her family. 

21.  There was no penetration despite the contact between his penis and her vagina.  He tried but failed to enter her because he could not get an erection.  Therefore he masturbated himself on the bed. 

22.  Applying the observations by the Court of Appeal in Chan Ching Ho (above), I can identify the same important sentencing factors as follows:

(1) The need to deter others;

(2) The need to mark the public abhorrence of such crimes;

(3) The need to redress the grievance suffered by the victim, her relatives and friends.

23.  If there had been penetration together with the attending risk in hygiene and of pregnancy, I would have taken a much higher starting point than what I take now, ie 5 years, for each charge.  One-third off for the guilty plea, the sentence is 3 years and 4 months.  The sentences shall be consecutive but subject to the totality principle.

24.  Assuming that the first offence took place in September 2014 other than July 2014, the former date being more favourable to the Defendant for being more proximate in time from the second offence, which took place in January 2015.  I make an adjustment for the total sentence as follows:

(1) 2^nd Charge, 3 years and 4 months;

(2) 4^th Charge, 4 months consecutive to 2^nd Charge.

25.  The overall sentence is 3 years and 8 months.