HKSAR v. FFK

DCCC 169/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 169 OF 2014

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Reasons for Sentence

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1. The defendant has pleaded guilty to five charges of indecent conduct towards a child under the age of 16 years old, contrary to Section 146(1) of the Crimes Ordinance, Cap 200.

2. The victim, who was born in October 2001, is the granddaughter of Defendant’s elder sister.  The victim’s mother is the defendant’s niece.  The victim referred to the defendant as “granduncle” and met him at family gatherings.

3. The first offence took place in December 2011. During a family gathering, the defendant took the victim to buy some snacks. However, he took her to a disabled toilet in Tuen Mun and there he asked her to masturbate him, which she did.  She was 10 years old.

4. The second charge took place on the same evening.  The victim was staying at a family home, as was the defendant.  The next morning, the victim woke to see the defendant masturbating in front of her.  The fact is he ejaculated on her legs.

5. The third charge took place nearly a year later in late 2012.  The victim told the defendant over the telephone that she wanted an iPad Mini.  He agreed to buy one for her and arranged to meet her. In a flat in Shatin, where there was only the defendant and the victim, he again asked her to masturbate him and she agreed.

6. The fourth charge took place in July 2013. Defendant invited the victim to go cycling and then asked her whether she would masturbate him again.  She agreed, but asked him for $500 to do it.  He agreed to pay.  They went to the defendant’s home and she masturbated him.  She also performed oral sex.  The facts are that he also touched her upper body and breasts.  The next day, the defendant bought the victim an iPad Mini and told her not to tell anyone.

7. The last charge took place several months later in September 2013.  The defendant offered the victim $1,000 to masturbate him and she agreed.  This took place in a flat in Shatin.  Afterwards, he gave her $1,000 and told her not to tell anyone.

8. A month later, the victim told the defendant she wanted an HTC mobile telephone.  He bought one for her.  The facts are that, later, the victim sold the iPad Mini and this mobile phone for a total of $7,400 and spent the money.  In that month, she turned 12.

9. In January 2014, some months later, the defendant called his sister (the victim’s grandmother) and confessed these offences to her.  He told her that he was very sorry that he had committed these offences.

10. A police report was made and the defendant was arrested several days later.

11. Under caution, the defendant made a full confession to the police.  He admitted all five offences.

12. He pleaded guilty at the earliest opportunity. He has spared the victim the ordeal of giving evidence.  In my view, his best mitigation is his plea of guilty.

13. I will take into account that but for his confession to his family the matter may never have come to light.

14. I have heard mitigation today and I had adjourned sentencing to today to obtain a background report and two doctors’ reports:  a psychiatrist’s report and a psychologist’s report. 

15. I will not repeat the contents of those reports.  The defendant agrees that the contents are accurate.  They do confirm that he is remorseful and that he knew he was committing serious offences.  He has strong victim empathy. 

16. He was tested and his intelligence was assessed.  The results indicate that the defendant has borderline to average range of intelligence.  Specifically, and I quote the report, “his word knowledge, his mental computation and social judgment was in the borderline range.”

17. I will take that into account.

18. The reports conclude that his risk of re-offending is low and there is no mention of any paedophile tendencies.  The psychologist concludes that the defendant appears to be a low-self-esteem adult, with poor stress coping skills.  He has insight into his offending behaviour and is willing to accept counselling and help.

19. The probation officer’s background report is detailed, sets out the defendant’s background in full and accepts his remorse is genuine.  The report says that the family, despite these offences, still support him today.

20. The report says that his background is as follows; he is now 42 years old.  He is not a man of clear record, but his convictions are nothing similar nor serious:  theft offences relate to stealing bicycle parts for his own bicycle. 

21. The report says he is the youngest of seven siblings and his father passed away in 1998.  The defendant lives with his mother and he is her primary carer.  She is 85 years old and of poor health.

22. The defendant comes from a poor, humble background, but a loving family.  Sadly, the defendant did not do well at school.  He had to repeat many years, leading to him being bullied for underachieving.  Sadly, his borderline/average intelligence was not picked up when he was studying, and bullying will lead to self-esteem issues.

23. When he left school, he was 17 but had not yet completed Form 2.  He was an introvert with few friends and certainly no girlfriends or courtships.  He has worked since he left school and for the past 15 years has worked as a cleaner.  There is mention that the bullying continued in the workplace.

24. He has recently met a divorced lady and begun what can be described as his first proper relationship with a member of the opposite sex.

25. The defendant explained that he may have committed these offences because he was influenced by watching pornography.  He knew he was wrong to approach the victim, but felt he could not control himself. 

26. Guilt and remorse eventually led him to confess to his family.  This confession does reflect the fact his remorse is genuine.

27. I have been given two letters today. 

28. The first is a letter from a district councillor, a Mr Yeung, who has known the defendant and his family for over 10 years.  He describes the defendant as a simple, mild-natured man who is deeply remorseful.  He has been a responsible adult and cares deeply for his elderly mother and, although he works in a labour-intensive job and works long hours, he still does voluntary work for this district councillor.

29. I have a second letter from his mother.  She dictated this letter to the district councillor as she is illiterate.  It is a very poignant letter.  She had more than seven children; she had, in fact, nine.  Sadly, she, due to poverty, had to give away one of her daughters and another child died as a 3-year-old from malnutrition.  She and her husband went on to raise seven other children.  She and her husband had to work day and night to provide for them.  Despite that, they grew up to be good children and were kind to each other.

30. She explains that the defendant is the youngest child.  He is slow and had poor intellectual development.  She was saddened by his severe bullying at school, but was helpless to deal with it. 

31. He is very filial to her now and, in fact, is her main carer.  She will not choose sides in this unfortunate case, but says that the defendant knows he must bear the responsibility for his actions.  She does ask for leniency on his behalf.

32. There are no guidelines for offences of this nature.  What is of paramount importance is the protection of children and their innocence.  Because of this paramount interest, offences of this nature will attract custodial sentences.  What sentence is imposed depends on the facts of each case.

33. There are some aggravating factors here. 

34. The fact is the offences took place over two years.  The victim was only 10 when the first offence was committed and the defendant nearly 40.  Moreover, the defendant is related to the victim.  He has abused his position of trust as a relative.  In addition, the particulars of the offences are sexually explicit.  Those are the aggravating factors. 

35. There is good mitigation.  The fact is that he confessed to his family three to four months after the last offence was committed.  I accept that his guilt and remorse led him to confess.  He has gone on to plead guilty.

36. The reports I have called for give detailed particulars about his background.  I will take those into account, and it has been pointed out today by Mr Kwan that there is no evidence that he initially lured the victim with gifts and presents, and that is true.  In fact, it seems to have been the other way round.

37. Defendant, please stand up.

38. I have taken into account, as I have said, all the details in the reports.  That includes your background, education level and intelligence; taken into account the conclusions of those reports.  The particulars of the charges are relevant, as well as those aggravating factors I set out.  I also take into account the totality principle and the number of offences committed over what period of time.

39. After careful consideration, I will take a starting point of 2 years and 6 months for each offence.

40. You have pleaded guilty; you are entitled to a discount of 10 months for your plea.

41. Your sentence is as follows:

(1) Charge 1: 20 months’ imprisonment;

(2) Charge 2: 20 months’ imprisonment, concurrent to Charge 1 (both offences occurred on the same day);

(3) Charge 3, you are sentenced to 20 months’ imprisonment (2 months of this sentence will be served consecutively to Charge 1);

(4) For Charge 4, you are sentenced to 20 months’ imprisonment (of this 20 months, 2 months will be served consecutively to Charge 1);

(5) for Charge 5, you are sentenced to 20 months’ imprisonment (and of that 20 months, 2 months will be served consecutively to Charge 1).

42. That is a sentence of 26 months’ imprisonment (2 years and 2 months).

COURT: Do you understand that sentence?

DEFENDANT: Understood.