HKSAR v. YIP TSZ CHAU

DCCC 58/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 58 OF 2014

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REASONS FOR SENTENCE

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1. Yip Tsz Chau you have pleaded guilty to three charges of indecently assaulting X, a girl of the age of 12, contrary to section 122 of the Crimes Ordinance, Chapter 200.

2. In summary on the 25 August 2013 you played with X in the To Kwa Wan Recreation Ground.  X followed you home when you told her there was an internet bar at your home.  Over the next 36 hours you indecently assaulted X three times. 

3. The first time was when X was showering in your home.  You showered together with X and touched both her chest and lower private part (charge 1).  Afterwards you showed X a pornographic movie and then slept together with X during which time you used your penis to touch X’s buttock causing her pain.  You also touched her lower private part with your penis (charge 2).  The following night you again slept with X this time using your finger to touch the lower private part and buttock of X, also causing X pain (charge 3).

4. In passing sentence I take into account everything said on your behalf by Mr Pang including that you have cirrhosis of the liver. I take into account that whilst you have previous convictions none are for sexual offences.  I have read your letter together with a letter from one of your sisters on behalf of your family and a letter from your friend Mr Ko.  I have also carefully considered the psychologist, psychiatric and background reports. 

Age of X

5. X is 12 years of age.  Intellectual assessment was conducted in November last year. X was assessed to have significant limitations in both intellectual functioning and adaptive functioning. X’s intellectual ability falls within the range of Mild Grade Mental Retardation (see the psychological report dated 20 November 2013 from Ms Janet Tso, Clinical Psychologist). 

6. You told the police you thought the girl was around 14-16 years old.  The psychological report assesses X’s adaptive functioning as age-equivalent to a child of 5 years and 8 months.  X’s verbal comprehension skills were found to be significantly lower than other intellectual functions.  X can follow simple instructions and expresses herself in short phrases. 

7. Having spent nearly two days with X one would think you would become aware of X’s disability.  You tell the court however that you did not know.  I have considered whether or not to hold a Newton hearing to determine whether you were aware or should have been aware of X’s disability. 

8. I have had a look at part of one of the video interviews conducted with X from which in my view it is clear X is a young child and not a mature girl approaching 16.  I am however satisfied that it would be unsafe to rely on the video interview to form a view as to whether or not you should have known of X’s disability, in particular considering the circumstances of the interview are very different to the circumstances you encountered X. 

9. In my view I would need to hear evidence from the psychologist and almost certainly from X.  Although X may not have to recount all the details of the assaults the fact of giving evidence about the incident may be very traumatic.  This in my view would not be desirable. 

10. In the circumstances I have decided not to hold a Newton hearing and proceed on the basis that whilst you may not have known X’s exact age you knew she was under age (see paragraph 5 of the psychiatric report) but not that she was under disability.  Further taking the lower end of the range of 14-16 I am satisfied for the purpose of sentence there is no real difference between a girl of 12 and a girl of 14.

11. There is no usual tariff for indecent assault because the circumstances of each offence can vary considerably (see HKSAR v See Tak Man [1998] 1 HKLRD 794).  Nevertheless the principles established in the cases are of guidance to the courts in passing sentence.  In the Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136 the Court of Appeal set out the principles to follow in sentencing cases of this nature, the most important of which is the protection of young children.

12. You are 46, over 30 years older than X.  I am satisfied that you took advantage of this young girl to gratify your sexual needs for which a deterrent sentence is to be imposed.  The cases make clear that this kind of conduct gives rise to great abhorrence on the part of the public, who look to the courts for protection of children from those who seek to gratify themselves by taking advantage of young children.  The sentence of the court must mark the public abhorrence of such crimes and at the same time deter others from committing similar offences.  

13. One important consideration in sentencing is to redress the grievance suffered by the victim and their families.  Ms Janet Tso has again seen X and her parents to assess the impact of the offences upon X and her family (see the psychological report dated 10 March 2014). 

14. Noting that X has limitation in expressing herself and that the assessment might not thoroughly reflect the impact of the offences on X Ms Tso concludes that the assessment results indicate that X has negative feelings towards what happened and is afraid she will be abused again.  However no significant traumatized symptoms or emotional problems have been displayed.  Nor has X’s daily functioning been disrupted (see paragraphs 3, 4 & 5 of the report).   

15. On the other hand X’s sexual curiosity has been aroused by what you did.  Since the incident X’s parents have noticed X browsing pornographic websites, which understandably they attribute to you showing X a pornographic movie at your home.  As X enters puberty psychosexual development education is suggested (see paragraph 4.4 as read with paragraph 5 of the report). 

16. Mr Pang has submitted a number of authorities for my consideration in support of his submission that this is not so serious a case of indecent assault.  I disagree.  I have considered these cases and need only refer in detail to one case where there are some similarities in the indecent acts.  I will also refer to two further cases also with some similarities to the present case to highlight the seriousness of the assaults.

17. In HKSAR v Kwok Kau Kan [2000] 2 HKLRD 1 the Court of Appeal held that concurrent sentences of 1½ years after trial were appropriate for two counts of indecent assault where the appellant, a 77 year old man, paid $50 each time to a girl aged between 12 and 13 not to tell anybody that he had touched her breasts over her clothes.  On a third count involving the holding of the same girl’s waist whilst touching her breasts and buttock over her pants and moving backwards and forwards so the girl’s buttocks touched the appellant’s private parts the Court of Appeal said a sentence of 2½ years after trial was appropriate with 1 year concurrent to the first two counts making a total sentence of 3 years imprisonment.

18. The present case in my view is far more serious.  The first indecent assault took place when X was showering and therefore had no clothing on.  This was followed by showing X a pornographic movie after which you slept with X during which time you used your penis to touch the buttock of X causing X pain and to touch her lower private part.  The next night you again slept with X this time using your finger to touch her lower private part and buttock, also causing X pain.  I do however note the absence of the aggravating feature of payment of money not to tell anyone about what happened.

19. In See Tak Man the appellant, aged 31, picked up a 12 year old boy after a brief encounter in a lift in a shopping centre.  The boy was taken into a public toilet where the appellant engaged in oral sex and further acts falling short of attempted buggery.  Whilst describing this as one of the most serious cases of indecent assault to have come before the courts in recent years the Court of Appeal, accepting there was no injury to the boy and that the offence was an isolated incident, were of the view a starting point of 4 years imprisonment was appropriate.

20. In HKSAR v Chau Shu Ho [2008] 5 HKLRD 796 the Court of Appeal commented that acts of indecent assault by a 43 year old man on a 10 year old boy which involved oral sex and rubbing the penis against the outside of bare buttocks resulting in ejaculation, once while sleeping with the boy in a guest house, were grossly abusive and that sentences of 4 years imprisonment after trial were too low.  I note this case also concerned the corruption of the boy by the giving of gifts which the boy would be deprived of if he did not co-operate.

21. In my view the acts of using your penis to touch the buttock of X draws similarities with the cases of See Tak Man and Chau Shu Ho.  That you took X to your home, showed X a pornographic movie and then slept with X when you indecently assaulted X causing X pain when using your penis to touch her buttock and lower private part and the next night using your finger, also causing X pain, the indecent acts are, in my view, as serious as the indecent acts in both See Tak Man and Chau Shu Ho. 

22. You express remorse for what you have done but are unable in any way to explain why you indecently assaulted X.  I am not satisfied you have shown genuine remorse for at every opportunity you have tried to minimiseyour acts.  When first questioned by the police you said you had only reached your hand under X’s top.  The probation officer found you evasive in disclosing what happened in your home (see paragraph 4 of the background report).  When interviewed by the clinical psychologist Ms Regina Kwong you also initially denied touching X with your penis.  When confronted with the facts of the case you told the clinical psychologist that you forgot whether you had touched her with your penis.  You did however admit sexual interest in X (see paragraph 11 of Ms Kwong’s report).

23. Not only have you tried to underplay what you did but you have also sought to lay the blame for what happened on X.  In a video interview you told the police that it was X who insisted going to your home.  Similarly you told the probation officer that the girl insisted on staying at your home (see paragraph 4 of the probation report).  When interviewed by the clinical psychologist not only did you say that the girl proposed going to the internet bar to play video game and that she refused to go home but also that she invited you to sleep with her because she was scared; and that she kissed you first (see paragraphs 9-11 of Ms Kwong’s report).

24. Even if X expressed a wish to go to your home and a reluctance to return to her own home you nevertheless took advantage of the situation to gratify your sexual needs.  In any event as noted in Kwok Kau Kan the Court of Appeal said they did not think that consent of the complainant can be a mitigating factor. Clearly if there was no consent the case is more serious (see HKSAR v Yau Kin Wai CACC 398/2003).

25. The Court of Appeal in HKSAR v Chow Yuen Fai [2010] 1 HKLRD 356 said that the risk off re-offending is an aggravating feature (see paragraph 28).  The clinical psychologist says that whilst no deviant sexual interest in children is indicated there is some evidence of sexual preoccupation by your admitted interest in X and the commission of the offences.  Ms Kwong assesses your risk for sexual recidivism as moderate (see paragraph 13 of Ms Kwong’s report).  I do note however to your credit you have shown your willingness to receive professional assistance from a psychologist with regard to your sexual preoccupation. 

26. Taking into account the nature of the indecent acts; that you are 46 over 30 years older than X; no force was used although I note X told the clinical psychologist that she had asked you to stop as she felt disgusted and painful but you nevertheless continued with your indecent acts (see paragraph 3 of the psychological report dated 10 March 2014); that your risk of re-offending is assessed to be moderate and that X fears being abused again, I am satisfied starting points of 1 year and 6 months; 4 years and 3 years and 6 months imprisonment are appropriate for the three offences. 

27. Giving you full credit for your pleas of guilty reduces the sentences to 1 year; 2 years and 8 months; and 2 years and 4 months respectively.  By pleading guilty at the earliest opportunity this has the consequence that X has not had to relive the trauma of these events.  The court in Chow Yuen Fai said an additional discount must only be given in exceptional cases.  In See Tak Man the court said that as the victim, a twelve year old boy, was spared the considerable ordeal of having to give evidence the sentence should be reduced by a little more than one-third.  X not having to testify I am satisfied in the circumstances the sentences can be further reduced by 2 months to 10 months; 2 years and 6 months and 2 years and 2 months respectively.  

Totality

28. I am satisfied concurrent sentences are appropriate for the two indecent assaults committed on the first night however a consecutive sentence is appropriate for the further indecent assault the next night.  I am satisfied your overall culpability will properly be reflected by ordering 6 months consecutive making a total sentence to be served by you of 3 years imprisonment.

29. You are convicted and sentenced as follows:

Charge 1 – 10 months imprisonment;

Charge 2 – 2 years and 6 months imprisonment;

Charges 1 & 2 to run concurrently with each other; and

Charge 3 – 2 years and 2 months imprisonment with 6 months consecutive and 20 months concurrent to charges 1 & 2.