HKSAR v. SHAH ARSHAD

HCCC 197/2018

[2019] HKCFI 1299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 197 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, please stand. The defendant has pleaded to guilty to the alternative count of indecent assault and that has been accepted by the prosecution in full satisfaction of all the charges in the indictment.

The facts are that the victim of this incident is a young lady in her twenties but was assessed in April 2018 to have the mental age of just over 8 years old. The victim is a mentally incapacitated person within the meaning of section 117 of the Crimes Ordinance, Cap 200 and she has been a resident of the Rehabilitation Services Centre in Kwun Tong.

Residents of the centre is only allowed to leave the centre in the company of relatives but according to the centre’s records, the victim, had always had a tendency to sneak out of the centre without permission. On one of those occasions on 17 December 2017, she had sneaked out again. She could not be found and subsequently just after 9 pm, she returned to the centre. She then proceeded to tell the staff of the centre that she had been kissed on her mouth and that the person who did so was, she said a “Gwai Lo” with beard and high nose. She then also mentioned that he had taken off her clothes, kissed her mouth and hands and touched her breasts. She pointed at her private parts and so subsequently, the staff then alerted the police who came to the centre. She told the woman police constable a similar thing that this “Gwai Lo” had taken off her top and pants and touched her breast and put his penis at the side, pointing to her private parts.

Subsequently, in the early hours of the morning, the victim was able to lead police to a construction site in Kwun Tong where she pointed out the defendant as the “Gwai Lo” that she had referred to. She was subsequently interviewed by a clinical psychologist where she gave more details of the assault.

The defendant was arrested and cautioned and was interviewed under caution and the defendant denied any indecent assault and said he only rescued the victim from the barking guard dog.

The victim was subsequently medically examined and mild tenderness was found over her upper chest and redness over her lower abdomen. She was also examined subsequently by forensic pathologists and the conclusion was that there were no signs of injury to the victim’s private parts but there was a small tear in the rectum, which the pathologist defined could have been caused either by insertion of an object or either passage of hard faeces.

The defendant’s DNA was found on the right hand fingernail cuttings of the defendant and the inside surface of the crotch area of the underpants seized from the defendant was found the DNA of both the defendant and PW1, the victim.

The defendant is aged 41, is married with five children and has a clear record. It is a fact that the defendant has worked all the time after he came into Hong Kong and been in proper employment up to the time of his arrest. He has all along led, from what I can see, a decent life and also looking after his family and also the testamentary letter from the Madrasah and the Islamic Association Chief Imam also testifies to his good character and his good behaviour.

It is always difficult to sentence in a case of this nature. And one of the matters that I have to take into account is the impact of this offence on the victim. So I called for a victim impact report and the clinical psychologist, Ms Ngai, gave a very detailed report about the present circumstance of the victim. It is clear that although the victim did suffer some emotional distress immediately after the offence, as Ms Crebbin pointed out, that distress is no longer evident. She has, by all accounts, returned to the normal life she was leading prior to this offence and according to Ms Ngai, she no longer remembers the incident.

Her emotions are stabilized now and in fact she is not afraid of going out or sneaking out by herself anymore, which is probably not a terribly positive thing.

Ms Crebbin has, in her mitigation, said everything she could possibly say on behalf of this defendant. It is clear that the incarceration of the defendant will cause some suffering to his young family. However, this is something that the defendant should have considered before falling into temptation. I accept that there was no preplanning to this offence, that it was the victim who sought the defendant out, who came to the defendant’s construction site. There was no breach of trust involved in this case and I accept what the defendant had said that he did not realize she was mentally retarded on initially seeing her.

Most of the cases in the past referred to by Ms Crebbin on this type of offence involves breach of trust. There is no such issue here. And as the victim had said, in the course of the indecent assault, when she asked the defendant to stop his molestation, he did stop and I accept also what Ms Crebbin said that he has been a good family man. However I have to balance all that against the fact that the court have to protect the interest of someone like the victim who is mentally challenged and really to protect her against herself. So I have to weigh all of that and take that into account when considering an appropriate sentence in this case. So as a starting point, I would consider a sentence of 3 to 4 years. In all the circumstances of this case, I will adopt a starting point of 3 years.

I cannot accede to Ms Crebbin’s submission that he should be given the full one-third off for his plea because the Court of Appeal has already laid down in the case of Ngo Van Nam [2016] 5 HKLRD 1 that the discount to be given should be, in this case, in the region of 20 to 25 per cent as it was not an early plea prior to the setting down of the case in the High Court.

So considering everything, I will give the defendant the 20 per cent discount which reduces the sentence to 2 years and 4 months.

The defendant will go to prison for 2 years and 4 months.