HKSAR v. SHABBIR ASIM

DCCC 833/2022

[2024] HKDC 2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 833 OF 2022

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REASONS FOR SENTENCE

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Introduction

1.  The defendant SHABBIR Asim (“D”)  is convicted after trial of 4 Charges:

Charge 1

Indecent conduct towards a child under the age of 16 years, contrary to section 146(1)  of the Crimes Ordinance, Cap.200. Particulars of Offence alleged that D, on a day unknown in 2017, at a flat at Fuk Wing Street, Sham Shui Po, committed an act of gross indecency with or towards X, a girl of the age of about 7 years.

Charge 2

Indecent assault on another person, contrary to section 122(1)  of the same Ordinance. Particulars of Offence alleged that D, on a day unknown between 2018 and September 2021, at Room G, 7^th Floor, No.110 Nam Cheong Street, Sham Shui Po, indecently assault X, a girl under the age of 16 years.

Charge 3

Same as Charge 2 except that the offence took place on a day unknown in September 2021, on an occasion other than that referred to in Charge 2, and X was of the age of 11 years.

Charge 4 (as amended)

Doing an act tending and intended to pervert the course of public justice, contrary to Common Law and punishable under section 101I(1)  of the Criminal Procedure Ordinance, Cap.221. Particulars of Offence alleged that D, on a day unknown between 2017 and 2018, at a flat at Fuk Wing Street, Sham Shui Po, with intent to pervert the course of public justice, did an act which had a tendency to pervert the course of public justice, in that he threatened X that he would kill X’s mother if X disclosed to anyone that D had sexually assaulted X.

2.  All Charges related to the same girl X.

Facts of the Case

3.  This case involved sexual abuses by D on girl X and his attempt to threaten X not to disclose his criminal conducts towards her to others. The full facts of the Case have been set out in the Reasons for Verdict, I will not repeat them here in detail. 

4.  Very briefly, D was born in Pakistan on 22 May 1983 and moved to Hong Kong in 2006. X was born in Hong Kong on 13 March 2010. Her mother, Y, is an Indonesian who came to Hong Kong originally as a domestic helper but stayed on after completing her contract. She later had a relationship with a Pakistani and gave birth to X. X had never met her blood father.

5.  D and his wife, also an Indonesian whom X used to call “auntie”, came to know X when she was born as the father of X was D’s friend. In 2017 they were neighbours living in adjacent rooms in a sub-divided flat as particularized in Charge 1. Y used to leave the care of X to D and auntie, when she, for various reasons, could not take care of X.

6.  The relationship and arrangements continued when D and auntie moved to another sub-divided flat as particularized in Charge 2 in late 2018.

7.  On a day in 2017, X was left in the care of D alone. She was 7 years old at the time and D was 34. D bribed X with food, then put his hands into her clothes and touched her body and breasts. He then put his penis into X’s mouth and made her perform oral sex on him (Charge 1). During the time when D still lived in this flat, he threatened X that if she told anyone about his abuse on her, he would kill her mother (Charge 4).

8.  After D moved to the new flat, at one stage Y was arrested and detained by the Immigration Department for 4 months. X was left to the care of D and auntie. There was only 1 bed in D’s room and they slept together on it. One night, while X was sleeping facing the wall with D behind her, D lowered the trousers and underwear of X and rubbed his hard-on and exposed penis against the anus and private part of X from outside for a few seconds. X was awoken by this and was aware of D’s actions (Charge 2).

9.  On a day in September 2021, X was again left in the care of D alone in D’s flat. D touched the thighs and breasts of X, put his hands underneath her clothes and grabbed her breasts forcefully. He lied on top of her, pulled down her pants, he then took out his penis and robbed against her private part on the outside. X used her hands and legs to push and kick him and screamed, but he kept doing this for about 1-2 minutes, saying “like it or not” while doing so. He then jerked himself off and left home, leaving X alone until Y and auntie returned about 20 minutes later (Charge 3).

10.  X did not disclose to Y about these incidents until late 2021. She disclosed them to her school teacher on 29 April 2022 and the case was then reported to the police leading to the arrest of D on the same day. She was 12 years old then.

11.  X was interviewed by a clinical psychologist Ms. Salina Ho in May 2023 and October 2024[1]. Without going into details, it suffices for me to say that according to the Reports prepared by Ms. Ho, X had been seriously affected by the traumatic experience of the sexual abuses by D. Trauma symptoms, recurrent suicidal ideations and attempts were demonstrated. The abuse also impaired her study as she had poor attention, concentration, and daydreaming at school, leading to repeated truancy; and her psychosocial development was also affected, becoming hypervigilant, insecure, mistrustful of people, and social avoidant. The mother Y also suffered as she always had self-blame and felt sorry for failing to have protected X. She blamed herself to have misunderstood the severity of the abuses by D on X due to her poor English and did not report the matter to the police before, leading to separation with X and distant mother-daughter-relationship for a few years.

12.  Reportedly, after receiving professional treatment services and reunion with Y, X had almost put a psychological closure to the sexual abuses by the end of 2023 after promoting to secondary school. D originally indicated he would plead guilty and the case was set down for plea and sentence on 6 September 2023. However, he subsequently changed his mind and decided to contest the trial, so that X, and Y also, had to testify in Court in August 2024, recounting the details of their traumatic experience and to answer embarrassing questions. X was inevitably reminded of the trauma and psychological pain, becoming tearful, reticent, had poor sleep and increased school absenteeism. During the interview with Ms. Ho, Y burst into tears when describing their anxiety and pressure arising from the Court hearing. The atmosphere of the family turned gloomy and tense during that period. There is no indication by Ms. Ho as to the long-term effect on X and Y, but it can be assumed that it will be a long time before they can get over with the adverse effect brought about by the criminal conduct of D, if at all.

Defendant’s Background and mitigation

13.  D is 41 years old, born in Pakistan on 22 May 1983. He had received up to Secondary School education there. He moved to Hong Kong in 2006 and is a Form 8 holder reliant on ISS payments to support his living. He is married in Hong Kong and I am told that his wife gave birth to a son who is now 2 years old. He has 5 previous criminal convictions in Hong Kong, none of which is similar to the present offences.

14.  Mr. Davies, for D, submitted that so far as Charges 1 to 3 are concerned, there is no sentencing tariff or guidelines, the maximum sentence is 10 years’ imprisonment. He referred to the 10 factors to be considered in assessing sentence for offences of this nature in HKSAR v Tsang Chiu Tak[2] and accepted that at least 8 of them are relevant to the present case. Accepting that sentencing in these cases is fact-sensitive, but apart from Tsang Chiu Tak, he submitted 3 other cases for reference[3].  He submitted that the facts for Charges 2 and 3 are not as serious as in Charge 1. So far as Charge 4 is concerned, the threat made in this case was a brief verbal threat that was not acted on, therefore, it is one of the less serious examples of this kind of offence.

15.  On the factor of “breach of trust”, Mr. Davies submitted while this is relevant in the present case, it is less serious than the cases he had cited as D was merely a neighbour/caretaker of X.

16.  Citing the contents of the recent Report by Ms. Ho, the clinical psychologist, Mr. Davies submitted that X is recovering from the trauma of these incidents and that the long-term impact may not be great.

17.  On the issue of D being a Form 8 holder as an aggravating factor, Mr. Davies cited HKSAR v Junaid Ahmed[4], and accepted this can constitute an aggravating factor, but submitted that this is not a case of D coming to Hong Kong to commit a crime, or of taking advantage of his situation to gain an advantage, and therefore any enhancement should not be significant.

18.  Mr. Davies further submitted that D has never previously been convicted of any similar offence, that all the offences in this case involved the same victim, and that D is therefore unlikely to re-offend. He also urged the Court to take totality principle into account when deciding on the overall sentence.

Sentence

19.  In relation to Charges 1 to 3, there is indeed no tariff or guideline, each case depends on its own facts. In Tsang Chiu Tak[5], the Court of Appeal stated:

“8. The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.

9. The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:

(1)  The age difference between the defendant and the victim;

(2)  The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;

(3)  Whether the defendant had used threats or inducements to make the victim succumb;

(4)  The number of occasions of committing the offences and the duration of the offences;

(5)  Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6)  Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7)  Whether the sexual abuses have caused physical or psychological trauma to the victim;

(8)  Whether the offences have impact on the family members of the victim;

(9)  Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and

(10)  Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.

See HKSAR v. Chow Yuen Fai [2010] 1 HKC 181, HKSAR v. Lee Hon Wah [2011] 4 HKLRD 319, HKSAR v. Ng Ka Kin (CACC 328/2010)  and HKSAR v. Lee Kwok Wai (CACC 199/2011).”

20.  In assessing the appropriate sentences in the present case, I also bear in mind the comments by the Court of Appeal in  SJ v Yu Chun Hing[6]

“As a general rule, when a sentencing court is confronted with an offender who has committed multiple offences over a prolonged period it is best to conduct a sequential evaluation of the offending by reference to the chronological order of the offences or to any connection between the offences due to the nature of the offence, the involvement of the same victim or the offences arising from the same event.”

21.  In the context of the present case, in 2017 when Charge 1 was committed, D was 34 years old while X was only 7. X was still a young child and there was a big age difference. This factor alone calls for a deterrence sentence which can sufficiently reflect the seriousness of the offence.

22.  There is no blood relationship between D and X but given the circumstances of the case, X was entrusted to the care of D by Y as a trusted adult friend. I consider D to be in loco parentis vis-à-vis X. Thus, it involved serious breach of trust.

23.  There is no evidence to suggest that D had adopted any safety measures when he made X to perform oral sex on him.

24.  The Reports by the Clinical Psychologist indicated that the abuses, and D’s subsequent behaviour during Court proceedings, had caused psychological trauma to X and her mother Y. There is no indication in the Report that X is recovering from the trauma of these incidents and that the long-term impact may not be great, as suggested by Mr. Davies. She was indeed recovering in 2023 but D’s reverse of stands on his pleas had re-activated the sufferings by X and Y, and there is no observation or conclusion on the long-term effect on the family.

25.  During the relevant period D also made the treat as particularized in Charge 4 to scare off this young child from disclosing his abuses on her. It is very mean and despicable indeed on the part of D and the criminal conduct involved struck at the heart of our criminal justice system. The suggestion that the treat had not been acted upon is neither here nor there in assessing the criminality of this Charge.

26.  For Charge 2, most of the factors mentioned above equally apply. Accepting the abuses involved is less serious than those in Charge 1, it was a continuation of previous abuses. For Charge 3 the abuses were no less serious than those in Charge 1 and was committed 4 years afterwards. That means X had been subjected to similar abuses by D for no less than 4 years, from the age of 7 to 11 years old.

27.  D had no previous similar conviction, I will ignore his previous convictions in coming to my sentence in this case. Also, this case involved only X, as such, I did not call for any psychological assessment of D but there is no basis to say, as suggested by Mr. Davies, that D is unlikely to re-offend, unless he meant against X only.

28.  Having taken all relevant factors into consideration, I adopt 3 ½ years as the starting point for Charge 1, 3 years for Charge 2 and 3 ½ years for Charge 3. For Charge 4, I adopt 12 months as the starting point.

29.  As conceded by Mr. Davies, and in line with the principles laid down by the Court of Appeal in Junaid Ahmed, D being a Form 8 holder is an aggravating factor. For this factor I will increase the starting point of Charges 1 to 3 by 3 months and Charge 4 by 1 month.

30.  D is convicted after trial, and I see no other mitigating circumstances warranting a reduction of the sentence on each Charge.

31.  Charges 1 to 3 are separate and distinct offences which took place over a period of 4 years. The sentences should therefore be run consecutively. The criminality of Charge 4 had been taken into consideration in assessing the sentences for Charges 1 to 3, therefore the sentence should be run concurrently to avoid double punishment. Taking totality principle into consideration, I am satisfied that a total of 5 ½ years is sufficient to reflect the overall criminality of D in the present case.

32.  For the reasons given above, for the 4 offences D is convicted of, he is sentenced as follows:

Charge 1: 3 years 9 months

Charge 2: 3 years 3 months, 9 months consecutive to Charge 1

Charge 3: 3 years 9 months, 1 year consecutive to Charge 1

Charge 4: 13 months, concurrent with Charge 1

Total sentence: 5 years 6 months.