HKSAR v. P.M.S.

HCCC 97/2025

[2025] HKCFI 3551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 97 OF 2025

______________

______________

_________________________________

REASONS FOR SENTENCE

_________________________________

1.  The defendant pleaded guilty to one count of Indecent Assault[1] before Magistrate Ms. Minnie Wat, admitted to the Summary of Facts and was committed, on 17^th March 2025, to the Court of First Instance for sentence. He confirmed his guilty plea and admission before me and the conviction was duly recorded.

2.  Particulars of the charge are that the defendant on 8^th November 2023, at a flat in Sham Shui Po District, Kowloon, indecently assaulted X, a girl of the age of 9 years.  

FACTS

3.  The defendant is the elder brother of X by the same father.  Their family consists of the father, X’s mother and her 2 sons with the father, the defendant, and X.

4.  The mother and the father got married in 2014.  Since 2019, the 6 of them had been living together in a flat in the Sham Shui Po District.  

5.  The flat is partitioned into a dining and a living area by way of a curtain.  In the living area were 2 bedrooms and a bed set on a platform.  The father lived in one of the bedrooms, while X and her mother lived in the other.  The defendant and the two other sons slept on the platform bed.  

6.  On 8^th November 2023, the mother left home at around 10pm to run some errands, leaving the then 9 year old X and 18 year old defendant, and one other son who was then 12 years old at home.  She told the defendant to get his younger sister and brother to go to bed before she left.

7.  After the mother had left, and after the younger brother had fallen asleep, X asked the defendant to stay with her as she was afraid of the dark.  The defendant went into X’s bedroom and sat on the edge of the bed where X was lying on.  

8.  After X had also fallen asleep, the defendant moved her so that she was sleeping facing down.  The defendant pulled down X’s shorts and underpants, and lowered his own pants down to his calf level.  He placed his hands on X’s back, thereby pressing her down against the bed.  At this point, X was awake but pretended to be sleeping because she was very afraid and did not dare to move.  

9.  The defendant then rubbed his erected and unprotected penis back and forth between the buttocks of X, and slipped his hands into X’s shirt and squeezed her breasts for about 4 minutes.  

10.  The defendant then flipped X around so that she was facing up, spread open her thighs, and rubbed his penis around her anal area for about 1 minute.  

11.  The mother returned to the flat some time before 11pm and knocked on the door but no one answered.  After she entered the flat with her key, she found she was unable to open X’s bedroom door.  She kept pushing and when she did manage to open it and switched on the light, she saw X lying in bed with a blanket covering her up to her chest and looking embarrassed.  The defendant had also come out from behind the bedroom door.

12.  The mother felt suspicious and pulled down the blanket to find that X’s lower body was naked.  She asked X what happened and X told her that the defendant had touched her private parts.  The mother was furious and immediately confronted the defendant.  

13.  The mother and father decided to report the matter and took the defendant to the police station the following evening.  The defendant was arrested for buggery with girl under 21.  Under caution, the defendant asked the officer declaring the arrest what buggery was: 「阿Sir，咩叫肛交」.

14.  The defendant confirmed that the assault happened as depicted above in the subsequent video recorded interview conducted on 10^th November.  He said the whole incident lasted about 20 minutes, from when X called for the defendant to accompany her in the bedroom, to when the defendant put his pants on after the mother’s return.

15.  X was taken to hospital on 10^th November and physical examination, including vulval, anal and neurological examinations were conducted.  The results were unremarkable.  X refused to participate in a forensic examination.  She was discharged 7 days later on 17^th November.  

PREVIOUS CONVICTION

16.  The defendant was of clear record.  

BACKGROUND AND MITIGATION

17.  The defendant was born in mainland China in June 2005 and has just turned 20.  He was 18 at the time of his commission of the offence.  He came to Hong Kong with his father in 2014 and was educated up to Form 4 level here.

18.  Mr. David Ma, counsel for the defendant, submits in his helpful written mitigation that this was a one-off incident, and that the defendant’s conduct was contrary to his previous good character.  He notes that the period that the defendant would have been in remand by the time of his sentence would be equivalent to an actual sentence of about 30 months and an equivalent starting point of 45 months’ imprisonment.  

19.  Nevertheless, it is his submission that a training centre order is the suitable sentence in the circumstances, which would fairly address the serious nature of the offence, while balancing the defendant’s need for rehabilitation, given his age and personal circumstances.

REPORTS

20.  Various reports have been prepared on X and the defendant to assist in sentencing.  They are summarized as follow.

X’s Psychiatric report

21.  According to the report of Dr. Tang dated 14^th February 2024, based on information from X’s mother and Dr. Tang’s observations made during the two out-patient attendance assessments, where X’s mood was neutral, with no sign of hyperactivity, and no indication of any idea of self-harm, Dr. Tang’s preliminary opinion is that there is insufficient evidence so far to conclude any formal psychiatric disorder.

22.  However, since X’s mother remembered X having received drug treatment from a private psychiatrist when she was in primary 1, which stopped around the end of her primary 2 school year, Dr. Tang and her team are still trying to locate any assessment reports from her school to ascertain whether X had been diagnosed with any specific learning disorder.

23.  In order to further clarify her psychopathology, X has been referred to join Dr. Tang’s Day Hospital Observation Group.  In gist, further exploration is needed to ascertain the extent of any adverse influence on X’s psychological wellbeing as a result of the incident in the present case.  

X’s Medical reports

Accident and Emergency Department

24.  Dr. Cary Chan of the Accident and Emergency Department was the doctor who examined X on 9^th November 2023.  She states in her report dated 7^th February 2024 that physical examination showed a calm patient who was unwilling to talk.  No other examinations were performed and X was admitted to the Paediatric department for further management.  

Department of Paediatric

25.  Dr. LO Yat Cheung of the Paediatric department examined X on 10^th November and found her general condition to be well, with all physical examinations unremarkable.  Forensic examination was arranged but X refused.  X was referred to the Social Welfare Department clinical psychology unit for emotional support, with follow up in Dr. Lo’s Child Protection clinic.

X’s victim impact report

26.  In the very detailed victim impact report prepared by Clinical Psychologist Ms. Jor, she first of all points out that intrafamilial sexual abuse is generally considered the most damaging type of abuse with potentially the greatest traumatic impact, and proceeded to make findings that included the following.

27.  Due to a dysfunctional family and X’s neurodevelopmental challenges, she was particularly vulnerable to exploitation and victimization, and trauma recovery was inherently more difficult.

28.  X was violated at home by her own elder stepbrother, causing the previously close sibling relationship to suddenly rupture, leaving X confused and unable to make sense of what was happening given her limited cognitive ability and lack of parental guidance.

29.  Ms. Jor found that X presented with depressive symptoms, low self-esteem, persistent behavioral problems including self-harm, and trauma symptoms including intrusions and premature sexualization.  These symptoms may not all be directly attributable to the indecent assault, but it can undeniably serve as a significant contributing factor.  Ms. Jor is particularly concerned that X’s sexual behaviours, when coupled with her vulnerability to re-victimization, is likely to have long term consequences in the absence of adequate intervention.

30.  X had declined further psychological service, but her mother does wish for psychological intervention.  In view of X’s weak cognitive and social functioning, she recommends long term psychotherapy for X to manage her sexual behaviours and to process the psychological and emotional impact from the assault.  X is, therefore, strongly encouraged to attend her scheduled Clinical Psychologist appointment with the Hospital Authority.

The defendant’s psychological report

31.  In the psychological report prepared by Mr. Jason Chan and endorsed by Clinical Psychologist Ms. Sarina Lam, they assessed the defendant’s risk of sexual recidivism to fall within the lower end of moderate range, with pertinent risk factors including his intimacy deficits, loneliness, negative emotionality, and inadequate addressed sex drive.  They find the defendant motivated towards preventing himself from re-offending, and recommended psychological intervention to enhance his stress coping skills and raising his self-esteem.  Development of his skills to initiate and maintain healthy intimate relationships would also be beneficial to prevent relapse, as well as promote reintegration.

The defendant’s psychiatrist report

32.  The defendant had attended Yau Ma Tei psychiatric clinic in 2019 for hearing voices and seeing strange images.  He was found to have had adjustment problem with anxiety symptoms after moving to Hong Kong, leading to vague psychotic symptoms.  His mental condition had gradually improved, and the defendant denied any abnormal perception and belief after a few months.  He did not attend further psychiatric follow-up after March 2020.

33.  It is Psychiatrist Dr. Dorothy Tang’s opinion that the defendant does not have any formal psychiatric diagnosis at the time of the consultation, although psychological service might be beneficial in view of the serious nature of the offence.

Training Centre Report

34.  It is Officer Lung of the Rehabilitation Unit of Pik Uk Correctional Institution’s finding that the defendant is mentally, psychologically and physically fit for, and that based on the information available and after a general assessment of the defendant’s behaviour and attitude while on remand, he considers the defendant suitable for, detention in a Training Centre.

SENTENCING

35.  The maximum sentence on conviction upon indictment for the offence of Indecent Assault is that of 10 years’ imprisonment.

36.  I have reminded myself of the factors to be considered in sexual assault cases involving a child as set out in HKSAR v Tsang Chiu Tak[2]:

(a) the age difference between the defendant and the victim;

(b) the relationship between the defendant and the victim and whether the defendant had taken advantage of his position or status and whether the offence involved a breach of trust;

(c) whether the defendant had used threats or inducements to make the victim succumb;

(d) the number of occasions of committing the offences and the duration of them;

(e) whether violence was used by the defendant on the victim;

(f) whether the defendant took any safety precautions;

(g) whether the abuse had caused physical or psychological trauma to the victim;

(h) whether the offence had any impact on the victim’s family members;

(i) whether the defendant was involved in other inappropriate conduct or behaviour in committing the offence, such as inviting others to watch or film the offending conduct; and

(j) whether the defendant is paedophilic or mentally disturbed and likely to reoffend.

37.  Furthermore, in the case of HKSAR v Chow Yuen Fai[3] , the Court of Appeal reiterated that in indecent assault cases it is neither possible nor practicable to fix a tariff given the varied circumstances in which these offences can arise.

38.  In the present case, there was a 9 year age gap between the defendant and his stepsister, and his assault on her involved a breach of trust of the sibling relationship.  There is no evidence that the defendant had explicitly taken advantage of his position as the elder brother but he did take advantage of the fact that he was trusted by their mother with looking after X.

39.  There were no threats or inducements to make X succumb, and the assault only happened once and lasted a relatively short time.  There was no violence, but the defendant did not take any safety precaution, although it was not a situation of there being penetration of body parts.  

40.  According to the victim impact report, the assault had caused psychological trauma to X, which was made worse because of X’s own challenges that she was already facing with her ADHD and borderline intelligence.

41.  The father has since been living separately after the incident, X feels that her mother blames her for the family’s situation.  The family is suffering as a result of the incident.  

42.  Based on the defendant’s various reports, there is no suggestion that he is pedophilic or mentally disturbed, and his risk of re-offending is assessed to be at the lower end of the moderate range.  

43.  As Mr. Ma puts it in his written submissions, this is a family tragedy.  The silver lining is that it is now clear what specific issues that the defendant, and X, are facing, and that there is still time to help them face their challenges, so that hopefully they will be in a better position to deal with adulthood, which is never an easy task for young people, especially those who suffer their individual pre-existing disadvantages.

44.  Detention in a Training Centre involves a loss of liberty.  The maximum period that the defendant can be detained under s.4(2) is 3 years.  Beyond the first 6 months of the detention period, it is for the Commissioner of Correctional Services to decide whether and when the defendant should be released, subject to the statutory maximum of 3 years.

45.  Upon his release, the defendant will be subject to a 3 year period of supervision under s.5(1).  During this period, the defendant will have to comply with any requirements, such as where to live, as specified by the Commissioner.  Non-compliance with any of the requirements is a criminal offence with a maximum sentence of 12 months’ imprisonment and a level 2 fine.  The defendant may also be recalled and detained at a Training Centre until the expiration of 3 years from the date of his sentence, or at least 6 months, whichever is later.  This 3 year supervision period is why in a lot of cases a defendant would prefer imprisonment, so that they can get it over with and not have the Supervision Order hanging over his or her head.

46.  Imposition of a detention order does not require a defendant’s consent but in the present case, the defendant has through his counsel invited the court to consider this sentencing option, suggesting that he is willing to be dealt with in this manner, and that he fully understands all that the sentence would entail.

47.  Taking a step back, I find that this is a case that calls for the defendant to be dealt with by way of a period of detention in a Training Centre, where he will be provided with proper guidance as to how to adopt a more structured lifestyle, which will greatly assist his re-integration into society, and will likely lower the risk of re-offending.

48.  I am of the opinion that the defendant is not less than 14 but under 21 years of age, and I am satisfied that it is in the interest of the community and that having regard to his character and previous conduct, and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre.

49.  As such, I sentence the defendant to detention in a Training Centre, pursuant to section 4(1) of the Training Centres Ordinance, Cap.280.

50.  For the sake of completeness, I would like to point out that I have considered whether detention at the Rehabilitation Centre is an appropriate sentence and have concluded that it is not for the reason that the facts of the present assault is still serious.  The commission of the offence involved a breach of trust element, and the actual act of the assault could very well have supported a charge of attempting to have sexual intercourse with girl under the age of 13 under s.123 of the Crimes Ordinance, which carries a maximum sentence of life imprisonment.  As such, I find that a period of detention in a Training Centre is the only proper sentence in the circumstances.