HKSAR v. TSE SIU MING

DCCC 400/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 400 OF 2013

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REASONS FOR SENTENCE

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1. The defendant is convicted on his own plea for one count of Indecent Assault on another person, contrary to section 122(1) of the Crimes Ordinance, Cap 200.

2. At the time of the offence, the victim girl was 11 years of age, born on 9 May 2001 (“X”).

The Facts

3. At about 5:45 pm on 29 January 2013, after X, a Primary 6 student, had finished school and played with a friend for a while in the vicinity of Tin Yip Street, Tin Shui Wai, New Territories, she went home alone.

4. On her way home, the defendant approached her and alleged that she had engaged in vandalistic acts at the light rail station in Yuen Long earlier on that day.  He also showed her an image recorded on a mobile phone claiming that it was a recording of her alleged vandalistic acts.

5. Under the pretence of making enquiries into the matter, the defendant led X to a temporary office made from a large metal container which consisted of two decks located at Tin Yip Road, Tin Shui Wai.  At that time, X mistakenly believed that he was a police officer and therefore followed him to the upper deck of the temporary office.

6. Inside the office, the defendant tied X’s right hand to a pillar with pieces of nylon strings.  At that juncture, she protested and requested to be investigated by a female officer but he ignored. He then molested her waist and breast over her clothing for approximately 1 minute.  After that, he tied up her left hand and touched her private parts over her clothing for approximately 1 minute.

7. Afterwards, he cut the strings and released her.  He then escorted her back to Tin Ching Estate.  He told her several times not to mention the incident to anyone and discard her uniform after returning home.

8. Upon returning home, X was seen to be distressed and she eventually disclosed the incident to her mother.  A report was then made to the police.

9. Upon investigation, the identity of the defendant was surfaced.  A staff of the company using the container as temporary office revealed that the defendant was an employee of a company responsible for their human resources affairs.  On the day in question, the defendant asked him to leave earlier for no particular reason.

10. On 30 January 2013, the defendant attended Yuen Long Police Station with his legal representative.  He was arrested on the same day.  Under caution, he remained silent.

11. Upon medical examination, X was diagnosed to have sustained erythema on her bilateral wrists which appeared to be fresh wounds and consistent with X’s version of events.

12. On 1 February 2013, X positively identified the defendant in an identification parade.

13. Also the mobile phone seized from the defendant and the CCTV footage retrieved from the building where he resided matched with X’s descriptions.

Pre-sentencing reports

14. Prior to sentence, I ordered to obtain the defendant’s background report, psychological report and X's impact report.

Personal and family background

15. The defendant is now 35 years of age, married.  He was educated up to Form 7.  Prior to this incident, he worked as a labour relations officer earning about HK$13,000 each month.  He ranks the second among two children in the family.  At the age of 8, his parents divorced.  He got married in 2010.  His wife aged 33 is a clerk and his son now aged 14 months.  According to the reports, both his wife and elder sister passed favourable comments on him as he was a good husband and father.

16. At the adjourned hearing, it was stressed that he had a stable employment history and his ex-employer spoke highly of him.

17. I have carefully considered the contents of all the mitigation letters adduced.

18. He has 3 criminal convictions.  In 2004, he was convicted of indecent assault and possession of instrument fit for unlawful purpose.  In that case, he followed the victim aged 16 into a building and dragged her to the staircase where he molested her breasts and private parts.  At the time of the offence, he also carried plastic straps, which were intended to be used to restrain the victim but he did not use them.  These facts were confirmed by the defendant in paragraph 8 of his psychological report.  He was sentenced to serve a total of 9 months imprisonment.

19. In 2005, he was convicted of loitering. He was found peeping through the window of a flat with a view to seeing any female inside.  He received a suspended sentence for that.

Psychological report

20. The author of the report observed that the defendant was “a low self-esteemed person who was reserved and tended to keep his feelings to himself”.  He concluded that the defendant “was preoccupied with sexual fantasies towards teenage girls” and he “enjoyed the excitement out of his offending behaviours”.  He had little sight into his problem.  He displayed “paedophilic tendency”.  His risk of reoffending was assessed to be “moderate to high”.  It is highly recommended that he should receive psychological treatment on his low self-esteem, stress coping skills, deviant sexual interest, impulse control and offending behaviours.

X’s impact report

21. X reported that she was significantly distressed for several days after the assault but she was able to resume schooling after two days.  “On and off, she had thoughts that bad things might happen to her again in future”.  She still had vivid memory of the distasteful incident.  The clinical psychologist concluded that X had been traumatized and was at the moment endeavoring to “cope with the assault by “forgetting” and diverting attention onto other activities as of nothing had occurred”. Symptoms of strong avoidance with anger and irritability, feelings of insecurity, and self blame and uneasiness in facing with sex related materials.

22. In the report, X further disclosed that the defendant had taken photos of her underpants and her appearance before her hands were freed.  For the sentencing purpose, I will wholly disregard any allegations which do not form part of the facts agreed by the defendant.

Sentence

23. There is no sentencing tariff for indecent assault.  The Court of Appeal has however repeatedly emphasized the sentencing considerations on the needs (i) to deter others, (ii) to make the public abhorrence of such crimes, and (iii) to redress the grievances suffered by the victim, her relatives and friends.

24. In the present case, the victim was an 11-year-old girl and she was sexually abused by a complete stranger under hideous circumstances.  The court must send a stark message to like-minded offenders that children are vulnerable members of the society and any sexual attack on them will be met with imprisonment of substantial terms.  For an offence of this kind, trauma will not only be caused to the child, but also the parents who will certainly be irritated by the image of what had happened to their child.  The sentence must also be able to address this issue.

25. The facts to which the defendant had admitted reveal that he firstly asked the staff of the office to get off in order to set the scene for the offence.  He then preyed on X on the street.  By showing an image on his mobile and implicitly behaving like a police officer, he was simply manipulating the naivete of a teenage girl.  The offence was, in my view, well-planned and premeditated.

26. I have considered the cases presented to me at the hearing.  Suffice to say that, the facts and acts of indecency in Attorney General v. Fong Ming Yuen [1989] 1 HKC 327, HKSAR  v. Chan Chi Hou CACC 1/ 1997 and HKSAR v. Cheung Kwok Yip Peter [2010] 3 HKC 470 were far more serious than those in the present case.  They are of little assistance to me.

27. In HKSAR v. Tin Siu Hung [2006] 1 HKLRD 29, the applicant who had a clear record impersonated as a police officer and indecently assaulted the victim aged 11 by fondling her body over her dress and underpants.  In allowing the appeal against sentence, the Court of Appeal considered a starting point of 3 years was appropriate for the indecent assault charge.

28. Whilst it is true that the acts of indecency in our present case were confined to the touching over clothing as those in Tin’s case, I however cannot lose sight of the fact that the hands of X were being tied up.  By restraining her hands, X was put to extreme fear in a status of helplessness.  This is no doubt an aggravating feature in this case.

29. Furthermore the defendant had similar record.  As a matter of sentencing principle, no offender should be punished twice for the same offence.  However the fact that the defendant sexually assaulted girls of tender age with same modus operandi simply suggests that the previous sentence failed to deter him.

30. Have carefully considered the acts of indecency, the reports before me, mitigation and all the circumstances, I adopt a starting point of 3½ years.  To reflect his guilty plea, the sentence is reduced to 28 months.

31. Though I have great sympathy with his wife and his son, this does not amount to a mitigating factor affecting the sentence that the defendant fully deserves.  By serving the sentence, the defendant must regret that he would have missed some precious moments in the growth of his son.  He, as a father of baby boy, must now have a deep reflection of his misdeed and realize that an act of sexual attack on a child is despicable.

32. Apart from his guilty plea, I see no other mitigating factors that warrant any further discount.

33. In the result, the defendant is sentenced to 28 months’ imprisonment.