HKSAR v. WEN CHI HUNG

DCCC1105/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1105 OF 2011

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Reasons for Sentence

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1.  At the close of the prosecution case, having testified unsuccessfully against the admission in evidence of his cautioned interview, the defendant enters a plea of guilty to five charges of indecent assault, preferred against him under section 122(1) of the Crimes Ordinance, Cap.200.

Facts

2.  On the basis of the prosecution evidence, the court finds the following facts established beyond all reasonable doubt. 

3.  The defendant has had the habit of viewing on the internet photographs of sexily dressed women and, at the material time, became sexually aroused leading to the five offences, the circumstances of the commission of which were as follows.

4.  The defendant has paid attention to where young girls in school uniform lived in the building where he lived. 

5.  At about 7.30 am on 27 May 2010, a school girl of 15 was waiting for the lift at the lift lobby of 21st floor of the building when all of a sudden the defendant, due to his sexual urge, wrapped his arms around her neck from behind, intending (he said in a subsequent cautioned interview with the police) to harass her by giving her an embrace (Charge 1).  Frightened, the girl screamed, and the defendant fled via the backstairs.         

6.  At around the same time on the morning of 16 September 2010, another 14-year-old school girl was all alone by herself at the lift lobby of the 22nd floor. The defendant rushed towards her from behind, grabbed her by the neck, covered her month with a silvery adhesive tape, and forcibly dragged her to the backstairs, intending there to touch her in the thigh (Charge 2).  The girl tried to scream in fright, put up a struggle, and managed to break free from the defendant’s hold, by which stage as she was almost taken through the anti-smoke doors.  The defendant then fled.  

7.  At about 7.45 am on 21 June 2011, a third school girl of 15 waited for the lift on 24th floor. From behind her the defendant touched her arm and lifted her school skirt with some force (Charge 3).  The girl became frightened.  She turned around to look but lost her balance, and she screamed.  The defendant fled via the backstairs. Under caution upon his arrest, the defendant said he had been waiting for this girl ‘as usual.’

8.  At around 8:00 am on 15 August 2011, a student aged 18 found herself alone at the lift lobby of the 15th floor of the building.  The defendant embraced her from behind and stroked her right thigh over the skirt (Charge 4).  The girl was frightened, and she screamed.  The defendant ran away by the backstairs.  Under caution the defendant admitted having waited at the backstairs for the girl to appear at the lift lobby to indecently assault her.     

9.  At about 8.15 am on 19 August 2011, a 17-year-old student was at the lift lobby of 24th floor when the defendant approached her from behind, grabbed her left breast once, and fled immediately by the backstairs (Charge 5).  Under caution the defendant said he could not suppress his sexual impulse and indecently assaulted the student. 

10.  The victims of the five offences were all wearing school uniforms when they were indecently assaulted, while the defendant was either hooded or masked.

Conviction

11.  The court finds the defendant committed the assaults in Charges 1, 2, and 3 in indecent circumstances with indecent intention, and that the assaults the defendant committed in Charges 4 and 5 were inherently indecent in nature.

12.  The court finds the defendant guilty of all five charges.  The defendant has had a clear record before his current convictions.  

Mitigation

13.  The defence advances the following plea in mitigation. 

14.  The defendant is now 28 years old, and has been brought up by his mother, his father having passed away when the defendant was young. 

15.  The defendant maintains good relationship his family members, who consider him filial. 

16.  Counsel for the defence relies on the mitigation letter written by the defendant’s employer, which letter was signed also by a total of 13 colleagues.  Many other letters written by the defendant’s friends are also submitted.  The letters show that the defendant was popular at work and had the trust of his friends, male and female.

17.  Counsel refers, in particular, to a trip the defendant took with four female friends. The trip took place in July 2010.  The four friends have written separately to court to express how the defendant had treated them gentlemanly during the trip, and that he had never taken advantage of any of them despite obvious opportunities to do so.  

18.  In relation to the offences in question, Counsel mentions the victims’ statements to show that it took the victims some time to have the matter reported.  This shows, counsel argues, that the victims might not have experienced tremendous shock and fear.

19.  The defendant has had a clear record.  He agreed to the better part of the prosecution case so that the victims could be spared the ordeal of having to testify in open court. 

20.  Finally, counsel argues that the clinical psychologist who has assessed the defendant’s condition might not have been presented with the full picture of the defendant’s social profile.

21.  The court is urged to be as lenient as possible in sentencing the defendant. 

Discussion

22.  Indecent assault is a serious offence, carrying as it does a statutory maximum of 10 years’ imprisonment. 

23.  There is no sentence guideline applicable to the five offences in question.  So the sentence depends on an assessment by the court of the facts of the case.  In this regard, the prosecution refer to the case of HKSAR v Mak Chun Man CACC86/2009, which, however, concerns much more serious instances of indecent assaults.

24.  There are a number of aggravating factors in this case - 

1) the case has spanned over some 15 months in which period the defendant targeted young girls or teenaged students in school uniform;

2) he committed the indecent assaults with planning and premeditation, choosing the moment when the victims were alone;

3) tall and well-built, the defendant was either hooded or masked when he did his crime; his sudden, totally unexpected acts must have put the young girls and teenaged victims in an immense and terrible fright;

4) the victims would have to go to school every day and would therefore have no choice but to re-live that fright every time they left home in the morning by themselves;

5) given the living condition in a block of public housing, the court finds that at least since the commission of the offence in Charge 2 in September 2010, the defendant must have, for almost one year, put in fear and trepidation parents with young daughters in the same block, particularly when their daughters had to go to the lift lobby alone; and

6) the defendant dragged the victim in Charge 2 towards the backstairs; so for a time, brief though it might be, the victim had been detained against her will and deprived of her liberty.

25.  The court rejects counsel’s submission that the victims might not have been put in shock and fear.  In the court’s view, the delay in reporting the matter was within reasonably bound, and it shows the victims have needed time to recover from the shocking and frightful experience.         

26.  Public interest cries out for a sentence with a strong and heavy deterrent element. In all the circumstances of this case, the court considers appropriate an overall starting point of four years and four months’ imprisonment to reflect the gravity of the five offences.

27.  The court has commissioned a background report on the defendant.  The probation officer responsible for the compilation of the report describes the defendant’s living environment in favourable terms. The defendant residence is located in an area with ready access to an MTR station and other major forms of public transport. His bedroom window overlooks the adjacent village and green land.  For a family of three, comprising the defendant, his mother, and one of his elder brothers, the living area of the flat is considered above the normal living standard of the middle class.

28.  The defendant is the youngest of the three sons of the family.  His father passed away in 1988, at which time the defendant was five years old.  All along, it has been his two elder brothers who supported the defendant’s upbringing.

29.  The probation officer says that due to improper parental guidance, the defendant has failed all his examinations throughout his junior secondary years.  His conduct at school did not fare much better.  His disciplinary problems included insulting his teacher.

30.  That said, the defendant was noted to be a talented table tennis player.  He came third in a Salvation Army Youth Tournament and won the Male Championship at school. Later, he developed an interest in soccer, but as time went by, his soccer peers found their girlfriends, and the defendant was very much left alone without close friends.  His situation at work made the problem worse.  Colleagues used to hang around with him either got married or had their girlfriends, thus leaving the defendant almost entirely to himself.

31.  The defendant’s supervisor at work said the defendant was loyal and diligent.  He was timid, introvert, and conforming, and was generally shy and reticent in female company.            

32.  In conclusion, the probation officer describes the defendant as an ‘otaku’ (御宅男) who was lonely and who indulged himself in browsing websites and playing online games at home for years.  In the probation officer’s opinion, despite his best effort, the defendant has failed to relieve his loneliness and sexual stress and has become conditioned by the online pornographic culture, which has in the end led to the commission of the offences.

33.  The mitigation letters submitted by the defence show the defendant’s popularity at work and among friends, but they fail to touch on the defendant’s inner feelings he has harboured.

34.  According to a psychiatrist whose report has been placed before the court, the defendant does not suffer from any mental condition.  No psychiatric intervention is required.

35.  The clinical psychologist, who has consulted the defendant’s brother for confirmation of the defendant’s lifestyle, opines -

“Mr. WEN is a male with an overall prosocial lifestyle and good family support. The factor[s] of poor social skills with the opposite sex, distorted beliefs about women, sexual preoccupation, sex coping and minimal consideration of the consequences of his behaviours seem to play a role in the index offence. Currently Mr. WEN shows remorse for his offence. He shows some insights into his problems. Considering the assessment results on sexual recidivism, Mr. WEN’s risk of sexual re-offending is moderate. Psychological treatment focusing on the above factors is recommended.”

36.  Finally, the defendant’s offer to plead guilty to the charges has not been timely.  He contested the major piece of evidence against him, and little court time has been saved.  The court would accord him with 25% discount only (see HKSAR v Leung Cho-yi CACC385/2008).              

Conclusion

37.  The victim in Charge 1 was 15 years old at the time of the offence.  For Charges 4 and 5, the victims were 18 and 17, respectively.  The degree of indecency of the defendant’s acts must be adequately reflected in sentence.  The court considers appropriate a starting point of 20 months for each of the three charges, which is reduced by 25% on account of the defendant’s pleas and clear record to one of 15 months’ imprisonment. 

38.  For Charge 2, in which the victim was but 14, the appropriate starting point is one of three years, which is likewise reduced by 25% to 27 months’ imprisonment.  Given the circumstances of the offence, the victim must have been deeply shaken and terrified.

39.  A starting point of 12 months is chosen for Charge 3, which is reduced by 25% to one of 9 months’ imprisonment.  The victim in this charge was 15 at the time.

40.  Having considered the principle of totality, the court orders that -

1) the sentences for Charges 1 and 3 should run concurrently, making a total of 15 months’ imprisonment for the two charges;

2) eight months of the sentence for Charge 1 and 3 should run consecutively to the 27 months in Charge 2, making a sentence of 35 months’ imprisonment for the three charges;

3) the sentences for Charges 4 and 5 should run concurrently, resulting in a total sentence of 15 months for these two offences, and

4) four months of the sentence for Charges 4 and 5 should run consecutively to the 35 months for Charges 1 to 3, making a final sentence of 39 months’ imprisonment.

Order

41.  For the five offences of which he stands convicted, the defendant is sentenced to a term of imprisonment of three years and three months. 

42.  Psychological treatment and counselling are recommended to the defendant in prison.