COURT: The defendant, YCL, was charged with one count of rape, one count of indecent conduct towards a child under the age of 16, one count of buggery with a girl under the age of 21, and two counts of indecent assault. He pleaded guilty to all five counts before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Summary of Facts
X was born in March 2011 and was 12 years and 4 months old at the material times. X suffered from mild intellectual disability with full scale IQ of 60 on the Wechsler Intelligence Scale for Children. So she was a mentally handicapped person within the meaning of the Mental Health Ordinance, Chapter 136, at all material times.
The defendant was 40 years old at the material time. He is the elder brother of X’s father, meaning that he is X’s paternal uncle. His village house, his father’s village house, and X family’s house were adjacent to each other in the New Territories.
X started living with her foster parent, Ms Li, on 26 July 2021. From time to time, X would be on home leave and stayed at her family house. Such home leaves usually took place in weekends, and X was on home leave for three weekends in July 2023 and for two weekends in August 2023.
Incident 1
During home leave on one Saturday in July 2023, X went to play at defendant’s village house. When X was playing on her phone on the defendant’s bed, the defendant touched X’s genitals on top of her short pants. Defendant then squeezed X’s nipples with his fingers over X’s clothing. Defendant then exposed his penis by folding up his underpants leg opening. He pulled aside X’s short pants leg opening, penetrated his penis into X’s vagina, and thrust it twice. X told defendant that it was painful and asked him to stop. Defendant then requested X to perform oral sex for him while he stood next to the bed. Defendant inserted his penis into X’s mouth and thrust it for about three minutes. X felt uncomfortable and wanted to vomit. Defendant stopped when X’s younger sister was about to enter the room. The incident lasted for 10 to 20 minutes. That is the 1st and the 2nd count.
Incident 2
During home leave on another Saturday in July 2023, X was at defendant’s village house watching television. X was wearing a pair of shorts. On the bed in one room, the defendant pulled aside X’s shorts and penetrated his penis into X’s anus. X yelled as her anus was painful and she felt uncomfortable. Defendant covered X’s mouth with one hand and molested X’s breast with his other hand on top of her clothes. Defendant thrust X’s anus for about 15 minutes. That is the 3rd and the 4th count.
The third incident
During home leave on an unknown day between the 1 July 2023 and 31 August 2023, which was on an occasion other than incident 1 and incident 2, X was in the house of defendant’s father. In one of the bedrooms, defendant asked X to sit on his thighs. He then molested X’s breasts with both hands inside her bra. Then he molested X’s genitals with one hand inside her underpants. Defendant stopped when he heard the door was being opened by another person. That is the 5th count.
So how was the case reported? It was on the 15 September 2023, X related the incidents to her foster parent, Ms Li, who then liaised with other care workers immediately. Police was informed in due course.
The Arrest and Caution of the Defendant
Defendant was arrested on 26 September 2023. Under caution, for the offences of rape and non-consensual buggery, defendant verbally admitted that he had raped X and had buggered X. Under caution for indecent assault, the defendant verbally admitted to have touched X’s breasts and asked her to perform oral sex for him.
Three video-recorded interviews have been conducted with defendant on same day and defendant stated under caution the following:
For the first incident, he said that he touched X’s breasts and genitals for a few minutes in the bedroom inside defendant’s house before the sexual intercourse. On the bed, he penetrated his penis into X’s vagina and thrust it twice. Defendant stopped thrusting and X said that it was painful and uncomfortable. Defendant had asked X before the sexual intercourse, but he had forgotten how he had asked X and in any event, X did not answer him. As soon as defendant pulled aside the leg opening of X’s underpants, he penetrated his penis into X’s vagina. X did not have the time to respond. The defendant did not know if X wanted to have sexual intercourse with him. X said it was painful after defendant had thrust it twice. X might not have wanted sexual intercourse with him. Defendant inserted his penis into X’s mouth and X said it was painful. And lastly, defendant said he did not ejaculate and no condom was used.
Regarding the second incident, under caution, the defendant said that he had molested X’s breasts under her clothes once or twice while sitting on the bed at the bedroom of his house. Defendant asked X’s permission to touch her breasts, but X did not respond. Defendant had penetrated his penis into X’s anus. Defendant had stopped when X said it was painful and defendant did not ejaculate and no condom was used.
For the last incident, the defendant said he had molested X’s breasts once or twice and had touched X’s genital once or twice.
Physical and Medical Findings on X
As the foster parent, Ms Li, would help X bathe at the foster home, she did not see any physical injury on X’s body, nor did X say that she was injured or felt any physical pain. On 16 September 2023, X was admitted to Tuen Mun Hospital. On physical examination, there were no signs of bruise or injury. Pregnancy tests and extensive tests for sexually transmitted diseases were all negative. No medical treatment was given to X after admission and she was discharged on 19 September 2023.
There were forensic examinations on X conducted on 26 September 2023 and the following are revealed:
An old complete tear at 8 o’clock position on X’s hymen but no recent injury or abnormality, which was in keeping with history of previous sexual intercourse. No injury or abnormality at vagina or cervix and no external injury to anus and perineal region.
The Psychologist’s Report on X
I have a report prepared by Ms Tsang Pui-shan, a clinical psychologist on X. X was seen regularly by Ms Tsang for psychological treatment since November 2023, following the recommendation of the multidisciplinary meeting on child maltreatment pertaining to the sexual abuse incidents in this case.
For the purpose of assessing the psychological impact of these offences on X, two interviews were conducted with X and also X’s mother. I do not intend to go into details of the findings. Suffice it to say that as far as X is concerned, when she was interviewed in April and May 2026, she showed symptoms of post-traumatic stress disorder with pervasive sequelae including shame, self-blame, fear, helplessness and self-rejection. There is a significant protective factor due to the constant presence of care from X’s foster parent and her natural mother. Both afforded X a sense of security instrumental to her day-to-day functioning.
X’s mother was shocked upon finding out what had happened and she blamed herself and felt guilty for not protecting X. She was deeply sad to witness her daughter with intellectual disability navigating the demands of forensic questioning and medical examination.
Psychological Report on Defendant
I have a report by Ms Ada Wong, clinical psychologist of the Correctional Services Department on the defendant. Defendant was diagnosed with mild-grade intellectual disability since primary years. Intelligence test performed by Ms Wong showed the defendant was at the borderline range. Defendant has a son with his former girlfriend. His son was born immature and lived in a hostel for mentally handicapped persons. Defendant admitted to have a high sex drive. While admitting having sexual intercourse with his niece and had forced her to perform oral sex on him, he was adamant that he did not bugger his niece. Defendant was impressed to have used X as a tool, a sex object to gratify his sexual desires. There is no strong evidence to indicate defendant is a paedophile. His risk of re-offending is on the low side of the moderate range.
Background and Mitigation
Defendant was born in 1983 and is now 43 years of age. He has a previous conviction of theft in 2018, for which he was given a sentence of 4 months suspended for 2 years. He is single but has a 17-year-old son who has mild intellectual disability with his ex-girlfriend. The son lives in a dormitory arranged by the Social Welfare Department. Defendant claimed to have studied up to Form 3 level and then attended a vocational training course on cookery. The defendant has worked as a kitchen help and a delivery worker. He was unemployed at the time of the arrest and is a recipient of the Comprehensive Social Security Assistance.
Mr Gordon Wong, counsel for the defendant, submitted that the defendant’s current girlfriend of five years maintains good terms with the defendant and pays regular visits to defendant. Defendant’s father is also on good terms with the defendant and visits him, but not defendant’s mother. Counsel readily conceded there are aggravating factors in the present case. The blood relationship between defendant and X, X being defendant’s niece, there is breach of trust, and X being a mentally handicapped person, and lack of the use of condom.
Mr Wong also urged this Court to take into account the following factors that the offences took place in a space of two months. There was no ejaculation, no physical injuries were seen on X, examination at the hospital showed no injuries, no pregnancy or sexually transmitted disease, and forensic examination on the 26 September 2023 showed no injury to X’s private parts. No money or reward was offered to X to further corrupt her morals.
Mr Wong submitted there were no sentencing guidelines for the present offences. The exercise is very much fact sensitive. Mr Wong nevertheless brought this Court’s attention to the following cases. The HKSAR v Chow Yuen Fai [2020] 1 HKLRD 354, HKSAR v Lee Kwok Wai, CACC 199/2011, HKSAR v HHK, HCCC 405/2019, HKSAR v LYH, HCCC 17/2022, and HKSAR v Chun Kwong Kau, HCCC 8/2024.
The defendant had written to this Court expressing his deep remorse for committing these offences and hurting others. He asked this Court to sentence him as leniently as possible.
Now, regarding the defendant’s denial of having committed buggery with X, Mr Wong explained that there was a misunderstanding. The defendant was referring to the original charge of non-consensual buggery which was left on file. I actually noted from the papers that the charge was not proceeded with as the defendant pleaded guilty to the alternative charge of buggery with a girl under the age of 21. So it is not left on file but it is an alternative charge.
My consideration of the sentence
A person convicted of rape on indictment is liable to imprisonment for life. A person convicted of buggery with a girl under 21 on indictment is also liable to life imprisonment. A person convicted of indecent conduct towards a child under 16 on indictment is liable to imprisonment for 10 years. A person convicted of indecent assault on indictment is liable to imprisonment for 10 years.
As pointed out by Mr Wong, there are no guidelines for sentencing sex offenders. The courts will be guided by sentencing principles. Actual sentences passed in other cases may not be of assistance due to difference in circumstances. The case of Chow Yuen Fai concerns a paedophile preying on young boys of puberty between 8 and 13 that he met online and sexually assaulted them and even filmed them during the assaults. The background is quite different from the present case. In that case, for indecent assaults without filming, the Court of Appeal held a starting point of 3 years was correct. And for buggery, 8 years was the correct starting point.
In Lee Kwok Wai, the victims were aged between 11 to 13 and were not related to the defendant. Defendant was a paedophile who had paid them for his own sexual gratification. No condom was used during buggery. And the Court of Appeal approved the starting point of 8 to 9 years for buggery and 3 years for indecent assault.
And the following factors were considered relevant in sentencing. The age difference between the defendant and the victim. 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 at the time of the offence.
Whether the defendant had used threats or inducements to make the victim succumb, falling prey to his licentious exploitation. The number of occasions of committing the offences and the duration of the offences. Whether inappropriate and unnecessary violence was involved in committing the offences and whether any harm or discomfort was caused to the victim. Whether any suitable safety measures were taken in committing the offences and whether any hazard to the health and safety of the victim and the public was caused. Whether the offences had caused physical or psychological trauma to the victim. Whether the offences had impact on the family members of the victim. Was the defendant involved in other inappropriate behaviours such as inviting or permitting others to watch or to take photos or videos. Whether the defendant is psychologically imbalanced or a paedophilic and the likelihood of re-offending.
In the case of HHK, the defendant was the father of the victim. He raped and attempted to rape her from the time when she was 6 until she reached 11. No condom was used. The court adopted a starting point of 9 years for the attempted rape and 15 to 16 years for the actual rape. A global starting point of 24 years was adopted.
And in LYH, the defendant was the paternal uncle of the victim. The defendant attempted to rape and indecently assaulted his niece when she was studying Primary 2 to Primary 5. The court adopted a starting point of 7 years for the attempted rape. Regarding the indecent assault, 5 years starting point for those verging on attempted rape and 6 to 9 months for those were adopted, for others were adopted as starting point. A notional global starting point of 12 years was adopted.
In Chun Kwong Kau, the defendant was a friend of the victim’s mother. The defendant sexually assaulted the victim since she was 5 until she was 9 or 10 years old. The court adopted 12 years as starting point for the rape charges, 3 to 4 years for the indecent conduct charges and 3 years for the indecent assault charge. A global starting point of 15 years was adopted.
Now, in the present case, adopting the factors mentioned in Lee Kwok Wai, X was 12 years and 4 months old at the time of these offences whereas the defendant was nearly 40 years old. The defendant was the paternal uncle of X. There was a serious breach of trust. The defendant did not appear to have used threats or inducements to make X succumb. There were a number of sexual assaults by the defendant on X within a period of 2 months, including the more serious offences of rape and buggery. Discomfort and pain in particular during the buggery offence was caused to X. The defendant did not use any condom during these sexual assaults thus exposing X to the risk of pregnancy and sexually transmitted diseases even without ejaculation.
While there was no physical injury caused to X as disclosed by the psychologist’s report, these offences caused psychological trauma to X. The offences clearly have a severe impact on X’s mother as the defendant is a blood relative of X. Even though Ms Li was not a family member of X being the foster parent of X, the offences would have impact on her as well.
There is no evidence of any other inappropriate behaviour. While the defendant is assessed to be in the borderline range of intelligence, the defendant is not psychologically imbalanced. There is no evidence that he is paedophilic but has sexually assaulted X as she was an easy target. His likelihood of re-offending is assessed to be at the low end of the moderate range.
Those were the factors mentioned in the case of Lee Kwok Wai. But I will add here that the defendant abused a mentally handicapped person which is another aggravating factor. I did wonder why the defendant abused his mentally handicapped niece when his own son is also mentally handicapped. There is no clear answer from the psychologist’s report on this issue. It may be the case that the defendant had never actually lived with his son, so maybe that is the reason why he lacks empathy towards mentally handicapped persons.
In any event, it is clear that the defendant had targeted X as she was an easy victim to satisfy his own sexual needs.
So in all the circumstances of these offences, I consider the following starting points appropriate. For the 1st count of rape, 12 years. For the 2nd count of indecent conduct towards a child under the age of 16, 3 years. For the 3rd count of buggery with a girl under 21, 13 years. For the 4th count of indecent assault, 18 months. And for the 5th count of indecent assault, 2 years and 6 months, that is 30 months.
The defendant pleaded guilty to these charges and is entitled to a full one-third discount. So the sentences after discount are as follows: 1st count of rape, 8 years; 2nd count of indecent conduct, 2 years; 3rd count of buggery with a girl under 21, 8 years and 8 months; 4th count, indecent assault, 12 months; 5th count, indecent assault, 1 year and 8 months, so that is 20 months.
Concurrent sentences
Since the 1st and the 2nd count arose out of the same incident, the two sentences should run concurrently, that means a total of 8 years. Again, the 3rd and the 4th counts arose out of the same incident, so the two sentences should run concurrently, 8 years and 8 months.
Now, I have considered totality. Applying the totality principle, I am of the view that the total sentence of 11 years is appropriate. Such a sentence would represent a notional starting point of 16 years and 6 months for all these offences which would properly reflected the criminality involved.
So the actual sentence: 1st count, 8 years; 2nd count, 2 years; 3rd count, 8 years and 8 months; 4th count, 12 months; 5th count, 1 year, 8 months. 3 years of the sentence of 8 years and 8 months imposed on the 3rd count to run consecutively with the sentence of 8 years imposed on the 1st count, making a total of 11 years’ imprisonment.