HKSAR v. D.M.L.

DCCC 162/2023

[2023] HKDC 1432

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 162 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two charges of indecent assault. He was the natural father of the victim, X, who was aged 10 and 13 at the time of the two offences.

2.  As a background, the amended Summary of Facts which was admitted by the defendant in court reveals that the victim girl, X, lived with her father and her mother, Y. Between 2019 and October 2022, when X was aged between 10 and 13 years, the defendant molested X multiple times. 

3.  In October 2022, X told Y that she was worried that her period was late.  Upon inquiry by Y, X complained of sexual assault by the defendant.  On 1 November 2022, Y relayed the incident to the school social worker of X.  A report was made to the police. 

4.  A video-recorded interview was taken from X in which she said inter alia the following.  Between late 2019 and mid-October 2022, the defendant had touched X inappropriately on numerous occasions (about five times a month)  when X was sleeping.  Since around 2020, the defendant also molested X by rubbing his penis against her private part.  A number of similar incidents had happened. 

5.  The defendant was only charged with two offences, Charge 1 and Charge 2.  The 1^st charge relates to the first incident happened in late 2019 when X’s mother and domestic helper were not in Hong Kong.  The defendant took care of X and her younger sister at home.  On this occasion, when the defendant was sleeping on the bed next to X, he pulled her pants halfway down and used his fingers to touch her private part against her bare skin for a few seconds.  X asked him to stop.  The defendant said it was just a massage. 

6.  Charge 2 relates to the last incident happened on a day in mid-October 2022, when the family had moved to a new house.  X was sleeping in her bedroom.  She was sharing a bunk bed with her younger sister.  She slept on the lower bunk while her younger sister slept on the upper bunk. 

7.  During the early hours, defendant came into the room and then lied down on the bed next to X. He slipped his hand into her clothes to touch her breasts and private part for a few seconds when her back was facing him. 

8.  The defendant turned X around and lay on top of her.  He rubbed his penis against her private part after taking off his underpants and her underpants.  He also opened her legs.  X felt disgusted and wanted to vomit.  When she tried to move, the defendant pushed her down.  After rubbing for a few minutes, defendant put on his pants and walked away. 

9.  On 4 November 2022, the defendant was arrested.  Under caution, he admitted inter alia that between November 2019 and October 2022, he had used his hands to touch X’s chest and private parts as well as using his penis to rub against X’s private part. 

10.  The defendant has a clear record.  He is now aged 39.  Mr Laskey, counsel for the defendant, has submitted a skeleton mitigation submission and he makes further oral submissions in court.  In his written submission, he first refers the court to HKSAR v Lee Hon Wah[1]. At paragraph 43 of the judgment, the Court of Appeal referred to the factors to be considered by the court in relation to the sentencing of indecent assault towards a child, which I will not repeat here. 

11.  Counsel also makes further reference to another three sentencing cases, the first one is HKSAR v C K H[2] which is a District Court case where a starting point of 3 years’ imprisonment was taken by the judge on Charge 2 where the defendant, aged 19 at the time of the offence, was the half-brother of the 6-year-old victim.  He used his penis to rub against the victim’s private part.  This is not a decision binding on this court. 

12.  I will not go into the details of the other two cases, it suffices for me to say that these cases have very different facts which are far less serious than the present one. 

13.  Mr Laskey submits that there are mitigating factors in this case:-

(1)  The defendant indicated plea of guilty from an early stage.

(2)  He is remorseful, as can be seen from his demeanour in the video-recorded interview with the police.

(3)  No threats were made in the commission of the offences.

(4)  There was no penetration or physical violence involved.

(5)  There were no other inappropriate behaviours such as taking videos.

(6)  There is no likelihood of reoffending as the wife has filed a divorce proceedings.

(7)  The defendant has quitted his drinking problem which attributed to the commission of the offences.

14.  At the hearing when the defendant entered his plea of guilty, the prosecution informed the court that there was no victim impact report as the victim did not agree to attend the interview for the preparation of the report. 

15.  To consider the defendant’s likelihood of reoffending, I called for a psychologist report of the defendant.  During the adjournment for the psychologist report, the prosecution informed the court that the victim changed her mind and attended an interview for the victim impact report which was then prepared and submitted to the court. 

16.  Ms Chan, the psychologist interviewing the defendant, observed that during the interview, the defendant was rather evasive and avoidant about the indecent offences.  His mood was low and he appeared to be tearful when he talked about his daughters and wife. 

17.  The report further reveals that the defendant started drinking at the age of 16.  His drinking problem exacerbated as he had to drink to socialise with customers as a restaurant manager.  The defendant had been in extramarital affair which impaired his relationship with his wife. 

18.  He admitted starting to assault the victim when she was 10 years old.  Even though he expressed a strong sense of shame and guilt, he continued such acts for a prolonged period of time until the victim reported it to her mother in October 2022.  The psychologist found that when the defendant was unable to gratify his sexual needs with his wife, he tended to seek comfort by assaulting the victim. 

19.  In conclusion, she opines that while the defendant has a low risk of sexual reoffending, the risk could increase if he reunited with his family.  Ms Chan says the defendant appeared to show genuine remorse and he will benefit from psychological treatment. 

20.  Defence counsel has submitted to court mitigation letter written by the defendant and apology letters that he wanted to pass to his wife and the victim.  The defendant expressed his remorse in the letters. 

21.  I have also viewed the video interview record of the defendant with the police at the request of defence counsel and noted that the defendant towards the last few minutes of the interview appeared to be emotional which defence counsel suggests was indication of his remorse. 

22.  Given the opinion of the psychologist, Ms Chan, I accept that the defendant is now remorseful.  I also accept that his chance of reoffending is low as the mother has filed a divorce proceedings and they are now living separately. 

23.  Ms Wong, the psychologist interviewing the victim and her mother, reported that both of them had attended three sessions of psychological assessment and interventions.  The victim said she did not want to attend the psychologist sessions. She showed up because her mother wanted her to do so, but she preferred not to recall the maltreatment experience. 

24.  In the recent meeting for the preparation of the victim impact report, she became tearful soon after the interview started, expressing her sadness about having to recall this harmful experience. 

25.  The psychologist opines that the victim is suffering from some post-traumatic stress symptoms. She reported to have suicidal thoughts from time to time, mainly triggered by updates on this court case.  The mother also reported that she once found the victim engaged in a self-harm behaviour and noticed a shallow cut on her wrist.  The victim felt shame for the abuse by her father, and guilt on the other hand for disclosing the incident causing the stressful situation for her mother.  She also expressed worries that others might ask her mother about this case causing more stress for her.  She referred to the defendant as a “monster” and expressed her desire for a long period of imprisonment for the defendant due to the immense pain he inflicted upon her.  Given her age, the psychologist finds it too early to conclude the impact of the maltreatment on her intimate relationship and related self-concept. 

26.  As regards the mother, Ms Wong reports that she appeared downcast and shed tears during the psychologist sessions.  Given her emotional distress related to the maltreatment of the victim and other life challenges, the mother is currently receiving psychological treatment. 

27.  I have further adjourned the case at the request of Mr Laskey as he requires time to take instructions from the defendant on the victim impact report.  I also indicated that the cases cited by Mr Laskey might not be helpful and asked parties to give assistance to court with cases of similar facts to the present one. 

28.  During the adjournment, the prosecution provided the court with three Court of Appeal cases, HKSAR v Kong Yun Chiu[3], HKSAR v Chen Guojin[4], and HKSAR v Ng Ngok Wai[5].

29.  In Kong Yun Chiu, the defendant was the maternal uncle of the victim girl who was 8 years old at the time of the first offence.  On the first occasion, the defendant took off the girl’s trousers and knickers, took off his own trousers and underwear, rubbed his penis on the outside of her private part, masturbated and ejaculated.  Three years later, the defendant committed similar acts to the victim.  A few months later, he even made contact with the victim with a view to persuade her not to report the matter to the police.  The Court of Appeal held a starting point of 5 years’ imprisonment for each offence was appropriate. 

30.  In Chen Guojin, the defendant was entrusted by the parents of the 9-year-old victim girl when they were out.  The defendant used his fingers to molest the breast and private part of the girl.  The Court of Appeal held a starting point of 3½ years’ were appropriate for each offence with a total sentence of 3 years’ imprisonment after plea of guilty. 

31.  The defendant in Ng Ngok Wai sexually abused his wife’s niece, who was aged 13 and 15 at the material times involving touching her breasts and on other occasion, touching her private part.  The Court of Appeal held a starting point involving touching of breasts should be 18 months while the starting point for touching of private part was 30 months’ imprisonment. 

32.  Counsel for the defendant submits today that when the victim changed her mind to give the victim impact report, she should be under pressure from her mother and she was not voluntary to give the report.  I do not think there is evidence for this suggestion. 

33.  In any event, even if she was under persuasion or influence to do so, it would not affect the sentence I am going to pass on the defendant.  The victim was interviewed and assessed by a professional psychologist who finds, and I accept, that the victim is suffering from post-traumatic stress symptoms.  There is nothing in the psychologist report to suggest that the victim is exaggerating her feelings about the terrible incidents.  The victim obviously suffers from a trauma. 

34.  Indeed, as observed by Stock JA at paragraph 11 of his judgment in Kong Yun Chiu, the trauma caused to a child by an indecent assault and the long-term adverse impact is difficult to calculate, but trauma may safely be assumed in a vast majority of cases, perhaps all. 

35.  I would add that when a young girl is sexually abused by her own father, the trauma should be even more acute and lasting.  The impact is not only on the victim but also on her mother, who would blame herself with great sense of guilt for entrusting her daughters to the care of someone who breached that trust. 

36.  The present case is a breach of trust case.  The defendant breached the trust reposed in him by both his wife and the victim.  While there were only two charges of indecent assault, the defendant admitted to have molested the daughter on many occasions. 

37.  The offences committed by the defendant are most disgusting and despicable.  A severe sentence must be adopted to show abhorrence of the public, to redress the grievance of the victim and her mother, and to deter others from committing similar offences. 

38.  I have considered that the defendant has a previous good character.  I accept that he is now remorseful.  And I have considered all the relevant factors referred to by the Court of Appeal and all the circumstances of this case. 

39.  On Charge 1, the defendant pulled the victim’s pants down using his fingers to touch the victim’s private part against her bare skin.  The victim was 10 at the time, the defendant was about 35 at that time.  I take 2½ years’ imprisonment as the starting point. 

40.  The assault in Charge 2 was much more serious when the defendant escalated the sexual abuse of the victim.  After touching the victim’s breasts and private part under her clothes, the defendant took off his and her underpants and rubbed his penis against her private part.  The victim was 13 at the time.  The seriousness of this offence is close to that in Kong Yun Chiu, I use 4½ years’ imprisonment as the starting point. 

41.  Apart from the plea of guilty, I cannot see any effective mitigation in this case.  The defendant’s drinking problem is no excuse at all.  The only valid mitigation is his plea of guilty, for which I will give him the full one-third discount in the sentences. 

42.  After the deduction, he is sentenced to 20 months’ imprisonment on Charge 1 and 3 years’ imprisonment on Charge 2.  The second offence occurred almost three years after the first offence.  Therefore, the two offences were entirely separate and distinct.  But the court still needs to consider the principle of totality in determining a just sentence for the defendant’s overall criminality. 

43.  I am of the view that the ultimate overall sentence of 50 months is appropriate in all the circumstances of the case.  To reflect this overall sentence, I order 14 months of the sentence on Charge 1 to run consecutively to the sentence on Charge 2.