HKSAR v. WONG SIU ON

DCCC1280/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1280 OF 2011

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Reasons for Sentence

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1.  The defendant, Mr Wong, is a 62-year-old man who had a clear record until he committed these eight indecent assault charges. He has pleaded guilty to all eight charges.

2.  The two victims of these eight charges are the daughters of the defendant’s then girlfriend.  The defendant would stay at his girlfriend’s home from time to time from the beginning of their relationship.    

3.  The 1st charge was in the summer of 2003 when daughter Y was 7 years old.  The assault took place at home when Y and the defendant were there alone.  Y went into the only bedroom of the home to have a nap.  The assault happened when the defendant entered the bedroom and lay on the bed next to her.  From behind the defendant inserted his left hand into Y’s underpants and touched her vagina.  He took her hand and masturbated his penis with it.     

4.  The 2nd charge was on a date in 2004 to 2005 when X, the 2nd victim, and the defendant were at home alone together.  X was during that time a Primary 6 student and between 11 and 12 years old.  The defendant made X sit on his thighs and he hugged her from behind.  He inserted his hand inside her upper garment and molested her right breast.  He did try to extend his hand into her pants but she ran away.  X told her mother a day later but clearly to no avail.   

5.  The 3rd charge was in 2004 to 2005 when X and the defendant were at home alone again.  X was in the bed napping.  She felt movement in the room, opened her eyes and saw the defendant stood next to her bed.  The defendant held her right hand and made her masturbate his penis for about one minute, and then he left.    

6.  The 4th charge again was in 2004 to 2005.  When X went into the bedroom, she found her mother and the defendant lying on the bed.  The mother was asleep but the defendant was not.  The defendant made X get into bed next to him.  She lay with her back to the defendant.  The defendant from behind put his left hand into her underpants and touched her vagina.  She tried to move away but he held her tight.  After five minutes, she yelled she needed to go to the toilet and the defendant let her go.  X told her mother some three days later, but again to no avail.     

7.  Charge 5 was again on a date between 2004 and 2005.  X, Y and the defendant were home alone.  X was asleep in the bedroom.  X felt someone forcefully holding her arm, which woke her up.  She saw the defendant kneeling on the bed and he held her hands down.  He pulled up her shirt and fondled her left breast by squeezing it as well as licking her right nipple.  She could not move despite trying.  After five minutes, her sister Y came into the room and the defendant stopped.    

8.  Charge 6 occurred in 2006.  By then, the family had moved home and there were two bedrooms.  On that date, X and the defendant were at home alone.  X had gone to her mother’s bedroom to sleep on her bed. The defendant came into the room and kneeled across X on the bed.  The defendant touched her face with his face.  He also pulled up her shirt and held her hands down.  He fondled, licked and squeezed her breasts.  After five minutes, her mother came home and the defendant stopped.     

9.  Charge 7 took place on a date between 2006 and 2007.  Y was by this time about 11 years old and in Primary 5.  She was home alone with the defendant.  She was lying on the sofa watching the television and the defendant, wearing pants only, suddenly straddled Y.  He moved his body up and down with his buttocks facing and moving towards Y’s face.  She was scared and covered her face with both her hands. 

10.  Charge 8 took place on 1 July 2011.  Y, her mother and the defendant were at home.  The defendant found an excuse to ask Y to stand face-to-face with him.  He hugged her so tight that their chests and stomachs were touching.  Y got scared and tried to move away.  The defendant hung on.  The defendant then touched her face for a few seconds as well as patted her breast once.  By now Y was 15 years old.  Four days later, Y told her school mentor.  A report was made to the police. 

11.  The victim’s mother admitted that X had complained to her in the past.  Y did not complain to her mother but had told a boyfriend in 2011 of a previous assault.   

12.  When the defendant was arrested last year on 13 July, he denied all offences.  As I have said, the defendant pleaded guilty before trial.  He saved both girls, who are now teenagers, the ordeal of giving evidence.      

13.  As I have said, until now, he previously had a clear record.  The defendant was an electrician but is now retired.  He is divorced and is the primary carer of his elderly mother, who is 85 and living in an old-age home in Hong Kong. 

14.  I have also received in mitigation a letter, rather surprisingly, written by the victims’ mother.  She explains that when she met the defendant he was very helpful.  She referred to him as a good man and asked the court for leniency.  I have been told in mitigation that he promises not to re-offend. 

15.  Before sentence, I adjourned the case and called for a background report and a psychologist’s report because of the seriousness and nature of these charges.  Rather oddly, in both reports it was claimed the defendant denied all offences and explained he pleaded guilty in order for a lighter sentence.  He even denied being the victim’s mother’s boyfriend.  He was shocked that the victims had framed him and assumed they did it because they did not want him to marry their mother.       

16.  The psychologist in that report gave a similar story.  The defendant denied any sexual assault or desire towards the victims. Since the defendant had a clear record and no similar convictions, the psychologist was unable to conclude or give any assessment upon the defendant.

17.  On the adjourned hearing date, defence counsel asked for time to take instructions from the defendant in view of the contents of the reports.  After a second adjournment, there was no application to reverse plea.  His pleas of guilty were confirmed.             

18.  As a result of this, I called for a second psychologist’s report to aid me in sentencing.  In the second report, the defendant does admit the offences.  He has denied any sexual excitement or interest towards children.  He was reluctant to share his feelings with the psychologist.  To explain the offences, he said he temporarily lost his mind when he assaulted the victims.  The psychologist concluded that due to his age, clear record, nature of the offences and information gathered, the risk of him re-offending was low.  He did conclude that the defendant may benefit from psychological treatment.        

19.  Defence counsel explained in mitigation that the defendant did deny the offences after plea because he was embarrassed and ignorant of the consequences. 

20.  The victims here were sisters and Y was only 7 when she was first assaulted.  She is the victim of three charges.  X was 11 or 12 when she was first assaulted.  She is the victim of five charges.        

21.  This offence carries a 10-year maximum sentence.  Courts will look at several factors relevant to sentence.  I have also looked at the authority of HKSAR v Kong Yun Chiu [2007] 4 HKC 391. In the headnote of that authority, the Court considers several factors, I quote:

“(1) The fact that the victim is a child is always a severally aggravating factor. Children are vulnerable members of society. It is too easy for those who would prey on their naivety and trust to succeed, for children are by nature trusting and the deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly.

(2) The trauma and distress, immediate and long term, is not confined to the children. Parents are also affected.”

22.  However, in this case, the victims’ mother let her children down.  She did not protect her children.  She ignored the complaint of her child.  I go back to the authority:

“(3) Children are much more likely than adults to suffer trauma in silence rather than report, particularly in cases of breaches of trust.”

23.  Courts will look at several factors relevant to sentence.  For example:

(1) Were the assaults continued and repeated or a one-off? In this case, they were repeated over a number of years.

(2) What was the relationship to the victim? Was there a breach of trust scenario? In this case, the defendant was the boyfriend of the victim’s mother and had full access to their home.

(3) The actual age of the victims, in this case between 7 and 15 years old at the time of the assaults.

(4) The nature of the act and the extent of indecency will be very relevant to sentence.

24.  Offences of this nature against children or young victims are despicable.  Children are robbed of their childhood and stripped of their innocence.  Custodial sentences are required to reflect the gravity and deter offenders.     

25.  These sentiments are also contained in the judgment of HKSAR v See Tak Man Cr App 707/1997.  I quote:

“We can take into account that there is an important punitive element in sentencing offenders of this kind when fully adult men take advantage of children. Not only must they be punished but others must be deterred from following a similar example.”

26.  In HKSAR v Chan Ching Ho, Owen, CACC549/1999, at paragraph 24, the Court of Appeal identified three important sentencing considerations in cases of this kind, namely the need to deter others, the need to mark the public abhorrence of such crimes, and the need to redress the grievance suffered by the victims.  In that authority, the appellant was a 41-year-old man who was convicted of four charges of indecently assaulting his 6-year-old niece.  He received a total of 5 years’ imprisonment after trial. That sentence was upheld.  

27.  I also referred myself to the authority of HKSAR v Chen Guojin, CACC112/2010.  In that authority, the appellant was the boyfriend of the victim’s mother.  That victim was 9 years old.  In the Facts, he molested her breasts and used his fingers to touch her vagina on two separate occasions.  The Court of Appeal found a sentence of 3 years and 6 months adequate as a starting point.  There was much discussion in that authority as to relevant sentencing principles.  Clearly, the extent of the assault is an important factor. 

28.  In this case, the most serious charge is Charge 1.  When Y was only 7, the defendant touched her vagina and made her masturbate his penis.  In Charges 2 to 7, the ages of the victims at the time of the offences ranged from 11 to 13 years old. 

29.  I took into account the acts done in each charge and the nature of the acts, whether he touched their breasts, vagina or made them touch his penis, to consider an appropriate starting point.         

30.  Defendant, please stand up.

31.  The best mitigation is the defendant’s plea of guilty and his previous clear record.  His previous clear record will be reflected in the starting point as will his plea dispensing of the need for the victims to give evidence.  I have also taken into account mitigation put forward, the background report and the psychologist’s report’s content and conclusion, and lastly, I have considered the totality principle.        

32.  For Charge 1, I will take a starting point of 3 years’ imprisonment.  The defendant is entitled to a discount of one-third, which will reduce the sentence to 2 years. 

33.  For Charges 2, 3, 4, 5 and 6, I will take a starting point for each charge of 2 years.  The defendant is entitled to a discount of one-third and each starting point will be reduced to 1 year and 4 months. 

34.  For Charge 7, I take a 1 year and 6 months’ starting point.  After a reduction of one-third for his plea, the sentence will be 1 year imprisonment. 

35.  For Charge 8, I take a 1 year and 3 months’ starting point.  After reduction of one-third for his plea, that is a sentence of 10 months. 

36.  For Charges 2, 3, 4, 5, 6, 7 and 8, I will make 2 months of each sentence consecutive to Charge 1, the balance concurrent.  That would ultimately mean a total sentence of 3 years and 2 months.