COURT: Defendant, you pleaded guilty before a magistrate to a total of four sexual offences against your younger female cousin. Three of those offences were of indecent assault and one of the offences was that of indecent conduct towards a child under the age of 16 years. The indecent assault offences were contrary to section 122(1) and the indecent conduct offence was contrary to section 146 of the Crimes Ordinance, Chapter 200. As a result of your plea of guilty to these offences, you have been committed here to the High Court for sentence.
These four offences took place either at your home or your cousin X’s, whom I shall refer to as X, at her home.
The 1st charge of indecent assault relates to an offence on an unknown day in July 2008 at your home. The day was in the summer holiday before X started secondary school but after completion of Primary 6. At that time, she had a sleepover at your house, she slept in the lower deck of the bunk bed whilst you slept in the living room. At about 3 to 4 am, whilst X was asleep, you kissed her on the lips once.
In respect of the 2nd charge, the indecent conduct, that offence was again committed at your home at an unknown day in the summer or autumn of 2018 whilst X was in Form 1. X again had a sleepover at your house. This time she slept on the upper bunk of the bunk bed which was in fact your bed. At about 3 to 4 am, whilst X was asleep, she felt an object in her mouth. She opened her eyes and found it was your penis. You had lowered your pants to your thighs. X turned her face, however you turned it back towards you and put your penis into her mouth with force and moved to and fro until you ejaculated which X says was about two minutes. For these two offences, X was around 11 years of age and you were at that time under 16, about 15 years of age.
In regard to the 3rd charge of indecent assault that was committed on an unknown day in the summer or autumn of 2019. X was about 12 years old and you were about 16. On this occasion, you stayed at X’s house for a sleepover. When X was in her bedroom at about 3 to 4 am, X felt a warm hard object pressing onto her private parts. When she opened her eyes, she saw you naked in front of her and also saw your penis. You pulled down her pants and inserted your finger into her vagina. She described it as painful. You further knelt down on top of her with your penis touching her genitalia. She then kicked you away and you sat down.
As to the fourth and last offence, that was committed on 8 November 2020, just one day before X’s 14th birthday. You had attended X’s home in the afternoon and whilst X was in her bedroom, you went inside. X then left her bedroom to avoid you. You however texted X to return to the bedroom of which she did. Upon X’s request, you left the door ajar. You gave X $500 saying it was her birthday gift.
When X was watching YouTube on her iPad, you suddenly lowered your pants and underpants. X saw your penis and perceived that you were asking her to perform oral sex on you. X ignored you and kept watching her iPad. X also asked you to put on your pants and to leave. You then used your hand and touched her breasts over her clothes. She saw you do some hand movements near your private parts but did not pay attention to such movements.
After a while, you put on your pants and sat close to X. You then inserted your hand into X’s clothes and touched her breasts for about one to two minutes. You asked X to kiss you but X walked away and asked you to leave the bedroom. You touched her breasts again. At that time, you were 17 years of age.
The offences first came to light in or around November 2020 when X disclosed them to a girl known as Y, then aged 17 years, who she treated as her god-sister. A few days later X disclosed them to Y’s father whom she treated as her godfather. Y’s father then informed X’s mother.
In or around mid-November, the families of the defendant and X held a meeting with the presence of you, the defendant, Y and Y’s father but in the absence of X. You, defendant admitted the offences.
Another family meeting was held this time at your (the defendant’s) residence in the presence of X, X’s parents and X’s paternal grandmother, you and your parents. During the meeting, you kept apologising and said that you would admit your liability if the case was reported.
Between 25 November and 4 December 2020, X was admitted into Tuen Mun Hospital. X was diagnosed with adjustment disorder. In a clinical psychological assessment conducted on 7 December 2020, X informed the psychologist she had been sexually abused by her cousin for the past three years. At the time, the clinical psychologist made the following comments:
“X was a 14-year-old girl who was traumatised by the assaults and she feared that disclosing the abuse would disturb her family and that of her aunt’s. Therefore the abuse continued for three years without telling anyone of her experience nor did she seek help from others. She had been suffering alone and living in fear but she continued to have contact with her cousin during the family gatherings”.
That is her cousin, the defendant.
“X manifested features of post-trauma stress disorder resulting from the incidents. She also presented with emotional disturbances resulting from the sexual assaults including depressive mood, sleep disturbance, suicidal ideation and self-harm behaviours.”
X’s Psychological and Psychiatric Condition
X suffered psychological trauma as indicated by the psychologist in 2020 as she was handling the situation alone. Subsequently, X received follow-up treatment. In the most updated psychiatric report dated 24 March 2022, only some two months ago, X was seen by a psychiatrist from January to August 2021. The psychiatrist stated that X did not have any mood disorder nor mood symptoms. Her sleep and appetite were normal, she had no self-harm behaviour. X was not psychotic and not suicidal. X and her mother agreed she did not need further psychiatric follow-up.
I have been informed by the prosecution in this case that X refused to attend further psychiatric follow-up and did not welcome a victim impact report to be called upon her as she did not want to recall the incidents anymore.
X’s Mitigating Letter
On the other hand, X has written a mitigation letter for the defendant. X asked this court to sentence the defendant leniently. X said in her letter that although the defendant had done something gross and that she cannot be said to have forgiven him altogether, X hoped that all the family members, including herself and the defendant, could get on with their lives peacefully as if nothing had happened before.
Mr Harrison Cheung, counsel for the defendant, submitted that X is a brave girl and that she did not want these incidents to be a barrier to the coherence and harmony of the whole family. Such a feeling of X is shared by X’s mother and her grandmother in their mitigation letters.
Reports
The defendant is now aged 18 and of clear record. Prior to sentencing the defendant, I called for a probation report, a psychological report, detention and training centre report. The defendant lives with his parents and younger brother. Having completed secondary 6 and failing to acquire good results, he commenced his two-year diploma course at the Hong Kong Institute of Vocational Education (IVE) in game software development. However, he did not pass the required subjects. Nevertheless, IVE informed the probation officer that if the defendant is released, he is able to retake the programme and start his study from Year 1 again next year.
It was mentioned that defendant’s family and X’s family were close relatives. X is the niece of the defendant’s mother. The defendant and X’s relationship were almost like brother and sister. They shared the same hobby of watching Japanese anime. They also stayed at each other’s home during long school holidays.
The defendant said when he was in Secondary 1, X kissed him in an overnight stay in his home and told him that she liked him most. Since then, the defendant wanted X to be his girlfriend. Mr Cheung submitted that in the defendant’s age of adolescence, he was lost and confused in his relationship with his cousin who he liked, and he committed these offences out of curiosity and a confusing mind rather than someone taking advantage of his position or status to commit the offence.
The probation officer explained in the report at paragraph 14 and 15 the defendant claimed he did not feel the rejection of X when he did the sexual acts in the first and third incidents. After these incidents, he stated that X still requested to go to his home. This was confirmed by X’s mother.
The defendant, in his interview with the probation officer nevertheless shouldered up his responsibility, showed his remorse and was sorry for the hurt and emotional and psychological harm he had caused to his cousin X. He was also sorry that his wrongdoing affected the relationship between his family and X’s family.
Detention and Training Centre Report
The medical officer confirmed the defendant is medically unfit for detention in the detention centre. However, he is mentally, psychologically and physically fit for detention in a training centre.
Psychologist Report
The psychologist concluded that the defendant was very self-conscious and overly sensitive person in social situations, with the sense of inferiority and concern for being judged by others. His chronic interpersonal issues, excessive porn use, mild sexual preoccupation, sexualised coping, his opportunistic orientation, underestimating the chance of his acts being disclosed and some other justifications all contributed to the index offences. The psychologist determined there was no evidence of deviant sexual interest shown in the assessment. The defendant’s risk of reoffending was moderate to low.
It is the psychologist recommendation that the defendant would benefit from psychological treatment and intervention that focused on interpersonal situations, stress management and target the prevention of reoffending.
Mitigation Letters
Besides the mitigation letter from X, I have received mitigation letters from X’s mother, the defendant’s parents, grandmother, defendant’s former school teacher and from the defendant himself. His relatives and teacher have expressed pain and shock to learn that the defendant committed these offences at his young age. They all speak of him as an otherwise young man with a kind heart and value for friends and family.
The defendant’s letter expresses his remorse. The defendant expressed that he is very shameful for what he did and he failed to properly control his desire. He took a wrong message from X when X suddenly kissed him on his face and said he was her favourite person. He was very happy and took a fancy on her. He now understands he mistook what X meant and apologises to X and asks X for her forgiveness.
Mr Cheung submitted that at that time, defendant was embroiled in his own fantasy and confusion when he committed this offence. The defendant has sincerely apologised to X and hopes the families could get along in the future.
Mr Cheung cited the cases of HKSAR v CCW, HCCC 408/2015, and the case referred in CCW of R v Wong Kin Wa [1989] 1 HKC 143 where the court imposed probation orders for the offence of incest. He has also cited the case of HKSAR v AS, HCCC 80/2020, where the court imposed a training centre for the offence of rape, non-consensual buggery and indecent assault.
Mr Cheung submits that the offences in those cases were much more serious than the present ones and more particularly in CCW and Wong Kin Wa, the court imposed probation orders for the offence of incest.
He urges this court to take a similar approach so that such a sentence will rehabilitate the defendant. He urges this court to place the defendant on probation. He is well aware that in those cases of which they were more serious cases, the defendants had spent some time in custody. However, he says in this case the defendant was arrested in late 2020 and has had this matter hanging over his head and the family’s head since that time which is approximately a year and a half.
Evaluation
The defendant is a young offender. As is similarly stated in CCW at paragraph 3, there is a fundamental principle when the court is dealing with a young offender, it is necessary for it to ensure, as far as the law permits, that he receives a sentence that is appropriate in light of his personal circumstances and needs and that would give him the best chance to reform and rehabilitate, citing HKSAR v Cheng Ka Wing [2001] 2 HKLRD 260 and 264. However, this principle needs to be appropriately considered together with the circumstances and seriousness of this offence.
The offences against X, his cousin, was committed over a period of about 3 years. They ranged from when X was aged 11 to almost 14 years old and when the defendant was 15 to 17 years of age. I recognise that any form of sexual abuse is serious, especially when the victim is of a young age, this would normally call for an immediate custodial sentence.
Factors that a court may take into account when sentencing are the ages of the offender and the victim, the nature of their relationship, their respective maturity, the impact on the victim and the sexual acts committed on the victim. Of course, the victim of a crime has a voice in the sentencing process of a defendant. I have referred to her mitigating letter already.
In this case, I accept the defendant genuinely had an affection for X, his cousin. At the time, he was in his adolescent years. His relationship with X was close. They spent much time together, each having sleepovers at the other’s house.
The factors, as mentioned by the psychologist, contributed to the defendant’s commission of these offences. Despite the fact that they were cousins, this was not a situation of the defendant intentionally and deliberately taking advantage of his younger cousin. I accept that he is genuinely remorseful.
When he was confronted with the matter in the two family meetings, he frankly admitted the offences. He said that even if a report was made to the police he would admit them. In the end, the family did not report the matter to the police. It was only after the psychologist assessed X did the psychologist make a report to the police. In keeping to his word, the defendant continued to frankly admit what he did. He admitted this offence at the very first opportunity.
The defendant’s risk of reoffending is moderate to low. In considering the most appropriate sentence on the defendant, I have carefully considered the range of sentences that I can impose on the defendant. I have taken into account the facts of this case and the factors the court may take into account when sentencing.
In this case, I am of the view a sentence of rehabilitation and reformation is the most appropriate. I am in no doubt, as can be seen from the contents of the reports, that the defendant is in need of psychological counselling. I have also considered beneficial that the family members and the defendant be given the opportunity to rebuild their relationship with each other so that they can have a more harmonious future together.
The probation officer concluded that in consideration of the defendant’s contrition and clear record, the defendant may deserve a non-custodial sentence to allow the defendant to pursue his studies and benefit from a period of statutory supervision.
A probation order will provide the means for the defendant to receive the appropriate counselling as suggested by the psychologist and importantly ensure that such behaviours is not repeated and to assist the rebuilding of his and X’s family and significantly, hopefully, move forward on the right path.
I am informed that the defendant agrees to be placed on probation and before I go any further, I am going to ask the defendant to stand up. Defendant, I would like to confirm with you that you agree to be placed on probation.
DEFENDANT: Yes, I do.
COURT: Mr Cheung has told me that he has informed you of the conditions of probation. Can you confirm with me that you understand the conditions?
DEFENDANT: I do.
DEFENDANT: Yes, I do.
COURT: Thank you. In the circumstances, I sentence you, the defendant for Charges 1, 2, 3, and 4 to a probation order of 12 months with the following conditions. The conditions shall be as follows:
DEFENDANT: I do.
COURT: So you understand the consequences of breach and you also agree and undertake to abide by the conditions of probation, is that correct?
DEFENDANT: Yes, I do.
COURT: Just to say that the parents of the defendant and of X are here in court, as I have been informed by Mr Cheung. You understand that the defendant, of course, is the one who is under probation but some of the conditions require you to participate. Those particularly, for example, regarding the curfew that if you want him to be outside in those hours, you must first ask or he must ask prior approval so he can only be with you, one of you, ie the defendant’s mother or father.
Right. And then in regards to him, he is not permitted to contact cousin X but, of course, if cousin X agrees to contact him or meet him then one of you four must be present. One or more of you must be present. Do you understand that?
UNIDENTIFIED SPEAKERS: Yes.
COURT: And I think, it does not say so here but I think I am going to add in here, sorry, Mr Cheung, that I think initially such consent also be -- sorry, for approval, be granted by the probation officer...
MR CHEUNG: Yes, I do agree.
COURT: ...particularly when it comes to X. All right. So I am going to change that term slightly.
MR CHEUNG: Yes.
DEFENDANT: Understood.
COURT: All right. Okay now contact obviously, defendant, is very wide in today’s terms and that contact does include contact such as texting or any sort of social media contact. Do you understand?
DEFENDANT: Yes, I understand.