HKSAR v. C.K.H.

DCCC 200/2022

[2023] HKDC 106

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 200 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 3 counts of indecent assault, contrary to section 122(1)  of the Crimes Ordinance, Cap. 200.

Facts

2.  The defendant was born in May 2001.  His mother (“Y”)  separated with his father.  Y subsequently met her current boyfriend (“the Father”)  and gave birth to three daughters including X who was born in June 2013.

3.  At all material times, the defendant was residing in a flat in Tin Shui Wai, New Territories (“the Flat”)  together with Y, the Father and his eldest sister, while X was residing with her foster parents.  X would stay at the Flat at weekends only.

Charge 1

4.  In the evening on an unknown day in 2020, while the Father was watching TV in his bedroom, X and the defendant was left alone in the living room.  X and the defendant were each sitting on a stool.  At some point, the defendant removed his trousers and helped X to remove hers.  X then ended up sitting on top of the defendant and the defendant poked X’s private part.

Charge 2

5.  On an unknown day at a weekend in 2020, X and the defendant were watching a horror movie inside a bedroom in the Flat.  The defendant told X that he would marry her when she grew up and offered her HK$20 if she let him “do it”.  As directed by the defendant, X took off both her trousers and underpants.  The defendant also pulled down his trousers to knee-level and lay face-up on the bed.  X was asked to lie face-down on top of the defendant and to move back and forth.  X felt the defendant’s penis rubbing her private part and felt pain at her private part.  X and the defendant stopped when X heard her foster mother ring the doorbell.  X immediately pulled up her trousers and rushed out.  The defendant told X not to tell anyone about this incident and gave her HK$20.

Charge 3

6.  In the morning of an unknown Sunday in August 2020, the defendant and X went out to buy food on their own.  When they were returning to the Flat, the defendant stood in front of X and kissed her on her mouth once.

7.  Incidents relating to charges 1 and 2 were revealed on 4 November 2021 when X was being interviewed by the social worker at her school for some behavioral problems.  As a result, a report was made to the police.

8.  The defendant was arrested at the Flat on 11 November 2021.  Under caution, he admitted rubbing X’s private part with his penis.  He also admitted molesting X’s private part with his hand and kissing her.

9.  In his subsequent video-recorded interview, the defendant admitted under caution that:

(1)  Regarding charge 1, it took place on a Sunday night in July 2020 which was one week after the incident relating to charge 2. As the defendant was curious about how kissing felt like, he kissed X on her mouth for about 10 seconds. He stopped as it appeared that the Father was waking up. Over 10 seconds later, he slipped his right hand into X’s underpants and molested her private part for about 5 seconds. He took his hand out as the Father woke up. He gave HK$10 to X afterwards.

(2)  Regarding charge 2, it took place on a Sunday night in July 2020. The Father was sleeping at home. The defendant was in his bedroom whilst X was watching TV in the living room. Being curious, the defendant brought X over to his bed. He pulled down his trousers and underpants and helped X to pull down hers to knee-level. He then lay face-up on his bed, placed X on top of him and rubbed his private part against X’s for about 30 seconds. At that point, he used his hands to hold X’s waist and moved back and forth. He felt his penis had erected. He stopped when he had a feeling of urinating and found his trousers wet. He told X not to tell anyone about this incident. He gave her HK$20 in the hope that X would not tell anyone about the incident.

(3)  Regarding charge 3, it took place on a Sunday morning in August 2020 which was one week after the incident relating to charge 1. He and X were returning home after they went out to buy food. When the elevator stopped at the floor where the Flat was located, he stepped out of the elevator, stood in front of X and kissed her on her mouth once. He then told X that he would marry her when she grew up. He did so in the hope that X would not tell Y about the incident.

(4)  Regarding all the charges, he did all the acts out of curiosity. He had received sex education in school and understood that female’s breasts and pubic area were private parts.

Mitigation

10.  The defendant is aged 21, single and has a clear record.  Prior to the arrest, he was residing with his mother, the Father and eldest half-sister. His two younger half-sisters including X are under foster care.

11.  At the age of 2, the defendant was sent to Children’s Home.  He stayed in Children’s Home and other institutions until the age of 18.  The defendant is suffering from Attention Deficit Hyperactivity Disorder and Dyslexia and has a past health history of psychosis. 

12.  The defendant was educated up to Form 3.  He began to work from 2019 until October / November 2021.  He worked as a casual worker in a logistics company and also engaged in iron work in construction site.  His average monthly income was around HK$30,000 prior to the arrest.  He would give his earnings to his mother who does not work due to health problems.  His eldest half-sister is working as a waitress earning about HK$14,000 per month.

13.  In mitigation, it was submitted that the defendant’s guilty plea was coupled with sincere remorse.  He made detailed admissions under caution.  He also accepted the present case involved breach of trust.  It was further submitted that the court should take into consideration the duration and nature of conduct including no force, threat or violence was used, as well as the background and upbringing of the defendant with a total lack of parental guidance and supervision.

14.  The defendant has been remanded in custody since 11 November 2021.  This court was urged to impose concurrent sentence given the defendant’s guilty plea, relative youth and background. 

Sentence

15.  Given the defendant was aged 19 at the time of the offences and is currently aged 21, a detention centre suitability report was called for prior to sentence.  According to the report, the defendant is medically unfit for detention in a Detention Centre. 

16.  As it was revealed in the suitability report that there was another incident of indecent assault on another half-sister in 2016, a psychological report was called for to assess the defendant’s psychological condition and the risk of re-offending.  Of course, I am fully aware that I should not and cannot take into consideration the fact that there was another incident of indecent assault on another half-sister in 2016 when considering the sentence for the present offences.  Victim’s impact report was also called for prior to sentence.

17.  This case relates to indecent assault on a young girl aged about 6 at the time of the offences.

18.  There is no sentencing tariff for indecent assault on young children. Nevertheless, the Court of Appeal has laid down sentencing principles in respect of this type of offence in HKSAR v Chan Ching Ho [2000] 3 HKLRD 476 at 481 that severe sentence is required to:

(1)  deter others from acting like the defendant;

(2)  show the abhorrence of members of the public to crimes of this nature; and

(3)  redress the grievance suffered by the victim, her friends and relatives.

19.  In HKSAR v Kong Yun Chiu, CACC 315/2006 at paragraph 11, the Court of Appeal remarked that the fact that the victim of the offence is a child is a “severely aggravating feature” and the absence of other aggravating factors such as breach of trust or use of violence “should not be permitted to derogate from the inherent seriousness of any indecent assault on a child.”

20.  Where sentencing is concerned, the emphasis is on the protection of children and not the rehabilitation of offenders (see HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354).

21.  In HKSAR v Lee Kwok Wai, CACC 199/2011 at paragraph 13, the Court of Appeal set out some of the relevant factors for consideration in sentencing:

(1)  the age difference between the defendant and the victim;

(2)  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?

(3)  whether the defendant had used threats or inducements to make the victim succumb, falling prey to his licentious exploitation?

(4)  the number of occasions of committing the offences and the duration of the offences;

(5)  whether inappropriate and unnecessary violence was involved in committing the offences and whether any harm or discomfort was caused to the victim?

(6)  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?

(7)  whether the offences have caused physical or psychological trauma to the victim?

(8)  whether the offences have impact on the family members of the victim?

(9)  was the defendant involved in other inappropriate behaviours such as inviting/permitting other people to watch or take photos/videos?

(10)  whether the defendant is psychologically imbalanced or paedophilic and the likelihood of re-offending?

22.  In view of the above authorities and given the defendant is not fit for detention in a detention centre, immediate custodial sentence is the only appropriate option in this case.

23.  According to the Victim’s Impact Report dated 10 January 2023, X has been receiving psychological treatment after the offences were disclosed.  X reported feeling painful and scared in the course of the indecent assaults.  At the time of assessment, X has been experiencing symptoms of intrusion.  She continued to have nightmares of the defendant sexually assaulting her.  She still has a lingering sense of fear that the defendant may abuse her again. She was reserved about the abuse details as she did not want to break her promise with the defendant.  She harbored anger towards the defendant for hurting her and did not want to see him again.

24.  The psychologist concluded:

“The present assessment suggested that X’s psychological well-being has been adversely affected both during and after the offences. She continued to suffer from intrusion symptoms and harbor unresolved negative emotions regarding the abuse experiences despite the time lapsed. As indicated by the test findings, she tended to cope with the associated psychological distress through avoidance and suppression. Given the above findings, continued psychological intervention is recommended to help mitigate her intrusion symptoms and develop healthy self-concepts and interpersonal relationship.”

25.  Psychological report on the defendant dated 16 January 2023 revealed that the defendant had previously been sexually assaulted by a senior classmate when he was in boarding school.  Being a sexual victim himself, the defendant’s sex attitude was further distorted by the pornographic material he watched.  It was found that in the present offences, his youngest half-sister became an easy and convenient target to fulfil his sex needs and sexual curiosity.  He failed to think of the consequences and the harm done to the victim and acted out of his sexual impulse.  His risk of sexual reoffending was assessed to be in the higher end of moderate range.  Psychological intervention on various aspects was recommended. 

26.  In the present case, the defendant is the half-brother of X and their age gap is 12 years.  Given the defendant is the elder brother of X, the commission of the offences involved breach of trust.  He also used inducement on X (such as offering to give X money and/or telling X that he would marry her when she grew up)  in the commission of the offences.  He even told X to keep it secret and not to tell others about the incidents.  The offences have an adverse impact on X’s psychological well-being.  Further, the defendant’s risk of re-offending is in the higher end of moderate range.  All these are the aggravating features in this case.  On the other hand, I note that no violence or threat was involved and the duration of each offence is short.

27.  In sentencing, I have considered the circumstances of the offences, the background and mitigation of the defendant and other matters mentioned above. 

28.  For charge 1, it involved the defendant molesting X’s private part with X having her trousers removed.  I consider the appropriate starting point to be 18 months’ imprisonment.  Given the defendant’s plea, it is reduced to 12 months’ imprisonment.

29.  For charge 2, it involved the defendant using his penis to rub against X’s private part.  I consider the appropriate starting point to be 3 years’ imprisonment.  Given the defendant’s plea, it is reduced to 2 year’s imprisonment.

30.  For charge 3, it involved the defendant kissing X on her mouth once.  I consider the appropriate starting point to be 6 months’ imprisonment.  Given the defendant’s plea, it is reduced to 4 months’ imprisonment.

31.  Apart from the defendant’s plea, there is no other mitigating factor justifying further reduction of the sentences.

32.  The three offences were committed on different occasions.  Having considered the totality principle, I am satisfied that a total sentence of 2 years and 3 months is sufficient to reflect the criminality of the defendant’s acts.  Therefore, 2 months of the sentence for charge 1 and 1 month of the sentence for charge 3 will run consecutively to the sentence of charge 2, making a total sentence of 2 years and 3 months.