COURT: You pleaded guilty to four counts of incest with your daughter following my ruling that the video interview which you gave to the police was
admissible in evidence. The voir dire to determine that issue took less than a day.
The offences took place between 3 January 2012 and 5 February 2012. They occurred at your home where you then lived with your wife, your son and the daughter in question. She was 17 at the time, her birthday falling in the previous November. She left home in March 2012 to live with her boyfriend before this matter came to the attention of the police on 30 March, following a fight between you and her boyfriend caused by these matters.
Your daughter had not gone to any authority herself to complain. Whilst a statement from your daughter implicating you appeared in the committal bundle, she was not available as a witness for your trial, having absented herself. This is not a case that arouses any lingering suspicion that her absence was due to any direct influence from you or anyone acting on your behalf.
It does reflect, however, the consideration that one of the mischiefs of incest is the mental and emotional damage done to the victim who, naturally, comes under enormous pressure in such a situation because of divided loyalties. It does remain the fact that, but for your admissions to the police, there would have been no evidence to convict you.
It is the case that the incest occurred over a limited period of just over one month. You used no threat and no violence. There was a straightforward barter of sex for reward. It is not a case where you used your dominant position in the family to bully her or overbear her will. She was sexually experienced at the time; you did not take her virginity.
It is thus that many of the common aggravating features of father/daughter incest are absent. The essence of your role was tempting a 17-year-old, who should have looked to you for trust and care, to a course against nature so rightly reviled. I do remember that her own conduct could have rendered her liable to prosecution for incest for she consented to the sexual intercourse with you.
I believe you to be remorseful. I do not treat the fact that your pleas of guilty only came after a voir dire as evidence to the contrary in the circumstances of this case. I shall give you a 25 per cent discount for your pleas and that is designed to be generous.
I have read a background report from a probation officer and I have received letters from yourself and your family. At 50 years of age, but for this matter, you had a good character. Your wife has made a moving written plea for mercy on your behalf. Since this matter came to light, she has given birth to a second son. She has forgiven you and wants you back in the family. I can understand why she will see that to be in the best interests of herself and her sons.
It is acknowledged in our courts that incest is an offence that strikes at the very fabric of family life. It is the reason why the offence is treated as a grave one. However, it also opens the door, in appropriate cases, to mitigation based on the effect of the conduct upon the whole family. It is thus that I do not forget that my sentence upon you will have an impact upon your two sons.
An English case called The Attorney General’s Reference No 1 of 1989 identifies the relevant considerations for a court in sentencing cases of incest by a father against a daughter. For girls over 16, attention is paid to any force used and to the degree of harm caused and, on the other hand, the desirability of keeping family disruption to a minimum, remembering that the lower the degree of corruption, the lower the penalty.
Hong Kong has not followed the case as to the quantum of sentence with suggested sentences of up to 3 years’ imprisonment for girls over 16 and that was dealt with in a case called HKSAR v Li Kin Ho reported at CACC 409/1998. Indeed, the maximum penalty in Hong Kong increased from 7 years’ imprisonment to 14 years’ imprisonment in 1998.
The cases cited to me by counsel have to be seen in the light of the increase in the maximum sentence. However, I note that the sentence of 5 years’ imprisonment in Li Kin Ho was imposed after a trial, where the incest involved was with a 21-year-old daughter in circumstances of very grave aggravation which made the offence equivalent to rape.
I note that the 4 years’ imprisonment in the case of The Queen v Chui Wai Man reported at CACC 731/1995, following pleas of guilty after a voir dire, was based on incest with a totally blameless 14-year-old over a 15-month period where the victim had been reduced to a depressed and even suicidal state.
I note that the reduction from 5 years’ imprisonment to 3½ years’ imprisonment in The Queen v Cheng Man To, reported at CACC 542/1986, took place after a trial where the 18-year-old victim had given evidence and was fully challenged.
I would venture to suggest that these cases would, today, attract longer sentences. Our knowledge of and attitude to cases involving sexual abuse generally has changed over recent years and that is reflected, in fact, also by the increase in the maximum sentence.
I will take a starting point for sentence in your case of 4½ years’ imprisonment. That starting point does reflect the change in attitude that I perceive for it would look high when compared directly to the cases I have just mentioned.
The 25 per cent discount would reduce the sentence to one of just over 3 years and 4 months. I will reduce that further to a sentence of 3 years for 3 years better reflects my view of your case and specifically acknowledges the mitigation directed towards the impact of the sentence upon your family and the children who remain at home.
I regard a sentence of 3 years’ imprisonment as the least I can pass consistent with my public duty. I can understand that you may think otherwise, but it is a sentence, in the circumstances, designed to be lenient.