HKSAR v. WONG I HANG

DCCC 7/2020

[2020] HKDC 475

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 7 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant (D) pleaded guilty to a charge of Indecent conduct towards a child under the age of 16 years, contrary to section 146(1) of the Crimes Ordinance, Cap 200 (Charge 1), a charge of Indecent assault on another person, contrary to section 122(1) of the same Ordinance (Charge 2) and one charge of Criminal Intimidation, contrary to sections 24(a)(i) and 27 of the same Ordinance (Charge 3).

The Summary of Facts

2.  D and the victim (“X”) (aged 26 and 15 respectively at the material times) were acquaintances.  X was a Form 3 student and D was a pastoral assistant at X’s school.  The relationship became closer as they attended the same church where D gave lessons to X on religion and D even became X’s “Godfather” before the offences took place.

3.  On 8 August 2017, D went camping at Cheung Chau together with X and they shared a room in a holiday house where there was only one bed.  In the evening, when D and X were lying in the bed, D suddenly embraced X from behind and inserted his hand inside X’s pants and touched his private parts.  D also masturbated for X.  X in return masturbated for D at the request of the latter.  They did not ejaculate and the incident lasted for approximately an hour.

4.  In the morning of 9 August 2017, when X was playing with his mobile phone on the sofa inside the room, D sat next to X and inserted his hand inside X’s pants.  D touched X’s private parts and then masturbated for X.  Afterwards, they went inside the bathroom together and each masturbated himself until ejaculation.

5.  A year later, D resigned from his job at X’s school.  After that, X seldom contacted D.

6.  Subsequently, in November 2018, D sent various “whatsapp” messages to X, threatening to disclose to others about their relationship and that X had tried to date other males for sexual activities and also to disseminate X’s naked photographs and upload them to online social media if X continued to ignore D.  Out of fear, X told his father about the incidents on 17 February 2019 and a report was made to the police shortly afterwards.

7.  D was arrested on 7 March 2019 and during the interviews under caution, D admitted, inter alia, that he had touched X’s private parts on those occasions.  Regarding Charge 3, D admitted that he had taken photographs of X on 8 August 2017 (but not naked photographs) and he had sent messages to X to threaten him because he was angry at X for having ignored him.

Mitigations

8.  D is now 29 years old.  D is a first offender.  It is noted that D has indicated his guilty plea at an early stage of the proceedings.

9.  After he left the school where he worked, he has been working as a tutor for an educational institution.  D has been an industrious young man and has recently completed a part-time Master Degree programme.  According to the mitigation materials, D had demonstrably a respectable upbringing.  He had received good education and was well regarded by his friends, colleagues and former students.  There are a number of mitigation letters and I have considered them in full.  In particular, D has reflected upon his misdeeds and has pledged not to re-offend.  This is evident from his determination to seek professional counselling from the Society of Rehabilitation and Crime Prevention for the last year voluntarily.  D also disclosed in his letter a number of social services he had rendered in the past and how those activities had transformed him.  I am impressed that D has a great deal of reflection and I accept that his remorse is genuine.  I also note that D has a strong family support.  The joint letter prepared (in both Chinese and English) by D’s parents demonstrates their unreserved love and care.

10.  According to the Background Report, D took up courses on counselling, therapy and personality analysis to understand himself better before his arrest.  Thereafter, he also approached the Society of Rehabilitation and Crime Prevention, Hong Kong (SRACP) and Mr Wan of SRACP has given positive comments on D.

11.  The Clinical Psychologist Report reveals that no obvious sign of mental disturbance was elicited but D denied homosexual interest and deviant sexual arousal towards under-aged boys and girls.  The Report continues to say that D was not assessed to be suffering from a major mood disorder or significant mental instability at the time of assessment.  It is remarked that D’s “insight to the relational problem remains limited at this juncture.”  According to the above clinical findings, (D)’s re-offending risk including of sexual nature similar to the index offences is estimated to be Moderate.”

12.  Upon the request of Ms Poon for the Prosecution, the police have also arranged to obtain a Victim Impact Report from X and it is available before this court today.  Madam Wong, the Clinical Psychologist who prepared the report, said that at the time of the assessment, X was emotionally calm but he tended to suppress some of his emotions like anger and shame.  The report remarked that X remained cautious and reserved in interpersonal aspect.  The assessment rated X at “moderate to severe level” on the impact of event scale with indications of both intrusive thoughts and avoidant behaviours.  The report continued to describe that the traumatic experiences keep turning out in X’s mind uncontrollably which X tries to suppress. It is commented that it would take some time for X to recover fully.

13.  I hasten to add that Ms Poon’s assistance in obtaining the Report is of important value.  It is not as simple as asking for a report to be prepared so as to enable this court to receive information pertaining to the condition of the victim in order to assess the consequential impact, which is a relevant factor as highlighted in the case authorities.  It involves a professional assessment on the part of Ms Poon and those who assisted her to try to ascertain if the making of arrangement to obtain such a report could potentially cause further but undesirable impact on the victim because it is quite natural that someone in the position of the victim might not want at all to be reminded of any part of the incident or else the approach by the officer preparing the report, who supposedly is a designated professional but stranger to the victim, could have caused certain embarrassments unexpectedly to the victim.  These are delicate and difficult tasks and therefore such a report is naturally not always available.

14.  On the other hand, Mr Lam, counsel for the defendant, fairly and properly admitted that this case involves an element of breach of trust.  He also helpfully provided this court with a written submission of high quality and a number of case authorities.

15.  Nevertheless, the offences in this case are very serious.

16.  In the case of Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136, the Court of Appeal were to deal with a first offender who had indecently assaulted two boys who were 7 and 9 years old respectively on four occasions.  Each time the Respondent had touched the penis of the victim from 5 - 10 seconds (sometimes under the underpants).  The Respondent had been remanded for 26 days and eventually put on 18 months’ Probation.  He had served 7 months out of it by the time of the Application for Review taken out by the Prosecution before the Court of Appeal. On appeal, the order of Probation was quashed and replaced by a Rehabilitation Centre Order.

17.  The Court of Appeal made it clear that indecent assaults on young children by adults are serious offences (See para 12).  The sentencing court should consider the following principles:-

(1) to deter others from committing similar offences;

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

(3) to redress the grievance suffered by the victim and his/her friends and relatives.

18.  The Court of Appeal went on to introduce further relevant and important factors, briefly, (1) the psychological impact on the victim; (2) that this type of offence is rather difficult to be detected because the victims would normally be at a loss or feel too embarrassed to make the complaint to others; and (3) that the courts will regard the protection of children as the most important consideration.

19.  Although that case was dealing with the offence of Indecent Assault, I find that these principles are equally applicable to Charge 1 in the present case.

20.  In the case of HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, the Court of Appeal altered the sentence for 1st Appellant for an offence of Indecent Conduct towards a child under 16 as a result of his successful appeal against conviction for the other offences.  The Court of Appeal imposed a starting point of 18 months’ imprisonment and reduced it by 1/3 to reflect his guilty plea (for that particular offence).  Suffice it to say, the age difference between the 1st Appellant and the victim was large (20 years and the victim was 14 years old at the material time) and the act of indecent conduct was an oral sex performed to that appellant for a fee.  These factors would make that case more serious than the present case.

21.  The Court of Appeal explained that “the severities of ... circumstances of (indecent conduct toward a child under 16 years old) could also vary widely.  It is therefore very difficult to give suitable sentencing guidelines” (see para 38).  Nevertheless, the Court of Appeal went on to list out a number of factors that the court has to consider in dealing with such an offence:-

(a) The age difference between the defendant and the victim;

(b) 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;

(c) Whether the defendant had used threats or inducements to make the victim succumb, falling prey to his licentious exploitation;

(d) The number of occasions of committing the offences and the duration of the offences;

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

(f) 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;

(g) Whether the offences have caused physical or psychological trauma to the victim;

(h) Whether the offences have impact on the family members of the victim;

(i) Was the defendant involved in other inappropriate behaviours such as inviting/permitting other people to watch or take photos/videos; and

(j) Whether the defendant is psychologically imbalanced or paedophilic and the likelihood of re-offending.

22.  For the present case, factors (a), (b), (d), (g), (h), (j) are of particular relevance.  The age difference between D and X is 11 years.  A breach of trust element exists because of their relationship.  There are two charges representing two occasions of indecent conduct.  The reports show that the impact on the victim is moderate to severe on the scale and it would take time for X to recover fully.  On the other hand D has presented a Moderate degree of re-offending.

23.  The court has a duty to send a clear and strong message against any abuse of children, sexually or otherwise.  In the present case, whilst consent is not a defence in law under the relevant provisions, X seemingly acted like a consenting party.  X, however, could have been too young to respond otherwise.  The Defence also did not place any emphasis on this aspect.  More importantly, it does not detract from the fact that D, who was an educated adult, the “godfather” of X and a trusted acquaintance of the family of X, should have sufficient will power to refrain from committing the offence of indecent conduct towards X, let alone committing Charge 3 which is by itself another serious offence.

24.  Comparing the case of Huang Long Wei with the present case, the age of the respective victims were much younger than X in the present case albeit that the age difference between the offender and victim are similarly 11 years.  That case involved two victims and four occasions but the acts lasted only for seconds.  There was no breach of trust element such as the one exists in the present case.  Bearing in mind the difficulty (and undesirability) for a strict comparison between two cases where the facts are not identical, I am prepared to say that that case and the present case bear similar gravity.  The Court of Appeal in that case had taken into account the range of incarceration for a Rehabilitation Centre Order (3-9 months as the appellant was only 18 years old), the 26-day remand and that the appellant had served 7 months out of the 18-month Probation Order.

25.  Having carefully considered, I do not find any other sentencing options other than an immediate custodial sentence appropriate in the present case.  I shall adopt a starting point of 15 months for Charges 1 and 2.  It is slightly lower than the starting point adopted in Lee Hon Wah, as I note that oral sex was involved in that case and there existed certain degree of corruption of mind by offering money in exchange for the sexual service by the appellant.

26.  The starting point for Charges 1 and 2 would be reduced by 1/3 to 10 months’ imprisonment to reflect the guilty plea.  I shall further reduce the sentence by 1 month after taking into account the other mitigations.  I shall order that these sentences to be served concurrently.

27.  For Charge 3, I have considered the case of HKSAR v Lam Chi Hong Patrick [2012] 2 HKLRD 1273 in which the appellant had actually sent the victim her nude photos in an email in the course of the commission of the offence.  A starting point of 18 months’ imprisonment was not considered manifestly excessive although the Appellate Judge found that a 15-month starting point would be appropriate in the circumstances of that case.  I note that the victim in that case was a 24 years old lady.  The victim in the present case was much younger.

28.  It was emphasised in the submissions for D that no nude photos were ever actually taken of X and the threat of sending such photos to others would not in any event be materialised. That said, the offence remains a serious one.  The distress of and impact on a victim of this type of criminal intimidation does not depend on how likely the offender would or could put the threat in action.  It also does not depend on whether such photos were successfully taken or retained by the offender.  Even the victim might have possessed a wrong impression about the truth as to whether such photos were actually taken or retained by an accused, it could well be the conduct of the offender who had constituted or contributed to such misunderstanding.  Of course, each case has to be assessed individually depending on the facts and circumstances pertaining or giving rise to the commission of the offence.  In the present case, I shall adopt a starting point of 12 months which is reduced to 8 months’ imprisonment to reflect the guilty plea of D.  Similarly, I shall reduce it by 1 month for the other mitigations.

29.  Charge 3 is distinct in nature and it constituted a separate but equally, if not more, dreadful experience for X.  In the circumstances of the present case, bearing in mind the totality principle, I shall order 6 months in Charge 3 to be served consecutively to the other charges.  The total sentence would become 15 months’ imprisonment.