CRIMINAL CASE NO. 310 OF 2012
Background and the facts
The defendant pleaded guilty to one count of indecent assault in the Eastern Magistrates’ Court on 7 September 2012. When appearing before me on 16 November 2012, he confirmed his plea and his acceptance of the Summary of Facts.
In brief, the complainant was a school girl aged 14. In the evening of 11 May 2012 the complainant was alone at home which was a unit in a public housing estate. When she went to the public corridor for hanging clothes, she had left open the iron grille and the main door of her flat. When the complainant returned to her unit, the defendant, who lived in the same estate, followed her.
The complainant confronted the defendant but he did not reply. The complainant then fled into the toilet. The defendant followed her there and closed the toilet door. At that juncture, the complainant fell onto the ground. The defendant then pulled at his own trousers and at the complainant’s shorts. The complainant resisted. The defendant continued and eventually pulled up the complainant’s shirt and brassiere and started kissing her breasts. Meanwhile, the complainant tried to call the police with her mobile but was unsuccessful.
After a while, the defendant stood up and the complainant opened the toilet door to escape. However, when the complainant tried to leave the flat, the defendant blocked her way and held on to the complainant. The complainant ended up on the floor again. This time, the defendant put his hand inside the complainant’s shorts and inserted his finger into the complainant’s vagina. The complainant struggled and managed to free herself, reaching the flat’s door and told the defendant to leave. The defendant refused. The complainant then fled back to the toilet.
In the meantime, the complainant’s father returned home and heard the commotion. He forced open the front door and found the defendant behind it. The defendant jumped onto a bed and crouched in the corner. The police were then called.
Later that night, when the complainant was examined, the forensic pathologist found her to have linear abrasions of 1.5 centimetres to 3 centimetres long on her right elbow, her upper right forearm and her lower left arm. There was also patchy redness of the skin of about 8 centimetres times 7 centimetres on the inner aspect of her upper right thigh.
As regards the complainant’s private parts, there were an abrasion of about 0.3 centimetres times 0.2 centimetres and a superficial laceration of about 0.5 centimetres long on the vestibule at different positions.
The complainant was then admitted to the paediatric ward. She was found to have low mood and fleeting suicidal idea. The complainant was hospitalised for 13 days in total and her mood improved over the following few days after counselling by a social worker and clinical psychologist. Initially, the complainant expressed fear in returning home but afterwards, she was found to be able to cope well at home and in school.
As regards the complainant’s current situation, the prosecution confirmed that she is not attending any follow-up sessions with any social worker or clinical psychologist. At present, the complainant is emotionally stable and fine. In view of the information provided by the prosecution which indicated that the complainant is generally in good condition, and in order not to unnecessarily burden the complainant and cause her to recall the traumatic incident, I have decided not to call for any victim impact report.
The reports
I adjourned sentence on the last occasion in order that a background report and a clinical psychologist’s report on the defendant could be obtained. I now have available to me both reports.
According to the background report, the defendant began taking “Ice” in 2003. He told the probation officer that he had committed the present offence as he was weak in self control and was under the influence of a dangerous drug.
The clinical psychologist who had examined the defendant stated that there was no sign indicative of any psychiatric disorder on the part of the defendant. However, as the defendant had attempted suicide in 2007, and had been diagnosed with depression, he had attended regular psychiatric follow-ups since November that year.
The defendant told the psychologist that he consumed “Ice” every day before his present incarceration. He further revealed that he would experience hallucinations and would become impulsive and violent after taking “Ice”.
In respect of both his indecent assault convictions, the defendant confessed to the psychologist that he had used “Ice” before the offence. While admitting that he had experienced a sudden impulse and had followed the complainant into her home, the defendant denied that the offence was premeditated. In short, the psychologist opined that:
“His insight into his problems was inadequate. His substance abuse problem, poor mood management and inadequate social support were the risk factors pertaining to his re-offending. In view of his age, criminal history and the nature of the present offence, his risk of re-offending was assessed to be high. Yet there was no indication that the defendant had any deviant sexual interest such as paedophilia.”
The defendant’s background and mitigation
The defendant is aged 32 and was educated up to primary level. He was in receipt of comprehensive social security assistance at the time of the offence. Previously, he had worked as a kitchen worker and transportation worker. The defendant has been before the court on four occasions with one identical offence of indecent assault. The other convictions were theft, criminal damage, obstructing a member of the Customs & Excise Service and offering for sale infringing copies of copyright works.
In respect of his previous indecent assault conviction, the offence again took place in the housing estate in which he lived, that is, the same estate as that involved in this charge. On that occasion, the complainant was aged about 34 and the assault took place in the staircase. The defendant was sentenced to 4 months’ imprisonment for that offence in December 2011. He was released on 15 March 2012. Yet, within less than 2 months’ time, he re-offended and committed the present offence.
The defendant was married in the mainland and he was living separately from his wife. He had a relationship with another lady in Hong Kong and their son is now being looked after by the lady. This morning, Mr Mitchell, when conducting the mitigation on behalf of the defendant, provided to the court very comprehensive written submissions covering the facts of the case, the defendant’s background and previous convictions, the contents of the reports and the relevant authorities.
Mr Mitchell stressed that there is no element of any breach of trust in the present case; that the offence does not appear to have been a predatory act; and that the complainant was older than those in the authorities he referred to. Mr Mitchell also emphasised that the root cause of the defendant’s commission of the offence was his drug abuse problem, which the psychologist had described as impairing the defendant’s “behavioural control and social judgement”.
Further, Mr Mitchell related to the court the defendant’s true remorse, reiterating that because of the defendant’s plea, the complainant was relieved of the ordeal of testifying in court.
In short, Mr Mitchell submitted that the defendant’s risk of re‑offending was assessed to be high mainly because of his substance abuse problem. Therefore, if the defendant is simply sent to the prison without anything done for his drug abuse problem and without any psychological assistance, he might again end up posing as a danger to women once he is released.
Sentencing considerations
In Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136, the Court of Appeal noted that there are three crucial considerations when determining the sentence in respect of the offence of indecent assaults on young children by adults:
“(a) to deter others from committing similar offences;
(b) to show the abhorrence of members of the public;
(c) to redress the grievance suffered by the victim and his or her relatives and friends.”
It was also said that in dealing with this type of offence, the courts would have regard to the protection of children as the most important consideration.
In HKSAR v Kong Yun Chiu [2007] 4 HKC 391, the Court of Appeal reiterated that:
“Whilst the range of offences within the category of indecent assault is wide, the fact that the victim of such an offence is a child is always a severely aggravating feature. Viewed in the light of these factors, offences of the kind in this case call for substantial terms of imprisonment...”
In this case, the defendant did not only sexually assault a young girl, the offence actually took place at the very home of the girl. I should say here that I take the intrusion into the complainant’s home as a serious aggravating factor for such is the place where one should find shelter and comfort. Yet, the defendant followed the complainant into her home and indecently assaulted the complainant both in the toilet and in the living room.
It is not difficult to imagine the sort of trauma, indignity and fear which the complainant must have gone through at the time. It was no surprise at all that the complainant initially expressed fear and worries of returning home. Most fortunately, the complainant was later found to have been able to cope well and to resume her normal life.
I should also say, the fact that this offence was the second one committed by the defendant within just a few months, and shortly after his release from prison, clearly shows that he had not been sufficiently deterred by the previous sentence. While the defendant would not and should not be punished for his past conviction, and while I note that the complainant on the previous occasion was an adult female rather than a young girl, the defendant’s quick relapse into committing the present offence in the same housing estate indicates that he has become a danger to the women living there.
In fact, the psychologist’s assessment is that the defendant poses a high risk of re-offending. Therefore, to protect the public, I take the view that a sentence of sufficient deterrence is called for.
Mr Mitchell is correct in saying that this case does not involve any element of breach of trust; that the complainant was aged 14, somewhat older than the complainants in the authorities he referred to; and that the complainant now appears to have recovered from this terrible incident and does not require any psychological intervention or any counselling from social workers.
However, the facts of each case are different. While no breach of trust is involved in the present case, there is this serious aggravating factor of invasion into one’s own premises where the sexual molestation took place.
As regards the complainant’s age, I take it that because she was 14, she must have felt a greater degree of humiliation, injury to her own self-esteem, and a sense of imminent danger, shock and fear in the course of the incident than one who might be only six or seven. Therefore, I do not consider that the complainant’s age would make the incident less distasteful or that it was not as serious as the others. As I have mentioned, each case must be looked at in its own factual matrix.
The sentence imposed
Having considered all the relevant circumstances of this case, including the kissing of the complainant’s breasts followed by the insertion of finger into the complainant’s vagina, and the invasion into the complainant’s premises, I consider an initial starting point of 5 years to be appropriate.
However, as this was the second indecent assault offence committed by the defendant shortly after his release from prison, and as he again consumed “Ice” before this offence when he knew full well the effect that it would have on him, that is, being impulsive and violent, I take the view that to protect the public and to make the sentence of sufficient deterrence, an enhancement of 1 year from the initial starting point is warranted. I therefore take 6 years as the overall starting point for this charge.
The defendant pleaded guilty and he will be given a one-third reduction for his plea. Other than this, there is nothing in this case which calls for any further reduction in sentence.
The defendant is therefore to serve a term of 4 years’ imprisonment.
Finally, I would urge that the recommendation of the psychologist that:
“Psychological treatment targeting at his substance abuse problem, mood regulation and impulse control be provided to the defendant”
be taken up by the Correctional Services Authority.