HKSAR v. CHAN HUNG FOON

DCCC 933/2022

[2024] HKDC 456

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 933 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

INTRODUCTION

1.  Upon the defendant’s guilty plea and admission to the relevant facts, he is convicted of the following two charges:

Charge 1: Indecent assault on another person, contrary to section 122(1)  of the Crimes Ordinance, Cap.200

Charge 2: Indecent conduct towards a child under the age of 16 years, contrary to section 146(1)  of the Crimes Ordinance, Cap.200

FACTS

2.  Boy X was born on 4 October 2006 while the defendant was born on 2 September 1970. Both of them had been diagnosed with mild grade mental retardation. X also suffered from autistic spectrum disorder.

3.  At all material times, the defendant and X were residents of a residential care home for persons with mental illnesses and disabilities (the “Hostel”).

4.  At about 8 pm on an unknown day between 7 April 2020 and 15 October 2021, the defendant inserted his hand into X’s pants and masturbated X for about 4 seconds when both of them were lying on a bed.

5.  On the afternoon of 16 October 2021, the defendant approached X and asked X if he wanted to have sex. X refused. Despite X’s refusal, the defendant dragged X to a room against X’s will. Inside the room, the defendant:

(i)  closed the windows and blocked the door with a bed to prevent others from entering the room;

(ii)  made X sit on a bed by pressing X’s shoulders;

(iii)  pulled up X’s shirt and grabbed X’s chest with his hands. X said “No” to the defendant;

(iv)  asked X to take off his shorts but X refused;

(v)  took off his own shorts and told X to perform oral sex on him but X refused;

(vi)  forced X to lie on the bed;

(vii)  knelt down with his legs on both sides of X and pressed against X’s arms; and

(viii)forced X to open his mouth and made X perform oral sex for him for several minutes.

During the course, X felt disgusted and could smell urine.

6.  On 18 October 2021, X made a complaint to an assistant supervisor of the Hostel that the defendant had forced him to perform oral sex. Upon enquiry by the director of the Hostel, the defendant admitted having forced X to perform oral sex for him. A report was then made to the police.

7.  The defendant was arrested on 8 November 2021. Under caution, he admitted inter alia that:

(i)  at about 8 pm on a day prior to 16 October 2021, he had inserted his hand into X’s pants to masturbate X for about 4 seconds;

(ii)  at about 4 pm on 16 October 2021, he had:

(a)  asked X to perform oral sex for him;

(b)pulled down X’s shorts, masturbated X for about 5 seconds, performed oral sex for X for about 5 seconds; and

(c)  forced X to perform oral sex for him out of lust.

THE DEFENDANT’S BACKGROUND AND CRIMINAL RECORD

8.  The defendant was born in September 1970. He received education up to Form 3 level. He was diagnosed to have mild grade mental retardation. At the material time, he worked at a sheltered workshop.

9.  Prior to the commission of the present two offences, he had 6 previous convictions resulting from 3 cases. The first 5 convictions were all charges of theft. The last conviction was on a charge of indecent assault in respect of which a probation order of 12 months was imposed on him in March 2014.

MITIGATION

10.  Mr Cheung submitted that the most powerful mitigating factor was the defendant’s early guilty plea. He also asked me to consider that the defendant was cooperative with the police, and that the defendant attributed the incidents to his lack of understanding of the seriousness of his conduct.

PSYCHIATRIC & PSYCHOLOGICAL REPORTS

11.  At the previous hearing when the defendant pleaded guilty to the present two charges, I indicated that I was minded to call for a victim impact report for X, and psychiatric and psychological reports on the defendant. As the prosecution informed me that X was reluctant to give any further information for compilation of a victim impact report, I only called for psychiatric and psychological reports on the defendant.

12.  Psychiatric and psychological reports on the defendant are now available.

13.  It was stated in the psychiatric report that:

“CHAN (the defendant)  has borderline intelligence, with personality problem. No inpatient psychiatric management is warranted at the current juncture and outpatient follow-up with medication treatment is respectfully recommended...”

14.  In the psychological report, it was concluded and recommended that:

“Mr. CHAN (the defendant)  was a person with Limited Intelligence with anti-social personality traits under long-term residential care. He required strong caring needs since young but received ineffective supervision and guidance. Emotional dysregulation, and behavioural maladjustment of inappropriate sexual behavior and aggression was a prevalent problem in him. Without supportive interpersonal relationship, he experienced persistent loneliness and boredom. Masturbation was his only strategy to seek for a sense of excitement. Inappropriate sexual advances to female was his another way to fulfil his sexual urges. The victim in the index offences was a convenient target for him to fulfil his sexual impulse and curiosity about oral sex. He had no regard for the consequences or the harm done to the victim. He showed no paedophilic interest but strong sexual preoccupation and sexualized coping in the current assessment. His risk of sexual recidivism was assessed to be high.

Given his impaired cognitive ability and personality profile, he showed limited insight. Psychological intervention on his healthy sexuality considering his living environment, impulsivity, mood management, and assistance for him to develop wholesome hobbies was recommended. Yet, his prognosis was guarded.”

SENTENCE

15.  The prosecution submitted judgments of the following cases to the court:

· HKSAR v Li Fat Sang [1995-2000] HKCLRT 123

· HKSAR v See Tak Man [1998] 1 HKLRD 794

· SJ v Huang Long Wei [2009] 3 HKLRD 136, at para 13 & 14

· HKSAR v Lee Hon Wah [2011] 4 HKLRD 307

· HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427, at para 9

· SJ v Lam Yu Wai [2015] 1 HKLRD 400, at para 36

16.  Out of the aforesaid 6 cases, only Lam Yu Wai case involved a mildly mentally disabled defendant. However, the Court of Appeal said that his moderate mental disability was not a mitigating factor.

17.  In mitigation, Mr Cheung submitted that unlike Lam Yu Wai case, in this case the defendant’s mild grade mental retardation was relevant as the defendant did not realize the seriousness of his conduct. In response, I discussed with Mr Cheung that as the defendant saw fit to, immediately prior to his commission of the offence on 16 October 2021, close the windows and block the door with a bed to prevent others from entering the room, it looked like the defendant knew what he was going to do was wrong. I asked Mr Cheung if the defendant would like to hold a Newton Hearing in that regard to show that he did not realize the seriousness of his conduct. Mr Cheung replied in the negative. 

18.  In HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427, the Court of Appeal said:

“9. The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:

(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 in the case;

(3)  Whether the defendant had used threats or inducements to make the victim succumb;

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

(5)  Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6)  Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7)  Whether the sexual abuses have caused physical or psychological trauma to the victim;

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

(9)  Whether the defendant was involved in other inappropriate behavior such as inviting other people to watch or take photos or videos of the offence he committed; and

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

See HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, HKSAR v Lee Hon Wah [2011] 4 HKLRD 310, 香港特別行政區 訴 吳家健(unrep., CACC 328/2010, [2011] CHKEC 982)  and HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239.”

19.  In the present case, it is noted that whilst the defendant and X were both diagnosed with mild grade mental retardation, the age difference between them was 36 years, with X being a child under 16. Further, I note that in relation to Charge 2:

(i)  the defendant perpetrated the offence against X’s will and used certain degree of force to make X succumb;

(ii)  no condom was used (Mr Cheung agreed that it was the case); and

(iii)  X smelled urine whilst being abused by the defendant suggests that the latter did not properly clean himself beforehand.

20.  As stated by the Court of Appeal in Lam Yu Wai case, sexual abuse of children is an extremely serious offence per se.  In the present case, X was not just a person below 16 but also a person of mild grade mental retardation. The court has a duty to impose deterrent sentence to protect the vulnerable. 

21.  Having carefully considered the facts of this case, and in light of my aforesaid observations and the contents of the psychiatric and psychological reports on the defendant, I am minded to adopt starting points of 6 months and 42 months for Charges 1 and 2 respectively.

22.  One-third discount is given to the defendant for his early indication of guilty plea. There being no further valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 4 months’ and 28 months’ imprisonment for Charges 1 and 2 respectively.

23.  On totality, I order sentences for the two charges to run totally concurrently, thus making a total of 28 months’ imprisonment.  

24.  As recommended by the psychiatrist and the psychologist, I will likewise recommend the Commissioner of the Correctional Services to consider providing psychiatric and psychological treatments to the defendant.