HKSAR v. LAU CHI FAI

DCCC 199/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 199 OF 2017

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REASONS FOR SENTENCE

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1.  In this case, the defendant Lau Chi Fai faced the following charges:

(i) False imprisonment, contrary to common law, and punishable under section 101(1) of the Criminal Procedure Ordinance, Cap 221;

(ii) Indecent assault on another person, contrary to section 122 of the Crimes Ordinance, Cap 200;

(iii) Making child pornography, contrary to section 3(1) of the Prevention of Child Pornography Ordinance, Cap 579;

(iv) Inciting a child under the age of 16 years to commit an act of gross indecency, contrary to section 146(1) of the Crimes Ordinance, Cap 200;

(v) False imprisonment, contrary to Common Law and punishable under section 101(1) of the Criminal Procedure Ordinance, Cap 221;

(vi) Common assault, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap 212.

2.  On his plea and admission of facts, he is convicted of all six charges.

3.  The six charges were committed on three different occasions, involving three very young children.  The eldest one was about 11 years old.  On each occasion, the defendant chatted up the victims with the false excuse and abducted the child for the satisfaction of his perverse desire.

The case of X, a schoolboy aged 8: Charges 1, 2 and 3

4.  At 7 pm on 18 October 2016, after finishing his tutorial class when X was walking across Tong Mei Road on his way home, the defendant came up from behind, told X that his shoes were broken, and offered to repair them for him. The defendant grabbed X’s arm while crossing with him.  The victim was in pain and fear.  His plea to be let go went unheeded.  Then the defendant took X to the 8th Floor of a nearby building where he took out a pair of slippers and asked X to place his hands inside the same.  X complied.  Afterwards the defendant used some plastic strings to tie the hands of X and used his mobile phones to take photographs. 

5.  The defendant further produced another pair of slippers and asked X to hold them with his jaws.  He then took photographs of the same.  Afterwards, the defendant asked X to take off his trousers and underpants, or he would not be allowed to leave.  Reluctantly, X complied, whereupon the defendant used his hands to squeeze X’s penis twice, and asked X to put his hand on X’s own penis. 

6.  Afterwards, the defendant grabbed X’s arms and forced X to go to a nearby park.  There he gave X three pairs of slippers and asked X to place his hands inside the slippers.  X complied.  The defendant then used plastic string to tie X’s hands and took photographs of the same. 

7.  Afterwards, the defendant handed over two other pairs of slippers, and told X to hold them with his jaws.  After X had done so the defendant also took photographs of the same.

8.  After that X was released.  He reached home at about 7:30 pm. 

9.  The incident resulted in bruising on X’s penis. 

The case of Y, a schoolboy aged 9: Charge 4

10.  At about 11 am, on a day in June 2015, while Y was on his way home after a school function, he was accosted by the defendant telling him that his shoes had been broken and offered to repair the same in a nearby park.  Y agreed and followed the defendant to the park.  They stayed in the park for a few minutes, during which the defendant took out a pair of slippers and told Y to hold on to it in his mouth, after which the defendant took photographs.  Then the defendant told Y to take off his trousers and took pictures of Y in his underpants.  After taking pictures, the defendant then told Y to leave. 

The case of Z, a schoolgirl aged 10: Charges 5 and 6

11.  At about 8 pm on a day in October 2016, Z was on her way home after attending a class.  The defendant accosted her and followed her, showing her pictures of slippers in his mobile phone.  At some point, the defendant grabbed her by the arm, and forced her to go with him.  Scared and in pain, Z was dragged to the park at Anchor Street. 

12.  At the entrance of the park, the defendant told Z to take off her shoes.  The latter refused and tried to leave.  To prevent her from leaving, the defendant pulled her hair.  It was only when Z started crying that the defendant let her leave. 

The Arrest

13.  The defendant was arrested on 19 October 2016 by two police officers on patrol duties in Lai Chi Kok Road.  He was carrying a mobile phone, a cutter, a roll of nylon string and two pairs of children’s slippers.  At the time, the defendant was wearing slippers himself. 

14.  On 20 October 2016, the police officer also found seven pairs of slippers and two piece of strings in the defendant’s residence.

15.  On his mobile phone, the police officers found photographs taken of X and Y, namely:-

(i) 10 photographs showing images of X holding on to the slippers with his jaws, inserting his hands into slippers, those of X’s own genitals, and X’s act of placing his hands on his own genitals;

(ii) 10 photographs of Y’s, including images of Y holding a slipper in his mouth, and Y in his underpants.

16.  Under caution, the defendant made a full admission.  He also explained the slippers were for masturbation and taking photographs. 

17.  There is no evidence that any of the victims as a result suffered from any long term physical and psychological damage.

On Sentencing

18.  Sexual offences against young children are probably the most despicable crime in our society.  In Hong Kong most parents are either full-time workers or engaged in their domestic chores, it is not unusual that children of tender ages are left on their own or left to their own devices during non-school hours.  They become easy prey to those who seek gratification of their perverse desires.  Since they lack the physical strength and the wit to protect themselves, it is for the law to ensure that they are adequately protected and those who take advantage of their vulnerability will be subject to sever punishment. 

19.  There is no sentencing guideline for sexual offences against young persons.  The sentence orders are normally fact-sensitive, reflecting the gravity of the case and culpability of the perpetuator.  Yet the sentencing principle is clear: there are three paramount considerations: the need for deterrence, reflect public abhorrence and redress the grievance suffered by the victims, his family and friends, see HKSAR v Chan Chuen Hin [2004] 2 HKLRD 339 and paragraph 5-544 of the Archbold Hong Kong 2017. 

20.  To this one may add the need to protect children, see Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136, and HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 422. 

21.  In the Tsang Chiu Tak case, the Court of Appeal also set out a number of factors the sentencing court ought to take into consideration, in cases involving sexual assault on a child, namely:

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

(ii) 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;

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

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

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

(vi) 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;

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

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

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

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

22.  That said, it is beneficial to review previous decisions, in order to arrive at a sentence order that is consistent with other decisions made on cases of similar gravity, see HKSAR v Ng Ngok Wai [2008] 1 HKLRD 546. 

23.  In Ng Ngok Wai case (supra), the defendant was convicted of five counts of indecent assault on his wife’s niece and his own niece (aged 13 and 15 respectively).  The Court of Appeal did not consider this to be in the most serious category, and while making clear that its decision was not meant to set out sentencing guideline based on the body part assaulted, found on the facts that the three offences (all involved touching of the breast), the appropriate starting point was 18 months’ imprisonment.  Whereas for the offences involving touching of private parts, the appropriate starting point was 13 months. 

24.  For the charge involving child pornography (Charge 3), the Court of Appeal has set out clear sentencing guidelines in the case of Secretary for Justice v Man Kwong Choi, CAAR 8 and 9/2007 [2008] 5 HKLRD 519.  The present case falls within level 1 (where the number of images is small, and the images not depicting erotic posing or sexual activities), the appropriate sentence can be a community service order, probation or fine. 

Discussions

25.  We have before us a case of a 36 years old man preying on 10 year old students.  The worse aspect of the case is the persistent, premeditated and predatory behaviour of the defendant.  On three separate occasions, over a span of 16 months, the defendant assaulted three victims.  The eldest of the 3 victims was aged 11.  All of them were alone and on their way home.  They did not know the defendant.  They have been forced (except in the case of Y in Charge 4), into complying with his lewd whim.

26.  The defendant had also been equipped with strings, slippers, a cutter and a smart phone, all of which devices for his own perverse gratification. 

27.  It was not a single instance of transgression in which the perpetuator found himself succumbed to his previously suppressed urge.  In all three instances, the defendant had abducted young students for his sexual gratification.  In two instances, he had used a made up excuse and resorted to brute force to take the victims to a quiet place where his lewd behaviour could go undetected.

28.  However, the present case is not the most serious of its nature. Although initially some degree of coercion was used (except in the case of Y), the children were grabbed by the arm and subject to some pain, the degree of violence was not serious.  

29.  In the case of X, he was grabbed by the arm, coerced into following the defendant (Charge 1); he was molested on his private parts and was forced by the defendant (Charge 2); subject to the humiliation of complying with the defendant’s instructions, having his private parts exposed and photographed in the process (Charge 3).  However, the picture was of X’s private parts, and there was no other sexual assault, so it is not the worst kind of pornography.

30.  Y was asked to have his pants taken off and have his pictures taken in his underwear.  There was no other evidence of violence or more depraved behaviour.

31.  Z was grabbed by the arm and pulled by the hair initially.  She was scared and finally, she scared the defendant into letting her go after she feigned crying.

32.  It was a crime by a fully grown man against young children, the age gap is wide.  On the other hand, unlike most cases of sexual assault against children, the victims in this case have been picked at random.  There was no question of the breach of trust, there was no attempt to collect more personal information from any of the victims, and all the children fully recovered. They did not suffer any adverse psychological impact.  Hence my decision not to call for impact reports of the victims.

The Sentence

Charge 1 to 3

33.  Those 3 offences took place in close proximity.  I would deal with them in one go.  This is the most serious case.  Apart from suffering from the indignity of having pictures taken of his private parts, X also suffered physical assault by being squeezed on his arm and his penis.  Having considered the above-mentioned Ng Ngok Wai case, I would adopt 15 months as proper starting point.  Since the three charges arose from one continuous incident, I make the sentence order for all three charges to run concurrently.

Charge 4

34.  In this case, Y was induced to have his pictures taken in his underwear.  I will adopt 9 months as a starting point. 

Charge 5 and 6

35.  Z was detained against her will and physically assaulted.  The assault was relatively minor, but it was part of the abduction.  This warrants a term of imprisonment for 12 months.  For each charge, he is sentenced to 12 months’ imprisonment, to run concurrently. 

Overall Sentence

36.  I consider that this was a premeditated and consistent course of behaviour.  The overall culpability warrants a sentence of 24 months.  To this end, I order 3 months of Charge 4 and 6 months of Charges 5 to 6 to run consecutive to the sentence order for Charges 1 to 3. 

Mitigation

37.  The defendant’s plea of guilty warrants a one-third reduction.  The overall sentence of 24 months is therefore reduced to 16 months.  For clarification, for Charges 1 to 3, the defendant is sentenced to a total term of imprisonment for 10 months; for Charge 4, he is sentenced to 6 months after reduction; for Charge 5 to 6, he is sentenced to 8 months after reduction of one-third.  3 months of Charge 4 and 3 months of Charges 5 to 6 are to run consecutive to Charges 1 to 3, making a total of 16 months.

38.  I turn to consider other mitigating factors put forward by the defence, and the matters alluded to in the reports.

39.  The defendant is a married man of 36 years old.  He had been brought to court on four previous occasions, resulting in seven convictions, five of which was indecent assault.  The last conviction was two counts of common assault in 2014, for which he was sentenced to a total of 14 days’ imprisonment.  He cannot possibly claim any credit for his age or history. 

40.  From the reports, I learnt that he had a fetish for slippers and can obtain sexual gratification by making young boys wear them.  He is also assessed to be a paedophile, the chance of reoffending is high.

41.  From the letters of his wife and other family members, I also learn that he is otherwise a good caregiver.  However, this cannot derogate from the fact that he had preyed on the young and the vulnerable, and this called for a sentence to deter him and others from committing offences in the future.

42.  I also note that from the reports of the psychiatrist and the psychologist, there are no pathological reasons for his offence.  He was fully aware of what he was doing, and he knew that it was wrong.  He does not suffer from any mental illness.

43.  Having considered the facts of the case, the matters raised by the defence and the reports from his background from the probation officer and the doctors, I do not find any particular reason which might justify any additional leniency.  The defendant, therefore, is sentenced to a term of imprisonment of 16 months in all.