HKSAR v. L. C. M.

DCCC 394/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 394 OF 2015

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REASONS FOR SENTENCE

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1.The Defendant (male) (aged 54 years) appeared before me on 10 August, 2015 and pleaded guilty to one charge of indecent assault on another person (Charge 1) and another charge of assault occasioning actual bodily harm (“AOABH”) (Charge 2). The sentence was adjourned so as to obtain the defendant’s psychological report as well as a psychological impact report of the victim X, a girl of the age of 13 years at the time of the offence.

Facts

2.The victim in this case, the girl X, is actually the daughter of the Defendant.  On 2 March, 2015, she made a complaint to the school social worker that she had been indecently assaulted by her father. Case was reported to the police and the police conducted a video interview with the victim. She told the police that on 1 March, 2015, at about 11:00 hours, while she was sleeping at home, the Defendant approached her. He put his hand into her clothes to touch her back and abdomen. Then, the Defendant tried to put his hand into her clothes to molest her breast. The victim resisted and pushed against the Defendant’s hand. The Defendant then hit her neck and said, “Why do you avoid?”  The Defendant then punched her nose with his fist causing bleeding at her nose. The Defendant then pulled up her clothes to molest and kissed her breast for 5 seconds. He warned her not to make him angry because she could not avoid the abuse. The Defendant kissed her and even tried to put his tongue into her mouth. The victim refused by closing her mouth. The Defendant then asked to touch her private part. The victim refused but the Defendant grasped hold of her. He kissed her and molested her private part and buttock outside her pants. After the Defendant finished, he told the victim to clean the blood at her nose. The victim did make a complaint to her mother but she only said she was hit by the Defendant as she did not want to cause a dispute between her parents. During the incident, her younger brother (8 years’ old) slept besides her and her younger sister (5 years’ old) was nearby.

3.The Defendant was arrested on 4 March, 2015 by the police for “Indecent Assault” and “AOABH”. Under caution, he admitted that he had hit the victim and molested her breast but he explained that he only touched her breast for 2 seconds and he said his purpose was to teach her so that she could pay attention to the hygiene as her daughter had not taken any bath for one month.

The Victim’s Impact Report and the Psychological Report of the Defendant

4.The Victim’s Impact Report compiled by a Clinical Psychologist opined that fortunately for the victim, no significant and obvious emotional problem is identified and her daily functioning is not seriously affected. However, she harbored sense of anger towards the father’s behaviors and she perceived he had done so out of impulsiveness and the urge to express anger. She did not want to see him and to have contact with him at the moment.

5.The Psychological Report of the Defendant described him as a repeated sexual offender albeit that he denied his previous sexual offences. The Defendant also adopted a denial attitude towards the present offences during the interview by presenting that he was angered by the victim’s longstanding behavioral problems. The Clinical Psychologist however pointed out that there was no evidence to support that the Defendant had deviant sexual interest including pedophilia. The report concluded by saying that the risk of sexual re-offending by the Defendant was assessed to be moderate-high.

Criminal records and the background of the defendant

6.The Defendant has one similar record of indecent assault in 2002 and one similar record of AOABH back in 1978.  He was put on probation in 1978 and was sentence to 21 days’ imprisonment in 2002.

7.The Defendant had only completed Form 3 secondary education in Hong Kong.  At the time of the offence, he was unemployed but before that he used to work as a lorry driver and a casual construction worker. In fact, he was unemployed between 2002 and 2009 and he had to rely on the CSSA to support his living. According to the Psychological Report, the Defendant married his first wife in 1985 and they have two sons now aged 28 and 22. The couple separated in 1997 and finally divorced in 2000. The Defendant met the victim’s mother in 1997 and they gave birth to four children but they were not married.  The victim is their eldest daughter. Their second and third sons are aged 8 and 7 and their youngest daughter is 6 years of age. The couple had separated since 2009 yet the Defendant often visited the victim’s mother and their children at home. 

Mitigations

8.Mr. Simon Ng, counsel for the Defendant, prefaced his submission by acknowledging the seriousness of the present offences. He prayed in aid of the fact that his client had pleaded guilty thereby saving the victim having to come to court to testify against her own father and the embarrassment of being cross-examined on the matter. At one point, Mr. Ng was trying to put forward an explanation, based on the instruction of his client, that the Defendant did what he did all because the victim refused to get up from the bed and she also refused to take bath. When Mr. Ng was requested to give more details and queried the co-relations between his explanation and his misconducts towards her daughter, he did not press further and withdrew this submission. Concerning the psychologist’s remarks that the Defendant maintained a denial attitude to the present offences, Mr. Ng had clarified with the Defendant and confirmed that his client was not trying to deny his indecent misconducts as alleged in the summary of facts which were already agreed. He just did not want to discuss the matter in great details. Mr. Ng wrapped up his mitigations by saying to the court that the defendant is indeed very remorseful for what he had done to the daughter and he reminded the court that although there are two separate charges, the two charges were in fact arising from the same incident so perhaps the court can consider imposing at least a partially consecutive sentences in respect of both charges.

9.Mr. Ng also submitted to the court a letter from the Defendant expressing his remorse and also two letters from the victim and victim’s mother indicating their forgiveness towards the conduct committed by the Defendant.

Sentencing considerations

10.When I come to sentence this defendant, I bear in mind the mitigations put forward, the criminal records and the background of the defendant as well as the authorities submitted by both parties. 

11.Indecent assault, and particularly indecent assault on young children, is always regarded as serious offences.  In the case of Huang Long Wei, CAAR 5/2008, the Court of Appeal had succinctly summarised the sentencing principles and I cannot do better than repeating the same principles here.  The Court of Appeal had said:-

“12. In 1999, the maximum term of imprisonment for the offence of indecent assault was increased from 5 years to 10 years in order to reflect the gravity of the offence. The court has also made it clear that indecent assaults on young children by adults are serious offences: see HKSAR v Yau Kin Wai CACC 398/2003.

13. The sentencing principles laid down by the court for the offence of indecent assault on young children by adults have highlighted the following three crucial considerations:

(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.

see HKSAR v Chan Ching Ho [2000] 3 HKLRD 476.”

14. Given the diverse circumstances pertaining to this kind of offence, in particular the diversity of the acts of indecent assault, the Court of Appeal has not seen fit to lay down any tariff for this kind of offence. That said, the courts must sentence on the basis of the said sentencing principles. In addition, the courts have to consider three other important factors:

(1) Even if no psychological assessment report on the abused victim is available, the court cannot overlook the possibility of the victim suffering psychological damage as a result of sexual abuse: see HKSAR v See Tak Man, [1998] 1 HKLRD 794, and HKSAR v Kong Yun Chiu [2007] 4 HKC 391.

(2) It is rather difficult to detect this type of offences because child victims of sexual abuse would normally be at a loss and feel too embarrassed to complain to their parents or teachers about the molestation: see SJ v Wong Tsz Kin [1998] 4 HKC 32; and

(3) In dealing with this type of offences, the courts will regard the protection of children as the most important consideration: see HKSAR v Kam Wing Yin CACC 515/2005.”

12.I note the two letters written by the victim and her mother, expressing their willingness to forgive the Defendant. I must say at first I have some reservations on how the victim’s letter came into being given what the clinical psychologist has told me that the victim was still very angry of her father in the report. This morning, I was informed that the police had spoken to the victim about this letter and she confirmed that it was written by her on her own free will. Be that as it may, I am wary of the fact that the present crimes were committed in a domestic context and it was not unusual for the mother and the daughter to now sought to minimize the defendant’s punishment. However, in my judgment, due to the seriousness of the offences, the significance of their forgiveness is greatly reduced. The court should not overlook the impact of these offences on the public at large, whatever the view the victim, her daughter, might have now expressed. In my mind, the Defendant should still be punished as he deserves.

13.During the course of mitigation, Miss Chow and Nr. Ng had both helpfully submitted to the court a number of authorities concerning indecent assault on young children. I am not here to refer to the facts of each individual case in details.  I am not saying that those cases are not important or useful for my consideration but as always, each case has its own facts. However, in comparable cases, the sentences imposed particularly by the Court of Appeal will be of high value for references.

14.During my own research, I am able to locate a case: HKSAR v Chen Guojin, (unreported) CACC 112/2010 which is of a high reference value.  In that case, Chen was a boyfriend of the victim’s mother.  The victim’s mother was married with a son and a daughter and the daughter in particular was about 9 years old.  At the material times, Chen was entrusted by the victim’s mother to take care of her son and the daughter at home.  In Charges 1 and 2, which were the same indecent assault charges as in the present case, what Chen in that case had done was that on both occasions, he climbed up to the upper bunk bed and slept next to the 9 year old daughter of the victim’s mother.  He then used his fingers to molest her vagina and her breasts for a few minutes despite the victim’s protest.  The victim later complained to her mother but the mother ignored her and just told her to lock the door.  The matter was finally exposed when the victim made a complaint to her godmother and a report was made to the police and Chen was arrested. 

15.The case came before in the District Court.  For the two indecent assault charges, the sentencing Judge adopted a starting point of 4 ½ years and reduced the sentence to 3 years because of the plea.  On appeal, the Court of Appeal, after considering the two cases, Kong Yun Chiu, CACC 315/2006 and Chan Ching Ho, Owen, CACC 549/1999, which were also referred to me for consideration by Miss Chow, came to the view that the degree of indecency were much worse in those two cases and therefore the sentences imposed by the sentencing Judge were clearly on the high side.  In the end, the Court of Appeal held that in relation to the two counts of indecent assault, a starting point of 3½ years would be adequate and it would be reduced to 2 years and 4 months on each count to reflect the guilty plea.

16.I consider that the facts of the present case and in particular the indecent acts complained of by the victim, are indeed very similar to the indecent acts complained of in Chen Guojin.  If anything, it is simply more serious in that the Defendant in this case is not just a guardian but the natural father of the victim. Although the Clinical Psychologist had said that no obvious emotional problem is identified about the victim, it is not difficult for me to imagine the anger, the stress and the frustration that she has to go through and cope with because of the incident especially when the molester is her natural father. The conduct of the Defendant is most outrageous and morally despicable and because of that, in the end, I consider that an appropriate starting point for the indecent assault in this case is 3 years and 9 months which is 45 months.

17.For the AOABH charge, it is more serious than an ordinary case of assault as there was no grudge between the parties and there was also no provocation by the victim. The victim naturally looks upon her father for protection but instead, the Defendant hit her daughter’s neck when she resisted her indecent assaults and tried to push him away in the course of the molesting her breast. After accusing the victim of avoiding him, the Defendant even further punched her on the nose causing her to bleed. The victim was completely powerless while the Defendant had complete control over her and she was so vulnerable to the abuse by her father. During this offence, the victim did not only suffer physically but also psychologically. I consider that only a starting point of 15 months is sufficient so as to reflect the nature and the background and the seriousness of this charge.

18.The Defendant pleaded guilty and it is by far the only mitigating factor which is effective.  For Charge 1, the sentence is reduced to 30 months and for Charge 2 the sentence is reduced to 10 months. The AOABH offence is part of the background of the indecent assault offence but it is a separate offence with added culpability. I consider a partially consecutive sentence with Charge 1 is appropriate. Bearing in mind the totality principle, I order 4 months of the sentence of Charge 2 to run consecutively with the sentence of Charge 1.

Order

19.In total, I therefore sentence the Defendant to an immediate custodial sentence of 34 months’ imprisonment for both charges.