HKSAR v. Wong Tung Wah, Alan

DCCC 604/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 604 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of indecent assault on a girl aged 7.

2.On 21 May 2015, the defendant lured the victim, who was unknown to him, to a staircase of a building in Un Chau Street, Cheung Sha Wan, Kowloon.  On the stairwell, he stood behind X, the 7-year-old victim, who was in her school uniform.  He clamped her between his legs and rubbed up against her.  His penis must have been exposed because he ejaculated onto the back of her school uniform.  X felt him touch her buttocks but she does not know with which part of his body.  The defendant told her he would buy her some food, which she declined.  He then left the building first; she then left on her own.

3.The victim, at home, told her father and her uniform was found to have stains on the back of it.  The victim had never seen the defendant before.  The victim was taken to hospital and there was no physical evidence of injury or abuse. 

4.The police did find CCTV footage and it captured the defendant and X entering the building at 7 pm with the defendant leaving at 7.06 pm.  That is a total of six minutes and, luckily, not a prolonged assault. 

5.The next day, a very observant police officer saw the defendant walking on the street.  He recognised the defendant because he was wearing the same clothes as the police saw on the CCTV footage.  The defendant was arrested.

6.Under caution, the defendant admitted the offence.  He frankly admitted to the police that he took his penis out of a hole in his trousers, rubbed the victim’s buttocks and waist.  He ultimately ejaculated on her school uniform. 

7.The defendant is 44 years old.  His best mitigation is his plea of guilty. 

8.I adjourned for a background report, a psychological and a psychiatric report.  It is clear from the reports and what has been said on behalf of the defendant by Mr Lam that he had a sad childhood. He was abandoned by both parents because they remarried and did not want the defendant living with them.  The defendant was brought up by a godmother.  As an adult, he has low self-esteem and personality issues.  This is not surprising considering his upbringing.  The psychologist conducted some tests and the defendant is not a highly intelligent man but he has managed to work all his life and lead an independent existence.

9.The defendant is married with a 16-year-old son.  Sadly, his marriage is not a happy one and he is in constant conflict with his mother-in-law who lives in their home. 

10.He is also not a man with a clear record.  In fact, he committed a similar offence in 1991 when he was 20 years’ old.  I accept that this was 24 years ago.  I have had sight of the brief facts of that conviction which was submitted by the prosecution.  I am going to mark it as MFI-1.  Just briefly, in that case 24 years ago, he befriended a 9-year-old student and would accompany her home after school on occasions.  Her father found out and followed them on one occasion.  He saw the defendant carrying his daughter with his hands under her school uniform.

11.I adjourned after the defendant’s plea for several reports, but I did not have a victim impact assessment report at hand because the family refused to subject X to assessment by a doctor. 

12.I will not repeat the details of the reports I have received but it explains in full the defendant’s upbringing which, I repeat, was not a happy one.  It does divulge that he and his son have a good relationship and he and his wife have a fair relationship.  He has worked most of his adult life, has no hobbies and lives a quiet life with no obvious vices.

13.On the date of the offence, an incident occurred involving the defendant’s son, which led to an argument with his mother-in-law.  He left the home and was in an exceptionally bad mood.  He frankly says he committed the offence impulsively; he now feels ashamed and remorseful.  His wife is obviously shocked but still supports him.

14.The psychologist is of the view that the defendant has a paedophilic disorder and not long before this offence occurred, he had been given some child pornography and he felt aroused when he saw the victim on the street.  After he assaulted the victim, he felt relief.  The psychologist is of the opinion that the risk of the defendant reoffending is moderate, even though he is a reoffender.  Treatment is recommended and it seems from the report that that risk may change with treatment.  The defendant is clearly willing to receive treatment and it has been made known to me that he has not received treatment in the past.

15.There are no guidelines for sentencing cases of indecent assault on young children and I agree with the defence submission that this set of facts here are not the most serious for a case of this nature. 

16.I have considered the factors that are relevant for sentencing as set out in the authority of HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239, in particular, paragraphs 13 and 14.  From that authority, what is relevant to this case is the fact that the victim is young, only 7.  The defendant lured her to a secluded stairwell under false pretences but the defendant did not know her before the offence and I accept it was not a premeditated plan.  There was no physical harm to her despite the offence.  There has to have been some trauma to the victim; I will accept that even without an assessment report.  The defendant’s act was repulsive but at least the victim did not see his penis or see what he did to her.  Lastly, the psychologist is of the view that he has paedophiliac tendencies and that there is a risk of reoffending.

17.As I have said, treatment is offered, which he has never had, and hopefully the risk will dissipate.

18.The Court of Appeal, in that authority, also made it clear that the offence is very serious and heavy sentences are required to deter offenders.  The mischief that the deterrent sentences are targeted at is the sexual exploitation and abuse of children.  The court should impose sentences severe enough to deter others from committing similar offences.  Such sentences will also serve to show the abhorrence of the public to crimes of this nature.  It also serves to redress the grievance suffered by the victim and her family.

19.Defendant, please stand up.  After considering mitigation put forward on your behalf, your background, the details of all the reports that I have obtained, the facts of the case and the act of the abuse as well as the relevant factors for sentencing such cases, I will take a starting point of 2 years and 3 months.

20.You have pleaded guilty; you are entitled to a discount of one-third.  After that discount is applied for this offence, you are sentenced to 1 year and 6 months’ imprisonment.  I also order that you receive psychological treatment whilst serving the sentence.