HKSAR v. Lam Fuk Hung

DCCC 740/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 740 OF 2015

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REASONS FOR SENTENCE

1.The defendant is charged with 3 offences of "Indecent assault" (Charges 1, 3 and 4) and 2 offences of "Unlawful sexual intercourse with a mentally incapacitated person" (Charges 2 and 5). He pleaded guilty to Charges 1, 3 and 4.

2.Upon application by the prosecution, I ordered Charges 2 and 5 be left in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

3.Female X (aged 43) is a mentally incapacitated person.  She has an IQ of 54.

4.In early 2014, X met the defendant (aged 58) in a fast food restaurant in Chai Wan.  They exchanged phone numbers.

Charge 1

5.In the morning on 31 December 2014, over the phone, the defendant invited X to go to his home ("the Flat").  X arrived shortly before 11:00 am.  Only the 2 of them were present at the Flat.

6.The defendant took X into a bedroom and stripped off her clothes, including her undergarment.  He then undressed himself and started fondling X's breasts.  He also molested her vagina with his fingers.  Later, he inserted a penis-shape vibrator into her vagina.  X was in pain and scared.  She repeatedly asked the defendant to stop but was ignored.  The defendant continued to fondle her breasts; and molested her vagina with his fingers and the vibrator in the bathroom and living room. X tried to resist but without success.  They left the Flat together about 4:40 pm.  The defendant threatened to disclose their relationship to her father if X told others about this incident.

Charge 3

7.In the morning on 1 January 2015, the defendant invited X to go shopping with him.  About 11:50 am, they boarded a bus at Chai Wan.  They went to the upper deck and sat on a row in the rear.  During the journey, the defendant put his hand inside X's shirt and fondled her breasts.  He also used his hand to molest X's vagina underneath her outer pants.  He then grabbed X's hand to touch his penis.  X tried to resist but without success.  They alighted from the bus at Wanchai.

Charge 4

8.In the morning on 2 January 2015, the defendant invited X to visit the Flat again.  X arrived about 12:40 pm.  The defendant took her into a bedroom.  He took off her clothes as well as his own.  He then inserted a penis-shape vibrator into her vagina.  X asked the defendant to stop and shouted for help.  She tried to push him away but without success.  They left the Flat around 3:50 pm.

9.When X arrived at her work place, a social worker (PW2) asked her why she was late.  X told PW2 that she went to visit her friend.  Later, X disclosed to PW2 that she went to the defendant's home.  He undressed her, and fondled her chest and vagina.  She tried to escape but without success.  X also mentioned that she was indecently assaulted by the defendant on 2 other occasions.  X told PW2 that the defendant had inserted a hard object into her vagina.

Arrest of the defendant

10.The defendant was arrested on 20 January 2015.  In his video recorded interviews, the defendant admitted having performed the indecent acts on X on the 3 specified dates, but claimed that it was X who initiated the intimacy.  He also claimed that X did not reject what he was doing to her.  The defendant admitted having inserted a penis-shape vibrator into X's vagina on 31 December 2014, but denied using any sex toy on 2 January 2015.  He further admitted that he and X masturbated each other on 1 and 2 January 2015.

11.The defendant was positively identified by X in a formal identification parade.

12.A Government Chemist found some bloodstain of X on the surface of the penis-shape vibrator seized from the Flat.

Mitigation & Sentence

13.The defendant is now 59 and has 2 conviction records, none of which is related to sexual offences.  His previous convictions are dated 1988 and 1997 respectively; and he received only a fine on both occasions.  Defence counsel Ms. CHEUNG informed me that the defendant has 2 adult daughters.  His wife divorced him after the present offences.

14.Regarding the defendant's background, Ms. CHEUNG submitted that he was educated up to P.6. He has been suffering from diabetes since the 1990s.  He needs daily medication and injection.  The defendant worked as a cook from 1996 to 2004.  In 2004, his physical condition did not allow him to work, and he had been resting at home since.  In 2014, he felt better and started to work as a part-time waiter.

15.In mitigation, Ms. CHEUNG submitted that no force or violence was used to bring X to the crime scenes.  The defendant's guilty pleas spared X the embarrassment and trauma of giving evidence in court.  The defendant wishes to offer his apologies to X in open court.  He requested for an earlier hearing date for plea, which should have brought an early end to X's anxiety of the pending court proceedings.  A letter written by the defendant was placed before me; its contents are duly noted.

16.A clinical psychologist's report on X dated 27 September 2015 was placed before me.  X finds the criminal prosecution of the defendant and the changes in the level of her freedom in her daily life both stressful and upsetting.  Fortunately, her condition does not fully satisfy the diagnostic criteria for Post Traumatic Stress Disorder.  She wishes to resume her normal life when she could go to different places independently. 

17.What the defendant did was very wrong.  He indecently assaulted X on 3 consecutive days (both in private and public).  X protested to his assaults but he did not stop.  The legislature thinks persons like X cannot protect themselves, so the law steps in.

18.When determining the appropriate sentence, I have borne in mind the sentencing principles for the offence of indecent assault on young children laid down by the Court of Appeal in SJ v HUANG Long Wei [2009] 3 HKLRD 136, which, in my view, are also applicable in the present case.  I have also considered a few other cases[1].

19.Taking into consideration of the defendant's acts, their degree of indecency, the impact of his indecent acts on X as well as his background, for Charges 1 and 4, I adopt a starting point of 2 years' imprisonment each; whereas for Charge 3, 15 months.  I am prepared to grant a discount more than the usual one-third[2], reducing the sentence to 15 months, 9 months and 15 months respectively.  Apart from this, I see no other mitigating factors which warrant any further reduction.

20.Bearing in mind the totality principle, I consider a global starting point of 3 years' imprisonment to be appropriate for all 3 charges.  With the more than one-third discount, the overall sentence becomes 22 months.  Hence, I make the following order :-

(i) 3 months in Charge 3 consecutive to Charge 1; and

(ii) 4 months in Charge 4 consecutive to Charges 1 and 3.

Thus, the total prison term shall be 22 months.