HKSAR v. Lee Man

DCCC 663/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 663 OF 2015

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REASONS FOR SENTENCE

The defendant faces 2 charges of "Falsely pretending to be a public officer" (Charges 1 and 3); 2 charges of "Indecent assault" (Charges 2 and 4); and 1 charge of "Indecent conduct towards a child under the age of 16 years" (Charge 5).

2.He pleaded guilty to Charges 2, 4 and 5.  The prosecution applied to leave Charges 1 and 3 in the court file; not to be proceeded against him without leave of court.  I granted the application.

Summary of Facts

Charge 2

3.In March 2015, X was an 11-year-old boy.

4.About 6:00 pm on 24 March 2015, X was on his way home from tutorial class.  He crossed Bailey Street diagonally.  The defendant suddenly appeared and accused him of contravening traffic regulations.  The defendant showed X a card bearing the name of LEE Man and told X that he would be prosecuted.  X believed that the defendant was a police officer.

5.The defendant demanded to search X claiming he received information that some young students were carrying drugs.  He took X to the staircase of a nearby building and instructed X to pull up his shirt.  X did so.  The defendant then ordered X to take off his trousers for a search.  He touched X on his armpit, back, thigh, penis and scrotum for about 30 seconds.  Suddenly, someone came down the stairs.  The defendant told X to leave quickly.

6.When the defendant and X were walking away from the building, he told X that he could offer X tutorial classes.  The defendant used his mobile phone to take a photo of the front page of X's student handbook and asked X for his phone number.  X refused to disclose his phone number, but said he would add the defendant to his Facebook.  The defendant then asked X for details of his Facebook account before he allowed X to leave.  X complied with the defendant's request because he was in fear and concerned with his own safety.

7.About 7:10 pm on the same day, X complained to his father, who then reported the matter to the Police.

Charges 4 and 5

8.In June 2015, Y was a 14-year-old boy.

9.About 4:20 pm on 3 June 2015, Y was on his way home from school.  At the junction of Hung Hom Road and Hok Yuen Street East, he was about the phone his mother.  The defendant suddenly appeared and accused Y of disobeying a red light and would be arrested by police officers.  Y asked the defendant to let him go and indicated that he had to call his mother.  The defendant allowed Y to call his mother, but told Y not to reveal the defendant's identity.  Y asked the defendant to show his police warrant card.  The defendant said he did not carry his warrant card because he was not on duty at that time.  He claimed that if he took Y to the police station, his colleagues would recognize him.

10.The defendant demanded to search Y claiming that he suspected Y was in possession of dangerous drugs and being a cigarette smoker.  He took Y to a cubicle inside a male toilet at the Laguna Mall ("the Mall") and locked the cubicle door.  He told Y to unzip his school bag to allow him to inspect its contents.  The defendant also said he would check whether Y's hair and neck had cigarette smell.  He moved closer to smell Y and his mouth almost touched Y's face.  Next, the defendant ordered Y to take off his school uniform, pull up his undershirt and raise both arms to allow him to inspect if Y was in possession of dangerous drugs.  He watched Y's naked body for a while and told Y to put down both arms.

11.The defendant then told Y to take off his trousers so that he could check if Y was concealing dangerous drugs in his lower body and buttocks.  Y took off his underpants and lifted up his scrotum as instructed.  The defendant said according to police intelligence, some people concealed dangerous drugs inside their foreskin.  He ordered Y to roll up his foreskin for an inspection.  Y looked puzzled, so the defendant unzipped his own trousers and demonstrated how to roll up the foreskin. He ordered Y to do the same.  Y did so.  The defendant asked Y if he could erect his penis.  Y said he would rather go to a police station for a search. The defendant told Y that there was no need to erect and ordered Y to put his underpants and trousers back on, pick up his belongings and leave.

12.When the defendant and Y were walking in the Mall, he searched Y's school bag again claiming that he was checking for dangerous drugs.  He told Y repeatedly not to disclose the incident to others, fearing that others may say he favoured Y.  When they left the Mall, Y asked the defendant where the nearest police station was.  The defendant was unable to answer and gave an excuse that he was in a hurry.  He stressed repeatedly to Y that the incident should never be revealed to others. He left Y when they reached Hung Hom Road near Tai Wan Road East.

13.Y suspected that the defendant was not a police officer when he told Y to roll up his foreskin.  Y did so because he was in fear at that moment.  Y complained to his mother on the same day.  She immediately reported the matter to the Police.

Arrest and Admissions

14.The images of the defendant and Y were captured by the CCTV system of the Mall.  Upon checking the CCTV footage of a nearby commercial building, the Police discovered that the defendant was working at a jewellery shop on the 21^st Floor.  He was arrested outside his work place on 5 June 2015.  Under caution, the defendant claimed that in the afternoon on 3 June 2015, he taught a student a lesson, but did not impersonate a police officer or indecently assault the student.

15.In his video recorded interview, the defendant admitted in details how he indecently assaulted X and Y, but denied having claimed to be a police officer in front of Y.  He admitted being interested in young boys because when he was young, he was abused by a male who claimed to be a police officer.

16.The CCTV systems of the nearby buildings have captured the defendant following X and Y at the time of the offences.  On 10 June 2015, Y positively identified the defendant in an identification parade.

Mitigation & Sentence

17.The defendant is now 37. He is married with a daughter (21 months old) and has a clear record.  He worked as an accountant in a jewellery company.  A bundle of mitigation letters was placed before me; their contents are duly noted.

18.In mitigation, defence counsel Mr. SO submitted that the defendant was abused when he was young.  As pointed out in the expert reports, he tried to re-enact what he had experienced when he was a child, except this time he played the role of perpetrator.  Mr. SO stressed that the defendant is genuinely remorseful.  By pleading guilty to the charges, he spared the embarrassment of X and Y giving evidence in court.

19.Mr. SO has submitted a Psychiatric Report on the defendant (prepared by a psychiatrist in private practice) for my reference.  I have also called for a Clinical Psychologist's Report.  The opinions of both the psychiatrist and clinical psychologist are more or less similar.  Dr. PAU of the Correctional Services Department made the following remarks :-

"Psychosexually, Mr. LEE [the defendant] displayed signs of paedophilic disorder towards prepubescent boys, which is a kind of deviant sexual interest. In consideration of Mr. LEE's age, victim characteristics, deviant sexual interest, criminal history, and the nature of the present offence, his risk of re-offending was assessed to be low-moderate. Psychological treatment focusing on his impulse control, distorted sexual interest, and prevention of sexual re-offending is recommended."

20.Prosecuting counsel Ms. CHENG informed me that the mothers of X and Y do not wish their respective sons to be approached for a Victim's Impact Assessment Report.  Both of them have indicated that X and Y have settled well after the incidents.

21.In SJ v HUANG Long Wei [2009] 3 HKLRD 136, the Court of Appeal held[1] :-

The sentencing principles laid down by the court for the offence of indecent assault on young children by adults have highlighted the following 3 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;

(3) to redress the grievance suffered by the victim and his/her friends and relatives.

… In addition, the courts have to consider 3 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;

(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; and

(3) In dealing with this type of offences, the courts will regard the protection of children as the most important consideration.

22.I have taken into consideration the defendant's acts, their degree of indecency, the impact of the indecent acts on the 2 victims and the defendant's background[2].  I am of the view that the appropriate starting point[3] for each charge is 15 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 10 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for each charge is 10 months' imprisonment.

23.The 2 incidents are separate and distinct.  Hence, their respective sentence(s) should run consecutively as a matter of principle.  Regarding the incident related to Y, I consider Charge 5 an extension as well as aggravating feature of Charge 4.  Having considered the totality principle, I order the sentences to run in the following manner :-

(i) 2 months in Charge 4 consecutive to Charge 5; and

(ii) 4 months in Charge 2 consecutive to Charges 4 and 5.

Thus, arriving at a total prison term of 16 months.

24.As recommended by the clinical psychologist, I invite the Commissioner of Correctional Services to arrange for the defendant to receive the necessary psychological assessment and/or treatment in order to reduce the risks of his re-offending.