HKSAR v. C.C.W.

HCCC 408/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 408 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.This is a case of incest where the defendant had sexual intercourse with his sister on two occasions and indecently assaulted her on another occasion. The first incest took place on a day in July or August 2013 when he was 16 and she was 13.  The second incest took place on a day in September 2014 when he was 17 and she was 14.  The indecent assault took place on 7 May 2015 when he was 18 and she was 14.

2.When the defendant was confronted about this matter, he fully and frankly admitted what he had done and this was followed by him entering early pleas of guilty to the three charges laid against him.

Dealing with a young offender

3.It is a fundamental principle the when a court is dealing with a young offender, it is necessary for it to ensure, as far as the law permits, that he receives a sentence that is appropriate in light of his personal circumstances and needs and that would give him the best chance to reform and rehabilitate.  See HKSAR v Cheng Ka-wing [2001] 2 HKLRD 260, 264.  However, this principle needs to be appropriately considered together with the circumstances and seriousness of the offence.  

Incest between a brother and sister

4.It should be recognised from the outset that the courts have distinguished, and therefore treated differently, incest between father and daughter, and brother and sister.  

5.In R v Wong Kin Wa [1989] 1 HKC 143, the Court of Appeal held that incest between a brother and sister should be treated very differently from incest between father and daughter.  In that case, the applicant when 16 committed a single offence of incest with his 13 year old sister who later gave birth to a baby girl.  Upon his plea of guilty, he was sentenced to detention in a training centre which was overturned by the Court which ordered his immediate release.  It was noted that no coercion had been exercised in the commission of the offence and no complaint had been made by the applicant’s sister to her parents of what had happened.  It was also noted that from the reports obtained it was observed that sex education and counselling would assist the applicant in his future adjustment and in rebuilding his relationship with his family.  The Court observed that the applicant had already been detained for six months in a training centre during which he was given psychotherapy treatment and sex education and concluded that the sooner he was released and made the necessary adjustment with his family, the better.  Clearly the Court was guided by the reports from which it determined what was in the best interests of the applicant and his family, including his sister.

Background facts

6.The defendant was arrested and charged in relation to this case on 8 May 2015 and has been in custody since then.  This is a period of nearly nine months which with the one-third discount on a plea of guilty is the equivalent of having served a term of imprisonment of nearly 13 months.

7.He pleaded guilty to the three offences for which he was charged at the earliest opportunity in the Eastern Magistrates’ Court on 16 October 2015.  The facts agreed by the defendant in relation to the three offences can be briefly stated as follows.  The two incidents of incest occurred in the Summer of 2013 and in mid September 2014 respectively.  On both occasions, the incidents occurred in the sister’s bedroom at the family home when the parents were away.  On both occasions, she was lying on her bed and he fondled her breasts and private parts.  He removed her clothing and fondled her vagina and then had intercourse with her which lasted about 5 minutes.  He then masturbated and ejaculated on a tissue paper.  On both occasions, he did not use a condom.  On the first occasion, she remained motionless throughout the intercourse to indicate her disapproval of what he was doing.  On the second occasion, she moved her body aside to indicate her disapproval but he continued and had intercourse with her.  Also on the second occasion, the defendant on the next day sent her a WhatsApp message apologising for what he had done and said he was too impulsive.  She asked him to stop “interfering” with her and he promised that this was “the last time”. 

8.The third incident took place on 7 May 2015 at the family home when the defendant indecently assaulted his sister.  The sister that day did not go to school as she was ill.  Later in the afternoon, when the defendant returned from work he went into her bedroom.  She was lying on her bed and he started fondling her breasts and vagina and grasped her hand to touch his penis.  He then masturbated and ejaculated on a tissue paper.  The incident lasted about 10 minutes.  She turned her body aside to indicate her disapproval of what he was doing and she kept her eyes shut as she was scared. She sent messages to her friends asking to see them, and on her way she met her class master and asked her for help.  It was then she disclosed what had happened that day and on previous occasions.  Her mother was notified and they made a report to the police. 

Background reports for sentencing

(a) Background report

9.Reports were called for in the present case.  The background report was prepared by a probation officer who explains that the defendant comes from a working class family consisting of his parents and sister.  Both parents come from fishing communities and worked in the fishing business for a while but later the father worked as a construction worker and the mother as a factory worker.  During their early years, the defendant and his sister were cared for by the maternal grandmother and it was later when they were attending secondary school that they came under the care of their parents.  It would appear that the family members had a good and harmonious relationship with each other and the defendant and his sister in particular got on well.  Although, it seems that after these incidents there were occasions when the defendant’s sister would go against him.

10.The defendant was an average student who kept to himself and avoided trouble.  It does not appear that he displayed any bad traits or habits and seems to have been somewhat of a loner.  His school reports were overall satisfactory and he completed Form 6 studies and attended Hong Kong Diploma of Secondary Education Examination just prior to the time of his arrest for these offences. 

11.At some stage, he started browsing pornography on the Internet and getting sexually aroused.  His parents observed that he may have been viewing pornography but took no action to stop him as he would simply deny it. 

12.The defendant in his interview with the probation officer is reported to have frankly admitted the present offences and expressed his regret for sexually abusing his younger sister.  He admitted that he browsed pornography on the Internet and was sexually aroused before committing each of the offences.  He acknowledged that the offences were serious and realised the harm that he had caused his younger sister.  He also acknowledged the family support that he had received and expressed his readiness to serve any sentence imposed on him for what he had done, after which he wished to turn a new leaf.

(b) Detention centre and training centre report

13.A report was also submitted on his suitability for detention at a detention centre or training centre.  The Assessment officer provided a background of the family of the defendant.  He noted the defendant’s father is a construction site worker and that the mother is a housewife.  The sister is 15 and currently a Form 2 student.  The defendant had completed Form 6 in February 2015 and sat for the Hong Kong Diploma of Secondary Education Examination in April 2015, after which he worked as a part-time petrol station attendant.  The defendant and his family previously lived with relatives in a public housing unit until 2012 when the family rented a squatter hut which had three bedrooms and a living room.  The officer depicts the parents of the defendant as working class and hard working people who out of necessity relied on the maternal grandmother to look after the children.  All in all, the family members had a close and harmonious relationship with each other and the defendant and his sister got on well with one another.  It was observed by the officer that the parents come from a traditional background and little if any guidance on sex education was given to the defendant who began to be influenced by browsing pornography on the Internet.

14.The officer also recorded that the defendant received satisfactory grades during his primary and secondary school years.  It was also noted that he was overall a good student who did not display any behavioural problems. 

15.The defendant when interviewed by the officer gave a full and frank account of his sexual encounters with his sister and confirmed that he viewed pornography on the Internet and this aroused him sexually and resulted in him carrying out the offences. 

16.The officer noted that after he sat for the Diploma of Secondary Education Examination in April 2015, he commenced working as a part-time petrol station attendant and it was during this time that he committed the third offence when he indecently assaulted his sister inside her bedroom at their home.  The defendant’s sister mentioned the matter to a school teacher and this resulted in the matter coming to the attention of the authorities. 

17.The officer noted that since the defendant’s arrest and incarceration, he has behaved himself and conformed with institutional rules and regulations.  During the interview with the officer, the defendant presented as a bright young man who acknowledged his wrongdoing which he deeply regretted.  It seems that because of the defendant’s improper “sex value”, the officer doubted his claimed determination to start afresh. 

18.The officer referred to the family support that the defendant had received, in particular from his parents, and he noted the concerns that they had expressed about his well-being and that of the family. It seems that the mother is spending more time with the defendant’s sister and caring for her during this ordeal. 

19.The officer in his concluding remarks, noted that the defendant had received little if any sex education from his parents and the lack of guidance in this regard attributed to the defendant’s incorrect “sex value”.  He noted that the defendant appeared to have been influenced by pornographic material on the Internet and because of his sexual curiosity, weak self control and improper “sex value”, he engaged in the current offences. From his general assessment of the defendant’s behaviour and attitude, he recommended that he would be suitable for detention in a training centre in order to receive supervision and address his “weak law-abiding concept”.

Evaluation of the reports

20.From my overall assessment of the reports and the information and material before me about the defendant, I am in no doubt that he needs to be given counselling and sex education.  From my point of view, it seems critical that the defendant receives appropriate counselling to address his sexual immaturity and irresponsibility.  I am also in no doubt that the family members need to be given the opportunity to rebuild their relationship with each other so that they can move towards a better future. 

Testimonials on behalf of the defendant

21.I have had submitted to me a number of letters on behalf of the defendant, including one from his sister.  It is imperative in the sentencing process of the defendant that the effect that these incidents have had on the defendant’s sister is not overlooked or underestimated.  The victim of crime has a voice in the sentencing process of a defendant.  I have ascertained that this was a letter written by the defendant’s sister on her own volition and in her own words.

22.She tells me that what her brother did to her, hurt her gravely and destroyed her trust in him.  She even blames herself for not speaking up earlier but explains that she did not know how to deal with when it first happened.  She says frankly that the defendant is her only brother and wants her family back as it was in happier times.  She said that since this matter had come to light her family has been unhappy.  She says she wants her family to move on and to forget the unhappy things.  She says she has forgiven her brother for what he has done to her and asked that he be treated leniently.  I have made inquiries about how this case has impacted on the defendant’s sister and how she is coping with the current situation.  She is a Form 2 student.  I am informed that she is performing satisfactorily and is living with her maternal grandmother. 

23.Other letters have been submitted by family members and friends who have expressed surprise and disappointment by the defendant’s behaviour towards his sister.  They all acknowledge that the defendant is a person of good character who is well liked within the family but who is deserving of punishment for what he has done to his sister.  They all ask that the court shows the defendant leniency when sentencing him, and in particular that he be given a chance to reform himself and be reunited with the family soon. 

Mitigation on behalf of the defendant

24.In mitigation, it was submitted by Mr Richard Wong, counsel for the defendant, that a number of matters in this case need to be highlighted and taken into account when passing sentence on the defendant. They are: that on each occasion the defendant did not use force on his sister; that when he had sexual intercourse with her he ejaculated outside; that he was of young age at the time of each incest offence; that he was sexually immature which was partly due to a lack of parental guidance and sex education; that he is a person of generally good character; that he cooperated when confronted about the matter and made full and frank admissions; and that he pleaded guilty to the offences charged at the earliest opportunity and avoided his sister of going through the ordeal of giving evidence in a court of law. 

Sentencing the defendant

25.I am satisfied that the defendant has displayed genuine remorse and empathy with the victim of his crime, his sister.  I am also satisfied that with appropriate counselling and sex education, the likelihood of him reoffending is extremely low.  The defendant has served the equivalent sentence of 13 months’ imprisonment and I will bear that in mind when passing sentence on him. 

26.It seems to me that in the case of incest between a brother and sister that the appropriate sentence is likely to lie within a very wide range of sentencing options, depending on all the circumstances of the case.  However, any form of sexual abuse is serious, and especially when the victim is of a young age.  In such circumstances, this type of offence would normally call for an immediate custodial sentence.  Factors that a court may take into account when sentencing for an offence of incest between a brother and sister include: the ages of the offender and the victim; the nature of the relationship between the two; their respective characters and maturity; the impact and harm on the victim; the number of occasions when penetration occurred; and the circumstances of the sexual relations and any consequences that followed. 

27.In the course of submissions from Mr Wong, it was apparent that a probation order may be an appropriate sentencing option at this stage now that the defendant has served the equivalent of 13 months’ imprisonment.  It must not be overlooked that a probation order can provide the means for appropriate counselling and sex education of the defendant so as to ensure such behaviour is not repeated and to assist him in rebuilding his relationship with his family.  In this regard, it serves both the individual offender and the family unit in addressing the matter in order to hopefully move forward on the right path.

28.A probation order may be imposed if in the opinion of the court it is expedient to do so having regard to the circumstances, including the nature of the offence and the character of the offender: section 3(1) of the Probation of Offenders Ordinance, Cap 298.  A probation order may in addition to supervision “require the offender to comply during the whole or any part of the probation period with such requirements as the court, having regard to the circumstances of the case, considers necessary for securing the good conduct of the offender or for preventing a repetition by him of the same offence or the commission of other offences”: section 3(2).

29.As noted in the recommendation of the Assessment officer, the defendant would benefit from appropriate supervision and this can be provided by a probation officer who will be responsible to supervise the defendant for the period fixed by an order of the Court.  It is open to the Court to also impose conditions in order to address the circumstances of the case and of the offender.  I consider it is essential in the present case that appropriate conditions be imposed to ensure there is no repetition of this behaviour by the defendant and to provide him with a program of care and supervision to assist in his rehabilitation and future development.  The conditions I have in mind are as follows:

(1) The defendant is to participate in and complete a vocational guidance and development program.

(2) The defendant is to attend and participate in psychological counselling program designed to address his particular behavioural issues.

(3) The defendant is to attend and participate in a sex education program.

(4) The defendant is to participate in such programs or counselling sessions as arranged by the probation service, including attending together with his family members any family counselling program arranged for them.

30.Mr Wong has discussed the conditions with the defendant and he confirms his understanding and acceptance of them.  I have also confirmed that to be the case with the defendant.  It has also been confirmed with the probation officer that the counselling and support as specified during the probation period can be provided. 

Probation order

31.I therefore make an order that the defendant be put on probation for a period of 3 years with the conditions I have mentioned above.  I will require a yearly report to be made to the Court as to the progress of the defendant pursuant to the probation order: Regulation 20 of the Probation of Offenders Rules. 

32.In reaching the sentence that I have imposed, I have not overlooked the harm suffered by the victim and hope she will derive some relief from her brother’s acknowledgment of his behaviour and the remedial action that has been put in motion to address the root cause of her brother’s offending. 

Mr Andrew Cheng, SPP of Department of Justice, for HKSAR

Mr Richard Wong, assigned by Director of Legal Aid, for the defendant