HKSAR v. Chan Kwok Chiu

DCCC 12/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 12 OF 2016

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Reasons for Sentence

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1.The defendant faces 9 charges (charge 1 to 9) of Indecent Assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200 and 1 charge of Indecent Conduct towards a child under the age of 16, contrary to section 146(1) of the same ordinance[1].

2.The defendant pleaded guilty to charges 1 and 4 to 10, and not guilty to the remaining charges. At the request of the prosecution and with the consent of the defendant, those remaining charges were ordered to be kept on file and not to be proceeded with without the leave of court.

Summary of facts

3.This case involved 4 female victims, X, Y, Z and A (respectively PW1-4), who were all primary school students  at the material time.

4.PW1, 3 and 4 were 14 years old. PW2, aged 12, was the younger sister of PW1.

5.The defendant was their private flute tutor, providing one-on-one lessons.

6.On 22 September 2015, PW2 (victim in charges 4 and 5) told her class teacher that the defendant had touched her breasts on numerous occasions during the flute lessons. PW2's mother was informed. She recalled that her other daughter, PW1 (victim in charge 1), had made a similar complaint to her back in 2013.

7.On 1 October 2015, the defendant sent a WhatsApp message to the mother asking for her forgiveness. The case was reported to the police. Two more victims, PW3 (victim in charge 6 and 7) and PW4 (victim in charge 8 to 10), were soon identified.

8.Video recorded interviews were conducted with the 4 victims. The following table summarizes the incidents:

PW	Date	Incident
PW1	On an unknown  day in August  2013 at her school in Kowloon Tong, Kowloon, Hong Kong [Charge 1 ]	When teaching PW1 to breathe, D put his hand on her belly.  He then moved his hand to her breasts and stayed there for a while.
PW2	On an unknown  day between 1 January 2013 and 31 December 2014 at her school in Kowloon Tong, Kowloon, Hong Kong [Charge 4]	D placed his hands inside the t-shirt of PW2 and moved his hands towards the breasts of PW2.
	On an unknown Saturday in July 2015 at her school in Kowloon Tong, Kowloon, Hong Kong [Charge 5 ]	D touched the breasts of PW2 during every lesson except on two occasions.  The last incident occurred in July 2015. PW2 was unhappy about it.  She told her friend about it at first, then together with her friend she disclosed the incident details to her class teacher.
PW3	On 10 and 31 August 2015 at No. 23 Wong Yi Au Village, Tai Po, New Territories, Hong Kong, i.e. D’s residence [Charge 6 and Charge 7]	Since June 2015, D often put his hand on her belly when teaching her how to breathe.  She remembered D doing this to her during the lesson on 10 August 2015 and the lesson on 31 August 2015.
PW4	Summer holidays in 2013, i.e. on a day unknown between 1 July (Monday) and 1 September 2013 (Sunday), both dates inclusive, at her school in Shau Kei Wan, Hong Kong [Charge 8]	D put his hand under her clothes and touched her breasts.
	Between the time when school resumed after summer holidays and the end of 2013, i.e. on a day unknown between 2September and 31 December 2013, both dates inclusive, at her school in Shau Kei Wan, Hong Kong [Charge 9]	D put his hand underneath her school dress and touched the belly of PW4.
	On an unknown day between 1 May and 30 June 2015, both dates inclusive, at her school in Shau Kei Wan, Hong Kong [Charge 10]	D grabbed PW4’s hand and put her hand under his pants.  D stopped after PW4’s hand touched some body hair.

9.The defendant was arrested on 7 October 2015 in relation to the complaints made by PW1 and PW2. Under caution, the defendant admitted that he had touched the breasts of PW1 and PW2 on impulse.

10.The defendant admitted to the assaults on PW1 and PW2 in his first video recorded interview. The defendant exercised his right to silence in the second video recorded interview and refused to answer questions in relation to the alleged assaults against PW3 and 4.

11.The defendant also exercised his right to silence in the third video recorded interview.

Previous convictions

12.The defendant is of previously clear record.

Mitigation

13.Some 70 letters of mitigation written by those who had known the defendant were submitted, including the defendant’s wife, parents of his students and fellow church goers. It can be gathered from the contents of the letters that the defendant is an accomplished flautist who is well loved and respected by his students and contemporaries. It is undeniable that he did contribute to the education of numerous students on the flute as well as the general appreciation of music.

14.The defendant is 56 and was born in Hong Kong. His father left the family when he was a teenager. The defendant has 4 brothers and 2 sisters. The father was not a responsible person and their mother shouldered the burden of raising the family. Because of the defendant’s father’s way of living as a gambler and drinker when he was still there, the defendant became an introvert, and was not able to air the psychological or mental pressure that he faced even after he got married.

15.The defendant holds a degree in music and is quite a renowned flute player. He used to be a professional player with the Hong Kong 小交. The defendant left Hong Kong in 1997 with his family, but returned to Hong Kong in 2005 in order to take care of the defendant’s elderly mother who is now 96.

16.The defendant is now living with one of his elder sisters in a 3 storey village house. The roof is used for the purpose of flute teaching, the 2^nd floor for his mother and elder sister, and the ground floor houses his sister-in-law and her family. The defendant is the sole bread winner of the entire family.

17.Up to most recently, the defendant has been working part time in order to support the family.

18.As revealed in the summary of facts, when the matter was revealed to the victims’ family and the mother complained to the defendant, the defendant immediately and frankly admitted to his misdeeds and apologized to the mother.

19.The defendant then fully cooperated with the Police during their investigation.

Sentence

20.The maximum sentence for indecent assault as well as indecent conduct towards a child under the age of 16 is that of 10 years' imprisonment. There is no sentencing tariff for either offence. There are however similar cases where the Court of Appeal had indicated the relevant factors to be considered in sentencing sexual cases involving young victims.

Sentencing principles

21.In the case of AG v Ho Yu Ping, Application for Review No.8 of 1993, the respondent was convicted on his own plea of 5 charges of indecent assault. The victims were pupils between the age of 10 and 13 years at a primary school where the respondent was employed as a teacher. The offenses were committed over a period of nearly 2 years. The assaults were of a minor nature: consisting of stroking of armpits and breasts and on one occasion, the hip. There were two occasions when he embraced or pressed his body against a girl. There was never any force or suggestive language used. 

22.The respondent was 40 years old and with no previous conviction. A diligent, intelligent and highly thought of man within his profession. The probation report called for by the trial judge spoke favorably of the respondent. It referred to his wife's illness which severely interfered with their close sexual relationship. In suppressing his sexual desire, he sought release in the indecent assaults he was found guilty of. He had been consulting a psychiatrist and had regained a balance of life afterwards. 

23.The psychiatric report stated that "the suppression of the respondent's normal sexual desire was channeled to be released through deviant acts", which themselves had the "unconscious function of being a 'cry for help'. The continuation of such acts would eventually lead to being caught and 'helped' at the end". The prognosis of his case was very good. 

24.As a result of the case, the respondent had lost his job and pension and resorted to practicing herbal medicine as a living. 

25.The Court of Appeal, in dealing with the 5 points put forward by the Applicant, firstly  found that the case was not a case where a short sentence would be appropriate. The case is aggravated by the breach of trust which puts it into a more serious type of case. 

26.The Court then referred to the English case of R v Cubitt where the original 6 years' imprisonment imposed after plea on the appellant teacher of a primary school who indecently assaulted a number of female pupils was reduced to 4 years. There the appellant was the deputy headmaster of a primary school, and the offenses were committed over a period of 4 years on girls aged 9 to 10 who attended the school. The indecent acts included touching of the girls' genitals, oral sex and masturbation of the appellant by the girls. It was held on appeal that Cubitt was in a position of trust and the offenses merited a substantial custodial sentence, although they were not themselves the worst of their kind. 

27.The Hong Kong Court of Appeal found that the nature of the respondent's assaults was clearly less serious than that in Cubitt, but other than that, the cases are comparable. The Court noted that apart from a school teacher's position of dominance over his pupils, he was also in a position of trust vis-a-vis the school which employed him, as well as his pupils' parents who have entrusted the care and education of their children to him. It is the abuse of trust which marks the gravity of the offences there. 

28.The Court found that since the offences were indisputably separate and distinct, involving different victims and different occasions, subject to the totality principle and to section 82(2)(a) of the District Court Ordinance, concurrent sentences were wrong in principle. 

29.Furthermore, the Court stated that where there is more than one offence of a similar nature committed at different times, it is right for the Court to award a higher sentence than if there had been only one offence. 

30.The Court then referred to, and approved, the following principles enunciated in various cases: 

"In the balance that the Court has to make between the mitigating factors and society's interests in marking its disapproval for this type of conduct, we come to the irresistible though unpalatable conclusion, that we must not yield to the mitigating factors."

"There are four classical reasons for sentencing: retribution, deterrence, rehabilitation and prevention. The last two have no relevance in this case. Retribution is a word which in recent years has been out of favour with criminologists. In modern sentencing policy it means no more than this, that there are offences which are so grave that the only way that judges can demonstrate that society will not tolerate a particular kind of conduct is by passing a sentence which truly reflects the abhorrence which right-minded members of the public have of the offender's conduct. The Lord Chief Justice used the phrase 'public abhorrence' when sentencing the applicant. We are of the opinion that he was right to do so."

"..that the Court has to pay full regard to the nature of the offence committed and to its possible effects upon the public weal."

"...the personality, youth or personal circumstances of the offender may pale into insignificance because of the magnitude or prevalence of the offence."

31.Having considered the above principles, the Court stated the following:

“In our judgment, the Court should keep a proper balance between the public interest in punishing the respondent for abusing his position of authority and trust by indecently interfering with small girls in his charge, and the regard we must have for his remorse and ready pleas of guilty, which obviates the inevitable trauma the girls would suffer in having to giving evidence in Court. We keep in mind also that had it not been for the pleas of guilty the prosecution would have been likely to have encountered difficulty in establishing the offences. These, however, were multiple offences committed over a long period of time.”

32.On the facts of that case, the Court of Appeal considered that the appropriate starting point for sentence should have been 18 months' imprisonment, with a one-third discount for the guilty pleas. The original sentence was however left undisturbed. It is not entirely clear from the judgment as to how the principle of totality would have been applied to the increased sentence. 

33.In the case of HKSAR v Kong Yun Chiu, [2007] 4 HKC, the applicant was the 28 years old maternal uncle of the 8 years old female victim. The applicant was lodging in the same premises where the victim was living with her parents. 

34.The initial offence took place in 1999 when the applicant asked the victim to take a bath and while she was in the bath, the applicant took off all his clothes except for his underpants and went in [the bath tub], and touched her breast and private parts. He later watched a pornographic video showing sex acts. At that time, the victim went over to him, and the applicant rubbed his penis through her trousers and his trousers, experiencing an erection. He later stripped the victim's trousers and knickers to below her knees, took off his trousers and underwear and rubbed his penis on the outside of her private parts. He masturbated and ejaculated at that time. 

35.The second offence took place at a different flat since the family had moved. The victim was in her night clothes, in bed and almost asleep when the applicant touched her under her nightdress. He touched her breasts and private parts through her underpants. He then pulled them down and touched her private parts, which woke the victim up fully. The applicant pulled down his own trousers and underwear and rubbed his penis against her private parts and masturbated and ejaculated. The victim resisted and pushed the applicant and ran out to the living room. 

36.The assaults were not exposed until 2005 when the victim complained about them to her school tutor. Even then, the family did not report the matter to the police. It was only after another couple of months later when the applicant made contact with the victim that she became frightened and consequently the matter was reported to the police. 

37.According to the reports prepared on the applicant, he had an unhappy upbringing and was assessed to be rather inadequate in terms of social contacts. The psychologist felt that whilst there was a low risk of sexual recidivism, he appeared to have little insight into his problems and downplayed the role of pornography in his life. He was evasive when talking about the offences and even at one stage seemed to place blame on the victim for what had happened. The judge found that the applicant did not strike her as being particularly remorseful. 

38.A statement was before the judge from the victim, who was 14 at the time of sentencing, in which she indicated that there was no difficulty relating to male friends. The long term effects on the victim did not seem to be serious.

39.The trial judge took a starting point of 6 years' imprisonment for each of the two counts and discounted them by one-third for the applicant's guilty pleas. She then ordered that 2 and a half years of the second count be served consecutively to the term imposed on the first count, making a total of 6 years and 6 months' imprisonment. 

40.In considering the applicant's appeal against the sentence, the Court of Appeal made the following remarks:

"Whilst the range of offences within the category of indecent assault is wide, the fact that the victim of such an offence is a child is always a severely aggravating feature. Viewed in the light of these factors, offences of the kind in this case call for substantial terms of imprisonment and one is bound to say that some of the sentences imposed in the past for indecent assault on children, for example those in Wong Tsz Kin [1998] 4 HKC 32, and HKSAR v See Tak Man [1998] 1 HKLRD 794, have been remarkably low."

41.The Court noted that there will be a range of offences against children the facts of which are more serious than their case, including for example, where there have been a number of victims. 

42.It was also pointed out that in their case, the acts of indecency were themselves most distasteful, the case was one of a breach of trust, and there was an attempt by the applicant to contact the child no doubt with a view to persuading her not to report the matter. 

43.The Court found that in these circumstances, an appropriate starting point for each offence was one of 5 years' imprisonment, and that with the normal discount for a plea of guilty, sentence upon each count should have been one of 3 years 4 months' imprisonment. The Court then ordered that 1 year and 2 months of the third count to run consecutively to the term imposed on the first, the remainder to run concurrently, making a total of 4 years 6 months' imprisonment. 

44.In HKSAR v Hong Yat Ming, HCCC 424/2009, a case relied on by counsel for the defendant to support his proposition that a greater discount than the usual one-third should be applied, the defendant pleaded guilty to 4 charges of indecent conduct towards a child under 16, contrary to section 146(1) of the Crimes Ordinance, and 2 charges of homosexual buggery with a man under 21 years of age, contrary to section 118C(a)[2] of the Crimes Ordinance. They carry the respective maximum sentence of 10 years and life imprisonment. 

45.The defendant pleaded guilty to the charges in the magistracy and was committed to the Court of First Instance for sentence. 

46.The victim of all 6 charges was a schoolboy born in January 1997. The offences were committed in the period of a little less than one and a half year, whilst the boy was aged 11 to when he was about 12 and a half. 

47.The defendant was the class teacher when the victim was in primary school P5 and P6. The defendant gave him private tuition after school hours and having won his trust and friendship went on to take him shopping when he bought him toys and clothing. 

48.The circumstances of the commission of the individual offences included the defendant inspecting the development of the victim's penis and masturbating him; the victim performing oral sex on the defendant at the defendant's request, ejaculating into his mouth' the defendant sodomising the victim without using a condom ; while in a taxi, the defendant placed his hand underneath the defendant's trousers but above his underpants, inviting the victim to stroke his penis; also in a taxi, the victim was requested to kiss the defendant's penis over his trousers; and another occasion of sodomy by the defendant on the victim without using a condom. 

49.According to the victim's psychological report, he had demonstrated excellent resilience to handle his experience of sexual abuse trauma, all clinical emotional or physical symptoms had subsided. There was no unusual anxiety in social situation reported, apart from some adjustment problem at school. There was no significant adverse effect on his relationship and boundary with other authority figures. 

50.A report was also prepared on the defendant and the clinical psychologist was of the view that the defendant may be developing paedophilic tendency, with the risk of sexual re-offending being within the the range of low to moderate. 'Psychological intervention targeting his self-esteem issues, problematic stress management, paedophilic tendency, as well as difficulties in handling intimate relationships and sexual needs' was recommended.

51.Lunn J identified the following aggravating features in the case: a gross breach of trust, and the betrayal of trust the victim's family placed on the defendant in permitting him to give him private tuition after school; a repeated course of conduct over a period of 12 months; failure to use a condom; and the victim and his mother had been subjected to trauma and distress, both requiring therapy. 

52.For the buggery charges, Lunn J took a starting point of 8 years ' imprisonment. In light of the indecency conduct in charges 1 and 2, a starting point of 3 years' imprisonment was adopted. In view of the lesser nature of the indecency involved in charges 4 and 5, a 2 years' imprisonment was adopted. 

53.In relation to the discount for sentence, Lunn J took into consideration the following when deciding on the amount of discount: (1) the defendant's admissions of his culpability to the victim's mother prior to his arrest, (2) his subsequent admissions to all the charges to the police officers who interviewed him, (3) his intimation of his willingness to plead guilty on the return day in the magistracy, and (4) the fact that he pleaded guilty. 

54.For those reasons, Lunn J was satisfied that the defendant was entitled to a greater discount from the starting point than the usual one-third. Lunn J accepted that the defendant's plea of guilty at the return day saved the victim from not only the need to give evidence at trial but also the anxiety that inevitably would be generated in him about the prospect of having to give that evidence at trial. He further accepted that it evidenced the remorse that the defendant had expressed through his counsel and in his letter to the court. 

55.This greater discount is what counsel for the defendant seek in reliance of the case. Counsel for the defendant however very fairly also referred to the following case on the issue of granting a greater discount. 

56.In HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239, the applicant pleaded guilty to 12 counts of sexual offences, namely 4 counts of indecent assault (charges 1, 8, 9 and 10); 6 counts of homosexual buggery with man under 21 (charges 2 to 7); 1 count of making child pornography and one count of indecent conduct towards a child under 16.

57.He was sentenced at first instance to a total of 12 years' imprisonment. 

58.The applicant was 37. The victims were 6 boys aged between 11 and 13. The offences took place in two periods of time, one from 2005 to 2007 and the other in 2010. 

59.The Court of Appeal found that the applicant was a paedophile. Although there is no tariff in sentencing sexual offenders involving young children, the Court identified the following factors as having been regarded as relevant in similar cases:

“13. …(1) The age difference between the defendant and the victim.

(2) The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust at the time of the offence?

(3) Whether the defendant had used threats or inducements to make the victim succumb, falling prey to his licentious exploitation?

(4) The number of occasions of committing the offences and the duration of the offences.

(5) Whether inappropriate and unnecessary violence was involved in committing the offences and whether any harm or discomfort was caused to the victim?

(6) Whether any suitable safety measures were taken in committing the offences and whether any hazard to the health and safety of the victim and the public was caused?

(7) Whether the offences have caused physical or psychological trauma to the victim?

(8) Whether the offences have impact on the family members of the victim?

(9) Was the defendant involved in other inappropriate behaviours such as inviting/permitting other people to watch or take photos/videos?

(10) Whether the defendant is psychologically imbalanced or paedophilic and the likelihood of re-offending?”

60.In addition to the above factors, the following overview should also be taken into consideration when sentencing:

1) The courts have taken a serious view on paedophiles preying on young children. This is reflected in the heavy sentence imposed in recent judgments.

2) The exploitation and abuse are usually the result of inducement or coercion. Inducement often takes the form of rewarding the children with money or gifts before or after the abuse.

3) The trauma, distress and psychological harm that are caused to young sexual victims have been recognized and court has indicated that in the vast majority of cases it can make such an assumption even without victim psychological reports.

61.One of the grounds of appeal put forward was that the trial judge had not discounted the starting point sufficiently in the special circumstances of the cases, namely, the early pleas of guilty, which avoided the need of the victims from giving evidence. The Court of Appeal noted the case of HKSAR v Chow Yuen Fai, but found that the facts in Lee Kwok Wai were not so exceptional as to justify a further discount over and above the usual one-third discount. 

Turning to our present case

Reports

Psychological report of the defendant

62.The defendant was defensive and presented himself in a self-favorable manner, with no sign of psychiatric problem.

63.Dr. Pau found that the defendant is a defensive and reserved person with low self-esteem. He could not accept that he was unable to become a professional music performer and had to work as a flute teacher, which he does not enjoy.

64.The defendant has an unsatisfactory sexual relationship with his wife with his sexual needs unmet in recent years. The defendant thought that his offending behaviors would not be detected, and the sexual excitement and lack of consequences had reinforced his subsequent offending behaviors. The defendant blamed the victims for wearing provocative clothing and being defiant.

65.It is the opinion of Dr. Pau that the defendant displayed the features of paedophilic disorder towards prepubescent girls, which is a kind of deviant sexual interest.

66.In view of the defendant's age, victim characteristics, criminal history and the nature of the present offenses, the risk of the defendant re-offending was assessed to be "low-moderate".

67.Dr. Pau recommended the defendant to receive treatment focusing on his deviant sexual interest, distorted sex attitude, marital problem and prevention of sexual re-offending.

Victim impact reports

68.Of the 4 victims, 3 were willing to meet with Clinical Psychologist for assessment and one refused.

69.One of the two 14 year old victims did not manifest significant psychological problems and maintained normal daily academic and social functioning and did not report any significant emotional disturbances. The impact on her was more on the broken trust in the teacher. No psychological intervention is required.

70.The other 14 year old victim remains scary of the defendant and the acts done on her. She has lots of self-doubts and struggles about reporting the case or not. She is angry at the defendant for not exercising self-control. After the matter was exposed, the girl is bothered by thoughts of possible revenge and uncertainty over the outcome of the case. The girl has ongoing concerns about the impact of the case on the defendant’s family and has added to her burden during the legal proceedings. It is recommended that should the victim notices aggravation of her conditions after the completion of the present legal proceedings to contact the clinical psychologist for further assistance.

71.In relation to the 12 year old victim, clinical psychologist Ms. Mak observed that she did express negative feelings about the incident in that she was disappointed, angry and anxious, especially because the offender was a reputable figure whom the family had trusted. She made the decision to disclose the incident to prevent other girls from becoming another victim. But the legal procedure that she had to undergo was annoying and stressful. She found that the incident had also brought distress to her family, especially her elder sister who was also a victim. Increased irritability and anger was expressed. She adopted coping strategies of avoidance and distancing to cope with the stress. Considering her behavioral manifestation and her presentation during the interview, Ms. Mak recommended psychological service to assist her to make sense of the experience and to manage the related emotional reactions.

Circumstances of the commission of the offences

72.As the flute tutor of the victims, the defendant was in a position of trust. All but one of the incidents took place at school when the victims were having their lessons with the defendant. The one exception was in relation to PW3, where the victim had her lesson at the defendant's residence in Tai Po.

73.There were 4 victims involved in total.

74.The offences were committed between January 2013 and August 2015, which is about 2 years and 7 months.

75.The degree of indecency in the charges are of a relatively minor nature, comparable to those in the case of AG v Ho Yu Ping, supra.

76.Balancing the various factors referred to above, I find that an appropriate starting point in relation to each of the 8 charges is that of 21 months' imprisonment.

77.For the contribution that the defendant had made to society, I will reduce the sentence by 3 months. For the fact that by the defendant’s pleas of guilty the victims were spared the ordeal of giving evidence, I  will reduce the sentence by another 3 months. The individual sentence for each of the 8 charges is therefore 15 months’ imprisonment before applying any further discount.

Greater discount than one-third?

78.I find that the case of HKSAR v Hong Yat Ming involved mitigating factors markedly different to our present case in terms of a greater discount to be applied.

79.Although our defendant did admit his culpability to PW1 and PW2's mother prior to his arrest, the defendant only admitted to the assaults on PW1 and PW2 but not on PW3 and PW4 in the subsequent police interviews. The defendant also did not intimate his willingness to plead guilty when the case was first brought before the magistrate.

80.Furthermore, according to the decision of the Court of Appeal in the case of HKSAR v Lee Kwok Wai, a greater discount should only be granted where there are ‘exceptional circumstances’. I find that there are no such ‘exceptional circumstances’ in the defendant’s case that would justify a further discount over and above the usual one-third discount.

Totality and final sentence

81.Granting the defendant the full one-third discount for his guilty pleas, the sentence is discounted to 10 months’ imprisonment for each charge.

82.The charges are all committed on different days, involving 4 victims. In the case of PW2, 3 and 4, they each suffered more than one assault. The offences cannot be said to be of ‘one transaction’. Yet, to order all the sentences to run consecutively would be too severe a sentence.

83.Applying the totality principle, I order that 3 months of the sentence of each of charges 4 to 10 to run consecutively to the sentence of each other and charge 1, the remainder to run concurrently, resulting in a final total sentence of 31 months’ imprisonment.