HKSAR v. S. R. M.

DCCC 755/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 755 OF 2015

-----------------------------

-----------------------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

The charges and facts

1.The defendant, referred to as SRM in the trial, stands convicted after trial of three counts of indecent assault on another person (Charges 1 to 3). 

2.The three offences took place on three different occasions between 1 July 2011 and 26 March 2013.  The victim, X, was a boy who was only 8 years and 7 months old when Charges 1 and 2 took place.  He was not older than 11 at the time of Charge 3.  The defendant worked as a domestic helper for X’s family.

3.The defendant indecently assaulted X in the flat that X’s family resided when the defendant worked as a domestic worker for X’s family.  The defendant’s main duty was to take care of X during the daytime when the parents were out for family.  The three offences took place when X was home alone with the defendant. 

4.X was 8 years and 7 months old when the first incident of indecent assault, ie Charge 1, took place, the second incident of indecent assault ie Charge 2, took place one week after the first incident.  Charge 1 and 2 took place during the summer vacation in 2011.  Both offences took place on the bunk bed inside the bedroom of the defendant. 

5.The defendant had, in fact, indecently assaulted X on numerous occasions during the period between 1 July 2011 and 26 March 2013.  On one occasion, the defendant indecently assaulted X in the toilet, that incident is the subject matter of Charge 3.

6.On all occasions, the defendant would remove the pants of X and then her own pants.  She would then molest the penis of X, position her vagina against the penis and cause a penetration. 

7.X did not make any complaint about the indecent assault by the defendant until 1 July 2015.

The antecedent

8.The defendant is now 45 years old.  A Filipina, she was born and educated in the Philippines.  She had received secondary school education.  She is single.  All her family members are in the Philippines.  She worked as a domestic worker in Hong Kong between year 2000 and 2015.

9.The defendant had a hitherto clear record in Hong Kong.  An ex-employer of the defendant, in a statement tendered as evidence during the trial, wrote favourably for the defendant.

The authorities

10.In HKSAR v Chan Ching Ho [2000] 3 HKLRD 476, a case of indecent assault committed by an adult defendant against his 6-year-old niece on four occasions, the Court of Appeal emphasised that the important considerations in cases of this kind were the need (a) to deter others; (b) to mark the public abhorrence of such crimes; and (c) to redress the grievance suffered by the victim, her relatives and friends.

11.In Secretary for Justice v Wong Tsz Kin [1998] 4 HKC, also a case of indecent assault, the Court of Appeal said at page 36:-

“…… Indecent assaults of this kind on children are, as he properly observed, grave offences. The danger of psychological damage to the victims must be borne in mind. They can be psychologically crippled for life. The courts must be conscious of their duty to impose sentences that will in a real way protect children from sexual molestation. Courts must not overlook the difficulty of detection, mainly because of the understandable reluctance of child victims to come forward and report what has occurred. It is particularly important that sentences demonstrate to those who are like-minded that mitigating circumstances will count for little where an offender has gratified himself by sexually abusing a child.”

Pre-sentence reports

12.Before sentence I called for a psychologist’s report on the defendant and an impact assessment report on X.

13.The clinical psychologist who prepared the psychologist’s report on the defendant said in paragraph 10 of the report:-

“The present assessment could not ascertain whether” [name of the defendant] “suffered from any psychopathology in relation to her offending behaviour, If she had committed the present offence, she seemed to evade her responsibility and put the blame on the parents of the victim.”

14.The clinical psychologist who prepared the impact assessment report on X said:-

“8. The client reported to have experienced symptoms of post-traumatic stress from around November 2014 to July 2015. He denied experiencing any psychological problem at the present. All the information obtained suggests that he currently still experiences post-traumatic stress symptoms characterised by recurrent distressing dream and avoidance to talk about anything related to sexual assault. However, he was not ready to admit having any symptom. It is apparent that he still feels shameful and very angry. His high level of anger likely reflects much emotional pain in him. He is still suffering inside. There is still negative impact of the previous indecent assault on him. Psychotherapy service would be continued to be offered to him.”

15.Mr Hemmings took issue with some of the complaints made to the clinic psychologist by X and his mother in the impact assessment report, Mr Hemmings said these complaints were not seen in the psychological report prepared by Dr Tam Ka Hing, Barry dated 17 August 2015. 

16.Mr Hemmings asked that the sentencing of the defendant be adjourned in order to call Dr Tam to give evidence to explain what happened at the time he saw X.

17.Dr Tam gave evidence before me today and leave was granted for Dr Tam to give evidence as an expert witness on matters related to clinical psychology.

18.I have before me the psychological report prepared by Dr Tam dated 17 August 2015. 

19.Having heard the evidence of Dr Tam and having read the report prepared by Dr Tam I do not think the complaints made by Mr Hemmings are valid. 

20.I accept the evidence of Dr Tam that some of the matters referred to in the impact report were also mentioned to Dr Tam by X/the mother when they met in 2015, for example, the matters referred to in paragraph 5 of the impact assessment report. 

21.I accept also the evidence of Dr Tam that when he spoke to the mother, they did not talk about the symptoms.  He saw the mother as he understood that the mother was worrying and he saw her to provide support to her.  The report he prepared in 2015 was not an impact assessment report of X. 

22.At the time when Dr Tam saw X, Dr Tam was in fact doubtful of X’s claim that he was not having any symptoms when he was not receiving any treatment.  His clinical judgment was that X was shameful about his experience and was under-reporting his condition. 

23.For some of the symptoms that X had mentioned to the clinical psychologist who prepared the impact assessment report, Dr Tam was asked whether the parents would be in a position to notice them before the report to the police on 1 July 2015,  Dr Tam pointed out that X had engaged in avoidant behaviours, including Internet gaming, which might have prevented X from processing his feelings, as such X remained startled by his intrusive memory, resulting in his frequent spells. 

24.From the evidence of Dr Tam and the materials before me, I am satisfied that I can attach full weight to the impact assessment report of X dated 6 April 2016.

Consideration

25.In sentencing the defendant, I have borne in mind the serious nature of the offences.  The defendant indecently assaulted the victim by molesting the penis, followed by causing a penetration, hence a sexual intercourse with the victim. 

26.The defendant had repeatedly indecently assaulted the victim, though in sentencing the defendant, I shall only take into account the three offences in question.

27.X was only 8 years and 7 months old when Charge 1 and 2 took place.  He was still a young boy when Charge 3 took place. 

28.From the impact assessment report, I can see that the defendant had done much psychological damage to the boy.  Clearly the boy has suffered much at the hands of the defendant and it will take a long time for the boy to recover.

29.The defendant’s primary duty was to take care of the boy during daytime when the parents were away for work.  She in flagrant breach of her duty indecently assaulted the boy when he was home alone in the care of the defendant.

30.In my judgment, Charge 1, 2 and 3 each calls for a starting point of 3½ years’ imprisonment.  I shall allow the defendant a reduction of 3 months for her clear record.

31.For the reasons given, on Charge 1, 2 and 3, I sentence the defendant each to 3 years and 3 months’ imprisonment.

Totality

32.In Chan Ching Ho, the Court of Appeal said:-

“Here, the offences were entirely separate and distinct. There was no requirement on the part of the judge, subject to the principles of totality, to have made any of the sentences to run concurrently unless it had been alleged, which it was not, that two of the offences had been committed in the course of what is often referred to as a ‘single transaction’ (see AG v Cheung Pit Yiu [1989] 2 HKC 12).”

33.The three offences committed by the defendant in the present case were separate and distinct offences. 

34.I have considered the totality principle.  In my judgment, a total sentence of 4½ years’ imprisonment should adequately reflect the overall criminality of the three offences in question, to achieve that end, I order that:-

(1) 6 months of the sentence for Charge 2 shall run consecutively to the sentence for Charge 1;

(2) 9 months of the sentence for Charge 3 shall run consecutively to the sentences for Charge 1 and 2.

35.The total sentence is 4½ years.