HKSAR v. Hkw

HCCC 183/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 183 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Defendant, you have pleaded guilty to one count of indecent assault, three counts of incest and one count of unlawful sexual intercourse with a girl under 16. You first indecently assaulted your daughter when she was eight to nine years old, whilst the other offences happened when she between the age of 13 and 16. The 3rd count of sexual intercourse was preferred against you under section 124 and section 153P(1), as it happened outside Hong Kong and there is no offence of incest in that jurisdiction.

All the offences took place over a six-year period. On the very first occasion you indecently assaulted her by grabbing her hand to put it inside your underpants to touch your penis. During that occasion your wife and son were in the other parts of your flat. On all the other occasions, it happened when you were alone when you were with your daughter. In respect of Count 2, you had sexual intercourse with her; she did not put up resistance because she respected you. On all the other occasions she showed some physical, but no verbal resistance. No condom was used during the occasion of the 4th and the 5th count.

Whilst I could see that in the psychologist’s report you had admitted that you had sexual intercourse with her on many other occasions, since these are all the charges that you face in this matter, you will only be sentenced for those charges that you have pleaded guilty to.

From the very relationship, your daughter was in a particularly vulnerable position and you, as her father, abused and exploited her dependence and inexperience and made her succumb to such dominance.

According to the victim impact report, when she was first abused by you she did not even know what the behaviour actually meant, due to her limited understanding about sex. She only had a brief idea that the behaviour was wrong. Every time, she hoped that would be the last time, and feeling confused, she was in denial of your dark side and chose to believe that you loved her very much. She used denial and emotional disconnection to disassociate her from the abuse. Clinical psychologist reported that she had panic attack, depressed mood and symptoms of disassociation, in particular memory loss which affected her daily functioning seriously, due to its disruption in her daily integration of consciousness and memory arising from those prolonged abuse.

The family which you and your wife had built with your gainful and stable employment will no doubt be torn apart by your selfish and self-gratifying acts. According to your own psychologist’s report, because of your socially introverted and passive character, your misguided emotional closeness to your daughter arose out of your confusion between a feeling of loneliness when your wife was away and your sexual desire. You knew what you did was wrong throughout the years, but nonetheless failed to curb your sexual desire. You chose to use your daughter as a tool for sexual gratification.

These sort of offences strike at the very fabric of family life. Sentences are required to both punish and deter. Your behaviour was appalling, despicable and disgraceful. Instead of protecting your daughter, you inflicted harm on her yourself, scarring her for life. To quote from the case of HKSAR v KKK [2013] 2 HKLRD 676:

“Abuse of a child” by a parent or person in the position of a parent was “a damnable breach of trust”, against which “society at large - ultimately through the courts” - assumed the “duty proactively to protect the child and to visit condign punishment upon” offenders. In circumstances such as here, “the child was(is?) a captive, physically and emotionally, and it was(is?) in that light that the seriousness of a sexual offence upon(of?) a child by its parent” or de facto parent “was(is?) to be viewed”.

Normally in this type of cases, the greatest mitigating factor would be one of a guilty plea, which spares the victim the ordeal of testifying in court. Whilst there are no guidelines in respect of offences of this sort, I have referred myself to the case of HKSAR v Lam Chung-tak Jemy, CACC 271/2006. The appellant in that case faced one charge of indecent assault and two counts of incest. The daughter was 10 and 11 years old at the time of the offences. The Court of Appeal approved of a starting point of 9 years for the incest charges and 12 months for the indecent assault charge and was of the view that a total sentence, on a plea, of 9 years’ imprisonment was appropriate.

Although your daughter was a few years older than the victim in that case, multiple offences spread over a six-year period is in itself an aggravating factor, and also the failure to use protective measures in respect of the 4th and the 5th counts is another. Your daughter’s braveness and courage to come forward to make a complaint is commendable, especially bearing in mind your relationship. This is not an easy choice for her. Whilst your counsel has asked for mercy on your behalf, I’m minded to show you no more than the circumstances justify.

In the circumstances for a man of hitherto good character, I judge that for the indecent assault charge the appropriate starting point is one of 18 months’ imprisonment. Whilst for each of the incest charges, a starting point of 10 years’ imprisonment. For the unlawful sexual intercourse charge, a starting point of 3 years. I’m minded to give you a full one-third discount for your plea and sparing your daughter to come forward to relive the ordeal in testifying against you. After the discount for your guilty plea, you are sentenced to each charge as follows: Charge 1, 12 months; Charge 2, 80 months; Charge 3, 2 years; Charge 4, 80 months; Charge five, also 80 months.

Taking into account totality, a global overall sentence of 15 years is called for, and given the one-third discount for your guilty plea, you’re sentenced to 10 years’ imprisonment. I order that 15 months out of each of the 4th and 5th count and 10 months out of the 3rd count to run consecutively to the sentence of 80 months in respect of the 2nd count and the sentence in respect of the 1st count to run concurrently. So total of 10 years and that is the sentence that I pass.