HKSAR v. Wong Ping Fai

DCCC 677/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 677 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges of indecent assault on another person. For both charges, the victim is the same child. The 1st charge is dated May 2012 when the victim was 9 years old. The 2nd charge is dated two years later when the victim was 11 years old.

2.The defendant and the victim were next-door neighbours in the same building in a housing estate in Kowloon and had been since 2008.  The victim used to visit and play in the defendant’s home since she was a young girl and without incident.  The victim in 2016 told her preacher in her bible studies group at her church when she was asked that she had been indecently assaulted in the past by a male neighbour.  The preacher specifically questioned the victim because the victim had appeared unhappy.

3.Two months later, the preacher again spoke to the victim, and it was not until the second occasion when they talked that a police report was made.

4.The assault relating to Charge 1 includes the defendant touching the victim’s breasts over her clothes and then under her clothes for a few seconds for a few times.  This took place in the defendant’s home when the victim went over one day to play.  On the same occasion, he also kissed her breasts not more than on three occasions.  She said that he also lifted up her clothes to look at her private parts.

5.The assault relating to the 2nd charge this time took place in the victim’s home.  She was alone at home when the defendant went next-door.  The defendant told her that he would take her into the bathroom and wash her private parts.  Inside the toilet, the defendant told her to take off her trousers which she did.  She recollects that he washed her private parts and did touch and rub her private parts for less than a minute. She recollects that she felt uncomfortable when this was happening.  After the victim got dressed, in the living room, the defendant took off his own trousers.  The victim saw his penis which she described as red.  The defendant asked her to kiss it but she refused.  He did pull her hand towards it for a couple of seconds.  However, the defendant’s phone rang and this assault ended.

6.Defendant was arrested on 28 May 2016 after a report to the police was made, and he under caution admitted the offences.

7.The defendant’s plea of guilty is his best mitigation.  He fully co-operated with the police and because of his plea has spared the victim the embarrassment and trauma of giving evidence.  He is 56 years old and was a man with a clear record until now.  He is happily married and his wife has forgiven him despite the huge shock that this has been to her. They moved away from the victim very soon after the defendant was arrested. This has spared the victim any further embarrassment or pressure.

8.The background report I have received on the defendant is very detailed.  The defendant and his wife have no children.  They just have each other.  He was a taxi driver when he was arrested and has been driving a taxi since 1989.  He grew up in a single-parent, poor family.  His father died when he was very young.  Their marriage, unfortunately, was blighted by the defendant’s wife suffering from breast cancer in 2010.  She had to have surgery.  The defendant has explained that it may be one of the reasons that their intimate relationship petered out because of her ill health.  He thought it would be bad for his wife’s health.  The defendant can only explain his actions towards the victim as impulsive.  He has never been attracted to children nor sexually deviant in his life.

9.I have seen a letter written by the defendant and his wife.  I am sure he is genuinely remorseful.  As I said, I obtained a background report.  I also obtained a psychologist’s report and a victim assessment impact report.  The victim is now 14 years old and has been affected by these assaults.  In no way can she be described as bearing any blame for these assaults nor has ever encouraged these assaults.

10.I have read the reports.  The psychologist concludes that the victim has suffered emotional distress and some post‑traumatic symptoms.  Her trust towards people has been affected which signifies the assault has had a significant impact.  Luckily, her parents are very supportive which will, according to the doctor, help her recovery.  She functions in her daily life without any major impairment.  She will continue to receive treatment in psychotherapy.

11.The defendant’s psychologist’s report is of the opinion the defendant is not a paedophile nor does he have any perverse tendencies or any other psychological disorders.  It is relevant that the risk of him re-offending was assessed to be low.  The psychologist does suggest further assessment may be beneficial but that is because the psychologist feels the defendant might have been reserved when discussing this with the psychologist.  He or she does query his remorse.  However, I find from other material the defendant’s remorse genuine.

12.There is no tariff in sentencing sexual offenders involving young children or persons.  However, sentences are harsh to reflect the seriousness and deter sexual offenders.  I have taken into account the authority of HKSAR v Li Kwok Wai CACC 199 of 2011 where the Court of Appeal does list out factors that can be regarded as very relevant when sentencing, such as the age difference between the defendant and the victim and their relationship, the number of occasions the assaults took place and the duration of those assaults, whether there was inappropriate or unnecessary violence used, whether the offences have caused any physical or psychologist trauma to the victim, whether the defendant is psychologically imbalanced or a paedophile and what is the likelihood of re-offending amongst other factors.  The court must protect children, deter others and reflect public opinion of the abhorrence of such offences.

13.I take into account that the defendant was the victim’s neighbour who let her into his home and had done so since she was very young.  She felt comfortable in his home.  I also have to take into account what the degree of indecency is in each charge.  I have set out the facts and in my view, all such assaults are serious but the facts of this case are not the most serious for an offence of this nature. 

14.I have obviously taken into account the reports and their contents and conclusions.  On one hand, the victim has clearly suffered an impact.  Thankfully, she is getting help to try and put it all behind her.  At the same time, the risk of the defendant re-offending is low. Moreover, he did previously have a clear record and has spared the victim the ordeal of giving evidence by pleading guilty.

15.Defendant, please stand up.  Having considered all those factors I consider relevant, I will take for each charge a starting point of 2 years’ imprisonment.  The defendant having pleaded is entitled to a discount of one-third.  After that discount is applied, the defendant for each charge is sentenced to 1 year and 4 months’ imprisonment.

16.I have to consider the totality principle, the fact there are two offences and that they were committed some time apart.  I will order that 4 months of Charge 2 be served consecutively to Charge 1 and the balance concurrently.  Therefore, the total sentence is one of 1 year and 8 months’ imprisonment.  Do you understand that?

DEFENDANT: Understand.