HKSAR v. Ousainou Touray

DCCC 216/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 216 OF 2016

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

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

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

Reasons for Sentence

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

1.The defendant, Mr Touray, has been convicted of two offences after trial: firstly, indecent assault; and secondly, what is described as a section 19 wounding.

2.The gravamen of these offences consists, really, of the defendant invading the victim’s residential space with the consequence of pinning her on her bed, sexually assaulting her by feeling her upper body, breasts and abdomen, and causing wounds to her mouth in his attempts to silence her by stuffing paper, bed sheets and a duvet into her mouth.  He also, in order to do the same, which was attempt to silence her, placed a pillow over her face.

3.Fortunately the victim in this case received no serious injuries and at trial showed a robust commonsense approach to these offences.  She has cuts to her mouth, and in the assault, the defendant appears to have discontinued the assault after the victim continuously admonished him for being foolish.  The whole incident had the potential to be very serious and could have led to very serious injuries, but was averted by the defendant’s mind evidently being persuaded by the victim for him to desist and stop being foolish.

4.This is an unfortunate situation, an unfortunate incident.  It occurred in a family compound.  It occurred between people who are related by marriage.  There are tragic consequences on the structure of the family as a result of this.

5.The defendant has always said that drink had been taken by him to such an extent, apparently, that he said he had no recollection of what happened.

6.The defendant is now aged 35, and he hails from Gambia originally.  He is married to the victim's niece.  They have one child, born in Hong Kong.  There is another child, I am told, on the way.  He does have an ex-wife and children in Gambia.  He came to Hong Kong and sought political asylum on coming here.  He also met his present wife here, who comes from an established New Territories family but is resident most of the time in Hawaii.  They had planned to emigrate to the United States.  That is obviously subject to the difficulty of an earlier court conviction that the defendant had which makes emigration to the United States difficult for him.  He had been convicted of an offence of possession of dangerous drugs, and after review had been sentenced to a period of imprisonment.  Those matters are subject to appeal at present.

7.As far as the defendant is concerned, the offence showed disturbing aspects, and I decided that a psychological report should be obtained.  The report noted that although at the time the defendant did deny that he had a drink problem, he did admit he drank more alcohol after he came to Hong Kong.  One of the consequences of him applying for asylum was that he is unable to take up productive work, and so appeared to drink more as a result of it.

8.In respect of the offence, the defendant told the psychologist he could only remember starting drinking the night before. The next thing he recalled was his arrest by the police the next evening.

9.He is described by the psychologist as self‑centred and reckless in this case, and carefree as well.  These appear to be apt descriptions.  The defendant was unaware, it says, of his alcohol problem, and it had, the psychologist assessed, begun to damage his cognitive function such as memory.  The psychologist considers the defendant may have lost control over his sexual impulse and behaviour after drinking, becoming reckless and violent.  The conclusion of the report is that it is said that the defendant became violent and sexually disinhibited after drinking.  However, there was no indication, I think it should read, to suggest any deviant sexual interest in the defendant.  His insight into his problems is or was inadequate in consideration of his criminal history, age, the nature of the offences, and the victim’s characteristics.  His risk of reoffending was assessed to be average. Psychological treatment focusing on his alcohol abuse, impulse control, and prevention of sexual reoffending is recommended.  I am told by counsel the defendant has ceased to drink.

10.There are various letters I have received which attest to the fact the defendant is generally liked and respected and well thought of by members of his own family, his wider family in Hong Kong, and also peers in his own community.  It is, as I said, very unfortunate that an offence of this nature has been committed.

11.There is, in respect of these particular offences, no tariff or guideline for this court to follow.  Sentence is at large.

12.They are serious due to the frightening use of reckless violence and display of sexual impulse towards the victim. Fortunately, as I have said, the potential worst outcomes were avoided.  The result also appears to be that repetition of such offences has become highly unlikely due to the defendant’s realisation now of his own difficulties with drink, and secondly, the family that has rallied around him and will prevent anything like this happening in the future.

13.I consider that in respect of these offences, a sentence of imprisonment must be inevitable as the end result, and the sentence must also, to a certain extent, reflect the risk inherent in this type of offence and this type of offending.

14.What I shall do is impose the following sentences in respect of these offences.  On the 1st offence, that of indecent assault, there will be a sentence of 10 months’ imprisonment.  On the 2nd offence, that of wounding, there will be a sentence of 15 months’ imprisonment.  They will be concurrently served.

15.Those are my sentences.