HKSAR v. C.P.K and Another

DCCC 452/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 452 OF 2016

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Reasons for Sentence

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1.The 1st and 2nd defendant have each pleaded guilty to two offences of incest.

2.The 1st defendant is a male aged 58 years old, and the 2nd defendant is a female aged 26 years old.  They are father and daughter.

3.The 1st defendant is necessarily charged under section 47, Cap 200, and the 2nd defendant, being female, is charged under section 48 of Cap 200.

4.On the face of it, all four charges relate to consensual intercourse between adults.  These acts are criminalised by their consanguinity. 

5.The facts have been agreed by both defendants. The facts set out the background that the 1st defendant is the natural father of the 2nd defendant, the 2nd defendant being born on 14 June 1990.  The 1st defendant was divorced from the 2nd defendant’s mother in 2013.  The 1st defendant lived with the 2nd defendant and his son, who is the 1st prosecution witness.

6.As a result of unusual circumstances, on 20 August 2015, the 1st prosecution witness, the son, formed suspicions about activities between the father and daughter.  As a result of this, he found a video recording of sexual intercourse between father and daughter. Thinking the matter may be non-consensual, the matter was reported to the police through a contact at school. 

7.In the course of video-recorded interviews, both the 1st and 2nd defendant admitted that intercourse had taken place.  The 1st defendant admitted to such intercourse as early as May 2009, which places such act some eight years ago, and that forms the 1st charge.  Of course, at that time the 2nd defendant would have been barely adult.  Other intercourse is admitted to which leads to the later charge particularised as between 14 May 2009 and 18 November 2015.

8.The 1st defendant said that before intercourse took place, he had requested the 2nd defendant’s consent.

9.The 2nd defendant admitted to intercourse that had taken place between herself and her father as an adult.  This was her first sexual activity.  She says there had been sexual activity since then in the form of intercourse.  In the facts it is stated that she did this because her relationship with her father was what was described as “too good”.

10.Those are the facts basically admitted to, and clearly justify the four charges of incest laid against the two defendants.  I shall turn to the antecedents of the relevant defendants.

11.The 1st defendant is now 59 years of age.  He completed a diploma of Chinese medicine at Hong Kong University and has been working as a Chinese medical practitioner after graduation.  Of relevance today is the fact that on 24 November 1987, the defendant was convicted of indecent assault.  He was fined $500.  The significance of that, of course, is that this is not the first time the defendant has come before the courts for a sexual offence.  In other jurisdictions he would be described as an “historic sexual offender”.

12.The 2nd defendant is currently aged 26.  At the time of the taking of the antecedents, she was described as unemployed.  She had lived with her father, but at the time of the taking of the antecedents she was living in the Tuen Mun area, and I believe she still does so at this point.

13.As a result of the unusual circumstances of this case and the uniqueness of the charges against the 2nd defendant, I obtained a range of sentencing reports over both defendants.  I will now turn to what I believe are the general sentencing principles that are applicable.  I will deal with the individual reports when I deal with the individual defendants.

14.Incest is recognised as a crime in both sections 47 and 48 of Cap 200.  Incest became an offence in England and Wales under the Incest Act of 1908.  Hong Kong adopted legislation to criminalise incest in 1916.  The law against incest in England and Wales was incorporated into the Sexual Offences Act of 1956 and finally was recategorised as a familial offence in the Sexual Offences Act 2003, whereby consensual sexual acts between family members who were related by blood were separated from non‑consensual acts.  In Hong Kong the law has remained unchanged save for an increase in maximum penalty for this offence in both sections 47 and 48 up to 14 years, which occurred in about 1997‑98.

15.In England and Wales, however, sentencing has moved in an opposite direction.  The maximum sentence for such consensual familial offences is now limited to 2 years’ imprisonment.  The reform of the law in England Wales was, according to the consultation papers, to ensure compliance with human rights commitments made by accession to the European Convention of Human Rights.  Although Hong Kong has domesticated similar human rights obligations contained in both the Bill of Rights and the Basic Law, as yet no amendments to this law have been proposed.

16.It is clear that sexual abuse within families may be prosecuted using a range of offences.  Incest is often charged where the facts would support other charges such as rape or unlawful sexual intercourse. This may largely be due to the difficulty of proving consent where family relationships are concerned.

17.The offence of incest sets out in law a fundamental social taboo about sexual relationships within families which reflects widely-held abhorrence of such acts.  It can exhibit a fundamental breach of trust by one family member against another.

18.In Hong Kong, it would appear that previous sentencing in incest cases is largely influenced by the fact that the facts often envelop other serious sexual offences such as rape and unlawful sexual intercourse with girls aged under 13 or 16.  A recent review of previous sentencing can be seen in HKSAR v CYL [2015] HKCA 559.  In paragraph 17 of that judgment one can see a range of cases referred to.  For the sake of brevity, I will not set out all the cases, but the sentences range between 5 to 12 years’ imprisonment, involving victims described as between 11 years old and in fact 21, in the case of Li Kin Ho. These of course involved the offence under section 47 of Cap 200, but it can be seen, from the ages of the victims, who are all largely under the age of consent and some substantially under that age, that the enveloping, as I have already said, of this offence with other sexual offences has influenced the approach.  In fact, in the case of Li Kin Ho [1999] HKCA 190, the offence was described in that case as being equivalent to rape.

19.There is also another stream of cases in Hong Kong involving what is described as incest between brothers and sisters.  There is the case of R v Wong Kin Wah [1988] HKCA 58 and also a recent case in the High Court, and it is said in those cases that incest between brothers and sisters should be treated very differently from between father and daughter.  In both the cases non-custodial sentences are imposed.  The rationale for the difference in treatment was not advanced.  However, the considerations may lie in the age of the participants, who were still teenagers, the consensual nature of the acts, and also the close proximity in ages between the parties.

20.Finally, dealing with the position in England and Wales prior to the alteration of the sentencing considerations, the maximum sentence for incest was one of 7 years’ imprisonment.  The principles adopted there can be seen in the case of Attorney-General’s Reference No 1 of 1989 [1989] 11 Cr App R 409.  It was said:

“The main factors determining the gravity of an offence of father/daughter incest were first, the age of the victim, and secondly, the degree of coercion or corruption.”

It was said that:

“Where the victim was aged over 16, the appropriate penalty was likely to be within a range of 3 years’ imprisonment down to a nominal penalty. Relevant factors are whether force is used, degree of harm, if any, to the victim, and the desirability, where it exists, of keeping family disruption to a minimum.”

It is said:

“The older the girl, the greater the possibility that she may have been willing or even the instigating party to the liaison.”

That is a factor which will be reflected in the sentence.

21.In 2003, in the case of R v BMR [2003] 1 Cr App R 484, there the Court of Appeal agree that a custodial sentence was appropriate, although it was reduced from 18 months to 9 months.  This was a case of incest by a father with his 24‑year‑old daughter where there was no suggestion of coercion or corruption.  In that case, there was the aggravating feature that the woman had become pregnant as a result of the liaison.

22.Although of interest, the cases in England and Wales are historic now, and in Hong Kong, the maximum sentence was not only increased in 1997, but has remained at that level.

23.I consider that, notwithstanding that the case ‑‑ involving the 1st defendant, involves consensual intercourse between consenting adults.  Nonetheless, in relation to the section 47 offence involving a father with a daughter, the starting point for sentence should still be in excess of 3 years’ imprisonment, and that would apply to a person of clear record, and that would be subject to various mitigating or aggravating factors being present.

24.The 2nd defendant faces a charge under section 48 of Cap 200.  There is no relevant authority under this section.  It would, of course, be possible to argue by analogy from the section 47 offence, both the section 47 and 48 offences will encompass non-consensual relations.  Section 48 specifically criminalises consensual intercourse by adult females within the family.

25.The sentencing of adult females under section 48 must, however, acknowledge some other realities, and these can be seen to be set out in the consultation paper to the amendment of the 2003 Act in England.  It was said there that:

“Although the dynamics of relationships within families change as children grow up, patterns started in childhood can continue into adult life and significantly affect adult behaviour. In particular, the issue of whether an adult child can give the same kind of consent to a parent or sibling that is given to a non‑family member is relevant, and the practice of prosecution and sentencing should acknowledge this.”

26.Of course, analysis of the reports obtained on the 2nd defendant can show that adult behaviour was influenced by childhood upbringing, so I consider it to be a relevant factor in looking at the 2nd defendant’s sentence.

27.It appears to me that sentencing is still at large in respect of section 48.  I consider, however, that it would be normal for an immediate custodial sentence to be imposed for this offence, even where we are considering the daughter in a father/daughter relationship.

28.I turn to the reports on the specific defendants and the approach I will adopt towards sentencing of them.  As far as the 1st defendant is concerned, I obtained reports from the probation services upon him.  I also obtained both psychiatric and psychological reports upon him.  As far as the psychiatric report is concerned, it is unremarkable.  There is no psychiatric disorder, and no specific recommendations are made.

29.The background report sets out the defendant’s background in some detail.  His upbringing is described as uneventful.  He was married, and children were born in 1990 and 1996.  The parties were separated in 2011 and were divorced in 2013.

30.The defendant has expressed regret for his acts in relation to his daughter, and has apologised many times to his children. The son is described as being affected by the offence and in fact dropped out of school as a result of it.  The defendant has encouraged his son, or is encouraging his son, to resume schooling.  It is said of the father/child relationship they have had, it is very good.  Their bonding has not been weakened by the present offence.

31.Both the probation officer and the defendant say that the offence was committed out of impulsiveness and recklessness.  He expresses deep remorse for making what he describes as big mistakes.  The children have forgiven him or are willing to support him.  It is clear the defendant is deeply hurt by these offences and shows remorse.  He wished to say that the longer the imprisonment he would face, the more the financial hardship and emotional deficit would result for his son.

32.As far as the specific offences are concerned, the defendant blames himself for not being a good father and not resisting what he describes as the temptation of his daughter.  He was depressed at the time when the offences occurred.

33.The defendant was also assessed by a psychologist, and the psychologist provided some background as to why the defendant failed in this way.  The defendant’s need for intimacy was unfulfilled after the marital relationship had broken, and his daughter had taken up the role of mother to care for the family.  He confused his fatherly love with romantic love for his wife.  The psychologist observes that this is the second sexual conviction for the defendant.  He is described as an over‑conscientious and stubborn person, over‑cautious, presenting himself in a self-favourable light.  He was described as remorseful and guilty.  The risk of sexual recidivism was low.  It is said that his negative emotionality is the salient risk factor.  I take that as meaning depression.

34.As far as the background can be seen, it can be seen that the defendant is reckless, and his previous conviction for indecent assault and this conviction would appear to show he has difficulty in maintaining boundaries. 

35.I deal now with what I consider to be the appropriate sentence for the 1st defendant.

36.I do have to bear in mind, as I said at the beginning of this case, that we are dealing with a case of sexual offence that was committed between consensual adults, and the reports on the daughter show that to a certain extent she was prepared to initiate the contact with her father out of her own emotional needs, and attributing a romantic love towards her father.  This, of course, was a deeply dysfunctional act by her, but it is one of the mitigating factors that is referred to specifically in one of the cases I set out, and I believe it can be seen as a mitigating factor that the initiation of sexual contact was at the behest of the daughter.

37.Nevertheless, these are serious offences to which there is public abhorrence, and a sentence of imprisonment is the appropriate way for the court to impose that view, and I consider that an immediate custodial sentence on both charges is the appropriate sentence for this defendant.

38.I shall approach it in this fashion.  I consider that the appropriate initial approach should be to take a sentence in the region of 3½ years’ imprisonment for each offence.  This would be subject to the aggravating factor of the defendant’s previous conviction for an offence that, in my view, has similarities, mitigated by the willing participation of the 2nd defendant in these acts.  After balancing those factors, I am left with a starting point for sentence of 36 months’ imprisonment.

39.The defendant has indicated his remorse and his plea of guilty.  He is entitled to a full one-third discount from that 36 months.

40.That leads me to a sentence on the 1st and 3rd charges for the 1st defendant of 24 months’ imprisonment on each charge.

41.It is clear that the conduct of the 1st defendant continued over a period between 2009 and 2015, and separate offences are charged which could enable at least part of those sentences to be served consecutively.  I have decided that regarding this in overall total, the overall total sentence of 24 months’ imprisonment is sufficient in this case, and I shall order that Charges 1 and 3 be served concurrently to a total of 24 months’ imprisonment.

42.I shall now look at the position of the 2nd defendant in relation to the two charges she faces on the charge under section 48 of the same ordinance.

43.As I have already foreshadowed, I consider a different approach to sentencing is warranted in respect of the daughter, and that in the past, of course, the status of being a daughter in such a relationship, what has often led to these daughters retaining a protected status.  It can be seen that the daughter in this case now is 26 years old, and the offences were committed well into adulthood, and any protected status she might have enjoyed as a result of that has now been lost.

44.However, the sentencing must acknowledge what might well be called the power dynamics within a family.  The large discrepancy in ages between the parties here, the fact that this girl was brought up without a mother in a family headed by a historic sex offender, and then became a sex offender herself.  I turn to the reports upon her.

45.There is a psychiatric report.  She suffers from no psychiatric disorder.  She requires no psychiatric intervention.

46.The psychologist’s report does pick out certain aspects of her upbringing.  She is said to have developed a strong attachment towards her father since she was young as a result of failing to receive enough warmth, which I would take as being affection, from her mother.  Once the mother had abandoned the family, the daughter shared duties in caring for the family and also the workplace, the clinic, in which the family did its business.  She wanted to take up the role of mother in the family to support her father.  The divorce brought emotional impact upon her, affecting her academic studies.  She also was in what is described as great work stress from running the family business.  Her social circle was limited due to her engagement in the family business.  Her stress coping skills were also limited.  As a young female, it is said she indicated a strong need for intimacy which was unfulfilled.  She had no proper channel to develop what could be described as a normal heterosexual relationship.

47.It is observed that on reaching adulthood, the only male figure in her life was her father.  She adopted a dysfunctional manner to gratify her own needs for intimacy.  It is said that this defendant’s offending behaviour is related to her maladaptive stress coping towards her accumulated negative emotions, weak consequential thinking, blurred boundary of love, and dysfunctional way to gratify her needs for sex and intimacy.

48.Of interest in this case is during the assessment, no major psychological problem is found.  Her risk of reoffending is not impressed to be high.  She has insights into her offending behaviour, and she has remorse.  There is a somewhat noncommittal conclusion that she might need counselling service in respect of her stress coping skills and consequential thinking, but I take from this report that this defendant has clearly learnt what needs to be learnt from the consequence of the offence. She has insights into the nature of her offending behaviour, and has remorse.

49.I obtained two further reports on this defendant to deal with the possibility of a rehabilitative sentence for her.  The only possibility for a rehabilitative sentence for this defendant is a probation order.  The probation officer said that this defendant had a distorted value system, impulsiveness and recklessness, but deep remorse, and was determined to reform.  As far as she was concerned, a 12-month probation order was recommended with normal conditions such as to receive psychological treatment as and when directed.

50.I also obtained a report from the Community Services officers.  This was to cope with the possibility that this could be as a direct alternative to a sentence of imprisonment.  The essence of that report is that they did not consider the defendant suitable, considering that psychological service counselling was more appropriate to her.

51.That deals with all the range of sentencing that can be imposed upon this defendant.

52.I now need to decide what is the appropriate sentence for the 2nd defendant.  She has committed a serious criminal offence to which there is public abhorrence, and I consider that, as I have stated earlier, the normal sentence should be one of imprisonment. 

53.The level of imprisonment that I adopted for the section 47 offence is not the correct level for this defendant, and she would benefit from a reduced starting point for sentence.  If I consider that a normal disposal of an offence of this nature for an adult female should be one of a sentence of imprisonment, I must bear in mind also that the defendant is a person of clear record.  I must explore any alternative to an immediate sentence of imprisonment.

54.The most direct alternative would be one of a community service order, but it is clearly not an appropriate sentence for her.  The second alternative put before me is that of placing her on probation for these offences.

55.Although there is considerable mitigation in the way in which the defendant has come to be involved in these offences, she is still a willing adult participant and can be seen to be involved in the instigation of the offences, and she must bear a level of culpability for these offences, and I consider that that factor would mean that a probation order would not necessarily be an appropriate sentence for her.

56.That leaves me with the only other alternative to an immediate sentence of imprisonment; one that is suspended.  That is applicable to any sentence under 2 years’ imprisonment.  I consider that in relation to the 2nd and 4th offences which the 2nd defendant faces that the appropriate starting point on each of those offences would be 21 months’ imprisonment, which would be reduced to 14 months’ imprisonment for her plea of guilty, and the sentences will be served concurrently.

57.She is clearly within the range where a suspended sentence of imprisonment could be imposed.  It is not a scheduled offence.  It is a possible option for her.  The question is:  are her circumstances of the commission of this offence exceptional?

58.In my view, they are.  The psychological report clearly illustrates that, and I consider it would be appropriate for her for any sentence of imprisonment to be suspended for the reasons I have already outlined in relation to the way in which she came to commit these offences.

59.What I shall order in respect of the 2nd defendant is that on each charge that she faces, she serves a sentence of 14 months’ imprisonment, suspended for 2 years, to be served concurrently if activated.

60.As far as the 2nd defendant is concerned, does she understand that sentence?  You are sentenced to a sentence of 14 months’ imprisonment.  That sentence will not be served immediately, but if you commit any further offence where there is a sentence of imprisonment, that sentence may be activated in whole or in part.  Do you understand that?

2ND DEFENDANT: Yes.