HKSAR v. Leung Yat Chi, Frankie

DCCC 262/2018

[2018] HKDC 1110

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 262 OF 2018

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Reasons for Sentence

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1.The defendant has pleaded guilty to three charges; two charges of indecent assault and one charge of possession of an offensive weapon.

2.The first charge of indecent assault is on a girl aged 13.  The second indecent assault is on an adult female.  The offensive weapon involves an extendable baton.  Both of the indecent assaults took place in a lift of Hoi Shui House, Hoi Lai Estate in Cheung Sha Wan, which the defendant also actually lives in.

3.The facts of this case are as follows.  On 5 November last year, at about midnight, the victim of the 2nd charge was on her way home when she got off a bus at the Hoi Lai Estate bus terminus.  She was followed by the defendant into Hoi Shui House.  They both got into the lift and when the lift got to the 19th floor, the defendant poked the victim in the back and then touched her right buttock for about 2 seconds.  The victim moved away from the defendant, who then rushed out of the lift when it reached the 24th floor.

4.This victim was scared after the incident and told her boyfriend when she arrived home.  She did report this incident to the police the following day.  Obviously there were CCTV cameras in the lift which captured the incident.

5.On 7 November, the defendant was recognised and  intercepted outside Hoi Shui House by a police officer.  He immediately confessed to the indecent assault under caution.  He told the police officer that he did touch the victim’s buttock once out of curiosity.  The defendant was searched and the police officer found the baton of Charge 3 hung in a pouch of the defendant’s belt.  Under caution, the defendant told the police that the baton was for self-defence in case he was attacked by rivals and beaten, he could use it to defend himself.  Later, he further explained that he had bought it in Shenzhen but had never had cause to use it.  It was never intended to be used on any victim.

6.Obviously the defendant was taken back to the police station and interviewed further.  Under caution, the defendant told the police voluntarily that he had indecently assaulted somebody else, a girl of about 13 or 14 years old, between 15 and 18 September in the same lift of the same building.  He gave very incriminating details of how he had noticed her, knew her address, when he had waited for her, hopefully to see her - basically he made her a target.  He told the police why he was attracted to her and he explained to the police that on 18 September he finally saw her again, followed her home and into the lift.  He told the police that he did indecently assault her by putting his hand on her breast twice and when she got out of the lift, he assaulted her once more.

7.Based on this information, the police investigated and found the victim.  There had been no report made to the police about an indecent assault of this nature by a man around this time. Nevertheless, the police were able to locate this victim.  She was in fact aged 13 at the time.  The assault had happened and she had told her father, but they had not made a report to the police.  She subsequently told the police that the defendant, in the lift, had first used his hand to touch her thigh and she told him to stop.  He then touched her breast and she moved away.  He then touched her buttock from behind and she was able to then get out of the lift.  She subsequently identified the defendant in an identification parade.  She then became the victim of Charge 1.

8.The defendant is not a man with a clear record. He is now 35 years old and he has two previous convictions, one indecent assault conviction in 2008, some 10 years ago, and he was sentenced to a probation order.  I have been given information that he lives in this building where the two victims live and now lives there alone.  He did live there with his parents - both have passed away.  At the time of the offence he was working as a delivery worker.

9.After the defendant pleaded to these offences, I adjourned for two reports.  I have had an opportunity to read these reports and the psychiatrist says the defendant has no psychiatric issues.  The psychologist says the defendant does have issues, and did have issues as far back as 2008, and did receive treatment then.  I do not intend to repeat the contents of the report; I will make reference to it.

10.I also received a letter from the defendant’s aunt on the last occasion and she gives a great insight into the defendant’s upbringing.  She starts the letter with an explanation; she describes him as a miserable person, but I think what she means is he has had a miserable upbringing.  She explains that when he was born, his mother had a difficult birth and when she gave birth she was in a condition called hypoxia which meant he was, for a period of time, starved of oxygen which led to him having a mild grade intellectual disability as a result.  They thought the defendant was autistic and he studied at a special school when he started education, but later he was transferred to a normal school, but he had a noticeable speech delay or speech impediment which meant he was treated badly by other children.  For example, he was called an idiot and basically bullied.  He dropped out of school in Form 4.  He developed behavioural problems at school.  He was referred to a psychologist even then.  He grew up close to his mother, not his father, and when she died in 2011, it was a big blow to him and has basically left him alone.  Even at school he started to develop inappropriate behaviour towards girls.  He became preoccupied with girls, which did not help when he was rejected by members of the opposite sex.

11.When he committed his first offence in 2008, he did get proper psychological help.  Not only did he need it, he accepted it, but it stopped and there was no follow-up treatment.  It was not continued, nor was it offered, and this is a weakness in the mental health system.  The defendant clearly needed help and it was not maintained when his probation order was completed.  Especially after his mother died and he was left living alone, there was nobody to monitor him.  Despite these issues, he did work - he was a security guard before a delivery worker.  He clearly ran up debts which isolated him from his only elder brother, which meant he has had to cope on his own.

12.Bearing in mind he is a man with a mild grade intellectual disability with significant psychological deviant sexual disorders, it is not surprising that he has reoffended.  In fact, the psychologist is of the view that his risk of reoffending is high.  He has had no treatment for over 10 years, yet he demonstrates a genuine awareness of his problems and the psychologist says he is concerned about his reoffending risk, and that must be true because he has confessed to the police after his arrest which led to the police finding the victim of Charge 1.

13.The psychologist recommends intervention and treatment whilst he is serving a term of imprisonment.  The psychologist goes further; she says “lifestyle restructuring that facilitates his attainment of stable employment and development of social support should also be incorporated into his rehabilitation plan”.  He alleges willingness to receive psychological services.  This means treatment that goes beyond a term of imprisonment.  This means it must be provided beyond his release date.  I do not know how it can be ensured it is provided, but I will make an order that he be provided with psychological services whilst serving this term of imprisonment.

14.There are in this case aggravating factors that I have to consider.  The fact is that the victim of Charge 1 is 13 years old and the fact is that both the victims were assaulted in a lift.  That is a fact that the courts have always said is an aggravating factor; they have nowhere to run to or go.  But I will also take into account the fact that the assaults themselves were not the worst of their kind.  The victim of Charge 2 was poked in the back and touched on the buttock.  The victim of Charge 1, the assault he described to the police was actually much worse than the assault she described to the police.  I will also take into account that Charge 1 would never have come to light if he had not told the police and given the police so much detail.  The fact that he committed these offences in a lift in his own building perhaps says he subconsciously wanted to get caught - the risk of being caught in his own building makes the risk of arrest very high.

15.Defendant, please stand up.  There are no tariffs for charge of this nature because they depend on the facts of every individual case.

16.Charge 1 has to be viewed as the most serious case.  I would have taken a 2½ year starting point because of that victim’s age and the fact that you followed her and targeted her and the assault took place in a lift, but because you confessed to that assault and gave such good detail so that the police were able to locate her when no police report had ever been made, I am going to reduce that starting point to 2 years.

17.For Charge 2, taking into account the assault itself, I will take a starting point of 1 year and 6 months.

18.Charge 3 - I take into account all the mitigation and the weapon, and I accept that you have never used it - I take a starting point of 9 months.

19.Because you pleaded guilty and you are entitled to a discount of one-third, after that discount is applied to those starting points, for Charge 1 you are sentenced to 1 year and 4 months’ imprisonment; Charge 2, 1 year; Charge 3, 6 months.

20.I have to take into account the totality principle.  I am going to order 2 months of Charge 2 to be served consecutively to Charge 1, I am going to order 2 months of Charge 3 to be served consecutively to Charge 1.  That is a total of 1 year and 8 months.  Do you understand that sentence?

DEFENDANT: Understand.

21.And I order the defendant to receive psychological services whilst serving this sentence and if possible, beyond this sentence if required and possible.

DEFENDANT: Understand.