HKSAR v. A

HCCC 161/2019

[2020] HKCFI 896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 161 OF 2019

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

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COURT: The defendant has pleaded guilty to eight counts of incest. The offences took place when the victim was about aged 10 and the abuse finished in the last count when the victim was aged 22. The defendant has also pleaded guilty to Count 27, which is a count for doing acts to pervert the course of justice where he had written two letters to Ms X, inciting and inducing Ms X not to testify against him. These letters were written on 3 and 4 November 2018. These totally shameless acts were set out in the Summary of Facts admitted by the defendant on the day of his plea.

It is totally, utterly abhorrent to think that a father could take advantage of his position to humiliate and debase his own flesh and blood for his own selfish desires. It took a superhuman courage on the part of Ms X to finally break this chain the defendant had manacled her to and she finally had the courage to report the matter to the police.

The defendant was initially charged with rape. He pleaded not guilty nor did he indicate that he would plead guilty to incest in the lower courts. This case was therefore committed to the High Court for trial whereupon, as Mr So submitted, he then started negotiations with the Department of Justice when therefore the negotiations were successful and the defendant pleaded guilty to sample charges extracted from the original 26 counts of incest. The prosecution was wise to accept these eight counts of plea in satisfaction for the 26 counts in order to save the victim the embarrassment and trauma of reliving her nightmare in court.

In view of the pleas, I therefore asked for a victim impact report which is now available. It makes for heart-wrenching reading as Ms To, the clinical psychologist, indicated the victim was first brought to the attention of the Tuen Mun Mental Health Centre in August 2018 after the matter was reported to the police. She was diagnosed at that time with post-traumatic stress disorder and since then, Ms To has followed her case and has interviewed her many times.

Despite her horrific experience, Ms To found her to be calm and polite and co-operative and only became emotionally tearful when the matter of her father was mentioned. The report told of the defendant’s suffocating control of her since she came to Hong Kong from the mainland at the age of seven. Until then, she had been raised on the mainland by her maternal grandmother.

After she came to Hong Kong, the defendant not only controlled who she talked with on the phone, he insisted on monitoring all her phone conversations with her maternal grandmother and friends, and as the years went by, he even threatened Ms X that any boy that she went out with would be harmed by his triad friends. So Ms X was afraid of making friends, thus leading to her loneliness and isolation.

This was a scene deliberately set by the defendant and thus from the age of nine, the sexual abuse of Ms X began and from then on, the defendant systematically drove a rift between Ms X and her mother, and examples of this would be that whenever Ms X’s mother would scold her, he would pretend to take Ms X’s side and also the defendant would buy presents for Ms X and even went so far as to asking Ms X to sleep with him and the defendant made his wife sleep on the sofa, causing jealousy from Ms X’s mother.

So he stripped away Ms X’s friends, stripped away the other person she could rely on or turn to for help, that is her mother, and Ms X’s mother became emotionally fragile and had made multiple suicide attempts. So Ms X, fearing that if she disclosed the abuse may cause her mother to act to take away her own life, so she did not disclose the abuse to anyone and so Ms X then suffered from nightmares since her secondary school years, and even after the arrest of the defendant, she was still waking up at 4 am, reliving the abuse.

According to Ms To, the clinical psychologist, Ms X expressed excessive and distorted self‑blame about reporting her father to the police and, unsurprisingly, also suffers now from chronic insomnia. She is certainly a victim in every sense of the word. She also suffers now from depressed mood and anxiety and felt that her father had robbed her of her childhood and her innocence and she has feelings of worthlessness. Ms To expects that the victim will have to undergo intensive and long-term psychological treatment. The long‑term impact on the victim’s emotional well-being at this stage cannot be predicted but experience do show that this may blight her life for many years to come.

The defendant is aged 59 and was a truck driver by occupation. The only mitigating factor, as Mr So correctly pointed out, is that he did plead guilty and spared Ms X from giving evidence. However, the plea of guilty came rather late in the day after this case has been transferred to the High Court for trial.

Mr So submitted that the defendant is remorseful but certainly he was not remorseful at the time in 2018 when he wrote those letters to his daughter, telling her not to give evidence against him.

In an attempt to mitigate, Mr So on behalf of the defendant submitted a letter from Ms X to the defendant written last year in November thanking the defendant for thinking of her and not forgetting her graduation day. On the contrary, I do not accept this as mitigation. It only indicates that the victim, Ms X, is a saint for being able to write such a letter to the abuser and expressing her respect for him despite what he has done.

It is rare, in my many years on the bench, to encounter such a flagrant abuse by a father on his own daughter and for such a long time. Some people may say that this is not the action of a man but of a beast or an animal, and some may say that it would be an insult to the animal kingdom because parents even in the animal kingdom protect their young.

The only good thing in this whole dastardly affair is that Ms X has finally taken the first steps on a long road to healing and recovery, and I want to say to her that rather than feel that she is worthless, I want to say to her that she is actually a beacon of courage because she has managed to defeat the evil that her father has rained on her since she was nine and she can stand tall and proud and be an example of courage to many other girls in our society who may be suffering sexual abuse and who are afraid to come forward. They can follow her example to shake off the shackles and stand up against the abuser. Ms X has nothing to be ashamed of and if one day I should be so lucky to meet her, I would shake her hands with the utmost respect. So she has no cause or reason to blame herself for anything.

Now for each of this offence of incest, I would consider that a starting point of 9 years on each count because there are aggravating features in this case and top amongst them is the breach of trust. Apart from that, it is also the length of the abuse and so for Counts 2, 16, 18, 20, 22, 24 and 26, I will sentence a starting point of 10 years’ imprisonment on each count.

On the Count 4, I would, because of the aggravating features which I have mentioned, on top of that there is the added aggravation of a video being taken by the defendant of the sexual abuse on that occasion either on camera or on his mobile telephone. So I would add 2 years to the 9 years for that count, making it 11 years.

On Count 27, the perverting-the-course-of-justice count, for writing the two letters telling the victim not to give evidence against him, I would consider a starting point of 3 years’ imprisonment. And as far as the discount is concerned, as Mr So correctly conceded, the defendant is not entitled to the full one-third off and he submitted that he should be entitled to 25 per cent off. Well, I was of the opinion that it should be less than 25 per cent off, however, I do take into account that by his plea the victim has been spared the trauma of giving evidence. So therefore I have decided to accede to the submission of Mr So and give him the 25 per cent discount.

So on Counts 2, 16, 18, 20, 22, 24 and 26, on each count the 10 years’ imprisonment will be reduced by 25 per cent and thus on Count 2 it will be 7 years 6 months.

Now, I have to consider the totality principle and in my mind the overall sentence for all these multiple counts should be in the range of about 16 years after plea. So what I will do therefore is make the sentences in Counts 2 and 16 to be concurrent, and the sentences in Counts 18 and 20 will be 2 years consecutive and the rest concurrent, and the sentences in 22 and 24 will be 2 years concurrent. And the sentence in Count 26 will be 2 years -- I am sorry, I would like to repeat it again.

The sentences in Counts 2 and 16 will be concurrent, which is 7 years 6 months. Then, the sentences in 18 and 20 will be 2 years consecutive and the rest concurrent. Then, the sentences in 22 and 24 will be concurrent to each other and 2 years consecutive to the sentences above. The sentences in Count 24 -- did I get it wrong? 26 -- let me see, Counts 2 and 16 will be concurrent to each other, 18 to 22 will be concurrent but consecutive, 2 years consecutive, 22, 24 will be also concurrent but consecutive to the above -- 2 years consecutive to the above and Count 26 will be 2 years consecutive.

Yes, so -- and then the sentence for Count 4 will be 3 years. The original starting point of 11 years will be reduced by 25 per cent to 8 years 3 months, and that will be 3 years consecutive to the sentences in the other charges. So the total sentence for all the incest charges will be 16 years and 6 months.

Now, as far as Count 27 is concerned, I have decided to give the applicant the one-third off and so the starting point of 3 years will be reduced to 2 years and thus making it 1 year, and thus I will make it 1 year consecutive to the sentence in the incest charges.

So you will go to prison for a total of 17 years and 6 months, and I would like to say that these are severe sentences but a message has to be sent out to deter others from abusing their positions of trust as parents. They are here to protect the young children they bring into this world, not to abuse them, and as the Court of Appeal has said before that these offences strike at the very fabric of our society and the sentences have to punish and deter, and it is still unknown whether this sort of abuse could be, in the course of time, completely -- the victim can be completely healed or she will forever suffer an irreversible trauma. So it is for that also that sentences given out by the courts have to recognise that fact.