HKSAR v. Man Kwai Kuen

DCCC 671/2020

[2021] HKDC 241

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 671 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty before me to two charges on a charge sheet as follows.

2.Charge 1 is Indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance, Cap 200.  Particulars of offence are that the defendant on or about 6 June 2020, at 1^st Floor, No 23D, Wing Ping Tsuen, Castle Peak Road - San Tin, San Tin, New Territories, in Hong Kong, indecently assaulted X, a girl of the age of 7 years.

3.Charge 2 is Indecent conduct towards a child under the age of 16 years, contrary to section 146(1) of the Crimes Ordinance, Cap 200.  Particulars of offence are that the defendant at same time and same place, committed an act of gross indecency with or towards X, a girl of the age of 7 years.

Summary of the facts admitted by the defendant

4.Y was acquainted with the defendant.  On a monthly basis, Y would go to the defendant’s village house (No 23D - subject place of the charge) to play mahjong.  Each time, Y would bring along her daughter X (DOB: 1 February 2013).

5.On the charge date, Y again brought along X (aged 7 at the time) to the village house to play mahjong.  The game was played on the G/F.  The defendant did not play and stayed in his bedroom on 1/F.  At around 11 pm, X went up to 1/F to play around.

6.At midnight, X returned to G/F and told Y that her private parts needed cleaning because they had been touched by the defendant.

7.Back home, X disclosed more details of what happened to Y who went back to the house and confronted the defendant resulting a police report being made in the morning.

8.What happened as related by X was that on the night in question, she went up to 1/F to watch TV and to take a rest; the defendant used a gun-like massage stick to touch her leg and private parts (with her underpants removed without her consent) for not more than one minute (Charge 2); the defendant then licked her private parts with his tongue (Charge 1); on both occasions, X told the defendant to stop; in the end, X put her underpants back on and left for her mother on G/F.

Criminal record

9.The defendant has one previous conviction in 2019 for possession of Part I poison for which he was fined.

Antecedents

10.The defendant is aged 72 (71 at the time of the offences), educated to primary 6 in Hong Kong.  The defendant is divorced and has 5 children.

Mitigation

11.Mr Duncan Ma of counsel mitigated on behalf of the defendant.

12.The following is a summary of the mitigation submissions.

13.The defendant’s 4 sons and one daughter are all living in the Netherlands.  The defendant was ordinarily resident in the Netherlands too and he lived there alone.  He has lived in the Netherlands for about 50 years running a restaurant there before retirement.  He only visits Hong Kong once or twice a year to manage his village house.  He suffers from diabetes and hypertension and has to take medicine regularly.

14.The defendant is very remorseful for what he did and decided to plead guilty and bear the legal consequences.  In committing the offences, he has acted out of character and there is no evidence to show he is paedophilic.

15.Even in the absence of a Victim Impact Report, the defendant accepts that his acts would inevitably cause psychological harm to the young victim. By the timely pleas, the defendant has saved the victim from the embarrassment and trauma of re-living the ordeal.

16.The defendant has not used force, inducement or threat towards the victim.  The defendant licked the victim once only and the touching of the victim with a massage stick lasted no more than one minute.  He stopped once the victim asked him to stop.  He did not prevent the victim from telling her mother what had happened.  The victim did not report of any pain or injury. The defendant did not take any photos or videos.

17.Although there was a huge age gap between the two, the defendant committed the offences in the sunset of his life.  After serving sentence, the defendant will not come back to Hong Kong frequently thus the chance for re-offending is very slim.

18.In conclusion, Mr Ma asked for a less severe sentence on the defendant.

Sentence

19.The maximum sentence for both offences is a term of 10 years’ imprisonment.

20.In Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136, the Court of Appeal held that there were three crucial considerations for the offence of indecent assault on young children by adults: (a) To deter others from committing similar offences; (b) To show the abhorrence of members of the public to offences of this nature; and (c) To redress the grievance suffered by the victim and his or her friends and relatives; that in addition, the sentencing courts had to consider three other important factors: (d) Even if no psychological assessment report on the abused victim was available, the court could not overlook the possibility of the victim suffering psychological damage as a result of sexual abuse; (e) It was difficult to detect this type of offence because child victims of sexual abuse would normally be at a loss and feel too embarrassed to complain to their parents or teachers about the molestation; and (f) in dealing with this type of offence, the courts would have regard to the protection of children as the most important consideration.

21.In HKSAR v Kong Yun Chiu [2007] 4 HKC 391, the Court of Appeal held that offences of this kind call for substantial terms of imprisonment; that the absence of other aggravating factors should not be permitted to derogate from the inherent seriousness of any indecent assault on a child.

22.In Secretary for Justice v Lam Yu Wai [2015] 1 HKLRD 400, a mildly mentally disabled respondent (aged 41) with 22 previous convictions including three or four similar ones[1] committed an act of indecent conduct towards a child under 16.  The respondent’s actions involved luring a 5-year-old boy (x) to follow him to a quiet staircase and forcing x to perform oral sex on him for 3 minutes.  The Court of Appeal commented that because of x’s age, there was no need for the respondent to use violence on x in order to force the latter to succumb (para 37).  In the Court’s judgment, looking at the nature of the case, particularly the age of x and the previous similar records of the respondent, even in the case of an application for review of sentence, the appropriate starting point should not be lower than 6 years and that was the starting point adopted on review (para 39).

23.For the present case, having taken into account the extent of the actions of the defendant on the victim and the length of time during which the victim had to endure those actions, and the huge age gap between the two parties and the lack of a similar previous record on the defendant, I will adopt a starting point of 4½ years’ imprisonment for each offence.  The defendant pleaded guilty in good time and is therefore entitled to the full 1/3 discount.  That takes each sentence down to 36 months.

24.With the totality principle fully in my mind, I consider there is an element of concurrence between the two offences as they took place in close proximity in space and time.  However, the two offences though similar in nature are quite different in character because Charge 2 was committed with the use of an instrument.  There has to be an element of consecutiveness and I put that to 4 months.

25.Because of the defendant’s advanced age, I give him a small discount of one month out of the total sentence that I would otherwise impose.

(Defendant, please stand)

26.For Charge 1, the sentence is 36 months’ imprisonment.  For Charge 2, the sentence is also 36 months’ imprisonment.

27.After taking into account totality and the defendant’s advanced age, I order that 3 months of the sentence for Charge 2 to run consecutively to the sentence for Charge 1, making an aggregate sentence of 39 months’ imprisonment.