HKSAR v. Cheung Wai Hung

DCCC 598/2020

[2021] HKDC 489

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 598 OF 2020

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REASONS FOR SENTENCE

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1.On 24 March 2021 the defendant pleaded guilty to seven charges of indecent assault, contrary to section 122 of the Crimes Ordinance[1] (charges 1, 2, 4, 5, 7, 9 & 11) and three charges of theft, contrary to section 9 of the Theft Ordinance[2] (charges 6, 8 & 10)[3]. Sentence was adjourned for preparation of a psychological report and a background report, the defendant being in breach of probation imposed for an offence of indecent assault.

2.In summary between 24 September 2019 and 23 February 2020 the defendant indecently assaulted seven females by deceiving them to believe there was an insect on their back.  The defendant said he would help to remove the insect but instead tried to unhook the brassieres of the ladies.  On three occasions the defendant touched their breasts.  The ladies were all aged over twenty, except one who was 16.  The defendant also stole the property of three of the ladies. 

3.The defendant was arrested on 24 February 2020 when he admitted indecently assaulting ladies and stealing their things by falsely claiming there was an insect on the woman. 

4.The following is a brief summary of each offence.  I do not however propose to detail full particulars of each offence which are set out extensively in the summary of facts admitted by the defendant on 24 March 2021.

Charge 1

5.On 24 September 2019 the defendant followed a lady, aged 26, who was walking from the University MTR station to her dormitory at the Chinese University.  The defendant tapped the lady on her shoulder and said there was a cockroach on her back.  The defendant offered to get rid of the cockroach and shook the lady’s clothes pretending to try remove the cockroach. 

6.The lady feeling strange, ignored the defendant and walked away.  The defendant continued to follow the lady and said the cockroach was on her back again.  The lady was frightened and felt harassed and very uncomfortable when the defendant touched her skin near the back of her brassiere.   No cockroach was found and the lady shouted at the defendant that he had deceived her.

7.The lady identified the defendant in an identification parade.

Charge 2

8.On 7 October 2019 the defendant followed a lady, aged 22, as she left the University MTR station and said there was a bug on her back.  When the defendant pretended to look for the bug and looked towards the lady’s breasts, the lady immediately covered her breasts with her hands.

9.The defendant continued to pretend to look for the bug.  When the defendant inserted both his hands underneath the lady’s shirt the lady felt her brassiere was loosened and immediately covered her breasts.  Feeling that she had been indecently assaulted the lady said she would go to the toilet.   Inside the toilet the lady could not find a cockroach.

10.The lady identified the defendant in an identification parade.

Charge 4

11.On 14 December 2019 the defendant followed a 16-year-old school girl who was walking by a playground in Sheung Shui.  The defendant tapped the girl on her shoulder and said there was a cockroach on her back.  While pretending to remove the cockroach the defendant said the cockroach had flown into her back.  The defendant then inserted both his hands underneath the girl’s shirt.  The girl felt her brassiere buckle was detached and realising that she had been indecently assaulted told the defendant to take out his hands. 

12.The defendant denied deceiving the girl and left.  The incident was captured on CCTV.  The girl also identified the defendant in an identification parade.

Charges 5 & 6

13.On 26 December 2019 the defendant followed a lady, aged 23, as she was walking down the stairs to the platform of the Mong Kok MTR station.  The defendant said there was a bug on her back and offered to get rid of the bug.  While pretending to get rid of the bug the defendant said that the cockroach had fallen into her back.

14.The lady then sat on a chair on the platform.  The defendant told the lady to put her bag on the ground.  When the defendant said he could see the leg of the bug he put his hands inside the lady’s shirt.   The lady was very frightened and asked the defendant to find a woman to help her.  The defendant ignored her and touched her breasts for about ten seconds.  The defendant then told the lady to fasten her brassiere and go to the toilet.  In the toilet the lady could not find any bug.    

15.The next day the lady discovered that her wallet containing AUD500, HKD700, a crossed cheque for HKD120,000 with the payee’s name left blank, a credit card and an ATM card, was missing from her bag. 

16.The incident was captured on CCTV.  The Australian dollars were found on a search of the defendant’s home.

Charges 7 & 8

17.At 12:40 p.m. on 4 February 2020 the defendant followed a lady, aged 23, as she was leaving the Heng On MTR station.  The defendant told the lady there was a caterpillar on her and asked her to remove her jacket and let him hold her bag.  When the defendant inserted his hand inside the lady’s shirt and touched her left breast with force for about two seconds, the lady immediately removed the defendant’s hand. 

18.The defendant returned the lady’s jacket and bag and walked towards the MTR station.  The lady inspected her bag and discovered her wallet, valued at $6,000, was missing.  The wallet contained her identity card, a home visit permit, a €5 banknote, HKD300 cash, a staff card, an ATM card, two credit cards and an Octopus card. 

19.CCTV captured the defendant using his Octopus card to enter the Heng On station at 12:48 on 4 February 2020.  On arrest the police found the €5 banknote in the defendant’s wallet. 

Charges 9 & 10

20.On 18 February 2020 the defendant approached a lady, aged 27, who was sitting on a bench on the platform of the University MTR station.  The defendant told the lady there was a bug on her back and offered to help remove the bug.  The defendant inserted his hand inside the back of the lady’s shirt and lightly touched the skin. 

21.At the same time the defendant told the lady to take off her jacket.  The lady put her jacket and bag on the bench.  The defendant continued trying to fix the back of the lady’s clothes.  After three to four minutes, the lady feeling this was strange, picked up her jacket and bag and went to the toilet.   In the toilet the lady could not find any bug on her.

22.The lady checked her bag and discovered her identity card, Octopus card, ATM card and credit card were missing from her bag. On arrest the police found the Octopus card in the defendant’s wallet, which the lady identified by the serial number on the card. 

23.The incident was captured on CCTV.  The lady also identified the defendant in an identification parade. 

Charge 11

24.At 10:45 p.m. on 23 February 2020 the defendant followed a lady as she was walking home from the Heng On MTR station.  The defendant told the lady there was a bug on her jacket.  Believing the defendant, the lady removed her jacket and swung the jacket in attempt to remove the bug. 

25.The defendant then told the lady to walk aside at which time he stood behind the lady and pulled up her brassiere strap a few times.  The defendant said he could see the bug and suddenly inserted his hand inside the lady’s shirt and touched her left breast for two seconds before removing his hand. 

26.The lady said she would handle the matter herself and walked home.  At home the lady could not find the bug. 

Mitigation

27.In passing sentence, I have carefully considered the oral and written submissions of Ms Herbert, including that the defendant who is 31, is currently engaged to be married[4]. 

28.Ms Herbert is instructed that the defendant expresses his remorse and regret for committing the offences and is willing to attend counselling on release from prison[5].

29.I have read the defendant’s mitigation letter in which he expresses his remorse; promises not to violate the law or hurt others and says he is determined to change his old lifestyle.  

30.I have also read the letters written by the defendant’s parents, fiancée and ex-employer in which they express their support in helping the defendant reintegrate into society.  The defendant’s mother and sister have attended court to show their support for the defendant.

Criminal record

31.In 2017 the defendant was sentenced to probation for two offences of indecent assault.  The defendant again appeared in court for indecent assault in 2018 when he was sentenced to probation for 18 months on 31 December 2018.  

32.The present offences committed between 24 September 2019 and 23 February 2020 were therefore committed during the probation period. 

33.The brief facts of that case reveal the indecent assault was committed with the same modus operandi as the present indecent assaults[6].

Reports

34.I have carefully considered the psychological report and the background report. 

35.In summary the psychological report of clinical psychologist Mr Woo Chin Pang reveals that for some years the defendant has watched pornographic materials about sexually assaulting females.  Gradually the defendant indulged in similar sexual fantasies and had the urge to peep and molest female strangers, including at work and in crowded areas where he believed he would not be noticed[7]. Indulgence in pornographic material about sexually assaulting females is also referred to in the background report[8].

36.Mr Woo is of the impression that the defendant has Frotteuristic Disorder and Voyeuristic Disorder and that his risk of re-offending is assessed to be very high.  

37.Psychological service focusing on proper control of sexual needs, deviant sexual interests and relapse prevention are believed to be beneficial to the defendant[9].

38.I have also read the probation reports, the psychological report and the psychiatric report called for when the defendant was sentenced to probation in 2018.  Frotteuristic Disorder was also the finding of the clinical psychologist who interviewed the defendant in December 2018 and who assessed the risk of sexual re-offending at that time to be at the higher end of moderate risk[10].

39.From the court papers it would appear that the magistrate initially intended to impose a custodial sentence and not a probation order.  The background report stated that to deal with his problems the defendant had approached Caritas Community Support Project on Inviting Men Against Sexual Offence for counselling service[11].

40.The magistrate called for a further report from the probation service which recommended 18 months’ probation supervision with special conditions including receiving and completing psychological assessment and treatment and attending and participating in activities, groups or programmes as directed.

41.The reports before the court today show that the counselling and supervision rendered to the defendant turned out to be ineffective because he covered up all his wilful thoughts and acts from the counsellor and his supervising Probation Officer[12].

42.In response Ms Herbert is instructed that whilst on probation the defendant was very scared that if he was open and honest about these matters he would end up having his probation revoked and being sent back to custody.  Ms Herbert says the defendant did not appreciate counselling and supervision were all there to assist him and were for his own good.

43.I reject the defendant did not understand probation was there to help him.  That was the second time the defendant had been placed on probation.  As he told the clinical psychologist he was not motivated and did not really open-up with his problems during the treatment period[13].

44.The probation officer was clearly misled into recommending probation by the fact that the defendant attended the Caritas Community Support Project on Inviting Men Against Sexual Offence for counselling service from which the probation officer formed the view the defendant was ready to make change and explore his underlying problems by seeking help from different professions[14]. 

45.The defendant was clearly not ready to make change as he continued to repeatedly commit further offences.  I note that the defendant told the clinical psychologist that he believed he had indecently assaulted at least 70 female strangers by using the same modus operandi[15]. The defendant is however only to be sentenced for the seven offences of indecent assault to which he has pleaded guilty. 

Indecent assault

46.The maximum sentence for indecent assault is 10 years’ imprisonment. 

47.There are no guidelines for offences of indecent assault.    There are three important considerations to bear in mind in sentencing for indecent assault: the need to deter others, the need to mark the public abhorrence of such crimes and the need to redress the grievance suffered by the victim[16].

48.I have considered the cases referred to the court by Ms Herbert[17].  Sentencing is very much fact sensitive, offences of this nature covering a wide range of conduct[18].

49.The defendant having deceived his victims into believing that there was a cockroach, a bug or caterpillar on their back indecently assaulted his victims and on three occasions stole their property.   

50.The assaults were neither a quick brush of a hand over the clothing of the victim nor a single touch.  The defendant was persistent in his assaults; he inserted his hands inside their clothing and except for one occasion (charge 9) touched the breasts or brassiere of his victims, one of whom was a 16-year-old schoolgirl.   

51.Although the defendant did not touch the breasts of all his victims that was clearly his intention[19]. I am satisfied the same starting point is appropriate for each charge of indecent assault. 

52.Taking into account the nature of the assaults in which the defendant deceived his victims; this is the third time the defendant has been before the court for indecent assault; the defendant is in breach of probation imposed for an offence of indecent assault; the risk of re-offending is assessed to be very high and bearing in mind the need to deter others, the need to mark the public abhorrence of such crimes and the need to redress the grievance suffered by the victims, I am satisfied that a starting point of 9 months’ imprisonment is appropriate for each offence.

53.Giving the defendant full credit for his pleas of guilty reduces the sentence on each charge of indecent assault to 6 months’ imprisonment. 

Theft

54.Ms Herbert equates the theft charges with cases of pickpocketing[20].    I am not satisfied the thefts are properly described as pickpocketing.  They are however no less serious than pickpocketing, the defendant taking advantage of his victims by deceiving them there was an insect on their back and then indecently assaulting them and stealing their property. 

55.I am satisfied a starting point of 12 months’ imprisonment is appropriate for each theft.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charges 6, 8 & 10 to 8 months’ imprisonment. 

Restitution

56.Mr Iu confirms that during the adjournment the defendant’s family have made full restitution via the police of the amounts stolen in charges 6, 8 & 10 in the total sum of $8,630[21]. I reduce the sentence on each theft charge by 1 month to 7 months’ imprisonment.

Totality

57.Total sentence must reflect that there were seven separate indecent assaults on seven different victims, over a period of about five months and that the defendant stole property belonging to three of the victims. 

58.I am satisfied that a total sentence of 2 years and 6 months’ imprisonment properly reflects the defendant’s criminality on the ten charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[22]. 

59.The defendant is convicted and sentenced as follows:

Charge 5 – 6 months’ imprisonment;

Charges 1, 2, 4, 7, 9 & 11 – 6 months’ imprisonment on each charge with 3 months of the sentence on each charge consecutive and 3 months concurrent to charge 5; and

Charges 6, 8 & 10 – 7 months’ imprisonment on each charge with 2 months of the sentence on each charge consecutive and 5 months concurrent to charges 1, 2, 4, 5, 7, 9 & 11

Breach of probation

60.As noted already the present offences were committed while the defendant was on probation.  By virtue of section 6 (6) of the Probation of Offenders Ordinance the court may deal with the defendant for the offence for which he was placed on probation, in any manner in which the magistrate’s court by which the probation order was made could deal with him if he had just been tried for or convicted of that offence by or before that court[23].

61.Counselling and supervision rendered to the defendant having turned out to be ineffective because the defendant was not motivated and covered up all his wilful thoughts and acts from the counsellor and his supervising Probation Officer, I am satisfied that it is just to deal with the defendant for the offence for which he was placed on probation. 

62.I am satisfied a starting point of 4½ months’ imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 3 months’ imprisonment. 

63.The defendant was remanded in custody from 27 November 2018 to 31 December 2018 for the preparation of the pre-sentence reports.  By virtue of section 67A (1) (c) of the Criminal Procedure Ordinance this period of custody will be disregarded for the purpose of computation of sentences of imprisonment.  In the circumstances I reduce the sentence by 1 month to 2 months’ imprisonment. 

64.The offence is separate and distinct from the offences for which the defendant is sentenced today.  I am satisfied a consecutive sentence is appropriate. 

65.I order the sentence to be served consecutive making a total sentence to be served by the defendant of 2 years and 8 months’ imprisonment which I am satisfied properly reflects the defendant’s criminality on the eleven charges and takes into account the defendant’s personal circumstances and the seriousness of the offences.