Now, the Summary of Facts admitted by the defendant.
X was born in July 2007. Her parents divorced in 2011 when X was about 4. Between 2009 and 2011, X’s parents entrusted caring of X to the father’s younger sister. The defendant is the husband of the father’s younger sister. Defendant is therefore the paternal uncle of X.
X’s father noticed X becoming reluctant to attend family gatherings in 2018 and 2019 and counselling service was provided to X in 2019. During the counselling session, on 22 September 2020, X disclosed to the counsellor that she had been sexually assaulted by her uncle multiple times when she was studying primary 2 to primary 5. She described what her uncle did as really disgusting. She did not report as she was afraid that the defendant would not be convicted. The matter was then reported to the police.
X then in the video-recorded interview, described what the defendant had done to her. X said she considered the defendant as her second father until she realised what the defendant did to her was wrong in P5, Primary 5, after she received sex education. She did not tell her father as her father was impulsive. She did not tell her grandparents because of their health. Since Primary 5, she distanced herself from defendant and there was no more sexual assault.
Count 1, the indecent assault. X was in Primary 2, it was around Chinese New Year holidays in 2015. The assault took place at the defendant’s home. When X’s aunt was in the shower, the defendant hugged and kissed X on her lips for 5 to 10 minutes. The defendant told X not to tell anyone.
Count 2, the attempted rape. This incident happened when X as in Primary 2 to Primary 3. It was in autumn or winter. They were at the village house home of the defendant’s mother.
X and the defendant shared a bed at the time. While they were alone, the defendant kissed X on the lips and inserted his tongue into X’s mouth. He then molested X’s breast and private parts under X’s clothing. Defendant also licked X’s nipples and her clitoris. Defendant then took off X’s trousers and pulled to the side of the bed. The defendant then removed his own trousers and rubbed his penis against X’s private parts. He separated X’s legs and tried to insert his penis into X’s vagina. X felt defendant’s penis touching the opening of her vagina but did not enter. The defendant moved forwards and backwards saying it would be comfortable if he entered. X said the defendant’s penis was erect.
The act lasted for about 10 minutes and the defendant stopped when X told him she felt painful. The defendant then molested X’s breast and private parts until she fell asleep. The defendant told X not to tell anyone about this.
Count 3, the indecent assault. This incident also happened at the village house about two weeks after the earlier incident in Count 2. The defendant kissed X’s lips, ears and face. When X turned away to avoid the defendant, the defendant told her to face him. The defendant then molested X’s breasts and private parts. He then took off X’s trousers and his own trousers. He pulled X to the side of the bed, separated her legs and rubbed his penis against the opening of X’s vagina. The defendant moved forwards and backwards to adjust the position of his penis against the opening of X’s vagina with his erected penis. X told the defendant it was painful. The defendant stopped and used a tissue to wipe X’s private part. The assault lasted for about 10 minutes. The defendant molested X’s private parts until she slept.
Count 4, indecent assault. This assault took place about one to two weeks after the assault in Count 3. Again, this happened at the village house. The defendant kissed and molested X’s breasts and private parts for about five minutes. He then kneeled down on the bed, removed X’s and his own trousers, separated X’s legs and pressed his body onto X rubbing his erected penis against X’s vagina. He used his hand to adjust the position of his penis. The assault lasted for about 5 to 10 minutes. There was no penetration. After defendant stopped, he cleaned X’s private parts with a tissue. X fell asleep, but when she woke up a while later, she found the defendant was rubbing his penis against her vagina again. X went back to sleep. The defendant had said “I love you” to X during the incident.
Count 5, indecent assault. This incident happened when X was in Primary 2 to Primary 3, in the weekend, in summer at the defendant’s home. X was about to go out with her relatives when the defendant molested her whole body inside the bathroom having asked X to have a bath together with him. Defendant molested X’s breast and private parts as well, touching her in those areas for an abnormally long time. After that, the defendant lifted X up and separated her legs. He rubbed his penis against X’s vagina for about 5 minutes before they both showered.
Count 6, indecent assault. This incident took place in the Mainland during the Chinese New Year holidays. X was then in Primary 3 to Primary 4. When X’s aunt went to wash her hair, the defendant suddenly jumped onto the bed where X was lying and kissed her with his tongue inside her mouth.
Now, the arrest and caution of the defendant. The defendant was arrested and cautioned on 29 September 2020.
During a video-recorded interview, the defendant admitted having kissed and hugged X, claiming it was X who took the initiative. He admitted on one occasion, X sat on his penis and moved with her vagina touching his penis and he lost control. He admitted having touched X’s body, including her breast, buttocks and private parts when they were both naked. He had also rubbed his penis against X’s vagina three to four times without penetrating. He said X treated him as a father, and at first, he thought that intimate behaviour was an expression of love for family members.
In relation to the various counts, he said the following:
Count 1, he admitted having kissed X when his wife was in the washroom.
Count 2, he admitted rubbing his penis against X’s private parts for about one minute.
Count 3, he admitted having touched X and rubbed his penis against her vagina.
Count 4, he admitted it was similar to the previous occasion.
Count 5, he denied this offence.
And Count 6, he remembered kissing X when his wife was in the bathroom when they were all in the Mainland China.
Before the Magistrate, the defendant admitted having attempted to rape X and indecently assaulted X as charged.
Victim impact reports. Prior to sentence, I obtained victim impact reports on X and her parents. I do not wish to disclose too much of the contents of the reports to safeguard their privacy. Suffice to say that X is still suffering from a host of symptoms indicating that she is suffering from post-traumatic disorder syndrome even now. She also harbours suicidal thoughts after these assaults. She was particularly angered by the defendant’s allegation that she was the one who initiated the intimacy.
Both parents suffered not only from the guilt they felt for having entrusted X to the defendant but also the emotional distress and problem experienced by X since the assault.
Psychologist’s report on the defendant. I have also obtained a psychologist’s report on the defendant prior to sentence to assess the risk of reoffending. According to the clinical psychologist, Ms Lee, who had interviewed him, the defendant appeared to be genuinely remorseful for his misdeed. Ms Lee came to the view that the defendant started interacting with X with family love and experienced warmth and closeness with X, which was long lost in his own relationship with his wife and his sons. The defendant mixed up family love with romantic love, experiencing “puppy love” with X. Present assessment does not indicate paedophilic tendency on the part of the defendant and the risk of sexual re-offending is low.
Background and mitigation. According to the antecedence statement, the defendant was born in 1969, so he is now 53 years of age. He is married with two sons. He had two previous convictions, one for importing, exporting unmanifested cargo in 1995 and one for attempting exporting textiles without a license in 2001. The defendant worked as a cross-border driver, earning $20,000 per month prior to his arrest. He claimed to be educated up to Form 2 level.
Ms Maria So, counsel for the defendant, in mitigation confirmed the background stated in the antecedence statement. Ms So informed this Court that the defendant admitted he had breached the trust of the victim, X. And he had no excuse for what he had done to X, which was clearly wrong. Ms So also emphasised that the defendant cooperated with the police upon his arrest and had pleaded guilty to the six counts. Ms So submitted the defendant is very remorseful and his family members have all forgiven him. The defendant had learnt a harsh lesson and will not reoffend. The defendant’s wife and sons had written to this Court expressing their forgiveness and asking for leniency.
Ms So submitted that whilst there is no sentencing tariff for indecent assault and the sentence will vary depending on the circumstances of each case, she nevertheless referred to the case of Secretary for Justice v Huang Lung Wei. In that case, there were some factors relevant for sentencing. She also brought to my attention a number of District Court cases demonstrating how the District Court judges sentence defendant for such an offence.
As for the attempted rape offence, again, Ms So referred to the case of Leung Yuet Hung. She submitted that in cases where there were no aggravating or mitigating factors, the usual starting point for rape tends to be around 5 years’ imprisonment. Ms So also referred to the sentencing in two High Court cases for my consideration.
Ms So accepted that there are aggravating factors in the present case: the victim was very young, the defendant did not use any safety measure. But Ms So emphasised no weapon was used, no force was used. And Ms So also emphasised there was no evidence that the offences were planned. Ms So urged this Court to consider the fact that all these acts ceased since 2017, and the victim was spared the ordeal of having to come to court to give evidence as the defendant had pleaded guilty, and what the defendant had done is serious, but Ms So submitted it cannot be said to have fallen into the most serious category. Ms So also asked this Court to consider the totality principle when sentencing.
On the resumed hearing today, Ms So informed this Court that the defendant understood and agreed with all the reports, that the defendant is truly remorseful and has self-reflection for the last two years during his incarceration. He apologised to the victim X and her family, and hoped to somehow make compensation to them upon his release from prison. Ms So also submitted that the psychologist’s report on the defendant was positive in the sense that the risk of reoffending is low.
Now, my consideration of sentence and actual sentence. The defendant’s convicted of one count of attempted rape and five counts of indecent assault. A person convicted of rape is liable to imprisonment for life. An attempted rape is not necessarily less serious than an actual rape. It all depends on the particular facts of any particular case. A person convicted of indecent assault on indictment is liable to imprisonment for 10 years.
The seriousness of the present case lies not only on the actual sexual abuse but also on the serious breach of trust. The defendant was entrusted to take care of the victim. Instead of protecting her, the defendant abused her since X was around 7 years of age in early 2015. The abuse was not an isolated incident either. The defendant abused X at his own home, his mother’s home and also when the family went on holidays in Mainland China. There were five incidents of indecent assault and one attempted rape. Just how could the defendant have mistaken the natural affection of a child towards his or her carer to be “puppy love”? It is hard to understand.
There is no excuse whatsoever for the defendant to have taken advantage of this innocent young girl to gratify his own sexual needs. The defendant should be ashamed for having placed any blame on X, a young child, for his own misdeeds. I am referring to what he said in the cautioned statement after arrest. I do not find Ms So’s submission that these acts were done without evidence of planning convincing. Clearly the defendant made use of the opportunities whenever they presented to sexually abuse X who was under his care at the time and was therefore always available.
The defendant started by hugging and kissing X, that is, Count 1.
On the second occasion, the defendant already removed X’s clothes and licked her nipples and private parts on top of caressing her body. He even rubbed his penis against X’s private parts and tried to insert his penis into X. X was then a Primary 2 or Primary 3 student. That was Count 2, the attempted rape.
Then, followed another four incidents of indecent assault, that is, Counts 3 to 6.
The two indecent assault, that is, Counts 3 and 4 happened within weeks of Count 2 and each other. In both cases, the defendant rubbed his penis against X’s exposed private part and caressed X’s body. In Count 5, the defendant touched X’s breast and private parts inside the bathroom when having a shower with X.
The last indecent assault occurred in a hotel in the Mainland China. The defendant used the opportunity when his wife was in the bathroom to assault X. On this occasion, he kissed X by putting his tongue inside X’s mouth.
So one can see that apart from the first indecent assault, Count 1, and the last one, Count 6, all other sexual abuse involved the defendant removing X’s clothing and rubbed or tried to insert his penis into the private parts of X. In the case of HKSAR v Chan Ching Ho, which was cited in the case of Huang Lung Wei referred to by Ms So, the defendant touched the private parts of his 6-year-old niece and instructed her to massage his private parts after touching her. The Court of Appeal said that the important sentencing consideration in cases of these kind were the need to:
(1) To deter others;
(2) To make the public abhorrent of such crimes;
(3) To redress the grievance suffered by the victim, her relatives and friends.
And the case called HKSAR v Kong Yun Chiu, a maternal uncle, who was 28 to 29 years of age, abused his 8-year-old niece. The defendant touched the victim’s breasts and private parts inside the bathroom. He later rubbed his penis outside the victim’s private parts after watching a pornographic film. He then masturbated and ejaculated.
The Court of Appeal said the fact that the victim is a child is always a severely aggravating feature. Children are vulnerable members of the society. It is too easy for those who would prey on their naivety and trust to succeed. The deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly.
Further, children are more likely than adult to suffer trauma in silence rather than report, particularly, in case of a breach of trust. Where there are threats, whether express or implicit, leveled at the child not to report, fear is added to the initial offence and the culpability is higher.
Viewed in the light of these factors, offences of these kind call for substantial terms of imprisonment. The absence of other aggravating factor should not be permitted to derogate from the inherent seriousness of any indecent assault on a child.
In the case of HKSAR v KKK, the defendant pleaded guilty to rape and indecent conduct towards a child under 16. The victims are all defendant’s daughters. He raped one on four occasions when she was 12, 13 and 14 respectively. He made another 9-year-old daughter pluck his pubic hair. The trial judge imposed a total sentence of 23 years and 7 months’ imprisonment. On appeal, the total sentence was reduced to 18 years. The Court of Appeal said the abuse of a child by the parent or a person in the position of a parent was a damnable breach of trust against the society at large. Ultimately, it is through the court to protect these children.
And another case, HKSAR v Lee Hon Wah, the Court of Appeal was of the view that the court should consider the following in sentencing of indecent conduct with or towards a child under 16:
(1) The age different between the defendant and the victim;
(2) the relationship between the defendant and the victim , including whether the defendant had taken advantage of his position or status to commit the offence or whether there was any breach of trust at the time;
(3) whether the defendant had used threats or inducements to make the victim succumb, falling prey to his exploitation;
(4) the number of occasions of committing the offence and the duration of the offence;
(5) whether inappropriate or unnecessary violence was involved in committing the offence; whether any harm or discomfort caused to the victim;
(6) whether any suitable safety measures were taken in committing the offence; whether any hazard to the health and safety of the victim and the public was caused;
(7) whether the offence had caused physical or psychological trauma to the victim;
(8) whether the offence had impact on the family members of the victim;
(9) was the defendant involved in other inappropriate behaviour such as inviting or permitting other people to watch or take video;
(10) whether the defendant is psychologically imbalanced or a paedophile and the likelihood of reoffending.
I echo what the Court of Appeal had said about cases of this nature. Now, clearly, there is a very serious breach of trust here.
Applying what I have just mentioned, those 10 factors in Lee Hon Wah. The age different between the defendant and X was great. There was 38 years’ difference because the defendant was born in 1969 while X was born in 2007.
The second one, the defendant was in a position of a father to X, and he and his wife were taking care of X. The defendant took advantage of his position, which amounts to a serious breach of trust.
Number three, while the defendant did not actually used threat or inducement to make the victim succumb, it is clear that X complied because the defendant was her uncle and she was living with him at the time. The defendant also had told her not to tell anyone after the assault.
The fourth item. There were altogether five indecent assaults, three of which were very serious involving the defendant rubbing his penis against X’s private parts. There was also an attempted rape. The duration of time for each of these offences were about 10 minutes or so. On one or two occasion, X said that the defendant continued to molest her while she was falling asleep.
The fifth item, there was no inappropriate or unnecessary violence involved in committing these offences.
The sixth item. The defendant did not use any condom when he rubbed his penis against X. With X’s young age and pre-puberty stage, there was no risk of pregnancy but the risk of sexually transmitted disease, if any, would still present.
The seventh one, there was no physical harm done to X but the psychological damage was huge as I have already outlined earlier, disclosed in the victim impact report.
The next item is about the family of X. As X’s father entrusted the care of X to the defendant’s wife, his own sister, one can imagine the shock and distress caused to X’s father upon finding out what the defendant had done. And as already indicated in the victim impact report, X’s parents blame themselves for entrusting X to the defendant and they also continued to suffer as a result of X’s symptoms and problems after the assault.
The ninth item, there was no indication of any inappropriate behaviour such as inviting others to watch or taking video.
And for the last one, the tenth one, the defendant is not considered to be a paedophile and the risk of reoffending is low.
So after considering all these factors, for the 2nd count of attempted rape, which is the most serious of all the six counts, I am of the view that the appropriate starting point is 7 years.
For the 1st count of indecent assault, which involved the defendant kissing a fully clothed X, while it was still a breach of trust, the facts are not too serious. A starting point of 6 months is appropriate.
For the 6th count of indecent assault, again, X was fully clothed when the defendant forcibly kissed her, putting his tongue inside her mouth. This indecent assault is more serious than the one in the 1st count and also after the defendant had sexually assaulted X repeatedly. I am of the view that a starting point of 9 months is appropriate.
Now, for the other three other indecent assault, that is, Count 3, 4 and 5, these assaults involved the defendant rubbing his penis against X’s private parts after separating her legs. The defendant also molested other parts of X’s body including her breasts. For these three counts, the act of the defendant was very close to that of an attempted rape, which is on the higher end of the range of indecent assault. I am of the view that a starting point of 5 years is appropriate for each.
Although the defendant is not a man with a clear record, the nature of his previous convictions is very different and I will not enhance the starting point by reason of his previous convictions.
The defendant pleaded guilty at the committal stage and is entitled to a full one-third discount. Now, after the discount, the appropriate sentence for each count would be as follows:
The 1st count, 4 months. 2nd count, 4 years and 8 months. 3rd count, 3 years 4 months. 4th count, 3 years 4 months. The 5th count, 3 years 4 months. The 6th count, 6 months.
Now, I now have to consider the totality principle. I am of the view that an overall sentence of 8 years, which is equivalent to a notional overall starting point of 12 years, properly reflect the criminality involved in this case. Such a sentence would also address the three factors mentioned in the case of Chan Ching Ho. So to achieve this, the defendant is sentenced as follows:
So the sentence of 4 months in Count 1 is to run consecutively to the sentence of 4 years and 8 months in Count 2, making a total of 5 years. And then, for Count 3, 4 and 5, 1 year each of the 3 years and 4 months imposed on each count to run consecutively to the 5 years for Count 1 and 2, so making a total of 8 years. The 6 months imposed on Count 6 is to run concurrently with all other sentences, then making the total of 8 years’ imprisonment.