HKSAR v. Yang King Hung

DCCC 164/2021

[2022] HKDC 898

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 164 OF 2021

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REASONS FOR SENTENCE

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1.The defendant, Yang King Hung, in this case is convicted after trial of four counts of indecent assault, contrary to section 122(1)  of the Crimes Ordinance.

2.The four offences took place during the period between 24 July 2019 and 30 October 2020 involving the same victim.  During this period, the victim was a secondary student and her age was at all times below 15. 

3.The defendant was a man aged 32 years old hired by the victim’s school as a sports coach responsible for the training of the victim and the other students in athletic activities.  To improve her performance, the victim also joined a private sports club organised by the defendant. 

4.The factual findings and the reasons for my decision have been explained earlier in open court and I will not repeat them in full.  Simply put, the first offence took place on 24 July 2019 during an athletic training trip to Japan.  The defendant offered to massage the victim inside his hotel room after the latter sustained injuries during the training.  During the massage, the defendant inserted his hand into the victim’s brassiere and touched her right breast. 

5.The second offence took place on 17 August the same year during yet another training trip to Guangzhou, China.  On the same pretext, the defendant offered to massage the victim in her hotel room this time.  During the massage, the defendant lifted the victim’s undergarment and touched her nipple for five to 10 minutes and kissed her on the mouth.

6.The third offence took place on 30 December 2019 on the last day of the Christmas training camp during which the whole team stayed in a hotel in Tuen Mun.  After all other trainees had left for home, the defendant brought the victim into his room where he offered her a massage during which the defendant lay on top of the victim, embraced and kissed her on the mouth, licked the victim’s ear and neck, and that went on for 30 minutes.

7.The last offence took place on 30 August 2020.  At the end of a day’s training, the victim was invited to go to the defendant’s home in Tsuen Wan where again he offered her a massage.  During the massage, the defendant laid on top of the victim, kissed her on her body, with his erect penis touching her private part though their clothing.  The defendant also forced the victim’s legs apart, inserted his hand inside her brasserie, squeezed her breasts and also lifted up her bra and licked her right nipple, kissed her neck and ear while moving his body in an up-and-down motion.

8.Although the defence suggested that the intimate contacts were consensual and were exaggerated by the victim, the victim in her evidence in court vehemently denied that.  She also denied that she and the defendant were dating as girlfriend/boyfriend.

9.As I have pointed out in my reasons for decision, if the victim were of mature age, her behaviour in between those offences might lend some support to such contention.  However, by reasons of her age, the presence or otherwise of her consent cannot be an issue in the defence as she was incapable of giving one.  And even if she was not positively resisting or by behaviour induced another person to have a false impression that she consented to such behaviour, the defendant, knowing all the details about the defendant (in particular her age), as a mature man placed in a position of trust and authority, had the duty to rein in his baser instincts and refrain from behaving inappropriately.

10.In any event, in my view the victim did not give her consent and the defendant’s behaviour was predatory, the kind of behavior rendered all the more nefarious by reasons of his position, his age, and the trust bestowed on him by the victim’s school, the victim’s parents and the victim herself.  Such predatory behaviour is exactly what the legislation was aiming to deter and punish. As the result, the legislators deemed it fit to impose the maximum sentence for offences of this nature to the rather hefty 10 years.

11.The principle for such offences is to deter, especially when it involves two persons of unequal status and when one person is placed to the care of another, such as a teacher and pupil.  The courts take a very serious view of such offences and it is normal that such offences is punishable by a term of imprisonment (See Secretary for Justice v HKL [2004] 3 HKLRD 235).

12.The sentence for every offence is dependent on the circumstances of its commission and therefore there is no clear sentencing guideline.  There are, however, clear indications from the Court of Appeal for this court to consider when gauging the proper sentence.

13.The factors relevant to the present case are as follows:-

(i)  The age difference. The defendant was twice the age of the victim.

(ii)  The relationship. The defendant was the victim’s sports coach and had been entrusted by the school, the victim’s parents to go on training programmes and even overseas trips. As a sports coach, the defendant had a lot of opportunities to have physical contact with his charges. This must have been acknowledged and accepted, even approved by the victim’s school and also her parents. The victim, being a person of tender age, might not be able to tell the difference and call out the defendant when the line is crossed. The defendant was in a position of trust and also by his behaviour he had abused his position as a caregiver of his charges.

(iii)  There had been no overt act of threat or violence, yet the defendant took advantage of the victim’s obvious affection, appreciation, respect and trust. In doing what he did, the defendant had abused such a position and used the emotional relationship to wear down the victim’s hesitation and repulsion.

(iv)  The offences took place over a period of 12 months. From the facts, the defendant had progressively tested the victim’s resistance and reluctance.

(v)  There is no evidence that the victim has suffered any long-term psychological damage as she refused to submit to examination for the preparation of a victim impact report. The court therefore will have to assume that the victim, despite the unpleasant experience, suffered from no long-term or permanent damage psychologically.

(vi)  There is no evidence that the defendant suffered from any psychological illness.

14.The psychologist concluded after examining the defendant that he is a person of low self-confidence and in that he has a strong sense of inadequacy. His failure to secure a long-term relationship with a mature female could account for his predatory behaviour towards a younger person.  In view of the convictions, it is unlikely that he could secure a job of a similar nature in the future, and I agree with the psychologist assessment that his chance of reoffending would be relatively low. 

15.I do notice that the defendant had insisted that his relationship with the victim was akin to that of a normal boyfriend/girlfriend, and any intimate behaviour between him and the victim was consensual.  That shows he lacked remorse.

16.Offences of this kind have always been taken seriously by the courts.  Although there are no rigid sentencing guidelines, it is important for this court to mete out a sentence order that is proportionate to the severity of the case.

17.In this context, it might be useful to look at what my learned colleagues decided in similar situations.  Both the prosecution and the defence did not see fit to provide examples.  In my reading, I did come across the case of HKSAR v 戴旭輝, HCMA 27/2008.  It was a trial in the magistracy involving a 15-year-old, Form 4 student being indecently assaulted by her teacher.  The defendant in that case used the pretext to examine the victim, touched the victim’s breasts, took away her upper garment and brassiere and extended his hand inside her underwear to touch her backside.  The matter went on appeal at the High Court in the Court of First Instance, the High Court judge considered that the facts involved breach of trust, careful planning, and was of the view that a starting point of 21 months’ imprisonment was appropriate.

18.In my view, the facts of that case bears a certain resemblance to the present one, although the fact that there are four instances of indecent assault rendered the present case more serious.  The fact that two of the offences took place outside Hong Kong also is indicative of the greater degree of trust bestowed on the defendant by the victim’s parents.

19.The four acts or the four instances of indecent assault are an escalating series of indecent acts in order to lure and break down the resistance of the victim.  The last instance was almost a prelude to a full sexual intercourse.  So in all, when taken together, I believe the best way is to consider the culpability as a whole.  Therefore, I consider 24 months’ imprisonment for each count to run concurrently appropriate.

20.I turn to consider the mitigation put forward by his counsel and also the letters of mitigation by his colleagues and teachers.  I accept the defendant must have been a pretty good coach and his devotion his work must be real, therefore he had a good reputation amongst his colleagues and also he was regarded highly by his ex-teachers.  He also had a clear record.

21.However, as the principle for sentencing in offences of this nature is one of deterrence, rehabilitation of the offender plays little part in my consideration.  People committing offences of this kind usually has a clear record and even a good reputation; otherwise he/she would not have been put in a position of trust and would not have the opportunity to commit the offence. Therefore, previous good character carries no weight in my considerations.

22.Having considered everything before me, I conclude that his background and the mitigations do not consist any valid reasons to reduce the sentence order.  I should also point out that the degree of indecency in each assault differed slightly, the most serious one being the last one.  However, I would consider it more appropriate to consider the whole behaviour in the course of 12 months, and therefore it would be artificial to adopt a different sentence order for each count.

23.Therefore, the defendant is sentenced to 24 months’ imprisonment to run concurrently for each count.