HKSAR v. Yu Ka Ming

DCCC 693/2021

[2022] HKDC 923

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 693 OF 2021

________________________

________________________

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

1.The defendant (D) pleaded guilty before me to 1 count of 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 stated that on 26 April 2021, at a disabled toilet, 1^st Floor, Grandeur Terrace Shopping Arcade, Grandeur Terrace, No 88 Tin Shui Road, Tin Shui Wai, committed an act of gross indecency with or towards X, a girl of the age of 5 years.

Facts of case

2.According to the Summary of Facts admitted by D, at the time material to the case, the victim girl X was 5 years old (date of birth being 12 August 2015).  Since her mother Y had to go to work daily, Y would usually entrust her friend to bring X to a tutoring centre on the 3^rd Floor of Tin Chak Shopping Centre after school.

3.On 26 April, 2021, since her friend had a medical appointment in the afternoon, Y asked her friend to send X to the lift lobby at the 1^st Floor of Tin Chak Shopping Centre so as to let X go to the tutoring center by herself.  At about 1:30 pm Y learned from X’s elder sister that X had yet to arrive at the tutoring centre.  Y asked the Management Office of the Shopping Centre to check the CCTV footages.  She later learned that X had returned to the tutoring centre at about 2:15 pm.  Having spoken with X, Y made a report to the police.

4.Police investigation revealed that after X was left at the lift lobby by the friend of Y, she did not go to the tutorial centre, instead, she wandered at outside Café de Coral alone.  D approach X and took her to the 3^rd Floor rooftop garden to play for a while, then led her to the disabled toilet at the 1^st Floor of Grandeur Terrace on the other side of the garden.  Inside the toilet, D removed all the clothing of X and indecently assaulted her, including kissing and touching her body and private parts.  He also lowered the shorts he was wearing to expose his private parts, and made X perform oral sex on him.

5.CCTV of the relevant Shopping Centres showed that D approached X outside Café de Coral of Tin Chak Shopping Centre at 1:18 pm and took her to the footbridge leading to Grandeur Terrace Shopping Centre.  They entered the disabled toilet concerned at about 1:50 pm and came out at 2:09 pm.

6.On 27 April 2021, the day after the offence, a police officer spotted D to be wearing similar clothing as the culprit whom he saw in the CCTV footage.  D was then arrested for the offence of indecent assault.  Under caution upon arrest and in a subsequent video-recorded interview, D made full confession to the offence.

7.X positively identified D in an Identification Parade held on 28 April 2021 and provided further details of the incident to the police in a video-recorded interview.

8.Forensic examination and DNA analysis of relevant exhibits by the forensic pathologist and government forensic scientists fully supported the indecent conducts by D on X described above.

Defendant’s Background

9.D is 31 years old, born in Hong Kong on 26 March 1991.  He is 2^nd among 3 siblings in the family.  He resided with his parents and younger brother at a public housing unit in Tin Shui Wai while his elder brother works in Germany.  He claimed to have moved out of the family home as his relationship with his father was bad, but this was not mentioned in the Background Report.  As mentioned in the Psychological Report, D gave inconsistent responses regarding his education background.  At times he claimed that after completing Form 7 education in 2011 he obtained a Higher Diploma in Hotel Management from IVE in 2013, at other times he claimed to have obtained a Bachelor Degree in Social Science from Lingnan University.  In any event, after completing his tertiary education, he worked on and off in various fields, including part-time tutor for secondary school students and part-time waiter.  He had been out of work for about 1 year before the offence.

10.D has 1 previous criminal conviction.  In September 2021 he was sentenced to 4 months imprisonment for an offence of Possession of offensive weapon in a public place.  I was informed by Ms Lo for the prosecution that the offence occurred in March 2021.  D committed the present offence while on bail for that offence.

11.The Psychiatric Report indicated that D was diagnosed to be suffering from psychosis since January 2021 when he was sent to Pok Oi Hospital after an incident involving physical conflicts with his father and younger brother.  During his remand in Siu Lam Psychiatric Centre since October 2021, this diagnosis was confirmed with background of possible alcohol harmful use.  He responded to treatment provided and his mental condition has gradually improved with remission of paranoid delusions.  The Psychological Report indicated that there is no sufficient evidence to suggest that D had paedophilic disorder.  He showed remorse and some insights into his problems.  He also showed motivation to receive psychological treatment.  His risk of sexual re-offending was assessed to be at the high end of moderate range.

Mitigation

12.In mitigation, Mr Chau representing D, accepted that “custodial sentence is almost a norm, as the paramount sentencing considerations in this kind of offences are deterrence, public abhorrence and the need to redress the grievance suffered by the victim and the relatives and friends, and there is a need to protect children as well.”  He urged the Court to be lenient on D as far as the law allows and accord 1/3 discount for his guilty plea.

13.Mitigation letters written by D himself, his parents and Father John Wotherspoon, CSD Chaplain, were submitted in support.  The contents of these letters all indicated that D is very remorseful and determined to redeem himself after serving out the sentence to be imposed on him in this case.

Sentence

14.There is no sentencing tariff or guidelines for the offence under consideration.  The facts of individual cases must be taken into account in considering the appropriate punishment (see HKSAR v Lee Hon Wah[1]). The maximum sentence is 10 years’ imprisonment.  In the same case, the CA listed 10 factors which should be taken into consideration when assessing sentences in cases involving this offence[2]. Those that are relevant to the present case include (a) the age difference between D and the victim; (g) whether the offence has caused physical or psychological trauma to the victim; (h) whether the offence has impact on the family members of the victim and (j) whether D is psychologically imbalanced or paedophilic and the likelihood of re-offending.

15.In Secretary for Justice v Huang Long Wei[3], in the context of sentencing in cases involving indecent assault on young children by adults, which I consider to be equally applicable to the offence under consideration, the CA stated that there were 3 crucial considerations: (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.  In addition, the sentencing courts had to consider 3 other important factors; (d) 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) the courts would have regard to the protection of children as the most important consideration.[4]

16.In the present case D was 30 years old at the time of the offence while the victim girl X was only 5 years old.  According to the Victim’s Impact Assessment Report prepared by the prosecution, while X has gradually resumed her normal routine, she was still distressed by negative emotions related to the sexual abuse incident.  The contents of the Report indicated that the mother of X equally suffered substantially.  She revealed marked distress after the occurrence of the sexual abuse incident particularly being affected by strong sense of guilt.  She felt that she had to shoulder the blame for the assault even though she entrusted X’s escort to a friend on the day of the offence.  She felt like a failure for being unable to fulfil the major responsibility as a parent, which is to protect her child from harm.  She kept ruminating with the thought that if she had done something differently, the terrible thing would never have happened.  She continued to be preoccupied with the unresolved self-criticism.  She has also deliberately distanced herself from family and friends after the incident.  She believed that others would look down on X because she had been sexually abused.  She no longer sought help from peers for childcare to ensure zero risk of further trauma incident.  It is obvious from these observations that the mother will suffer mentally for a long time as a result of the unthinkable sexual abuse by D on her daughter X.  Further, I must bear in mind that the risk of sexual re-offending by D has been assessed to be at the high end of moderate range.

17.On all account this is a very bad case of sexual abuse on a young child by D.  The duty of the court to protect young children is of paramount importance.  Taking all the relevant factors mentioned above into consideration, I consider a starting point of 5 years and 6 months after trial would be appropriate to reflect the criminality involved.

18.However, there is another aggravating factor in this case. D committed the present offence when he was on bail for another case of Possession of offensive weapon in a public place.  This factor has long been recognized to be an aggravating factor warranting an enhancement of the starting point.  I consider an enhancement of 6 months to be appropriate in this case.

19.This is the first time D committed an offence of this nature.  At the time of commission of this offence he still had a clear record.  I also noted the Psychologist’s comment that D appeared to be remorseful and responded positively to the treatments provided.  For these factors I will reduce the starting point by 3 months.

20.D pleaded guilty on the first available opportunity.  I will accord him the fully 1/3 discount.  I see no other factors warranting further discount of the sentence.

Conclusion

21.Having considered all relevant factors, I adopt 5 years and 9 months as the starting point, and reduce it by 1/3 for the timely guilty plea.  For the offence D is facing, he is sentenced to 3 years and 10 months’ imprisonment.