HKSAR v. T. Y. K.

HCCC 33/2023

[2023] HKCFI 1895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 33 OF 2023

________________________

BETWEEN

________________________

_______________________________

REASONS FOR SENTENCE

_______________________________

1.The defendant pleaded guilty to 5 counts (originally charges 2, 3, 5, 6, 7, but now renumbered as counts 1 to 5) of Indecent Assault[1] before Magistrate Mr Lam Tsz Kan and was committed on 6 February 2023 to the Court of First Instance for sentence. Before me, the defendant confirmed his pleas of guilty and his admission to the Summary of Facts prepared by the prosecution.

SUMMARY OF FACTS

2.Girl, X, was born on 5 June 2005 and is 18 at the time of sentencing.

3.On 5 September 2021, when X was 15, she disclosed in a letter to her former teacher that she had been sexually abused by her father, the defendant, since X was about 5 or 6 years old.  The teacher met up with X 2 days later and the case was reported, and D was arrested on 8 September.

4.In 2 video recorded interviews, X revealed the following:

5.X lived with her parents in a flat in Tsuen Wan (hereinafter as ‘the TW flat’) from birth to 2017, when she was in Form 1.  This was where the assault in count 1 took place.

6.From 2017 to 2020, X and her family moved to a flat in Tseung Kwan O (hereinafter as ‘the TKO flat’). This was where the 4 assaults in counts 2, 3, 4, 5 took place.

7.X was sexually abused by D from when she was 5 to 6 years old until she was 14 years old.  For the incidents that happened between 5 to 11 years old, X cannot be sure about the timing anymore.  Sometimes the assaults took place when her mother was away from home, and D would cause X to sleep next to him and sexually assault her.  D would bring X to have afternoon tea afterwards to comfort her.  X did not shout for help or vigorously resist when assaulted.  She did not speak during the assaults, except for the last time when there were exchanges between herself and D.

COUNT 1 (ORIGINALLY CHARGE 2): RUBBED PENIS AGAINST VAGINA OVER CLOTHING

8.Count 1 took place on a day between 5 June 2013 and 4 June 2016 in the TW flat when X was between 8 to 10 years 11 months old.

9.The particularized period is when D last rubbed his penis against X’s vagina with clothing in between.

10.X recalls many occasions when she would on weekday afternoons be in the master bedroom playing on her iPad or phone on the bed.  D would also be in bed, and he would touch the inner thigh of X for a while, and then touch X’s private part with his fingers.  D would then climb on top of X and rub his penis against X’s vagina back and forth.  D would sometimes breathe heavily but would not speak.  There was no penetration since they were both wearing clothes, but X felt uncomfortable at her private part.  D had done that to X so many times that she had lost count.

COUNT 2 (ORIGINALLY CHARGE 3): RUBBIED PENIS AGAINST VAGINA OVER CLOTHING, AND MOLESTED BREASTS

11.Count 2 took place on a day between 1 July and 31 August 2019 in the TKO flat, when X was 14 years old.

12.X recalls that since she was 11, on occasions similar to those in count 1, in addition to rubbing his penis against her private parts with clothes on, D would also molest X’s breasts at the same time.

13.The last occasion D did this to X was on a day between July and August 2019.  On this occasion, D also attempted to insert his finger into X’s vagina after reaching into her underpants.  X could not tell whether there was in fact penetration.

COUNT 3 (ORIGINALLY CHARGE 5): TOUCHED INNER THIGH, TOOK OFF PANTS AND UNDERPANTS, TOUCHED NAKED PRIVATE PART, RUBBED PENIS AGAINST VAGINA WITHOUT CLOTHING IN BETWEEN

14.Count 3 took place on a day between 1 September 2016 and 31 August 2019, when X was between 11 and 14 years old.

15.X recalls D had on 4 occasions took off her pants and underpants, with himself undressed as well, rubbed his penis against X’s vagina.  X described D pointing his penis at her vaginal opening and moved back and forth as if trying to penetrate. X is not sure if D had “squeezed the whole thing inside”.  She felt the penis to be hot and erected, as well as pain when it was pressed against her.  X says D would abruptly stop after moving back and forth for a while and rush to the washroom, returning a while later.

16.The first occasion of the above happening was when X was in Form 1 or 2 in 2017, when X was 12.  The second occasion, being count 3, of D touching her in the above manner was between X’s Form 1 and Form 3 school year.

COUNT 4 (ORIGINALLY CHARGE 6): TOUCHED INNER THIGH, TOOK OFF PANTS AND UNDERPANTS, TOUCHED NAKED PRIVATE PART, RUBBED PENIS AGAINST VAGINA WITHOUT CLOTHING

17.Count 4 took place on a day between 1 September 2017 and 31 August 2018 when X was between 12 and 13 years old in similar circumstances to count 3, where D touched X’s inner thigh, took off her trousers and underwear, touched her genitals, and rubbed his penis against X’s vagina without clothing in between.

18.This third occasion of D touching X in this manner happened between X’s Form 2 and 3 school year.

COUNT 5 (ORIGINALLY CHARGE 7): TOUCHED INNER THIGH AND GENITALS AND LICKED AND SUCKED X’S BREASTS AND NIPPLES

19.Count 5 took place on a day unknown between 1 January 2019 and 31 August 2019, when X was between 13 and 14 years old, and during the latter half of her Form 3 school year.

20.On this last occasion of the assaults, which happened on a weekday afternoon, D molested X’s inner thigh, private part and breasts, and pulled up X’s top and licked and sucked her breasts and nipples.  X closed her legs and moved away and vigorously resisted when D tried to take off her pants.  As a result, D was unable to rub his penis against X’s naked private part on this occasion.

21.After the assault, D asked X if she really disliked it so much and whether it had to stop.  X cannot recall how she answered.  D then said something like ‘male is like that, male has urges’.  X was furious.  D asked if X would forgive him.  X said she may, but that she will never be able to forget.

22.D was arrested on 8 September 2021 and was interviewed under caution, where he admitted to having touched X’s private part and sucked her breast on one occasion.  He said there had been no penetration of X’s vagina, and that he never had any such intention.

PREVIOUS CONVICTIONS

23.D is of previously clear record.

PERSONAL BACKGROUND AND MITIGATION

24.D was born in Hong Kong and is 54 years old.  He is educated up to university level.

25.D used to reside together with his wife and X, first at the TW flat, and then in the TKO flat.  They moved to another flat in Malibu Lohas Park, Tseung Kwan O in 2020.

26.D’s parents are in their eighties, and he is the person who looks after them since his elder sister passed away and the younger sister is estranged from the family.

27.D was the Front Office Manager of a hotel at the time of his arrest, earning around $58,000 per month.  He has been working in the hospitality industry since 1991.  D is the breadwinner of his immediate family and has been contributing $7,000 each month to his elderly parents as well as giving them extra pocket money from time to time.

28.D enrolled in a long-distance learning programme organized in association with the University of Birmingham in 2016 and graduated with a degree in Tourism in 2019.

29.Ms Yu submits that D’s action might have been triggered by accumulating financial and emotional stress, but he accepts full responsibility and is remorseful.  Ms Yu points out that these are his first convictions in his 54 years of life in Hong Kong, that he had indicated his guilty pleas at the earliest opportunity while fully cooperating with the Police since the beginning of their investigations.

30.D wrote and told the court that he had contemplated suicide but managed to put off the idea for the sake of his parents and his family.  D is determined to change to become a better person and wishes to reunite with his parents and to make it up to his wife and X as early as possible.

31.In the mitigation letter written by D’s father, he wrote about D being a filial son and how he believes long term stress from work and life in general caused D to have committed the offences.

32.D’s former colleague, who had known D for over 20 years, sees him as a responsible and diligent department head, a good family man with no vices.

VICTIM’S IMPACT REPORT

33.Clinical Psychologist Ms Chan interviewed X in March 2023 and has prepared a detailed report.  In gist, it is her assessment that X is encountering emotional distress from the assaults, requiring psychiatric treatment to stabilize her mental state to keep up with daily functioning.  The distress had caused her to have to suspend her studies, deprived her of normal sexual development, and affected her views on intimacy and romantic relationships. The relationship with her mother was also inevitably affected after the assaults came to light. The impact of the abuse is extensive and reaches across multiple areas of her life, past, present and future.  X appears to have adopted an avoidance coping strategy, and psychotherapy is needed to help her make sense of what had happened, and to handle the psychological responses gradually emerging in the treatment process.

SENTENCE

34.The maximum sentence on conviction upon indictment for the offence of indecent assault is that of 10 years’ imprisonment.

35.Ms Yu refers to the case of HKSAR v Hau Kei Chung (侯其聰), CACC 186/2001 and invites the court to draw parallels between that and the present case.

36.There the applicant also pleaded guilty to 5 counts of indecent assault.  The offences were also committed over a period of 5 years against the daughter who was aged between 10 and 16 at the time.  All the assaults took place in their home, where the applicant’s wife and their 3 other children lived together.

37.4 of the assaults happened in the middle of the night.  The applicant reached into the victim’s clothes and touched her breasts and private part while she was sound asleep.  He also tried to take off her shorts and underpants, and rubbed his penis against her vagina.  On the remaining occasion, the applicant told the victim to open the bathroom door for him to get something while she was in the shower.  Once inside, he hugged her from behind and touched her breasts against her will.

38.Mr Justice Yeung in the Court’s judgment said this,

“6. The applicant is the victim’s biological father. Yet not only did he fail to fulfil his duty of protecting his daughter, but he took the opportunity to assault her, which is very shameful behaviour. This Court cannot ignore the fact that the offences were committed over a long 6-year period, with the victim being 10 years old when they began. The offences all took place at home, a place where a child should feel the safest, but to the victim home became a place of suffering. The complications and torment caused by the applicant’s behaviour is indescribable.”

39.The Court stressed that the way the assaults were committed is very serious and observed that living condition in Hong Kong is usually very cramped, creating many opportunities for the indecent assault of children. This type of offence is not easy to detect, because it is difficult for a child to make accusations against an elder. In any civilized society, it is the duty of parents or guardians to care for and look after the children, and it is the court’s responsibility to protect children against sexual assaults by their parents or guardians. The court must impose sentences that would have a deterrent effect, in reflection of society’s repulsion towards offences of this nature, as well as to answer to the victim, her family, friends and relatives.

40.Having considered the relationship between the applicant and the victim, the age of the victim, the length of the period of the commission of the offences, the manner and number of times of assaults, the Court found that case to be at the more serious end of the spectrum of similar cases, but that the original overall starting point of 9 years’ imprisonment for all 5 offences was too high, and substituted an overall starting point of 7 years and 6 months.

41.Ms Yu for D submits that the seriousness of the present case is comparable to that of Hau Kei Chung.

42.I would agree with Ms Yu in general, save that X could have been as young as 8 when count 1 was committed, making the case possibly slightly more serious.

43.Having said that, I note that count 1 as charged alleges the offence to have been committed between June 2013 and June 2016, and X, totally understandably given the lapse of time and the circumstances of the offences, has not been able to be more precise in the timing of the offence.  That being the case, I find that it would be fairer to sentence the defendant on the basis that the youngest age that X was assaulted was 10, making his case almost on all fours with the case of Hau Kei Chung.

44.On the other hand, the defendant had, in counts 3 and 4 rubbed his penis against X’s genital area directly without clothing in between, and in count 5 had licked and sucked X’s breasts and nipples and tried to remove X’s trousers. These assaults are significantly more serious than those in Hau Kei Chung, where the applicant only attempted to take off the victim’s shorts and underpants (“申請人亦試圖脫去受害人的短褲和內褲”), suggesting that the rubbing of his penis against the victim’s vagina was over the shorts and underpants.

45.Having taken into consideration the defendant’s breach of trust, the age of X at the time the offences were committed, the span of the offences over time, the more serious nature of at least 3 of the assaults when compared to Hau Kei Chung, and the psychological damage suffered by X, I find that an overall starting point for all 5 offences should be 8 years’ imprisonment, with a discounted sentence of 64 months’ imprisonment after plea.

46.To achieve this sentence, I will adopt a starting point of 2 years’ imprisonment for counts 1 and 2, and a starting point of 3 years’ imprisonment for counts 3, 4 and 5.

47.The defendant entered a timely guilty plea and is granted the full one-third discount. The individual sentence after plea is, therefore, 16 months’ imprisonment for counts 1 and 2; and 24 months’ imprisonment for counts 3, 4 and 5.

TOTALITY

48.I order that the sentences in counts 1, 2 and 3 be served wholly consecutively (16+16+24=56), 8 months of the sentence in count 4 be served consecutively with the balance concurrently (56+8=64), and the sentence in count 5 be served concurrently to the rest of the sentences.

49.The matters raised in mitigation on behalf of the defendant, including his clear record, confession to his wrongdoings, pleading guilty thus saving X having to come to court to give evidence, and joining a Christian programme to try to become a better person are mitigating matters, but I find that any discount to be given on these basis are already subsumed by the 1/3 discount granted to the defendant.

50.I have already taken into consideration the totality principle and find that this sentence is appropriate in the circumstances and that there are no grounds to further reduce it save for the discount given for the defendant’s plea.

CONCLUSION

51.The defendant is sentenced to 64 months’ (or 5 years 4 months) imprisonment for the 5 counts.

Mr Gary LEUNG, Senior Public Prosecutor of the Department of Justice, for the HKSAR

Ms Emily YU, instructed by Messrs Tang & Ku, for the Defendant