HKSAR v. L.W.P.

HCCC 216/2022

[2023] HKCFI 1913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 216 OF 2022

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, L.W.P., pleaded guilty to five counts of indecent assault on another person, contrary to section 122(1)  of the Crimes Ordinance, Chapter 200, before a magistrate. The defendant was committed to the Court of First Instance of the High Court for sentence. At the previous hearing before me, the defendant has confirmed his plea and confirmed his admission to the Summary of Facts. Accordingly, he is convicted.

Background

The Summary of Facts reveals the following. PW1 (I will refer to her as Miss “X”)  is the defendant’s daughter, born in 2011. In December 2021, X told her mother that the defendant touched her inappropriately, and such incidents had occurred for some time since the summer of 2021. Her mother warned the defendant against doing such acts and the defendant promised not to repeat such acts.

In May 2022, X informed her mother again that the defendant touched her inappropriately again. The mother confronted the defendant. He said he tried to control himself. The defendant was warned again and it was suggested that he should see a doctor.

Thereafter, arrangements were made to prevent the defendant from being alone together with X at home. X would stay with her maternal grandmother after school until her mother picked her up after work. The defendant stopped his actions towards X thereafter.

X later revealed to her teacher at school that the defendant had touched her breasts and vagina since the summer of 2021 and she had told the defendant she did not want this to happen. X said the defendant stopped sexually abusing her in May 2022. The school then referred the case to the Social Welfare Department and the police.

During the police investigation, X, in a video-recorded interview, revealed that such similar incidents occurred at home at least 10 times a month from July 2021 to May 2022 when no one else was around.

The defendant admitted under caution to the two incidents that X spoke of (relating to Counts 1 and 5). He also revealed the particulars of three other incidents (relating to Counts 2 to 4). He stated that no one else was at home when the incidents took place, and he did not penetrate X nor ejaculate during any of the incidents.

Count 1

The 1^st count of indecent assault relates to an offence on an unknown day in July 2021 when X was nine years old. This incident took place at home, and the defendant was wearing underpants only. The defendant admitted that he saw X’s body was developing at the time, and asked her to go to his bedroom, during which he suddenly used his hand to touch the whole of X’s left breast under her shirt and touched the skin of her breast. He moved his hand up and down for around 10 seconds. The defendant also touched X’s private parts. X asked him to stop.

Having clarified with Mr Chan and Miss Yeung, the prosecution and the defence confirmed that the touching of X’s private parts was over her clothes. The defendant made full admission to Count 1. He said he had touched her breast over her clothes around three to four times for around 10 seconds.

Count 2

In respect of the 2^nd count, the indecent assault was committed at home on an unknown day in August 2021. The defendant revealed and admitted that he took off his own and X’s underpants in the bedroom. He told X to lay on the bed. He then climbed over her and kneeled, rubbing his penis against her vagina around 10 times for around one minute.

Count 3

In relation to the 3^rd count of indecent assault that was committed on an unknown day in December 2021, X was 10 years old. On this occasion, the defendant revealed that he told X to lie on the bed in his room. He touched X’s breasts over her clothes around three to four times for around five to six seconds. He took off his own and X’s, underpants and rubbed his penis against X’s vagina around 10 times for around one minute.

Count 4

As to the 4^th count, the defendant revealed that it was committed on an unknown day in April 2022. He said he told X to lie on the bed in his room. He took off his own and X’s underpants and rubbed his penis against X’s vagina around 10 times for around one minute. He further admitted that his penis was erect at the time.

Count 5

As to the 5^th and the last offence that was committed in the afternoon in May 2022, the defendant asked X to enter the bedroom. On this occasion, he indicated that he would be upset if X did not acquiesce to his request to do various acts. X then lay on the bed. The defendant touched her breasts under her shirt. The defendant then took off his own and X’s underpants and forcefully pressed his penis against the outside of X’s vagina and waist for at least one minute. The defendant also held X’s thighs with his two hands. X’s private parts hurt and itched. His penis felt hard. At that time, X was 10 years old.

The defendant admitted that he told X to sit on his lap in his bedroom. He touched X’s breasts over her clothes once or twice for around five seconds. He took off his own and X’s clothes and rubbed his penis against X’s vagina around 20 times for around one to two minutes. His penis was erect at the time. X looked unhappy.

X’s Psychological and Psychiatric Condition

I have a report dated 10 February 2023 prepared by clinical psychologist of the Social Welfare Department. I do not think it is necessary to repeat all that was said. Suffice it to say that X showed persistent emotional disturbance over the sexual abuse. X has a persistently low and anxious mood in the last six months. X used to distract herself and relieve the psychological harm by inflicting physical pain, but has stopped doing it in the recent two months. She currently has fleeting suicidal ideation. X harbours fury towards the defendant for his sexual abuse.

X manifested some post-traumatic symptoms that began and persisted after sexual abuse. The intrusion, negative alterations in mood and cognition, and maladaptive coping have negatively impacted her educational and social functioning. Psychotherapy is recommended for X and her mother to facilitate their post-traumatic adjustment.

Background of the Defendant

The defendant was born in 1982 and is now 41 years of age. He did not have any criminal record. He received education up to Form 5. He worked as a computer technician of a primary school prior to the present offences.

Psychologist’s Report on the Defendant

Before sentencing, I had adjourned the case to obtain the psychologist’s report of the defendant. I will now deal with the report of the defendant prepared by Ms Daisy Yeung, a clinical psychologist of the Correctional Services Department. According to Ms Yeung, the defendant is a man with low self-esteem and inadequate stress management skills. Ms Yeung expressed that it is believed that the loosened self-control was caused by the high level of stress from work, as well as his craving for intimacy and stimulation, which led him to commit the sexual offences against his own daughter.

It was said that the defendant expressed deep and genuine remorse for the offences and blamed himself for causing irreversible harm to the family. He reflected that he had taken advantage of his daughter’s trust in him.

Ms Yeung is of the view that the defendant does not exhibit signs of anti-sociality or hostile attitude towards females.

Although the repeated nature of the offences indicated that the defendant developed a sexual interest in his underage daughter, Ms Yeung was of the opinion that the defendant is clearly attracted to adult females, and currently there is no evidence suggesting that he has established a sexual interest in prepubescent girls in general, and that the defendant’s risk of sexual reoffending is impressed to be low. Counselling service with a focus on enhancing his stress management skills and facilitating his coping with family issues arising from the offences is recommended.

On the resumed hearing today, Mr Chan for the defence informed this court that the defendant understood and agreed with the report, that the defendant is truly remorseful. He also submitted that the psychologist’s report on the defendant was positive in the sense that the risk of sexual reoffending is low.

Sentencing Principles

I have been referred to a number of authorities by both the prosecution and the defence. I bear in mind the sentencing principles involving sexual offences on children and the court’s concern to protect children from sexual abuse: see HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239, HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 and HKSAR v Chan Ching Ho [2000] 3 HKLRD 476.

In Tsang Chiu Tak, the Court of Appeal reiterated at paragraph 9, the 10 factors identified in HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, which the court need to take into consideration:

(1)  the age difference 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 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;

(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;

(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.

The courts have also repeatedly stated that such crimes against children must be punished with a deterrent sentence to deter others from committing similar offences; to show the abhorrence of members of the public to crimes of this nature, and to redress the grievances suffered by the victim, and the family: see Chan Ching Ho, at page 482D-J; Tsang Chiu Tak at paragraph 8.

In HKSAR v Kong Yun Chiu [2007] 4 HKC 391, the defendant, a maternal uncle, who was 28 to 29 years of age, abused his eight-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 at paragraphs 11 to 12 that:

“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 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 adults to suffer trauma in silence rather than report, particularly, in case of a breach of trust.”

In the case of SJ v Huang Long Wei [2009] 3 HKLRD 136, the Court of Appeal reiterated at paragraph 14 about the difficulty in detecting this type of offences:

“...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 the courts will regard protection of children as the most important consideration.”

There are no sentencing guidelines for offences of this nature as the facts differ greatly from case to case: see HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, Lee Hon Wah and Huang Long Wei at paragraph 14.

It is neither possible nor practicable to fix a tariff for this offence given the varied circumstances pertaining to this kind of offence. For this reason, references to sentences in previous cases are of limited assistance: see Chow Yuen Fai at paragraph 27.

Sentence

I now apply the above 10 factors to the present case.

As to the first and second factors, the case occurred between July 2021 and May 2022. The defendant is X’s father. He was 39 to 40 years old at the material time. The defendant clearly took advantage of his relationship with X by committing these offences in order to satisfy his sexual gratification. At the time, X was just 9 to 10 years old and she was vulnerable and could not protect herself. The case clearly involved a very serious breach of trust.

Third, while the defendant did not actually use threat or inducement to make the victim succumb, it is clear that X complied because the defendant was her father, and she was living with him at the time. In relation to Count 5, the defendant admitted that he had indicated to X that he would be upset if she did not acquiesce his request to do various acts.

Fourth, there were altogether five indecent assaults, four of which was very serious involving the defendant rubbing his penis against X’s private parts. On the fifth and the last occasion, the defendant forcefully pressed his penis against the outside of X’s vagina and waist for at least one minute. The defendant held X’s thighs with his hands. X felt her private parts hurt and itched. The defendant’s penis felt hard. The five occasions of sexual assault spanned over a period of 10 months.

Fifth, it appears there was no inappropriate or unnecessary violence involved in committing these offences.

Sixth, although it was pointed out in mitigation that the defendant did not ejaculate inside X’s body, he did not take safety measures at all when he rubbed his penis against X. With X’s young age and prepuberty stage, there was no risk of pregnancy, but the risk of sexually transmitted disease, if any, would still be present.

Seventh, as disclosed in the victim impact report, X suffered tremendous psychological trauma and serious emotional disturbance. In order to alleviate the pressure, she had even chosen to harm herself. She displayed post-traumatic symptoms.

The next is about the family of X. As X’s father, it can be envisaged that the defendant’s acts had broken the family trust and relationship. As indicated in the victim impact report, X’s mother blamed herself for not being able to protect X from the father’s abuse and continued to suffer as a result of X’s symptoms after the assault.

Ninth, there was no indication of inappropriate behaviour such as taking video or photos.

The tenth factor concerns the defendant himself. According to the psychologist, there was no indication pointing to the defendant being a paedophile and the risk of his sexual reoffending, with proper counselling services, appeared to be low.

That said, X is in a very important stage of child development. Instead of providing a safe home for X, the defendant took the opportunity when he was alone with X to sexually assault her repeatedly for a period of time.

Mr Chan, for the defence, accepted that there are three aggravating factors in this case, namely the breach of trust, the defendant did not use any safety measures, and the defendant’s repeated course of conduct.

Mitigation Letters

Counsel for the defendant tendered to the court mitigation letters written by the defendant, his mother, his wife, his sister and two clergymen. His mother has expressed pain and shock to learn that the defendant committed these offences. They all otherwise speak of him as a filial and responsible son and husband.

The defendant’s letter expresses his remorse. The defendant expressed that he is very shameful for what he did. The defendant said he committed the offences due to enormous work pressure and he felt very painful for what he had done to his daughter and his wife. He expressed his wish to do his best to compensate and take care of his family in future. He says that he is now a devout Christian and determined to turn a new leaf.

However, the Court of Appeal in Chow Yuen Fai said at paragraph 31 that:

“Only in exceptional cases should a discount of more than one-third be given for a timely plea.”

I am not satisfied that this is an exceptional case to warrant additional discount.

After considering all these factors and the circumstances of this case, for the 1^st count of indecent assault, which involved the defendant touching X’s breasts under her shirt and the touching of private parts over the clothes. Although the facts are not the most serious compared to the other counts, it is still a serious breach of trust. I am of the view that a starting point of 18 months is appropriate.

For the other three indecent assaults, that is Counts 2, 3 and 4, these assaults involved the defendant taking off X’s underpants and rubbing his penis against X’s vagina. As for Counts 3 and 4, the defendant also sexually assaulted other parts of X’s body including her breasts. For these three counts, I am of the view that these indecent assaults are much more serious than the one in the 1^st count. I am of the view that a starting point of 4 years is appropriate.

As for Count 5, this assault also involved the defendant rubbing his penis against X’s vagina for around 20 times for about one to two minutes. The defendant was said to have forcefully pressed his penis against the outside of X’s vagina and waist for at least one minute. The defendant also held X’s thighs with his two hands. The defendant’s penis was erect at the time. I am of the view that 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 this count.

The defendant pleaded guilty on the first available opportunity. He is entitled to a full one-third discount. Now, after the one-third discount, the appropriate sentence for each count would be as follows:

The 1st count, 12 months;

2nd count, 32 months;

3rd count, 32 months;

4th count, 32 months;

5th count, 40 months. 

Here, the offences were entirely separate and distinct. I am of the view that partly consecutive sentences are appropriate to reflect there were five separate indecent assaults over a period of about 10 months.

I will now apply the totality principle, and standing back, determine what a just sentence would be for the overall culpability of this defendant.

I am of the view that the ultimate sentence of 4 years 8 months’ imprisonment is appropriate and is a just sentence for the defendant’s overall criminality.

I shall order that 2 months of the term imposed in relation to Count 1 is to run consecutively to the sentence of 40 months in Count 5, making a total of 42 months.

Counts 2, 3 and 4 shall run concurrently, making a total of 32 months, but 14 months out of the term imposed in relation to Counts 2, 3 and 4 shall run consecutively to the 42 months imposed on Counts 1 and 5, making a total of 56 months’ imprisonment.

Now, in relation to Counts 2, 3 and 4, I have considered the defence submission that these counts were laid upon the defendant’s voluntary revelation of the particulars of them. The defence submitted that “but for his voluntary confession, the police might not be able to discover such acts which lead to the convictions eventually due to the lack of evidence”. As noted in the case of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, the Court of Appeal citing the case of Ma Ming at paragraph 39 that:

“...when considering the totality of the sentence, the court, in exercising its discretion, can take into account that the frank confession of the defendant provides the only evidence which support the charge or charges and therefore make minor adjustments to the total sentence.”

That said, the Court of Appeal also added that the sentencing judge was not obliged to give a defendant a discount over and above the one-third discount upon his guilty plea.

Having considered the circumstances of this case, I accept that such voluntary admission, coupled with his guilty plea showed that he was genuinely remorseful. It is in the public interest to encourage an offender to “own up” to his misdeed and to face the consequences. I will exercise my discretion to give him 2 months’ discount.

The final sentence that I would impose on the defendant is 54 months, that is 4 years 6 months’ imprisonment.