HKSAR v. L.H.Y.

HCCC 43/2023

[2023] HKCFI 1886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 43 OF 2023

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty before the Eastern Magistrates’ Courts on 20 February 2023, to 4 counts of indecent conduct with a child under the age of 16 years, contrary to s146(1)  of the Crimes Ordinance, Cap 200 (“the CO”); 2 counts of indecent assault on another person, contrary to s122(1)  of the CO and 1 count of attempted unlawful sexual intercourse with a girl under the age of 13 years, contrary to s123 and 159G of the CO.

Prosecution Case

2.The offending took place between the defendant and his female cousin between April and September 2010, at a time when his cousin was just 4 years of age and he was 14 years old. These matters came to light in 2021, when the complainant was just 15 years of age. She had been self –harming, was persistently depressed, suffered from weight loss, insomnia and had a disturbed menstrual cycle. She was diagnosed with bipolar affective disorder. It was whilst in psychiatric care that she complained of being sexually abused by the defendant.

3.The exact dates of offending are unknown save that they occurred within a 6 months’ period in 2010. At that time, the complainant was living with her paternal grandparents due to the breakdown of her parent’s marriage. The defendant visited that address to see his grandparents. From time to time he would be left in charge of the complainant whilst his grandmother saw to household chores. He and his cousin would be in the little girl’s bedroom. The defendant would usually play video games and the complainant would read comics.

4.On the first occasion, relating to Count 1, the defendant closed the door to the bedroom and asked the complainant to “help him”. If she did so, then he would buy her a music box which she wanted. He then took the complainant’s hand so that she could rub his by now naked penis and then asked her to suck it. Whilst she did so, the defendant repeatedly pushed her head down and asked her to lick his penis. This incident lasted for about 10 minutes. He also French kissed her. Once it was over, the defendant asked her not to tell the grandmother. Something he mentioned to her on each occasion.

5.About 1 week later, inside the same bedroom, the defendant offered to play a “dressing” game with the complainant. These events relate to Count 2 on the indictment. The defendant then undressed the complainant leaving her underwear on and molested her private parts over her underwear for approximately 5 minutes. This was an uncomfortable experience for the young girl as the defendant scratched the outer parts of her vagina with his long nails. The defendant then took off his own underwear and began to lick the complainant’s private parts including using his tongue to enter her vagina. Once more he asked the complainant not to tell his grandmother about what he had done.

6.Approximately 1 ½ weeks after the second incident, whilst in the bedroom, Counts 3 & 4 of the indictment cover an incident in which the defendant took off his underpants and asked the complainant to take off her own. He then asked the complainant to suck his penis. He touched her private parts and eventually he licked them. Once more the defendant promised to buy the complainant a music box but only if she continued to do as he asked.

7.The next incident, indicted under Count 5, took place whilst inside the same bedroom. On this occasion, the defendant asked the complainant to suck his penis. This oral sex took 6-7 minutes. Thereafter, whilst wearing his underwear, he asked the complainant to sit on him and then molested her from behind both with her underwear on and off.

8.The 5^th incident under Counts 6 & 7, took place inside the same room. The defendant took off the complainant’s underwear, fondled her and licked her private parts. Thereafter, and in relation to Count 6 of the indictment, he took off his own underwear and attempted to thrust his penis into her vagina. These were forceful, painful attempts, lasting 2 minutes but he failed to enter her and so he asked her to perform oral sex on him. She did so for 3-4 minutes. This forms the basis of Count 7. The incident came to an abrupt end when the grandmother tried to enter the bedroom but the door was locked.

9.Throughout this series of incidents, the complainant was far too young to understand the import of what she was being asked to do and what was being done to her by the defendant. Nothing else occurred after September 2010 and the defendant and complainant continued to be present at family events. It was not until some years later, in primary school, that the complainant began to realise the import of what had occurred but at this stage she was too scared to mention it. Events returned to her with more impact in November 2020 as a result of other matters in her life which, along with this abuse, lead to her cutting her wrists and the necessity for psychiatric care. It was at this point in time that she was diagnosed with bipolar affective disorder.

10.On 15 June 2021, the defendant was arrested for the offence of indecent assault and made immediate admissions. In interview he could not recall specific incidents but accepted he had asked her to masturbate him and perform oral sex upon him for which he was remorseful. 

Effect upon the Complainant

11.The complainant has had a difficult life regardless of these deeply distressing events. She was sent to live with her grandparents at a very young age and the facts that these events went undisclosed for several years says much about that relationship. She continues to bear some animosity towards her parents and to her grandparents who have not been supportive in bringing this matter forward. They must have known why she was presenting as she did in 2021 when they placed her with a private psychologist and yet it took until 2022 for these offences to come to light. She clearly has a number of other issues arising from both these events and other events in her young life but she is now at least receiving treatment. A future difficulty will no doubt arise upon disposal of this case as it concerns a member of her family who is to go to prison as a result of what he did and the failure of other adults to properly protect her. These events will remain with her for the rest of her life.

Defendant’s Background

12.The defendant is now 27 years of age and is of previous good character. He has been educated up to secondary 6 school level. He is single and lives with his mother and sister. He has a clear record, does not take drugs and is not a member of any triad society. He was unemployed at the time of his arrest and I have no information to suggest he was ever employed despite reaching the age of 27.  Mr Leung on his behalf submits that the defendant had a difficult childhood. The reason why he had been sent to his grandmother’s house was because of the domestic violence going on in his own home. He also suffered from bullying at school.  His mother, sister and aunt have written to the court explaining his domestic situation pertaining at the time and as to his character. The defendant himself has written about his remorse and how he intends to move forward but his letter shows no understanding of the lifelong and traumatic affect that these events have had upon his cousin. None of the other letters reflect any such understanding either despite this being a family matter and the authors of the letters being female relatives of the complainant.

Sentence

13.This offending took place over a period of 6 months when the victim was just 4 years of age and the defendant was 14 years old. They were related and were cousins. The defendant was not an adult but he was left to supervise the victim even though he was not left in sole care of her. The responsibility for that lay squarely on the grandmother’s shoulders.

14.Count 1 covers an act of gross indecency on a little girl who had no idea what she was being asked to do and complied because she thought she was to be bought a present. He forced her to suck and lick his penis. At one point the defendant used his hand to force her to continue. I consider an appropriate starting point after trial for such an act to be one of 18 months’ imprisonment. 

15.The second offence under Count 2 took place approximately one week later. On this occasion the defendant undressed the victim and molested her private parts over her underwear which caused her physical harm albeit unintended or reckless. He then took off his own underwear and licked the complainant’s private parts with his tongue entering her vagina. This is the second time he had sexually assaulted this little girl and I consider it should also attract a starting point for sentence of 18 months’ imprisonment.

16.Just one and a half weeks later, under Counts 3 & 4, the defendant sexually assaulted the complainant again when he asked her to take off her underwear. He then took off his underwear and asked her once more to suck his penis. This is the basis of Count 3. He touched and then licked her private parts. This is the basis of Count 4. This is the third time he violated this little girl in three weeks and matters had escalated as these events, although charged separately, all took place at one time. I consider the starting point after trial for this offending under each count should also attract a sentence of 18 months after trial.

17.Under Count 5, the defendant once more asked the complainant to provide oral sex lasting some 6-7 minutes. Thereafter, he asked the complainant to sit on him and he molested her from behind over her underwear and then without her underwear. This is the fourth occasion that the defendant committed an act of gross indecency with this little girl and made her provide oral sex upon him whilst also violating her. I consider that a starting point after trial of 18 months is appropriate.

18.Counts 6 and 7 are premised upon one incident. Under Count 6 the defendant fondled and licked the complainant’s private parts. But then he took off his own underwear and attempted to have sexual intercourse with this little girl. He had to use some degree of force when you consider their difference in size and he caused her pain in so doing. He must have realised that would be the case. He was 14 and she was just 4. Thankfully he was not successful in fully penetrating her but that does not detract from what he attempted to do to this little girl. For this offence I consider a starting point for sentence after trial of 3 years is appropriate. Presumably because he was left unsatisfied he then asked her to perform oral sex upon him which she did for some 3-4 minutes. This latter act falls to be considered under Count 7 and should attract a starting point for sentence of 18 months. It only came to an end because the grandmother tried to enter the bedroom.

19.I have considered the various principles of sentencing as laid down in HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427. There was a 10 year age gap between the complainant and the defendant, albeit the defendant, at 14, was just entering puberty and not a fully grown adult. For the purposes of sentencing he was a young person at the time of this offending and not a child. Nevertheless, the complainant was not even of school age and would have no idea of the implications of what she was being asked to do or what was being done to her and was obviously vulnerable to being manipulated in the way that the defendant did by offering to buy her a music box. So vulnerable that she continued to comply with his requests even though there could have been no suggestion that she enjoyed them. It may be that she was not significantly physically harmed by these assaults but she was most definitely mentally scarred. They were cousins and I consider there was a duty of care between the defendant and this young girl as he had been tasked with her supervision even though there was an adult in the flat. This was therefore a case of breach of trust. This young girl looked to him to protect her not to abuse her. It may not be the type of breach of trust between father and daughter or uncle and niece where the abuser can truly be said to be a responsible adult but the defendant knew full well what he was doing and that it was wrong, that is why the door to the bedroom was locked and perhaps why, having almost been caught, he did not abuse the complainant again after the grandmother almost walked in on them. It was an aggravating feature but is at the very lowest end of the scale for breach of trust and has not impacted upon the sentence this court considers appropriate.

20.These events had little or no effect upon the complainant in her very early years as she continued to mix with the defendant at family gatherings but that did not continue to be the case. She first understood that what had happened between them was wrong when she entered primary school. At that tender age she did not have the courage to tell anyone. When she reached puberty and started to have boyfriends, these events came back to her with a vengeance and formed part of the reason she started to self -harm at the age of 14 in 2020. She was eventually admitted to the Nethersole Hospital in April 2021 and is now receiving psychiatric follow up treatment. She has been diagnosed as suffering from bipolar affective disorder.

21.In considering totality of sentence I am conscious that sexual offences against the very young are particularly abhorrent even when the offender is himself young and that sentences should seek to deter others from committing similar offences. I am also conscious of the family dynamic in such situations and in this one in particular. I have taken into account the fact that the defendant was 14 at the time of this offending and is now 27 years of age and has been of otherwise good character. As mentioned in HKSAR v Leung Yuet Hung [2014] 3 HKLRD 304, I cannot place too much emphasis upon this fact when balanced against the actual acts carried out and the life-long harm visited upon the complainant. It must also be remembered that whilst the defendant admitted these wrongs from the outset once put to him, he did nothing in the interim to address what he must have realised would have been significant psychological harm to his cousin especially when she first presented with self-harm some 3 years ago. He would not have been ignorant of this. Any sense of guilt at that stage did not result in an admission of the harm done. That was when he was finally arrested. Nevertheless, I am conscious that his admissions and plea at the earliest opportunity have meant that this young lady need not go through the trauma of giving evidence in trial.

22.The defendant will of course receive a full one third discount for his guilty plea at the first opportunity. 

23.Under Count 1, he will go to prison for 12 months

Under Count 2, he will go to prison for 12 months, 3 months of which will run consecutively to Count 1

Under Count 3, he will go to prison for 12 months, 3 months of which will run consecutively to Counts 1 and 2

Under Count 4, the defendant will go to prison for 12 months, 3 months of which will be served consecutively to Counts 1-3

Under Count 5, the defendant will go to prison for 12 months, 3 months of which will run consecutively to Counts 1-4

Under Count 6, the defendant will go to prison for 2 years to run wholly consecutively to Counts 1-5

Under Count 7, the defendant will go to prison for 12 months, to be served wholly concurrently with Counts 1-6

Making a total sentence of imprisonment of 48 months.

Ms Claudia Ko, SPP, on behalf of the Department of Justice, for the HKSAR

Mr Peter Leung, instructed by Messrs Mike So, Joseph Lau & Co., assigned by the Director of Legal Aid, for the defendant