HKSAR v. S.H.S.

HCCC 84/2023

[2023] HKCFI 2534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 84 OF 2023

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

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COURT: The defendant, S.H.S., was convicted after trial by a jury of two counts of rape and three counts of indecent assault. The victim of all five counts was the defendant’s step-granddaughter.

All five counts were committed when the victim was between 6 and 10 years old, between 1 May 2012 and 31 August 2016. Defendant was between 57 and 62 years old in that same time period. He is now 70 years old and the victim 17 years old. These offences came to light and were reported to the police when the victim was 15 years old in October 2021.

Background

PW1, the victim, who I will refer to as “Ms X”, is the defendant’s step-granddaughter. Her mother, Ms Y, divorced her first husband, Ms X’s biological father. She met her second and present husband, the defendant’s son, and started a relationship with him. In May 2012, Y and X moved in with the defendant’s son and the defendant in premises in Kwun Tong. Ms X was 6 years old. There were three bedrooms and the defendant and X occupied their own rooms, with Y and her soon-to-be husband occupying another. Y gave birth to two daughters in August 2012 and July 2014. They shared a bedroom with their parents. These two daughters were the defendant’s biological grandchildren. The defendant moved out of the premises in 2016 when it ostensibly became too small for six people.

In October 2021, when these offences came to light, X was interviewed by a social worker in a police video-recorded interview. She referred to the defendant as “grandfather” or “step-grandfather”. She recounted in particular five specific incidents involving the defendant, where on two occasions he raped her and on the other three occasions he indecently assaulted her. Because of the historic nature of these offences and her age at that time, X could not be specific about dates or timing, only being able to give an approximate age when these incidents happened to her.

The first rape happened when X was about 7 or 8 years old and alone with the defendant at home. She recounts how he asked her to come into his bedroom, touched her body before he undressed, and exposed his penis. He touched his penis before asking her to lie down and take off her underpants. She did as she was told and she describes him rubbing his penis against her vagina and telling her to spread her legs. She recounts him slowly penetrating her vagina with his penis and the pain being immense. In her own words, she said it did not fit and she felt like her private parts were being ripped apart.

She told him to stop and tried to resist, but was ignored. She had no idea how long the ordeal went on for but she was overwhelmed by the pain. She describes him as withdrawing his penis and then jerking it himself before he took a tissue to wipe it and also giving her a tissue, telling her to wipe herself clean. After that, he told her not to tell her mother.

She described a deep impression of a second time his penis penetrated her vagina, Count 2, but again she could not recall when or how long after the first time. She recalled it was again in his bedroom. He lay on top of her and penetrated her vagina with his penis. Her recollection is she could hardly breathe and she was in great pain.

Charge 3 was an indecent assault, carried out when she was alone at home with the defendant, having been in the shower. She had only learnt recently how to bathe herself. She had a towel around her body after showering, when the defendant picked her up, carried her to the living room, and took off her towel. He lay her down. He tried to put his tongue into her mouth, as well as groping her body and licking her all over.

Charge 4 was an indecent assault, she recalled, when she was in Primary 2. That is all she could say about when it took place, but it happened early one morning when she woke up to see him sitting beside her on her bed with his hand inside her pyjama bottoms and touching her private parts. When he saw that she was awake, he slowly pulled his hand out of her pyjamas. Her parents at the time were home but asleep in their bedroom with her two younger sisters.

Charge 5 was an indecent assault where again she was alone at home with the defendant, and he asked her to come into his bedroom. He told her to kneel or squat on his bed facing the window with her back to him. Her bottom was not flush on the bed and he inserted his hand into her underpants. She felt him insert a finger into her anus and she could hear rubbing sounds behind her. She recollected him asking her if she felt comfortable. She said it seemed he was masturbating behind her. When he withdrew his finger, she saw him wiping his index finger with a tissue. Again, she believes at that time she was in Primary 2.

The defendant’s background

The defendant was arrested on 7 October 2021, and he denied these offences under caution. He has now just turned 70 and previously had a clear record. He is married with a daughter and a son. He lives with his wife and his mother.

In mitigation, Mr McGowan has said all he can possibly say on the defendant’s behalf.

I have a psychologist’s report on the defendant prepared at my request. I will not repeat all the details set out therein, but the conclusion of the psychologist is the defendant’s risk of reoffending is estimated to be low, to the lower end of the moderate risk range, based on available information, including his old age and no past history of sexual offending prior to these offences. There is limited evidence suggesting deviant sexual interest toward pre-pubescent children. He is not a paedophile.

He has no acute mental or mood disorder. She opined he is impressed to have, quote, “some distorted attitudes towards sexual offending against women, including hostility towards women”, close quote. In any event, he continued to deny there was repeated and serious sexual assault against X when they lived together. He was not forthcoming in the evaluation conducted by the psychologist.

He continues to accuse the victim X of wrongfully and falsely framing him. He was even reluctant to admit that he had lived with X under the same roof for a period of time, initially. He told the psychologist that he was not happy when his son married Y. He was disappointed his daughter-in-law was a divorcee with a child already. Moreover, they relied on him financially due to their limited joint income.

When the defendant elected to give evidence during the trial, it is clear that he did not treat X as a grandchild, a real member of the family, whereas X’s two younger sisters, his biological grandchildren, were coveted and treasured by the defendant and his family.

In mitigation, it has been stressed by Mr McGowan that the report’s conclusion, a conclusion that the risk of reoffending is low, should be taken into account, as should his age now and previous clear record. Mr McGowan has submitted I should temper justice with mercy.

The impact on X

I do have a report dated 11 September 2023 prepared by a clinical psychologist of the Social Welfare Department, who not only interviewed X but also her mother Y. It is not necessary here to repeat the contents of the report.

Y herself is racked with guilt about what happened to X when she was so young. She was in the dark until these matters came to light in 2021. The psychologist is of the view that Y would benefit from counselling herself and to help her understand, deal with her daughter’s needs and emotional distress going forward.

As is to be expected, the report is a disturbing and tragic read. That sexual abuse when X was so young has caused her significant distress and post-traumatic stress disorder, with a lasting impact on her life in every aspect.

The psychologist says she is now presently dealing with post-traumatic stress, emotional distress, a distorted self-view and obvious social malfunction. All these issues have to be treated to mitigate the aftermath of the sexual abuse and to facilitate her rehabilitation.

She has had to keep this to herself for years. The reason for not telling her mother or anyone was due to fear of abandonment by her mother or her step-father or the possibility of tearing her family apart. She was 5 when her own parents divorced. Before finding happiness with her step-father and seeing her mother happy meant she kept silent. She did not want her mother to suffer again, having longed for an intact family and loving partner since her divorce.

X herself tried to protect her younger sisters in her own way as they were growing up with the defendant present in their lives. She wanted to protect her mother and her younger sisters, even though she felt like an outsider that did not belong in the family.

The psychologist said she blames herself and even believes that if she did not exist, her family would be happier. The psychologist explains that these are common signs of trauma in victims of familial child sex abuse scenarios. She feels shame. She feels she cannot trust anyone. She puts up barriers to pretend, as a defence mechanism. She is hypervigilant. She has exhibited self-harming behaviour and even suicidal ideas.

She has had to face adversity since disclosing the incidents to her family and the police. Although her mother and stepfather stand by her and support her, there was little understanding as to why she kept it a secret for so long. Obviously the defendant’s family have caused conflicts as a result of her disclosures.

She felt traumatised having to relive the experience in court. The psychologist says this is not the end of the matter for her and there is a long way for her to go before she can recover, if ever. She describes her life as having been ruined by the defendant’s abuse and feels like she has been transformed into an entirely different person because of the abuse.

Sentencing

The maximum sentence for an offence of rape is life imprisonment. Sentencing for both rape and indecent assault offences are fact sensitive. Sentencing for other rapes are not of much assistance and guidance. Clearly, good character of a defendant is of little weight in a case with such serious facts.

However, I have referred myself to the sentencing principles involving sexual offences on children, including the authorities of HKSAR v Lee Hon Wah, [2011] 4 HKLRD 319, and HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427. Mr McGowan has also referred to the same authority.

The Court of Appeal have considered how a court should approach the sentencing of persons convicted of rape where the victim was a child. There is a list of considerations germane or relevant to such an issue.

Those include, and I will repeat;

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 or status to commit the offence and whether there was a breach of trust in the case. 

3.  whether the defendant used threats or inducements to make the victim succumb.

4.  the number of occasions of committing offences and the duration of the offences. 

5.  where inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim. 

6.  whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant. 

7.  whether the sexual abuses have caused physical or psychological trauma to the victim. 

8.  whether the offences had an impact on the family members of the victim. 

9.  whether the defendant is involved in other inappropriate behaviour such as inviting other people to watch or to take photos or videos of the offence he committed; and lastly,

10.  whether the defendant is psychologically imbalanced and paedophilic and the likelihood of reoffending.

The courts have repeatedly emphasised that such crimes against children must be punished with a deterrent sentence, a sentence to deter others from committing similar offences, a deterrent sentence to show the abhorrence of members of the public to crimes of this nature. The significant grievance suffered by X, her mother and her family must be redressed. I quote the Court of Appeal in Kong Yun Chiu [2007] 4 HKC 391, where the court observed that, I quote:

“Children are vulnerable members of society. It is too easy for those who prey on their naivete and trust to succeed, for children are by nature trusting and 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.”

The defendant in that authority was a maternal uncle who abused and indecently assaulted his eight-year-old niece. The Court of Appeal in that authority went on to say children are much more likely than adults to suffer trauma in silence than report, particularly in cases of breach of trust, where there are threats levelled at a child not to report, whether the threats are express/implicit, fear is added to the initial offence and the culpability is that much greater.

Here, X suffered in silence for a long time and X was put in fear of losing her family. The defendant’s culpability is that much greater.

I have taken into account and apply the list of 10 factors from Tsang Chiu Tak to this case.

For the first factor, the age gap between the defendant and X was 50 years.

For the second factor, there is a clear breach of trust here with the defendant taking advantage of his status as the grandfather of the family to abuse X, clearly to satisfy his own sexual gratification. With that age difference and that relationship, X was the most vulnerable and incapable of protecting herself physically or emotionally.

For the third factor, the defendant did use a threat. He used X’s mother. He warned X not to tell her mother and he said it on many occasions. X said he did stop saying it after a while because it must have been clear to him that she would not tell her mother.

For the fourth factor, there are two rapes and three incidents of indecent assault. Those indecent assaults are serious but the most serious being the facts of Charge 5. The number of these offences is an aggravating factor.

For the fifth factor, other than the most obvious pain caused to X physically when raped as a young child, X does not describe any inappropriate or unnecessary violence used by the defendant.

For the sixth factor, there was no mention of a condom used by the defendant. I am sure X at that age would not have known a condom if she had seen it. I doubt the defendant would have thought he needed a condom.

For the seventh factor, there is no doubt that the sexual abuse has caused psychological trauma to X and would have at the time caused physical injury and trauma to her. As disclosed in the psychologist’s report, X continues to suffer from psychological trauma.

For the eighth factor, the psychologist also refers to X’s mother’s own guilt and pain for not being able to protect X from abuse. No doubt there has been an impact on other family members.

For the ninth and tenth factor, there is no indication of inappropriate behaviour and there is no indication, as confirmed by the psychologist, that the defendant is psychologically imbalanced or a paedophile or likely to reoffend.

Mr McGowan for the defendant accepts there are aggravating factors that apply in this case, the most important and pertinent being the breach of trust, the number of offences, the age of the victim during that period of time, the trauma suffered by her and the impact on her family.

There has been a very serious damnable breach of trust here. The defendant as the patriarch of the family has abused a child who called him “grandfather” but a child he did not accept and therefore treated abominably.

Can I ask the defendant to please stand up?

After considering all these factors, mitigation and the circumstances of this case, as well as the psychologist’s report on the impact on X, for the two counts of rape, the most serious of all five counts, I am of the view that the appropriate starting point for each count is 12 years’ imprisonment.

For the three indecent assaults, Counts 3, 4 and 5, I take into account the facts of each offence to find the appropriate starting point.

Now, for Count 3, the defendant stripped her towel off her, kissed and touched her naked body all over. I am of the view that a starting point of 2 years and 6 months’ imprisonment is appropriate.

For Count 4, the defendant took the opportunity whilst X and the household was asleep to slip his hands into her pyjama bottoms and touch her private parts. He only withdrew it when she woke up.

For Count 5, the defendant made her kneel in front of him, her back to him, and inserted his finger into her anus whilst he masturbated himself.

I am of the view that a starting point of 3 years and 6 months’ imprisonment is appropriate for both Counts 4 and 5.

I see no other mitigating factors or reasons to reduce the starting points. Therefore, the defendant is sentenced to the following: Charge 1, 12 years’ imprisonment; Charge 2, 12 years’ imprisonment; Charge 3, 2 years and 6 months’ imprisonment; Charge 4 and 5, 3 years and 6 months’ imprisonment.

There are multiple charges here which are entirely separate and distinct. Therefore, partly consecutive sentences would be appropriate to reflect the separate charges committed over that period of time.

I also have to consider the totality principle, what would be a just sentence in view of the defendant’s culpability.

I am of the view that the ultimate sentence of 13 years’ imprisonment years’ imprisonment is an appropriate and just sentence.

Therefore, I order 1 year of the term of imprisonment imposed in Count 3, the first of the indecent assault charges, to be served consecutively to the 12-year sentence imposed on Charge 1, with the balance to be served concurrently, making a total of 13 years’ imprisonment. All other charges to be served concurrently to Charge 1.

Accordingly, the defendant is sentenced to a total of 13 years’ imprisonment.