HKSAR v. Tarakanov Maksim

DCCC 662/2023

[2024] HKDC 561

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 662 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The Defendant pleaded guilty to 7 charges of indecent conduct towards a child under the age of 16, contrary to section 146(1)  of the Crimes Ordinance, Cap 200.

2.The defendant was born in August 1993.

3.X was born in September 2014.

4.Y was born in December 2015.

5.The Defendant has been engaged by X and Y’s families (two different families)  as private English tutor. All the incidents took place in X and Y’s homes respectively during their tutorial lessons with the Defendant.

6.The following table showed the date of offences, age and sex of X and Y respectively.

Charges	Date of offences	Victim’s age	Sex
1	2/2021	6	Girl	X
2	1/2022	7	Girl	X
3	3/2022	7	Girl	X
4	1/1/2022	7	Girl	X
5	3/1/2023	8	Girl	X
6	1/2/2023	7	Boy	Y
7	26/2/2023	7	Boy	Y

Charge 1 to 5 (X)

7.In all these incidents, the Defendant masturbated in front of X. The Defendant smeared the semen (X described them as white liquid):-

(a)  On his own trousers and held the hand of X who felt the liquid in his hand. (Charge 1)

(b)  On X’s hand. (Charge 2)

On this occasion, X was scared when she saw the Defendant masturbate again; she hid under the writing desk.

(c)  On X’s feet (Charge 3)  as he removed X’s socks.

8.In Charge 5, the Defendant told X to touch his penis and said that “it’s ok”

9.The Defendant also told X to keep this matter quiet, not to tell anyone:-

Charge 1:- “Please keep the secret.”

Charge 3:- “Don’t tell anyone. I will be mad.”

Charge 4:- “Keep it secret. Do not tell it to anyone please.”

10.As to Y, the Defendant held Y’s hand to touch his exposed penis for around 10 seconds (Charge 6).

11.On the other occasion, the Defendant held Y’s foot to touch his penis (Charge 7).

12.On 15 and 28 February 2023, X and Y told their respective mothers about the incidents.

13.The Defendant was arrested on 27 February 2023.

Criminal record

14.The Defendant has a clear criminal record.

Background

15.The Defendant is born in Russia in 1993. He is now 30 years old. He was a car engineer in Russia for 3 years when he completed his degree.

16.His parents divorced and he lived with his mother before he came to Hong Kong as a visitor and met his wife in May 2019. They married in 2020. Their relationship turned sour as the wife spent excessively resulting in heavy debts.

17.In early 2021, the Defendant received consultation from a psychiatrist as he developed depressive mood.

18.Today, there is also a letter to inform me that the Defendant has received 15 sessions of counselling services between 2021 to the time of his arrest from the Tung Wah Hospital.

19.In his letter to this Court, he said that he had not seen his mother since 2019 as the wife demands him to stay in Hong Kong.

20.Today, his wife is in Court and brings along a mitigating letter to tell me that the Defendant is a kind hearted person and he did voluntary works to support the well beings of animals. However, there is nothing to substantiate this claim.

21.He is regretful to commit the present offences and apologies to X and Y and their respective families.

The psychiatrist and psychologist reports of the Defendant

22.The view of the psychiatrist:-

(a)  The D has adjustment difficulties to settle his life in Hong Kong; however, his current mental condition is stable.

The view of the psychologist:-

(b)  The Defendant admitted to the psychologist that he had masturbated in front of X for more than 5 occasions. The Defendant used sex to cope with the adjustment and marital stress he experienced after moving to Hong Kong.

(c)  His risk of re-offending in the future falls into the moderate range.

(d)  There is no clear evidence to suggest that he has deviant sexual interests in underage children.

X’s mother’s statement

23.The mother of X said that she has seen X touching her own private parts between the end of 2022 to the beginning of 2023. Since the arrest of the Defendant, X stopping doing it.

The victim impact report of X

24.X is by nature a cheerful and easygoing young child. She told the psychologist that the Defendant would grab her ankle to prevent her from crawling away and stopped her from using the toilet to clean herself. The Defendant also used threat to warn her that she would get into trouble if she disclosed the abuses to anyone. She still experiences recollections of the abuses when using the toilet and going into the bedroom in her own home.

25.X experiences sense of disgust and shame on an emotional level.

26.The psychologist said that her subjective distress may gradually intensify when she develops a more comprehensive understanding of the incidents with advancing cognitive abilities. The experience of sexual abuse may result in an increased focus on sexual issues, which may require future attention and support.

Y’s parent statement

27.Y’s parents has seen Y took off his pants and looked at his own private parts in about February to March 2023. They now know Y has been sexual abused, they will arrange Y to see psychologist.

The victim impact report of Y

28.Y is clearly disturbed by recalling the memory of the Defendant’s indecent behaviors. Y used the approach of avoidance to distract himself from them. The psychologist said that good social support network and his easygoing personality were protective factors that helped to maintain his good mental health.

29.At the moment, psychological treatment is not necessary.

Sentence

30.The maximum sentence for this offence is 10 years’ imprisonment.

31.There is no sentencing tariff for this nature of offences.

32.Nonetheless, in the judgment of HKSAR v Tsang Chiu Tak CACC 386/2011, it stated that:-

“8. The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.”

33.As stated in the judgment of Tsang Chiu Tak, there are a number of factors to be considered for sentencing:

(a)  There is a serious breach of trust in the present case. The parents of X and Y did not expect that this would happen to their children. Before the discoveries of these incidents, both parents of X and Y believed the Defendant to be a trustworthy and helpful teacher to their children.

(b)  The age difference between the Defendant and X/Y is huge. The age gap is about 21 to 22 years to X and Y respectively.

(c)  Both X and Y were in their tender age and had not yet received sex education in school. While the Defendant is a mature man with sexual experience.

(d)  X demonstrated that she was frightened when the Defendant masturbated again in front of her and hid herself under the desk. She must be traumatized by what the Defendant had done to her.

(e)  According to the victim impact report, it may have a long-term impact on her in term of sexual issues. She may require “attention” in this matter in the future.

(f)  As to Y, it seems that the impact on him was less profound.

(g)  These 7 charges involved 2 young children at 2 different locations.

(h)  As to X – it covers a period of almost 2 years for 5 incidents.

(i)  Although the Defendant said that he masturbated in front of X for more than 5 occasions; I would only judge the sentences according to the 5 charges.

(j)  As to Y – it covers a period of almost a month for 2 incidents.

34.According to the case of HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354 at paragraph 28 that, there are aggravating factors in the present case:-

(a)  The risk of re-offending by the Defendant is in the moderate range.

(b)  There were repeated course of conduct over a long period as it is not a one-off incident.

Furthermore:-

(c)  The Defendant told X not to report the incidents. In one of the occasion (Charge 4), he said that he would become mad. This kind of passive aggressiveness is a form of intimidation to a young person like X. As such, the Defendant could continue his sexual abuse in front of X and continued to commit further offences.

(d)  These offences took place in the X and Y’s homes when their respective parents would never imagine that a trusted person would in fact abuse their children. A home is meant to be a safe place, a protect environment for their children.

35.As stated in HKSAR v Kong Yun Chiu [2007] 4 HKC 391 that:-

“The fact the victim is a child is always a severely aggravating feature. Children are vulnerable members of society. It is too easy for those who would prey on tier 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” (para 11)

“The trauma and distress, immediate and long term, is not confined to the child; parents are also affected.” (para 11)

“Children are much more likely than adults to suffer trauma in silence rather than report, particularly in cases of breaches of trust.” (para 11)

36.Having considered all the relevant factors as mentioned above and the need to impose a deterrence sentence, I considered that:-

(a)  The starting point of 3 years for each charge is appropriated.

(b)  In view of the presence of the aggravating factors, I enhance the sentence of each charge by 4.5 months.

(c)  Given the usual 1/3 discount after plea, the sentence is reduce to 2 years 3 months’ imprisonment for each charge.

Totality

37.To reflect the gravity of the offence, I consider that the overall sentence of 4 years 3 months’ imprisonment is appropriate.

38.As such, I order 4 months from Charge 2 to 7 to run consecutively to Charge 1.

39.That is 2 years 3 months + 24 months (6 charges × 4 months)  = 4 years 3 months.

Sentence

40.The Defendant is ordered to serve a period of 4 years 3 months’ imprisonment.