HKSAR v. Y.W.H.

DCCC 377 & 698/2023

[2024] HKDC 1028

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 377 & 698 OF 2023

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REASONS FOR SENTENCE

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1.The defendant faces a total of 16 charges, all are Indecent Assault, contrary to section 122(1)  of the Crimes Ordinance, Cap 200.

2.As a result of plea bargaining, the defendant pleaded guilty to 12 of them, namely, Charges 2-3, 5-6, 8-12 and 14-16.  Full details of the offences are set out in the facts admitted by the defendant.  The defendant was convicted of all these 12 charges accordingly.

3.Upon application by the prosecution, I ordered Charges 1, 4, 7 and 13 be left in the court file and not to be proceeded against the defendant without leave of court.

Facts

4.On 12 occasions over a period of about a year between 2021 and October 2022, the defendant sexually abused 8 young girls separately who were aged between 9 and 12 years at that time, with 4 of them having been sexually abused twice, at a primary school of which the defendant was a teacher and the girls were students.  On 10 of the 12 occasions, the defendant was running the classes.  On each occasion, except for Charge 14, the bodily contact lasted for a few seconds and on all occasions the girls were touched on top of their school uniforms.  A summary of each offence are set out below:-

(a)  Charge 2 involves Girl A who was 11 years old at the time. During class, she put up her hand to ask a question. The defendant approached her and put his palm on her left breast, Girl A then crossed her arms to avoid further touch.

(b)  Charge 3 involves Girl A again. About a month after the above incident, during class, Girl A put up her hand to ask a question. The defendant approached her and then pressed his left hand on her shoulder in an area slightly above her breast as he answered her query.

(c)  Charge 5 involves Girl B who was about 9 years old at the time. During class when Girl B was in her own seat, the defendant put his left hand on her shoulder, and then moved his hand to an area slightly above her breast. She was scared but dared not say anything.

(d)  Charge 6 also involves Girl B who was about 10 years old at the time. During class when Girl B was in her own seat answering the defendant’s question, the defendant approached her and put his left hand on her right shoulder in an area very close to her breast. She was scared but dared not say anything.

(e)  Charge 8 involves Girl C who was around 9 to 10 years old at the time. During class, when Girl C was stretching herself, the defendant put 3 of his fingers on her breast.

(f)  Charge 9 also involves Girl C. During class, while Girl C was laying back on her own chair, the defendant approached her to check her classwork but during which he patted her twice in an area very close to her right breast.

(g)  Charge 10 involves Girl D who was 9 years old at the time. During class, Girl D asked the defendant a question. The defendant then approached her and put his left hand on her left shoulder, and then moved his hand towards the middle of her breasts and rubbed in a circular motion for 2 to 3 times. Girl D tried to shrink away but the defendant’s hand followed her movement.

(h)  Charge 11 involves Girl E who was 9 years old at the time. During class, when Girl E was in her own seat, the defendant approached her and put his left hand on her right shoulder in an area slightly below her collarbone. She shrank away.

(i)  Charge 12 involves Girl F who was 12 years old at the time. When Girl F was walking down the stairs to leave the school, the defendant touched the whole of her right breast with his right hand.

(j)  Charge 14 involves Girl G who was 9 years old at the time. During class, she raised her hand to ask the defendant a question. The defendant approached her and put his left hand on her left shoulder in an area very close to her breast for about a minute, which made Girl G very scared.

(k)  Charge 15 involves Girl X who was 10 years old at the time. During class, the defendant asked Girl X to go to him when he was standing next to the teacher’s desk. Girl X then stood in front of him. While speaking to Girl X, the defendant put one of his hands on her collarbone and slightly touched her breast twice. She was very frightened and took a step back.

(l)  Charge 16 also involves Girl X. During recess, whilst returning the homework and pointing out to her what correction she needed to make, the defendant put his hands on her collarbone and slightly touched her breast twice. Girl X slightly moved away.

5.The incidents concerning Girl A to Girl G were discovered when a social worker told the vice-headmaster of the school that there was inappropriate physical contact on some female students by the defendant.  On 6 November 2022, the defendant was arrested.

6.The incidents concerning Girl X were discovered when she later told the social worker at the school that she too had been touched on her breast by the defendant.  On 28 June 2023, the defendant was re-arrested.

Criminal record

7.The defendant has a clear record.

Defendant’s background and mitigation

8.The defendant was 24 to 25 years old at the time of the offences and is now 27.  He is single living with his mother and older sister.  His parents divorced when he was around 6 years old.  Since then he had lost contact with his father until he was 18 years old when they reconnected with each other. His father passed away in 2018.  The defendant completed a bachelor’s degree in education at the Education University of Hong Kong.  After graduating in 2020, he started working as a full-time primary school teacher in the school in this case earning $37,000 per month.  In October 2022, he was dismissed due his commission of the present offences.  A year later, he started working as a production worker in a food factory on a part-time basis earning around $20,000 per month. 

9.Counsel for the defendant Mr Kan submits that at the time of the offences, there was no direct violence or threat of force.  Mr Kan stresses that the duration of each incident of indecent assault was short and all the contacts were on top of the clothes.  The defendant is remorseful and has entered timely pleas.  He promises not to reoffend.

10.Mr Kan submitted to the court letters of mitigation written by the defendant, his mother and his older sister.  The defendant expressed remorse and stated that he wished to apologize to the girls he had hurt.  His mother and sister showed much concern about the defendant and spoke highly of him.

Consideration

11.In sentencing, I have born in mind the facts of the case, the background information of the defendant, the contents of the pre-sentencing reports, namely, a background report, a psychologist’s report and a psychiatrist’s report, all the matters urged upon me by Mr Kan and the relevant case authorities including the cases cited in mitigation by Mr Kan, namely, Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136, HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, Secretary for Justice v Wong Tse Kin CAAR 8/1998 and HKSAR v Li Chi Man DCCC 916/2010.

12.In Huang Long Wei, Cheung JA had this to say:

“13. The sentencing principles laid down by the Court for the offence of indecent assault on young children by adults have highlighted the following three crucial considerations:

(1)  To deter others from committing similar offences;

(2)  To show the abhorrence of members of the public to offences of this nature;

(3)  To redress the grievance suffered by the victim and his or her friends and relatives.

See: HKSAR v Chan Ching Ho [2000] 3 HKLRD 476.

14. Given the diverse circumstances pertaining to this kind of offence, in particular the diversity of the acts of indecent assault, the Court of Appeal has not seen fit to lay down any tariff for this kind of offence. That said, the courts must sentence on the basis of the said sentencing principles. In addition, the courts have to consider three other important factors:

(1)  Even if no psychological assessment report on the abused victim is available, the court cannot overlook the possibility of the victim suffering psychological damage as a result of sexual abuse, see: HKSAR v See Tak Man [1998] 1 HKLRD 794 and HKSAR v Kong Yun Chiu [2007] 4 HKC 391;

(2)  It is rather difficult to detect 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, see: Secretary for Justice v Wong Tsz Kin [1998] HKC 32; and

(3)  In dealing with this type of offences, the courts will regard the protection of children as the most important consideration, see: HKSAR v Kam Wing Yin (unrep., CACC 515/2005, [2006] HKEC 1314).”

13.In Kong Yun Chiu鄺潤釗, above, the Court of Appeal stresses the seriousness of indecent assault on a child:- 

“11. In Chan Ching Ho, at page 481, Stuart-Moore VP cited with approval the words of the sentencing judge who had spoken, of the importance of punishing crimes against children of this kind “with a sentence severe enough to deter others from acting like the defendant, and also to show the abhorrence of members of the public to crimes of this nature, and also to redress the grievance suffered by the victim, her friends and relatives.” It should go without saying that children are particularly vulnerable members of society. It is too easy for those who would 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 trauma caused to a child by an indecent assault, and the long-term adverse impact, is difficult to calculate but trauma may safely be assumed in the vast majority of cases, perhaps all. Similarly, the trauma and distress, immediate and long-term, is not confined to the child. Parents of child victims will almost certainly be haunted by images of what has been done to the child and, in addition, will nurture a deep sense of guilt either for having entrusted the child to the company of someone who breaches that trust or, in other cases, for having left the child unguarded for the odd moment. It should be remembered too, particularly in cases of breaches of trust, that children are much more likely than adults to suffer the trauma in silence rather than report, and in cases where there are threats levelled at the child not to report, whether the threats are express or implicit, fear is added to the initial offence and the culpability is that much the greater. Whilst the range of offences within the category of indecent assault is wide, the fact that the victim of such an offence is a child is always a severely aggravating feature.”

14.The natural expectation within every community and its families is that children and young people growing through their teenaged years, are in safe environments and establishments.

15.After the safety provided by the family home, surely the next environment or place of safety for children and young people should be the school system, as it provides for them to learn, develop interests, make friendships, engage in sports and socialisation and generally progress from early childhood through to preparedness for adulthood.

16.In the case of each of the young people victimised in this case, and their families, that usual experience has been selfishly marred by the defendant.

17.Victim impact reports were obtained for Girl A, Girl B, Girl D, Girl E, Girl G and Girl X.  Different degree of trauma on them could be seen from the reports.  The respective clinical psychologist’s assessments made between April and May this year are summarised as follows:-

(a)  Girl A “appeared to become more sensitive and vigilant about certain behavior done by male teachers, which might be attributed to the lasting impact of the sexual assaults.” “In addition, there was suggestion of her not trusting people and still feeling scared of men at times.

(b)  Girl B “suffered from significant emotional distress across time, subsequent to the index offences. Before disclosure of the sexual abuse, the stress of enduring the associated emotional pain alone was unbearable to the extent that she had thought of ending her life as a way out. Although her distress was relieved after the disclosure, as she matured and had more understanding of the abuse in the past year, Girl B’s mental health and self-concept were markedly affected, with some features of post-traumatic stress at the time of interview. Besides, Girl B’s mother found witnessing the daughter’s suffering to be agonizing for her, and her trust in teachers was ruptured as a consequence.” Psychological intervention is recommended for Girl B.

(c)  Girl C had a bad mood after the abuse, as she could not make sense of the sexual abuse experience. She also puzzled why the defendant would pick her and wondered if she should be responsible for his selection of her. She felt much released when the whole incident was discovered. The results of the examination of Girl C suggest that she did not reveal any post-traumatic distress associated with the incident.

(d)  Girl D felt shocked, puzzled, angry, anxious and depressed after being sexually abused by the defendant. She could not make sense of the experience, as the defendant was someone she respected very much. The results of the examination of Girl D suggest that she did not reveal any post-traumatic distress associated with the incident.

(e)  The assessment procedure was incomplete due to the unavailability of Girl G to attend the required interview.

(f)  There is no indication that Girl X has been suffering from clinically significant post-traumatic stress symptoms as a result of the indecent assault by the defendant. However, some negative effects of the incidents were still evident. She used to hold a positive impression of the defendant. However the sexual abuse made her feel angry and upset. She became guarded in her interactions with adult males for a short period of time following her disclosure of the incidents. Psychological intervention is not indicated at the moment.

18.Mr Kan advanced a number of mitigating factors for the defendant including that the defendant was a young adult aged 24 years at the time of the offences.  He has a clear record.  He pleaded guilty to the offences thereby obviating the need for the eight children to recount in the court their unpleasant experiences of the sexual assault. 

19.However there are a number of aggravating features present in the case:-

(a)  The victims were young, if not extremely young;

(b)  A number of victims involved, 8 in total;

(c)  The defendant was the teacher of the victims. So these are cases of breaches of trust;

(d)  The defendant committed the offences in about a year’s time; and

(e)  One of the victims, Girl B’s mental health and self-concept were markedly affected, with some features of post-traumatic stress. Psychological intervention is required.

20.As can be seen from the summary of facts, not only did the defendant sexually abused a number of girls separately over a considerable period of time, he had also sexually abused 4 of the victims more than once.  It follows that what he did was indicative of his propensity to commit this kind of offences.  Dr Pau, a clinical psychologist of the Correctional Services Department, in his report assessed that the defendant’s risk of re-offending was moderate-low and opined, given the nature of the offences, that he is not suitable to work with children in the future.

21.From the report, I also note that Dr Pau opined that the defendant exhibited superficial remorse, lacked genuine empathy for the victims, and did not fully comprehend the extent of harm caused.  He tended to minimize his offences and subtly shifted the blame to the victims.  These factors indicated challenges in self-reflection and personal accountability for his current offences.  However, there was no indication that he had any paedophilic features or other deviant sexual interests.

22.I note that Mr Kan has referred me to Wong Tse Kin  and asked for a lenient sentence.  However, in Kong Yun Chiu, above, the Court of Appeal cited Wong Tse Kin as an example where sentences imposed for indecent assault on children was remarkably low.  I also note, as Mr Kan pointed out, that there was no violence additional to that constituted by the indecent assault.  I do not consider it to be a mitigating factor.  But rather if violence was used, it is an aggravating factor.

23.The nature of the “touching” of the victims here could have been even more intrusive and offensive than it was, but the question of “degree” in any area of criminal offending can always have a more serious possible degree spoken of.  The issue is the degree of touching and offending against the victims of this young age vulnerable positioning they were in, makes this serious offending.  It matters not that it could have been more so.

24.In all the circumstances, bearing in mind the previous good character of the defendant and that he is now remorseful and having regard to the seriousness of the offences as outlined above, I consider that an appropriate starting point for each offence is one of 18 months’ imprisonment.  The defendant pleads guilty, I reduce the starting points by one third to 12 months

Sentences

25.So the sentences for the charges are as follows:-

Charge 2: 12 months’ imprisonment

Charge 3: 12 months’ imprisonment

Charge 5: 12 months’ imprisonment

Charge 6: 12 months’ imprisonment

Charge 8: 12 months’ imprisonment

Charge 9: 12 months’ imprisonment

Charge 10: 12 months’ imprisonment

Charge 11: 12 months’ imprisonment

Charge 12: 12 months’ imprisonment

Charge 14: 12 months’ imprisonment

Charge 15: 12 months’ imprisonment

Charge 16: 12 months’ imprisonment

Totality

26.These offences were all separate and distinct offending, committed on different dates and against 8 different victims.  Theoretically the sentences could all be imposed consecutively.  However, wholly consecutive sentence will be unduly long.

27.Having regard to totality, I order that 1 month in each of Charges 3, 5-6, 8-12 and 14-16 be run consecutively to Charge 2, the balance concurrent, making a total of 23 months, which in my view, is sufficient to reflect the culpability of the defendant.

28.In summary, the defendant has to serve a total sentence of 23 months’ imprisonment.