HKSAR v. Lor Hao Hing

DCCC 653/2023

[2024] HKDC 1248

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 653 OF 2023

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REASONS FOR SENTENCE

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1.The Defendant (“D”)  pleaded guilty to 2 charges:-

(a)  Attempted indecent assault on X

(b)  Assault occasioning actual bodily harm on X

Summary of facts

2.The D and X lived on the same building, but different floors.

3.X was 14 years old.

4.On 12 December 2022, around 6:42 pm, X was walking along the corridor of her floor and saw the D was standing near to the smoke door. The D rushed to X and pushed her strongly into a corner, the D used a towel to cover her mouth and nose when she screamed. X continued to scream and struggled which last for about 20 seconds. During which, she was pushed onto the floor, she felt pain on her chest, head and back.

5.During the struggle, X’s body triggered the fire alarm. X’s mother heard X’s scream and rushed out of the flat and saw D pressed X with a towel.

6.The D fled when X’s mother shouted for help. Case was reported to the police.

7.X recalled that she had seen the D walked out from the smoke door 2 weeks before the incident. The D approached her, but she managed to walk away. X reported the matter to her mother.

Medical examination

8.There was a swelling and redness over her right scalp. There were also abrasion and tenderness over the left side of her chest.

The arrest

9.The D called the police and was arrested on the same day.

10.He admitted under caution that he liked X and wanted to kiss her. He used a towel to cover X’s mouth to stop her from screaming. “個女仔呢兩日都係五至六點返，我因為好鍾意佢，但係又驚佢會嗌，所以先攞條毛巾揞住佢把口，我淨係想錫吓佢，但我最後都驚得滯，佢又不停喊，之後我就跑返屋企。”

11.In a record of interview, the D said that:-

(a)  He met a girl in a lift in September 2022. She was wearing school sports uniform. He found her very attractive. She got off on the 37^th floor.

(b)  One month later, the D went to 37^th floor to look for the girl, but in vain.

(c)  They met again in mid November 2022. The D believed X was the girl he met in September, they took the lift together.

(d)  After one week, he went to the same floor to look for X, but did not see her.

(e)  In another time before this incident, D saw X in her floor, they walked past each other. D found her to be pretty and turned around in an attempt to tap on her shoulder, X was frightened and kept pressing the doorbell of her flat. He then left.

(f)  On the day in question, at about 6:25 pm, he went to the 37^th floor with the intention to indecently assault X, he left as he felt bad about it (the first time).

(g)  He went home and saw the gloves and towel. He planned to use the towel to cover X mouth when she screamed and to stop leaving any finger prints at the scene by using the gloves. He went back to the 37^th floor for the second time, but felt bad and left again.

(h)  Shortly after 6:40 pm, the D went to 37^th Floor (the third time)  and stayed outside the smoke door.

(i)  He planned to grab X to the back staircase on the same floor to kiss, touch and hug her. He also wanted to grab X’s hand to touch his penis.

Criminal record

12.The D has a clear record.

Mitigation

13.The D is now 35 years old. Divorced and had been unemployed for some 6 months before the present arrest.

14.He had a very harsh upbringing. He has been a subject of child abuse by his father who often beat him up by using a leather belt. His parents always displayed violence in front of children.

15.In his mother’s letter, she admitted the same and did not realise there was a strong impact on the development of the D.

16.The D’s sister said that she became distance from the D when she started to work in China. She now understands that there is a need to provide support to the D.

17.The D, in his letter to this Court, expressed remorse and understood what he did to X was a serious matter and he sincerely apologised to her. He had taken positive steps to address his problems and to mitigate the likelihood of reoffending. He is ready to face up the legal consequence.

18.Today, I have 2 further letters from his previous employer and a charitable organisation to tell me the hard working attitude of the D and his kindness to animal.

19.I also have a psychologist report before me from the Defence, that tells me the D had been suffering from depression and social anxiety. He is recommended to receive professional help for his mental health issues.

20.He has relocated to another district to live with his elder sister.

21.Since his arrest, he has received 2 individual counselling services in October and November 2023 and also joined the Caritas Specialised Treatment and Prevention Project Against Sexual Violence on 5 occasions from October 2023 to April 2024.

The psychiatrist report

22.The D admitted to Dr Tang that he watched pornography and masturbated on the day of the incident. He also drank Chinese wine and watched online pornography in between visits to 37^th floor before committing the offences.

23.Dr Tang said that he is not required to attend psychiatric treatment.

The psychologist report

24.The D told the psychologist that for the 6 months prior to the present incident he was indulged in viewing the pornography and preoccupied with sexual impulse. The D committed the present offenses with the intention to re-enact the pornographic scene to act out his sexual fantasy with the victim in order to gratify his sexual needs.

25.He also told the psychologist that he “indulged in the fantasy of hugging, kissing and even raping the victim.” But that was a fleeting thought, he quickly diminished that evil idea. He had no intention to rape X.

26.The D accepted that what he did had brought harm to the victim.

27.His risk of reoffending was assessed to be moderate – high.

28.Psychologist treatment is recommended.

29.It is worth noting that the D did not mention to his own psychologist that he had watched pornography on the day in question and also between visits to the 37^th floor.

The statement from the parents of X

30.The parents said that:-

(a)  X could not handle to be alone after the incident.

(b)  Her brother has to stay at home for Zoom tutorial classes so that he would be physically present at home.

(c)  The family has to arrange someone to be with X and to escort her to/from school.

(d)  X’s mother has to sleep beside her during the night.

(e)  X usually has nightmare, such as by screaming and talking in her sleep.

(f)  X stays at home and that reduces her social life significantly.

(g)  The family has now relocated to another address. However, X still comes to her parents’ room in the middle of night occasionally.

The victim impact report

31.The mother accompanied X to attend the interview. The mother burst into tears as she recounted the whole family’s suffering after the incident. X showed severe fear of darkness and is unable to go out in the evening. That has an impact in her social life.

32.Her mother often hears X having fearful yells at night inside her room. X said that she suffers from recurrent nightmares in which she is being chased and unable to escape. She experiences panic-like physical symptoms such as chest heaviness, short of breath and trembling which can occur multiple times a week.

33.She used to be a top student in an elite class, but now she has difficulties to focus in class as she is constantly tired without proper and restful sleep.

34.X remains in a state of heightened anxiety, constantly scanning her surroundings for looming danger.

35.She is deeply fearful of opening the emotional wounds as she knows it will be profoundly distressful.

36.The clinical psychologist is of the view that she suffers from post-traumatic stress disorder. X is recommended to seek professional help and support as soon as possible.

37.As to the family as a whole, the entire family remains deeply affected. The psychologist said that it is heartbreaking for the mother to see X’s persistent sufferings, the father has to work multiple jobs to earn extra money to support the family as the parents have purchased a flat in order to be relocated to another area.

Sentence

38.The maximum sentence for charge 1 is 10 years while charge 2 is 3 years.

39.It is rightly pointed out by the Defence that there is no sentencing guidelines for this type of offences. Each case depends on its own facts.

40.However, in the case of HKSAR v Tsang Chiu Tak CACC 386/2011, the Court has set out sentencing factors for consideration, in the present case:-

(a)  There is a huge age difference of about 20 years, X was 14 while the D was 34 at the time of the offence.

(b)  The D had planned to meet X on at least 3 occasions on that day with a view to indecently assault her.

(c)  In his own admission, he was basically obsessed with X sexually and he could not control himself.

(d)  He knew the address of X as he had seen her pressed the doorbell of her flat 2 weeks before the present incident.

(e)  Therefore he was able to stalk X for some time as he knew X came home at around 5 to 6 pm in the previous 2 days.

(f)  The D had planned for commission of the present offence for some time. He wanted to take X to the back of the staircase where there was little or even no foot traffic by the residents. He wanted to kiss, to touch and to hug X, further he wanted to grab X’s hand to touch his penis. He even had fleeting thoughts to rape X.

(g)  Had it not because of the alarm and X’s scream, her mother might not be able to rescue her in time. The consequences would be far worse as the D’s mind was filled with pornography scenes. He watched it during the day and between the visits to locate X. His desire to commit the act of indecent assault against X was overwhelming strong. The D knew the significance of this information, but he did not inform his psychologist. He played down the importance of this information.

(h)  The D equipped himself with a towel to execute his plan as he could foresee the victim would be frightened and would scream.

(i)  This is a serious aggravating factor as the victim would be subjected to severe fear without being able to shout for help.

(j)  He also had gloves with him so that he left no traces of fingerprints at the scene, I also view this as premeditated.

(k)  The use of force and violence on X was to make X succumb and in using violence, causing unnecessary pain and injury to X.

(l)  During the course of event, X has been subjected to great fear. In such circumstances, X knew she was in a very vulnerable situation.

(m)  The D’s risk of reoffending was assessed to be moderate – high.

41.I accepted what the psychologist’s view in this matter that the D had suffered from depression and social anxiety, he had a failed marriage and a poor childhood that he had been a subject of physical abuse by his parents. He witnessed domestic violence between his parents. Be that as it may, it can never be an excuse to commit any crime.

42.In my view, his personal circumstances carried very little weight in sentencing. Otherwise, it will give a wrong message to the public that anyone with such a personal background will expect a lenient sentence from the Court.

43.The law meant to protect young children to be sexually abused.

44.From X’s parents’ statement and X’s victim impact report, I can see that this incident has a very severe impact on X. A home is meant to be a safe place, a protect environment, however, X feels insecure to be alone even at home. She has to sleep with her mother. X was only 14 at the time of the offence. She is totally traumatise by this incident which has a very significant long term impact on her life. She is no longer a top student in an elite class. Her school result has deteriorated. There is a serious psychological damage on X. Her parents and her brother are also affected. Understandably, her mother is deeply upset to see the sufferings of X.

45.The Defence refers me to 2 cases and asked for a lenient sentence:-

(a)  HKSAR v Hung Kai Lam, Jison DCCC 119/2010 – 6 months’ imprisonment after plea.

(b)  HKSAR v Yuen Chung Hin DCCC 175/2019 – 7 months’ imprisonment after plea.

46.There is no doubt in my mind that the D had committed a very serious offence. I disagree that a light sentence can serve the purpose. I can only say that this is his wishful thinking.

47.As said in the judgment of Tsang Chiu Tak, it stated that:-

“8. … 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.”

48.To this end, with all the information in mind, I take 3 years 3 months as starting point for Charge 1, I also enhance the sentence for another 3 months for the aggravating factor, the use of towel during the commission of the offence, that arrives at 3 years 6 months, I reduce to 2 years 4 months after 1/3 discount.

49.As to Charge 2, I notice that the injuries are relatively minor, I consider that the starting point of 3 months is appropriate, the sentence is reduce to 2 months after 1/3 discount.

50.I order both sentences to run concurrently.

51.Finally, in light of the fact that the D surrendered himself to the police, I reduce 2 months’ imprisonment. The D is to serve a total sentence of 2 years 2 months’ imprisonment.