HKSAR v. L.F.

DCCC 140/2023

[2024] HKDC 1591

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 140 OF 2023

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REASONS FOR SENTENCE

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1.The defendant is convicted after trial of the following counts:

(1)  Indecent assault on another person, contrary to section 122(1)  of the Crimes Ordinance, Cap 200;

(2)  Criminal intimidation, contrary to section 24(a)(i)  and 27 of the Crimes Ordinance, Cap 200.

2.The facts have been set out in my reasons for finding and I will not repeat them in full.

3.Briefly put, on the 30^th day of September 2022, the victim, a 12-year-old girl, was staying with her biological father on vacation from the home she was staying during the week. While the defendant was drying the victim’s hair, he touched her buttock, backside, and breasts over her clothes. The victim was shocked and disgusted. Immediately she moved away from the defendant and covered herself with a quilt. Then the defendant touched her on the buttock two to three times.

4.Later in the evening, the defendant and the victim were involved in an argument, during which the victim threatened to commit suicide. The defendant used a fruit knife to point at the victim and make a thrusting action, insinuating that he was a triad member and that he had no problem killing people with a knife.

5.Both prosecution and defence decided that there were no previous decisions on the actual facts of the case, and chose not to offer assistance. However, a cursory reading of Cross and Cheung on Sentencing in Hong Kong revealed that there were quite a lot of cases on similar facts. While each case must be decided on its merits and demerits, the principles had been clearly set out.

6.The maximum sentence for indecent assault was increased from 5 years to 10 years since July 1991. It is the duty of this court to reflect the intention of the legislators. The overriding principle for sentencing cases of this kind is that it is the duty of this court to protect the young people, and the sentence order must reflect the society’s abhorrence of such behaviour.

7.The facts that the defendant was the biological father of the victim and that he had been granted custody by a court of law meant that there had been a serious breach of trust against the victim and also against the court’s order.

8.In the case of Attorney General v Lee Kui Man [1997] HKLRD 576, there were two indecent assault charges in relation to two schoolgirls. The Court of Appeal reiterated that it was the duty of the court to protect women and young girls, and that the sentence must be of a deterrent effect. 18 months was approved as a starting point, but since the victim was mentally defective, it was considered an aggravating factor as the victim was unable to protect herself. So the court decided that 3 years and 6 months a suitable sentence order.

9.In the case of Secretary for Justice v Wong Tsz Kin [1998] HKC 32, the victim was an 8-year-old girl. The Court of Appeal pointed out that this court must also consider the psychological damage to the victim and also the need to protect young people from molestation.

10.This case had a background of a very unhappy family. Of course all unhappy families are unhappy in their own ways. In this particular case, the mother of the victim had been divorced from the defendant and was already in a relationship with a different man. She also had mental issues. Although the victim had indicated her preference to stay with her mother, the relevant authorities decided that it was in her best interest to be in the care of her biological father. The victim had been put in a girl’s home and was only allowed to stay with her father during the weekends or holidays. In other words, she had nowhere else to go. She was not even allowed to stay overnight with her mother.

11.In considering the sentence for the defendant, the court is fully aware that whichever way this court decides, it would sever the only tie the victim may have with her closest relative; but there is no point in maintaining this relationship if it is an exploitative one.

12.According to the psychological report, this incident had a significant impact on the victim. Now at 14, she still suffered from aggravation of anxiety and post-traumatic stress disorder. She was reported to have problems fitting in the girl’s home. She was observed to have suffered from episodes of dissociation and numbness. She blamed herself for going to the authorities and being a troublemaker.

13.The family of the defendant was no big help either. It was reported by the psychologist that at some point, a paternal uncle of the victim even offered the victim a monthly allowance of $5,000 in return for her retraction of allegation against the defendant. In the absence of evidence to suggest that this blatant attempt to pervert the cause of justice was linked to the defendant, I would not take as an aggravating factor in this sentencing exercise.

14.In any event, this was a serious breach of trust on the part of the defendant and also it had significant impact on the victim who had already had adjustment issues.

15.Bearing in mind of the duty of this court to protect the young persons and bearing in mind that the young girl in question had in fact nowhere to go, also bearing in mind that the duty of this court to reflect the public abhorrence to such behaviour, I would adopt 24 months as a starting point for the 1^st count.

16.For the 2^nd count, there is no clear sentencing guidelines as criminal intimidation could arise from a multitude of situations. In the present case, the victim was in great mental stress and had threatened to commit suicide.

17.The defendant, as a guardian and a care provider, did not seem to be willing to alleviate the situation. By doing as he did, he had aggravated the situation. I consider in this case a 3 months’ imprisonment appropriate. After taking into account of the totality principle, I order the two sentence orders are to run consecutively.

18.I turn to consider the background of the defendant and as stated by his lawyer. There was not much to mitigate on. The defendant had emigrated from the mainland and had, after coming to Hong Kong, associated with some peers of dubious characters and abused dangerous drugs. He had been sentenced to imprisonment before. After coming to Hong Kong, he started working in Hong Kong in air-conditioning work.

19.Nothing in the background report revealed any valid reason for reduction of sentence. So in all, I would dispose of the present matter by sentencing the defendant to a total of 27 months’ imprisonment.