HKSAR v. T W

DCCC 743/2024

[2025] HKDC 764

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 743 OF 2024

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REASONS FOR SENTENCE

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Charges

1.The defendant faced 3 counts of indecent assault involving the same victim, girl X at the age of 12 for 3 occasions occurred in June 2023, August 2023 and January 2024 respectively.

Plea

2.Defendant pleaded guilty to all charges, admitted the facts and be convicted accordingly.

Summary of facts

3.For charges (1)  to (2), girl X was aged 12 whereas she was 13 for charge (3).

4.X’s mother first got acquainted with D in 2005.  They resumed contact in August 2019 and had been having extra marital affairs since then.

5.D resided at a flat in Shazui, Futian District of Shenzhen in China.  On few occasions between April 2023 and January 2024, X’s mother had contacted D to take care X for a couple of days with X staying with D alone at D’s flat in China for about 5 to 6 times.

Charge 1

6.X was alone with D in his flat in China.  When X was lying in bed after bath with a blanket covering herself, D applied body lotion on her body.  D split X’s thighs apart and licked both the outside and inside of X’s private parts.

Charge 2

7.X was alone with D in his flat in China.  When X was lying on the bed playing her phone, D applied body lotion on her neck, legs and hands.  D inserted his fingers inside X’s private parts with back-and-forth motions.  D molested both the inside and outside area of X’s private parts.  D then pulled X’s clothes up to her neck to molest X’s breasts.  D pinched X’s breasts with his fingers and sucked her nipples with his tongue.

Charge 3

8.X was alone with D in his flat in China.  While X was lying on bed under a blanket.  D applied body lotion on her body from her feet up to her private parts.  D split X’s thighs apart and molested X’s private parts by inserting his hands inside X’s shorts.  After pulling aside her underpants, D inserted his fingers into X’s private parts with back-and forth motions.  The whole process lasted for about 10 odd minutes.

Psychological report of X

9.In the assessment, X reiterated that she had forgotten most details and expressed a detached attitude toward her own body.  She denied any fear of the D’s house or interactions with men.

10.Despite X’s insistence that she was unaffected, her mother reported significant changes in her behavior and emotional well-being following the abuse.  Prior to the abuse, X was described as a happy and motivated student who shared close bonding with her mother but the incidents had significantly altered their relationship.  She described X as becoming highly oppositional with noticeable decline in academic performance and loss of motivation in study.

11.In the conclusion, it was opined that X exhibited strong tendency to minimize or deny the impact of the sexual abuse. Her avoidance, resistance and defensive stance suggested underlying psychological distress, potentially indicative of trauma-related repression or dissociation.

Background of Defendant

12.D, aged 65 with clear record, was a cross-border driver earning about $25,000 monthly.  He was divorced and living alone in China.  He had been suffering for heart disease for over 11 years and experienced a stroke requiring long-term medication.

Consideration

13.For assessing the sentence, I have considered  the following points:

(1)  The facts of the case involving the same girl X at 12, or 13 for 3 occasions;

(2)  The duration of the 3 incidents lasting for 9 months;

(3)  It involving breach of trust, though the degree being not high;

(4)  The psychological report of X;

(5)  The background of the defendant with a clear record;

(6)  The mitigation by the defence with the authorities submitted.

14.I have further considered the following two authorities:

(1)  HKSAR v Chau Ching Ho Owen CACC 549/1999

(2)  HKSAR v HYS CACC 210/2013

15.There was no tariff for indecent assault.  However, in Chau, 3 important sentencing considerations were recognized, namely the need to deter others, the need to mark the public abhorrence of such courses and the need to redress the grievance suffered by the victim, her relatives and friends.

16.I noted that the victim in Chau’s case was aged 6, whereas as in the case of HYS, the victim was aged 17 not involving any breach of trust.

17.In my opinions, certain facts of the present case were quite similar to those 2 cases.

Starting point

18.Having considered all the relevant factors as mentioned, I adopted the following terms of imprisonment as the starting point:

Charge (2): 3 years and 9 months

Charge (1): 3 years and 3 months

Charge (3): 3 years and 3 months

Sentence

19.On the guilty plea, the defendant was entitled for 1/3 discount.  The individual sentence was reduced as follows:

Charge (2): 2 years and 6 months

Charge (1): 2 years and 2 months

Charge (3): 2 years and 2 months

Totality

20.Having considered the totality principle for the 3 charges.  I made an order for partially consecutive terms as follows:

For charge (2): 2 years and 6 months imprisonment;

For charge (1): 6 months consecutive to charge (2);

For charge (3): 6 months consecutive to charges (1)  and (2).

21.The total term of imprisonment was one of 3 years and 6 months.