HKSAR v. Mak Chun Man

DCCC1/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1 OF 2009

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Before:   Deputy District Judge W C Li

Date:     23 February 2009 at 10.50 am

Offence:  Indecent assault (猥褻侵犯)

Reasons for Sentence

1. The defendant pleaded guilty to two counts of indecent assault.

2. In the 1st charge, the defendant followed a 22 year-old lady into the lift of an office building in Central.  No other person was in the lift.  He repeatedly asked the lady for her telephone number and asked her out for a date.  The lady ignored him, and the defendant went behind her in the lift, and when the lady left the lift, he put his hand into her dress and touched her right thigh.  The lady pushed him away.  The whole incident was captured on CCTV camera.

3. In Charge 2, the defendant followed a 15 year-old schoolgirl who was returning home from school.  She was in school uniform.  She was an expatriate girl from Russia.  The defendant followed her from Caine Road in Central to Robinson Road.  The defendant followed this schoolgirl into the lift of her residence building in Robinson Road.  In the lift, the defendant and this schoolgirl were the only people in the lift.  The defendant moved close to her and asked her for her telephone number.  This girl told the defendant to stay away.  When the girl left the lift, the defendant followed her.

4. When this girl entered her flat, the defendant suddenly appeared behind her and pushed the door and forcibly gained entry into her flat.  This girl screamed for help.  The defendant told her not to scream and he had only wanted to make a call.  The girl stopped screaming, hoping that the defendant would not harm her.  The defendant pressed the girl against a wall and the girl began to shout for help.  The defendant covered her mouth with his hand and told the girl in English that she must not scream and he had only wanted a goodbye kiss.

5. When the defendant removed his hand, the girl screamed for help.  The defendant unzipped her school uniform from behind and inserted his hand into her undergarment to touch her breast for a few seconds.  This girl put up a fierce struggle, slapped the defendant on his face and snatched his glasses away.  It was fortunate that she was able to break free from the defendant.  She ran out of the flat and knocked on a neighbour’s door for help.  The defendant fled via the staircase.

6. CCTV captured the defendant and the girl in the lift.  A security guard in the building saw the defendant running out of the building.  This schoolgirl, the victim in the 2nd charge, was taken to Queen Mary Hospital for treatment.  She suffered redness and bruising over her knee and abrasion on her right hand.  She was treated and discharged. 

7. About a week later, the defendant was arrested.  Under caution, the defendant admitted in relation to the 1st offence that he followed the lady, the lone lady, into the lift to ask for her telephone number.  He admitted pulling up her dress when she left the lift, and the defendant said this made him very happy.

8. In relation to the 2nd charge, the defendant admitted under caution that he met the schoolgirl at about 4.10 pm and he had wanted to date her.  He wanted to exchange telephone numbers with her, so he followed her into the lift in the building where she resided.  The defendant admitted entering her flat.  He said he only wanted to ask for her telephone number.  The defendant admitted having a struggle with the girl and that he unzipped her school uniform just to look at her body.

9. Both victims in Charges 1 and 2 positively identified the defendant in an identification parade.  The defendant pleaded guilty to both charges.  The defendant had five previous convictions, four for indecent assault and one for loitering.  He was first put on probation supervision for 24 months and eventually sent to training centre on more than one occasions.  He is now 22 years old.

10. I have obtained a probation officer’s background report, two psychiatrists’ reports and a psychologist’s report on this defendant.  The probation officer’s background report detailed the defendant’s previous offences and the sentence he had received.  The defendant had repeatedly been incarcerated in training centre, but after each discharge from the training centre, he became sexually impulsive and he could not control his urge to molest ladies.

11. He admitted to the probation officer that he was preoccupied with sexual fantasies.  He denied having a habit of browsing pornographic websites, reading pornographic books or magazines, and he denied having masturbation.  He was taken to visit a prostitute, paid $350 for her service.  He felt sexual gratification but also felt dirty to use the service of a prostitute.  He admitted having the constant urge for intimacy like hugging and kissing.

12. When in training centre, the defendant received some psychological service and small group intervention to deal with his lustful thoughts and to manage his sexual impulse properly.  However, it is apparent that after he left a confined setting like a training centre, he still loses control of his own impulse, and he continued to molest ladies.

13. The defendant expressed the wish to reform himself and asked the court for a light sentence.  He also expressed this thought in a letter that he had written to this court in mitigation to express remorse and to show his hope to reform himself.

14. The defendant’s parents had tried every effort to reform the defendant.  They were greatly disappointed because the defendant had not shown genuine reform and improvement to date.  The defendant’s parents also wrote a letter in mitigation to the court.  They expressed helplessness in reforming the defendant and hope that an appropriate sentence coupled with treatment could be given to the defendant.

15. Miss Michelle Liu, a clinical psychologist, assessed the defendant to be functioning in the borderline range of intelligence.  This assessment was in line with previous assessment given to the defendant when the defendant was in the training centre.  In her assessment, the clinical psychologist took the view that the defendant was able to differentiate right from wrong and understood the consequences of his criminal behaviour.  Miss Liu found the defendant to be a longstanding sexual deviant and was very sexually preoccupied during his formative years and the defendant has strong sexual needs and he has developed the tendency of using his sexual misbehaviour, or deviant sexual fantasy, to do away his boredom and to release his pent-up sexual urges.

16. From Miss Liu’s assessment results obtained from Static 99 and other available information, she deemed the defendant to be a high risk in re-offending.  There is an obvious need for the defendant to have medication to control his sexual urges and this could be attended to by a psychiatrist.  And there is a strong need for psychological intervention targeting defendant’s handling of his sexual urges, his relationship skill and to rectify his deviant sexual interest.

17. Dr C H Yuen, a specialist in psychiatry and a visiting consultant psychiatrist of Siu Lam Psychiatric Centre, had been seeing this defendant on a regular basis since July 2005.  The defendant, when young, had attention deficit hyperactivity disorder (ADHD) and opposition defined disorder (ODD).  But as the defendant grew older, these problems appeared to have gone.

18. The defendant’s main problem now is his longstanding sexual deviancy.  Despite psychological and psychiatric attention given to this defendant in the last 10 years, the defendant continued to re-offend.  The defendant had been locked up for the most part of the last six to seven years, but each time the defendant was released, he committed the same offence, and it is noted that the degree of each of his offences had an escalating degree of seriousness.

19. The defendant denied the presence of violent sexual fantasies such as rape.  The defendant told  Dr Yuen in June 2008 that two inmates had  previously suggested to him that the three of them, when released, would go out to do a gang rape together.  Dr Yuen was very worried that the defendant was a high risk case if he takes to violent sexual fantasy.

20. I pause to think here that, in Charge 2 of this case before us, the defendant was getting physically assertive and had used violence on the victim.  If the victim had not broken free, if she had not bravely fought the defendant off, I do not suppose the defendant would stop his deviant sexual aggression on her until he was sexually gratified.

21. Dr Amy C Y Liu was a visiting psychiatrist at Siu Lam Psychiatric Centre.  She also interviewed the defendant and studied the defendant’s papers.  She found that the defendant had no remorse or empathy shown towards the victims involved in this case.

22. Both Dr Yuen and Dr Liu found no psychotic feature to have been elicited in this defendant.  Dr Liu also found the defendant to be a high risk case in re-offending in sex crimes.  The defendant was not found to be suffering from any formal psychiatric disorder.  Dr Liu was not convinced that the defendant’s acts on the victims were unplanned or impulsive.

23. This defendant, despite his young age, is a threat to ladies in society.  He is definitely a high risk case and is in need of constant psychological and psychiatric intervention.  I am of the view that a long period of incarceration is necessary to protect the public and for the defendant to become more mature and to be more able to control and manage himself, especially in his sexual urges and behaviour.  The long period of incarceration would also enable the defendant to have constant psychological and psychiatric help.

24. On the 1st charge, I take a starter of three years’ imprisonment.  I, therefore, sentence defendant to two years’ imprisonment on the 1st charge.

25. The 2nd charge is a very bad offence.  I take a starter of six years’ imprisonment.  The offence involved use of violence on the victim and invasion of her domestic premises.  The victim was a 15 year-old schoolgirl in a school uniform.  The defendant acted with total disregard of his own safety, of the defendant’s own safety, because he would not know whether there was anyone in the premises of this girl when she entered the flat.  The defendant simply wanted to have his own way with the young victim inside her own flat.

26. The defendant is a walking time bomb.  And I also see him to be a high risk to re-offend serious sexual offences.  And he has proved himself to re-offend very shortly after each release from custody.  It is for this reason that in Charge 2, I take a starter of six years.  On account of the defendant’s plea, I therefore sentence the defendant on Charge 2 to four years’ imprisonment.

27. On these two charges and on account of totality, I order one year in Charge 1 to run consecutively to the four years in Charge 2 and the remaining term to run concurrently to Charge 2.  In total, the defendant has to serve with regard to Charges 1 and 2 five years’ imprisonment.