Secretary for Justice v. Huang Long Wei

[English Translation – 英譯本]
CAAR 5/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 5 OF 2008

(ON APPEAL FROM DCCC NO. 1177 OF 2007)

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BETWEEN

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Before: Hon Cheung JA, Yeung JA and Yuen JA in Court

Date of Hearing: 19 December 2008

Date of Judgment: 19 December 2008

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JUDGMENT

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Hon Cheung JA (giving the judgment of the Court):

1.The defendant Wong Lung Wai pleaded guilty to four counts of indecent assault (commonly known as ‘非禮’ in Chinese), contrary to section 122(1) of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong). On 8 May 2008, Deputy District Judge Rickie Chan sentenced the defendant to probation for 18 months. The Secretary for Justice now applies for a review of the sentence on the ground that it is manifestly inadequate.

The facts

2.The facts showed that the defendant used to perform voluntary work at a community centre in a public housing estate in Shamshuipo, Kowloon (‘the centre’). The centre provided, inter alia, after-school tutorials and extra-curricular activities for children in the district. At one time the defendant ceased working for the centre as he moved out of Shamshuipo. He visited the centre again in September 2007 as he worked in Shamshuipo.  

3.The four offences involved two victims, a boy aged 7 (hereinafter X) and a boy aged 9 (hereinafter Y). They both lived in Shamshuipo and frequented the centre to attend tutorials and to play after school and during holidays.

4.Charge 1 alleged that one day in August 2006, when Y was queuing up for the computer room at the centre, the defendant, who was standing beside Y, put his hand under Y’s underpants and touched his penis for 5 seconds.

5.Charge 2 alleged that one day in October 2007, when X was waiting for the lift in the lift lobby at the centre, the defendant put his hand under X’s underpants and touched his penis, and kissed X on the cheeks when they were inside the lift. 

6.Charge 3 alleged that on 5 October 2007, when the defendant bumped into Y in a shopping mall in the district, he put his hand under Y’s underpants and touched his penis for approximately 10 seconds. Y cried out and the defendant fled.

7.Charge 4 (i.e. Charge 5 in the charge sheet) alleged that on 13 October 2007 the defendant met Y who was playing outside the centre. He followed Y to the outside of another building in the housing estate, where he grabbed Y by the arms and touched his penis for approximately 10 seconds. Y resisted and, after breaking free, scolded the defendant for his crazy acts and warned the defendant not to touch him anymore or else he would call the police.

8.The sexual abuses of the two boys by the defendant came to light in the following manner:

On 13 October 2007, a social worker at the centre saw the defendant pull down X’s trousers at the lift lobby and touched X’s buttocks with his hand. At that time the defendant told the social worker that he was merely helping X tidy up his trousers. Subsequently, having learnt from Y’s diary that a stranger had touched his private parts, the social worker asked Y what happened on 15 October 2007. Y told her that someone had touched his trousers. Y complained to the social worker on 16 October 2007 that the defendant had touched his trousers. The following day Y further complained to the social worker that the defendant frequently touched his penis and buttocks. The social worker then called the police.   

9.Following his arrest by the police, the defendant disclosed the facts of the four offences in a video-recorded interview with the police. He admitted that since the age of 10 he had been fond of playing with kids. Later, as he worked in Shamshuipo, he revisited the centre to play with kids. He said he was unable to refrain from touching their penises and buttocks and kissing them. The defendant expressed deep remorse for what he did.

The defendant’s background

10.The defendant was aged 18 at the time of the offences. His father is mentally handicapped. The defendant’s parents got married on the Mainland as a result of family arrangement. The defendant was born on the Mainland and later came and settled in Hong Kong. At first he was raised by his grandmother in Hong Kong. Subsequently his mother also came and settled in Hong Kong, but she often quarrelled with his father and they were divorced in 2005. The defendant’s schoolmates ostracized him because he was from the Mainland. All along the defendant did not have companions of a similar age and had been fond of playing with kids.

Judge Chan’s decision   

11.In passing sentence, Judge Chan had this to say:

23. …, the defendant was merely aged 18 when he committed the offences, and he has a clear record. In all the reports that I have read, in particular the probation officer’s report, the comments are generally positive and favourable. I am left with the feeling that, with appropriate counselling and supervision, the defendant will indeed stand a good chance of correcting his mistake. The defendant is not an adult but, rather, a youth of 18 or 19 years of age. Where possible, the court should consider giving him a chance in order to help him rehabilitate. In the present case, the defendant has been put in custody at various stages for a total of 26 days. This may well be an experience that he will never forget and, from the perspective of deterrence, may already have exerted certain deterrent effect on him. Furthermore, the defendant’s guilty pleas has spared the young victims the ordeal of having to recount their traumatic experiences in court. In my view, the defendant should be given credit for this for sentencing purposes.

24. Sentencing in the present case is far from easy. On the one hand, the offences are serious in nature. On the other hand, the defendant is a young man and the reports have given him positive assessments. After careful consideration, I have decided to give the defendant a chance which, I must emphasize, is probably a last chance. I have decided to accept the recommendation of the probation officer and sentence the defendant to probation for 18 months.

Sentencing principles

12.In 1999, the maximum term of imprisonment for the offence of indecent assault was increased from 5 years to 10 years in order to reflect the gravity of the offence. The court has also made it clear that indecent assaults on young children by adults are serious offences: see HKSAR v. Yau Kin Wai CACC 398/2003.

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/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] 4 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 CACC 515/2005.  

Probation order inappropriate

15.The sentence imposed by Judge Chan clearly shows that he only had in mind the defendant’s personal circumstances and lost sight of the said sentencing principles. It is true that the defendant had advanced a number of mitigating factors, for example, he was only aged 18 at the time of the offences; he frankly admitted upon arrest what he had done; and he pleaded guilty at trial, thereby obviating the need for the two children to recount in the court their unpleasant experiences of the sexual abuses. Nevertheless, Judge Chan has, in our view, failed to also take into account that the defendant had sexually abused two children separately over a considerable period of time, with one of them having been sexually abused a number of times. It follows that what the defendant did was not an isolated act but, rather, indicative of his propensity to commit this kind of offences. This can also be seen from a report prepared by Dr. Judy Hui, a clinical psychologist of the Correctional Services Department, in which the defendant’s risk of recidivism is assessed as moderate. Although Dr. Anita Leung, another clinical psychologist, has opined that the defendant’s risk of recidivism should be low if he is willing to undergo psychological counselling, we cannot discard the possibility that he would molest young children again in future. Although the defendant had received psychotherapy prior to the commission of the present offences, he obviously failed to deal with his problems positively or appreciate the serious consequences of his conduct.       

Our views

16.In our judgment, the sentence of probation is manifestly inadequate. A custodial sentence has to be imposed in order to reflect the gravity of the offences. However, as the defendant was only 18 years of age at the time of the offences and he was a first offender, we have to consider imposing a sentence other than imprisonment. Mr. David Leung, Senior Public Prosecutor acting for the Secretary for Justice, has suggested that we impose a training centre order. In light of the offences involved, we consider the period of detention at a training centre, which falls between 6 months and 3 years, to be too long for the defendant. Having considered the circumstances of the case, including the fact that the defendant’s conduct was not the most serious of its type, that he was basically a person of good character, that he has been in custody for 26 days pending sentence, that he has received probation for more than 7 months following the sentence imposed by Judge Chan, and that the court should consider giving the defendant a chance to rehabilitate, we are of the view that the appropriate sentence is a rehabilitation centre order, with a period of detention of not less than 3 months but not exceeding 9 months. The purposes of sentencing a defendant to detention at a rehabilitation centre include:

(1) deterring young offenders from committing further offences;

(2) correcting the delinquent values and behaviour of young offenders;

(3) teaching young offenders to respect the law and develop socially acceptable behaviour;

(4) equipping young offenders with interpersonal and other skills; and

(5) preparing young offenders for a successful reintegration into society upon discharge.

See: Cross & Cheung, Sentencing in Hong Kong (5^th Edition), at page 575.

17.Section 4 of the Rehabilitation Centres Ordinance (Cap. 567 of the Laws of Hong Kong) provides that a young offender shall initially be detained in a rehabilitation centre for not less than 2 months and not exceeding 5 months, and shall subsequently be so detained for not less than one month and not exceeding 4 months. A young offender may study, work or participate in other approved activities during the subsequent detention period. A young offender shall be subject to a supervision order for one year upon being released from a rehabilitation centre. Should he fail to comply with any condition of the supervision order within that one year, the Commissioner of Correctional Services is entitled to make a recall order requiring him to return to a rehabilitation centre for detention.

Conclusion

18.The application by the Secretary for Justice for review of the sentence is allowed. The sentence is varied to a rehabilitation centre order.

Mr. David Leung, Senior Public Prosecutor, for the Applicant.

Mr. Alan So, instructed by Pansy Leung Tang & Chua, for the Respondent.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.