HKSAR v. Choi Tsan Wing

HCCC305/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 305 OF 2008

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Transcript of the Audio Recording
of the Sentence in the above case 

COURT:  Choi Tsan-wing, you have pleaded guilty to two counts of rape and four counts of indecent assault.  

Looking at the whole course of conduct presented by the indictment, the offences began with an indecent assault in 2001, when the victim was 10 years of age, and ended with the last indecent assault in 2005, when she was 14.  The two rape offences took place in 2003 when the victim was 12 years of age.  

The victim, who was the same in all six counts, was the daughter of friends of yours living, as from 2001, after the commission of the offence in Count 1, in the same block of the same estate in Tin Shui Wai.  

Most of the offences were committed in your own home when either the child concerned was visiting with her siblings to play with your son, or visiting with her mother, or on the occasion her mother was visiting the Mainland, when she came to stay in your flat, with her sister, overnight.  One of the offences, the last, an indecent assault, was committed in the victim’s own home when you were asked by her mother to come round to fix a neon light tube.  

Although you were not the girl’s tutor, or teacher, or doctor, or uncle, and therefore in some capacity by which there was a relationship of trust cast upon you by virtue of that position, nevertheless, you were the trusted friend of the victim’s parents, in particular, her mother, who could never have expected that you would abuse that relationship when she allowed her child to visit your home and, on one occasion, entrusted you with the care of her daughter while she was away on the Mainland, and nor could she have guessed what you would do to her daughter when she allowed you into her home. 

You abused your position in relation to this girl both as an adult and as a close family friend, and you abused it over a period of about four years.  I am not here dealing with a single offence where you might have been said to have lost your self-control and inexplicably behaved out of character.  I am dealing with persistent sexual abuse of a child carried out over a sustained period, all for the purpose of satisfying your own lust. 

The effects on this child have been traumatic, as one might expect of a young girl who was old enough to have known what was happening but too young to be able to have resisted or complained.  The victim eventually told her mother that she did not like men, indeed, she hated men, because of what you did to her.  The matter in fact had come to light when her mother found that she had formed a lesbian relationship with another girl and questioned her about it.  

I make it clear that I am not prepared, in the absence of a victim assessment psychological report - and to this extent, I agree with your counsel - to make as much of this feature as I might otherwise have done, but I do take into account the fact that she obviously was, and inevitably must have been, affected by what you did to her as a young girl over the course of that four years.  

This then was child abuse of a sustained and repeated kind by somebody who was a family friend and who was trusted by the victim and her parents, the effects of which may well run deep for the child concerned for many years to come. 

So far as the individual offences are concerned, the four offences of indecent assault reveal an escalation of seriousness from 2001 when, on an occasion when the victim was aged 10, she came round with her sister to play with your son and you touched her breasts and private parts over her clothing for about five minutes; to 2003 when you kissed her neck and touched her breasts while she was sleeping in the supposed safety of your home with her sister, her mother having gone to the Mainland; to the insertion, also in 2003, of your finger into her vagina whilst applying Chinese medicine to a leg injury,  at the request of her mother; to 2005 when she was 14 years of age, when you rubbed your penis in the area of her vagina, in the bathroom of her own home, while her mother was out shopping, culminating in your ejaculating into the toilet. 

So far as the two rape offences are concerned, both took place in 2003 when the victim was about 12 years of age.  On the first occasion, while the victim was at your home, with her sister, to play with your son, you took her to a bedroom where you removed your clothes and hers, lay on top of her and, after several attempts, achieved penetration of her vagina, causing her pain, albeit no ejaculation took place.  It seems she tried to push you away but you were too big and strong for her. 

On the second occasion, also in 2003, when the victim had again come round, with her sister, to play with your son, you took her once again into a bedroom, where you played a pornographic videotape and made her watch it with you.  As you watched it, you inserted your finger into her vagina and fondled her breasts.  You then removed her clothes and penetrated her vagina for about 10 minutes before ejaculating on to a cloth. 

I regard the circumstances of the second rape as the more serious of these two offences and a callous disregard of the feelings and innocence of a 12-year-old girl who, as well as being digitally penetrated, was obliged to watch a pornographic video before you raped her. 

I have brought to the attention of the parties various cases which are relevant to the principles to be applied and the approach to be made to offences of indecent assault and rape in circumstances such as this.  Mr Chan has brought other cases to my attention, on points of principle, this morning and I have heard further submissions. 

Dealing with the offences of indecent assault, it was said in HKSAR v Chan Ching Ho [2000] 3 HKLRD 476, at 482, that there are three important sentencing considerations in cases of this kind:  (1) the need to deter others; (2) the need to mark the public abhorrence of such crimes; (3) the need to address the grievance suffered by the victim and her family.  Those three considerations are particularly prominent in this case. 

In Secretary for Justice v Wong Tsz Kin [1998] 4 HKC 32 at 36, the Court of Appeal said this: 

“Indecent assaults of this kind on children are grave offences.  The danger of psychological damage to the victims must be borne in mind.  They can be psychologically crippled for life.  The courts must be conscious of their duty to impose sentences that will, in a real way, protect children from sexual molestation.  Courts must not overlook the difficulty of detection, mainly because of the understandable reluctance of child victims to come forward and report what has occurred.  It is particularly important that sentences demonstrate to those who are like-minded that mitigating circumstances will count for little where an offender has gratified himself by sexually abusing a child.” 

In HKSAR v Kong Yun Chiu [2007] 4 HKC 391, the court said this at page 395, after referring to the case of Chan Ching Ho: 

“It should go without saying that children are particularly vulnerable members of society.  It is too easy for those who prey on their naivety and trust to succeed for children are by nature trusting and the deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly.  The trauma caused to a child by an indecent assault and the long-term adverse impact is difficult to calculate but trauma may safely be assumed in the vast majority of cases, perhaps all.  Similarly the trauma and distress, immediate and long-term, is not confined to the child.  Parents of child victims will almost certainly be haunted by images of what has been done to the child and, in addition, will nurture a deep sense of guilt, either for having entrusted the child to the company of someone who breaches that trust or, in other cases, for having left the child unguarded for the odd moment.  It should be remembered too, particularly in cases of breaches of trust, that children are much more likely than adults to suffer the trauma in silence rather than report, and in cases where there are threats levelled at the child not to report, whether the threats are express or implicit, fear is added to the initial offence and the culpability is that much greater.  Whilst the range of offences within the category of indecent assault is wide, the fact that the victim of such an offence is a child is always a severely aggravating feature.  Viewed in the light of these factors, offences of the kind in this case call for substantial terms of imprisonment and one is bound to say that some of the sentences imposed in the past for indecent assaults on children, for example those in the case of Wong Tsz Kin and See Tak Man have been remarkably low.”  

I say at once that this case was decided in 2007, after all of the offences with which I am concerned here today had been committed, and I make it clear you will be sentenced according to my assessment of the sentences prevailing at the time of the commission of your offences.  Nevertheless, the principles stated therein apply to any case of child abuse whenever it was committed. 

So far as the two rape offences are concerned, I am to have regard to any features which go in aggravation of the starting point.  Those features are set out in the English case of Billam [1986] 82 CAR at 347, although Hong Kong courts are not tied to the quantum of sentence indicated in that case as the authority of Bui Duc Hiep [1995] 2 HKCLR 165, an authority cited by Mr Chan this morning, reminds me.  However, the principles are the same. 

In my judgment, the following features aggravate the starting point in this particular case:  firstly, the victim was, at the time of the two rapes, about 12 years of age which, on any assessment, was very young.  

Secondly, you were a trusted friend of the victim’s mother, to whose home the victim was allowed to go to play because it would have been regarded as safe.  That friendship and trust was disgracefully abused. 

Thirdly, the rape was repeated in relation to the same victim. 

Fourthly, there is the effect on the victim herself, although, as I have already said, I do not give this feature the significance it might otherwise have had, had I been in possession of specific evidence of the victim’s psychological state.  So far as this feature is concerned, I rely on the admitted Summary of Facts but, more particularly, the obvious consequences on the mind of any 12-year-old child victim of rape by somebody she knew and had reason to trust. 

So far as you are concerned, the most important matter of mitigation in your case is your plea of guilty.  Although the matter was listed before me as a trial, in April, in this court, you had the good sense to face up to your crimes and plead to the offences with which I must now deal.  Although not at the first available opportunity, the trial having been set down for some nine days, your plea has saved the victim the trauma of having to relive these events at a trial.

It was said in The Queen v Lau Yuk Ming [1994] HKCLR 256 at page 259 that, undoubtedly, pleas of guilty merit a greater discount in cases of rape than perhaps they do in any other types of offence for the obvious reason that the victim is not subjected to the pressures of giving evidence in a public court and, therefore, pleas are to be encouraged. 

I have borne in mind your clear record and the two character references which confirm the general view of your wife and family as expressed in the background report I called for, that you are a man of kind and gentle personality who has worked hard to provide for your family since arriving in Hong Kong 30 years ago.  However, you were anything but kind and gentle to the victim in this case.

I also accept the genuineness of your remorse and your shame for what you have done.  I have seen it in court and in what you yourself have written to the court, and I have had the advantage of a psychiatric report upon you at Siu Lam Psychiatric Centre on 16 April this year. 

I feel extremely sorry for your wife and your own son who are blameless in this matter, but their plight cannot hinder me from marking the public’s abhorrence of what you have done. 

I shall deal firstly with the four offences of indecent assault.  Had this been a sentence after trial, you having pleaded not guilty, I would have considered an overall sentence of 4½ years’ imprisonment appropriate for the four offences of indecent assault which I would have achieved by passing sentences after trial of 2 years’ imprisonment on Count 1, 2 years’ imprisonment on Count 7, 3 years on Count 9 and 4 years on Count 10. 

I would have made the sentences on Counts 1, 7 and 9 concurrent with each other and ordered 1½ years of the sentence on Count 10 to run consecutively to the concurrent 3-year term for Counts 1, 7 and 9, thus making 4½ years.

As for the two rape offences, I would have imposed, after trial - that is, had you pleaded not guilty - sentences of 9 years’ imprisonment on Count 3 and 10 years’ imprisonment on Count 5.  I would have ordered them to run concurrently, making 10 years’ imprisonment in all for the two rape offences. 

I would have ordered 2 years’ imprisonment in respect of the sentences for indecent assault to run consecutively to the 10 years on the rape offences and the remaining 2½ years to run concurrently with the 10-year sentence.  The overall sentence after trial would have been 12 years’ imprisonment.

However, this is a plea of guilty.  In the light of your pleas and other matters of mitigation, the sentences that you shall serve are as follows.  For the indecent assault offences, giving you a one-third discount, I will pass a sentence of 16 months’ imprisonment on Count 1 and 16 months’ imprisonment on Count 7.  There will be a sentence of 2 years’ imprisonment on Count 9 and 2 years and 8 months’ imprisonment on Count 10.

I order the sentences on Counts 1, 7 and 9 to run concurrently and 1 year of the sentence on Count 10 to run consecutively, making an overall sentence in respect of the four counts of indecent assault of 3 years’ imprisonment.

In respect of Count 3, the first rape offence, the sentence after plea and giving you a one-third discount will be 6 years’ imprisonment, and on Count 5, the second rape, 6 years and 8 months’ imprisonment.  They will be ordered to run concurrently, making 6 years and 8 months for the two rape offences.

I shall order 1 year and 4 months of the sentences on Counts 1, 7, 9 and 10 to run consecutively to the 6 years and 8 months’ sentence on Counts 3 and 5, making 8 years’ imprisonment in total.  The remainder of the 1 year and 8 months on the indecent assault charges will run concurrently with the sentence.

Defendant, you will go to prison for 8 years.