HKSAR v. P. Y. F.

DCCC 1177/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1177 OF 2009

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to 4 counts of Indecent Assault and 1 count of Indecent Conduct towards a child under the age of 16 years.  The victims are the 2 daughters of the Defendant.  To prevent the risk of disclosure of the identities of the victims, the full name of the Defendant is ordered not to be publicized. 

2.The 2 victims are now 19 and 13 years old respectively.  In 2001 and 2002, when the elder child was 11 and 12 years old, the Defendant indecently assaulted her by fondling her nipples. (Charges (1) and (2)) In the latter incident, the offence was committed while the victim was asleep and she was awakened by the Defendant’s assault. 

3.Also in 2001, when the younger child was 4 years old, the Defendant committed the third offence (Charge (3)) by causing her to hold his penis.  On an afternoon in 2006, when the younger child was 9 years old, the Defendant put her on the bed and fondled and licked her breasts and private part.  He rubbed his penis against her private part and the whole molestation lasted for about 10 minutes. (Charge (4)) The Defendant told the victim not to tell anybody about this.  In 2008, when the younger child was 11 years old, the Defendant fondled her breasts underneath her clothes for about 3 minutes.  (Charge (5))

4.The molestations came into light in September 2009 when the younger child told her mother about these after she has a dispute with the Defendant.

Psychologist’s reports

5.Psychologist’s reports were called for to assess if there is any psychological impact caused by the molestations to the victims. 

6.The report of the elder child revealed that as a result of the sudden and unpredictable nature of the indecent assaults by her father, she had been suffering from a chronic state of high anxiety since age 11.  She also had chronic sleep disturbance due to her fear of being assaulted by her father on bed.  She always felt anxious on bed and would bite and clamp a blanket tightly with her teeth and legs.  The high level of alertness had made her having difficulties in falling asleep.   This high level of anxiety persists outside home.  She often worried that someone is following her.  She is in the opinion of the psychologist suffering from Posttraumatic Stress Disorder.

7.She was noted to have great difficulties in building mutual trust with others. She tended to query the trustworthiness of others and perceived everybody as phony.  She worried that others might see her as disgusting and discriminate her if they knew that her father has molested her.  She showed difficulties in building intimate relationship in the future as she worried that if in future she leaves her children alone with her husband, he might harm them.

8.She worried about the revenge of her father and indicated that she does not want to see him again.

9.The report of the younger child revealed that she dared not to disclose the indecent assaults as she worried that it would bring a drastic disruption to the family.  She worried that she might be abandoned by the family if her mother did not believe her.  As a result, the secret of the indecent assaults had left her living in horror, pain and sadness alone since early childhood.  She was often anxious and fearful staying at home and she often cried secretly in the bathroom.  She was most distressed by the frequent emotional disturbance caused by intrusive thoughts and images of the indecent assaults which could be easily triggered by anything associated with the term “father”.  She would have a sudden strong feeling of panic and bodily discomfort when she had vivid intrusive images of the indecent assaults.  She suffered wakefulness, nightmares, outburst of anger and exaggerated startle responses.  She is also suffering from Posttraumatic Stress Disorder.

10.The traumatic experience has a far-reaching negative impact on the social functioning of her.  It impeded her ability in having social interaction with others and hampered her ability in building trustful relationship with others.  She worried that others might see her as disgusting if they knew that she had abnormal sexual relationship with her father.

11.Undoubtedly, the impacts on the victims caused by the Defendant’s criminal acts are very serious and have long-term adverse consequences on their future.

Mitigation

12.The Defendant is now 61 years old.  He has a previous conviction in 1971 which is irrelevant for the purpose of sentencing in the present case.  He was educated up to Form 4 in Hong Kong and worked as a cashier after schooling.  He then went to El Salvador and returned in 1995 worked as a security guard.  In 2001, he became unemployed because of health problem and the family has been living on CSSA since then.

13.In mitigation, Mr. Oderberg, counsel for the Defendant, submitted 3 letters written by the Defendant for my perusal.  One of which was written to the victims.  In the letters, the Defendant stated that he is prepared to face a term of imprisonment.  He worries about the immense pressure heand his family will face should this case be reported in the media.  He knows he has done something very wrong and he accepts that he has to be punished.

14.The psychologist’s report of the Defendant reveals that he is a hedonistic and capricious person.  In 1979, he moved to El Salvador to run a restaurant when he was 34.  He met his present wife there when she was 14 and they resided together when she was 17.  She gave birth to the elder daughter at the age of 19.  Apart from the 2 victims, the couple has also a son who is now 6 years old.

15.The Defendant paid regular visits to brothels and topless bars in El Salvador.  He continued visiting prostitutes after marriage.  He denied having any deviant sexual interests on children.  

16.Mr. Oderberg submitted that the Defendant committed the offences out of curiosity.  The Defendant did not appreciate the differences in sexual culture of El Salvador and Hong Kong.  Having said that, however, Mr. Oderberg appreciated that there is in fact not much he can say in mitigation for the Defendant.   

17.In my view, the only mitigating factor is the guilty plea of the Defendant and because of this, the victims are not required to go through the ordeal of reciting their tragedies in court.

Sentence

18.In Secretary for Justice v. Huang Long Wei [2009] 3 HKLRD 130, Cheung JA had this to say[1]:

“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] 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 (unrep., CACC 515/2005, [2006] HKEC 1314).”

19.In the present case, the Defendant committed a breach of trust of the most serious kind.  He is the father of the two victims.  Instead of giving protection to the victims, as what any father is obliged to do, the Defendant abused them only for satisfaction of his own lust.  

20.It is not open for the Defendant to excuse himself by saying that he has got used to a loose culture of sexual relationships in some other places.  As the sexual abuse of one’s own child cannot in any civilized area in this world be tolerable to the least by society. 

21.Sexual abuse of children, especially by someone who is entrusted upon as guardian, is a criminal act that any court would feel obligated to deter and be ready to pass a sentence showing the abhorrence of members of the public against it.    

22.In HKSAR v Kong Yun Chiu [2007] 4 HKC 391, the applicant pleaded guilty to 2 counts of indecent assault.  He is the maternal uncle of the victim who was 8 years old at the time of the first offence.   At first instance, Beeson J adopted a starting point of 6 years’ imprisonment for each count.  Having taken into account his guilty pleas and ordered that 2 years and 6 months’ imprisonment be run consecutively, the learned Judge sentenced him in total of 6 ½ years’ imprisonment.  On appeal, the Court of Appeal held that the starting point of 6 years’ imprisonment and the resulting sentence of 6 ½ years’ imprisonment were manifestly excessive.  The learned Justices of Appeal[2] adopted a starting point of 5 years’ imprisonment for each count and reduced the overall sentence to 4 ½ years’ imprisonment.   

23.In considering the appropriate sentence, however, the Court of Appeal made the following comments after setting out the aggravating features of indecent assaults on children:

“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 assault on children, for example those in Wong Tsz Kin, above, and HKSAR v See Tak Man [1998] 1 HKLRD 794, have been remarkably low.

Of course there will be a range of offences against children the facts of which are more serious than the present, including for example – and these are only examples – where there has been violence additional to that constituted by the indecent assault, where there have been previous convictions for the same type of offence, and where there have been a number of victims. Yet the absence of such factors in a particular case should not be permitted to derogate from the inherent seriousness of any indecent assault on a child.”[3]

24.In the present case, the Defendant has 2 daughters and he abused both of them.  In my view, it falls within one of the examples cited by the Court of Appeal as a more serious offence of its kind.  When compared with Kong Yun Chiu where the defendant is the uncle of the victim, the fact that the Defendant is the natural father of the victims is another factor that warrants the Defendant to receive a heavier sentence.

25.Considering all the above matters, I adopt a starting point of 5 ½ years’ imprisonment for each of Charges (1) and (2).  As the age of the younger child when being abused was much lower and the molestations applied to her are more serious, a higher starting point of 6 years’ imprisonment is adopted for each of Charges (3), (4) and (5).

26.Taking into account the guilty pleas, the sentences for Charges (1) and (2) are each reduced to 44 months’ imprisonment and the sentences for Charges (3), (4) and (5) are each reduced to 48 months’ imprisonment.

27.The offences were committed at different times over some years.  Two different victims are involved.  However, considering the totality of sentence, I shall order that 22 months of the term imposed on Charge (1) to run consecutively to the term imposed on Charge (3), all the other terms are to run concurrently, making a total of 5 years 10 months’ imprisonment.

[1] At pp.140-141, paragraphs 13 and 14.

[2]Hon Stuart-Moore VP and Stock JA (as he then was).

[3]At pp.5-6, paras.11-12.