HKSAR v. Chen Guojin

DCCC 138/2010  

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 138 OF 2010

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Reasons for Sentence

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1.The defendantpleaded guilty to 5 counts of offence; the first two relate to indecent assault-the victim was an 8 years old girl; the other three are immigration offences-one of possessing a forged identity card and the other of using it, the defendant also overstayed for over 8 years.

2.The prosecution case is that the defendant had an affair with the girl’s mother for over 5 years. Since January 2009, the defendant started visiting the family and from time to time staying overnight to look after the girl and her brother (5 years senior) for the parents had to leave home in the middle of the night to do their cleaning work.

3.There were many occasions where the defendant molested the girl whilst her parents were away for work; of all these occasions the girl could not remember exactly the dates except the two occasions as particularized in the charges.

4.The first incident occurred shortly after the new year 2009, whilst the parents were out working, the defendant climbed up to the girl’s bed and lay next to her, he covered himself and the girl with a blanket and used fingers to molest her vagina underneath her trousers for about 5 minutes. It stopped when the mother returned home.

5.The other incident occurred on an unknown day in August 2009, this time the defendant again climbed up to the girl’s bed and molested her private part as well as her breasts for a few minutes.

6.The girl had told her mother about it initially but was being ignored, she cried every time when the defendant molested her because she was scared and did not like the act, he told defendant that she did not like it but that was ignored, eventually she complained to her godmother in December 2009 which led to the arrest of the defendant. Under caution, the defendant said that he touched the girl on impulse. In later interviews with the police, the defendant further admitted that he climbed up to the upper bunk where the girl was sleeping and touched her private part by his hand underneath her underwear. He indecently assaulted the girl on many occasions and he knew she was 9 years old.

7.Upon a search of the defendant’s residence, a forged identity card in the name of Ho Chi Keung was found. The defendant said that he bought the ID card from a male for $1,200 in 2008 and he had used it to obtain a job in a restaurant in November 2009. Further investigation revealed that the defendant came to Hong Kong on a two-way permit on 2 September 2001, and was allowed to stay for 7 days only but he remained here up till now.

8.The defendant, aged 47, has one previous conviction- breach of condition of stay back in 1999. In mitigation, the court was told that he is a father of four children- 3 sons and one daughter. Between 1989 and 1996, he ran a small factory in the Mainland with his wife, but the business failed in 1996; and he tried very hard to earn a living since then. The reason to stay illegally was for job only; he was able to send $2,000 back to his family in the Mainland to support them.

9.In his letter to court, the defendant described how well he was treated by the girl’s mother who even allowed him to live at her place when he was suffering from leg pain- the pain was so severe that he could not even get up. He said that had it not been for her help, he could not have recovered from the leg pain. He was remorseful for what he did and knew that it was unforgivable, but now he has been away from his family for a long time; he misses them very much and asks for the court’s lenity so that he can re-unite with them sooner.

10.It is true to say for the offence of indecent assault, there are no tariffs. The facts of the instant case, however, are very serious if not the most serious. Undoubtedly, the defendant had breached the trust placed in him by the girl’s mother who allowed him to stay the nights to look after the children while she and her husband were away for work.

11.Though he was charged with two counts, as clear from the facts including his confession to the police, these were not the only two occasions where the girl was being subjected to the ordeal.

12.In Luk Hau Cheung CACC 323/2000, the court of appeal has said this: “It goes without saying that facts which may constitute separate offences for which a defendant has not been charged or convicted may be taken into consideration to determine the gravity of, and the appropriate punishment for, the offence of which the defendant has been convicted.” I have pointed out this passage to defence counsel and invited him for submission.

13.When I re-read the judgment, I have changed my view and now believed that what court of appeal meant in Luk’s case was those facts of offence not charged or convicted should connect at least in some way with the offence convicted before the court could take into account in determining the gravity. In the present case, though defendant admitted on more than two occasions he had committed similar assaults on the girl, clearly these incidents were separate and distinct and there appeared no link between them; for this reason, I would only sentence defendant on the basis of these two assaults as individual incident; in other words, I would put out of my mind those other incidents not forming the subject of the charges of which the defendant was convicted.

14.What the defendant did to the girl was disgusting and despicable, he targeted a girl of tender age who was defenseless, he carried on his cowardice acts despite protest from the girl; obviously the only thing he cared was to gratify his perverse sex desire.

15.Molestation can be traumatic for the child, I just wonder if the defendant had ever thought about it, but I think not. From the mitigation put forward including the letter he wrote, I detect nothing along those lines. His remorse, if any, is superficial.

16.In sentencing a child molester like the defendant, the first and foremost consideration, in my view, is to protect the young especially those of tender age for they are the very group of persons who are unable to protect themselves, it would have come a long way if the ultimate sentence carries sufficient deterrence.

17.Here I like to borrow the comments of the appellate court set out in the case of Kong Yun Chiu CACC 315/2006, the court of appeal has said, among other things, that the fact that the victim is a child is always a severely aggravating feature. Children are vulnerable members of society. It is too easy for those who would prey on their naivete 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; it went on to comment that the absence of other aggravating factors should not be permitted to derogate from the inherent seriousness of any indecent assault on a child.

18.In Kong Yun Chiu, the appellant pleaded guilty to two counts of indecent assault and was originally sentenced to a total term of 6 years and 6 months, it was reduced to 4 ½ years on appeal. One of the matters which the higher court considered too excessive is the number of months added onto the term of the other count by way of part consecutive term, the higher court considered 14 months appropriate in the circumstances of that case instead of 30 months as originally imposed.

19.Regarding his possession and use of a forged ID card, there are sentencing guidelines (Li Chang Li HCMA 935/2004-a court of appeal decision), the relevant parts are as follows:

40. In our judgment, for the offence of possessing a forged identity card or identity card belonging to another, even if the offender’s presence in Hong Kong is lawful, the starting point upon a plea of guilty should ordinarily be 12 months’ imprisonment, so as to reflect the seriousness of the offence and serve deterrent purposes.

41. If the offender has actually produced or used a forged identity card or identity card belonging to another in order to conceal his identity, work illegally or unlawfully further his stay in Hong Kong, then the starting point upon a plea of guilty should be 15 months’ imprisonment.

20.As far as mitigation is concerned, apart from his guilty plea, I see no other mitigating factors of real substance. Of course, I would bear in mind what the appellate court has said in Kong’s case in that the benefit of a plea of guilty in such cases in avoiding the child having to re-live her experience in the witness box is significant.

21.For the reasons given above, for the two counts of indecent assault, I cadopt a starting point of 4 ½ years and reduce each count to a term of 3 years to reflect his plea. For the use and possession of a forged ID card, he is sentenced to a term of 15 months and 12 months respectively. As for the overstaying offence- he had overstayed for a period of slightly over 8 years, I adopt 9 months as starting point and reduce it to 6 months for his plea.

22.Taking into account the totality principle, I order that the 3-year term of charge (1) should run consecutively to one year on charge (2), and consecutively to the 15 month-term on charge (3), and the rest concurrently. Thus the total term is one of 63 months imprisonment.

Defendant's appeal against sentence allowed by Court of Appeal. Please refer to CACC112/2010 dated 1 June 2011