HKSAR v. Harris Nigel Russell

DCCC1242/2009

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1242 OF 2009

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Reasons for Sentence

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1.The defendant was charged with a total of six counts of indecent assault. On 14 April the defendant pleaded guilty to Charges 3 and 4. Accordingly, I convicted him of these two charges and the remaining four charges were left on court file.

2.I called for a psychologist’s report on the defendant and also a victim assessment report. The sentence was adjourned to today.

Brief Facts

3.At the material time, the defendant was the tutorial teacher of the victim, a girl of 5 years old. The two offences were perpetrated at Room 101, Chung Shui House, Tin Chung Court in Tin Shui Wai (“the premises”). The victim attended private classes tutored by the defendant since November 2008. Starting from July 2009, the classes were held at the premises. The victim attended classes every Monday and Wednesday since early September 2009.

4.The personal tutorial classes were conducted on a one‑to‑one basis. Either the victim’s mother or maternal grandmother took the victim to the classes. The classes were held in a small room in the premises and on most occasions the door was locked when the classes were being held.

5.On 23 September 2009 the offences were unearthed when the victim indicated her reluctance to attend tutorial classes and even asked why the teacher Nigel always touched her bottom part. The victim later provided more details to her mother, grandmother and subsequently to a clinical psychologist in a video recorded interview.

6.The defendant was arrested and under caution he admitted, inter alia, that he had indecently assaulted the victim on two occasions.

7.The first occasion happened on 9 September 2009. Inside the small room the defendant gripped the victim’s vagina area for about 15 second with his fingers in a “full handed grip” outside the shorts the victim was wearing (Charge 3).

8.The second occasion occurred on 14 September 2009. It was alleged that while the victim was jumping on the couch her jeans fell down. The defendant then touched the victim’s vagina outside her pants for about 10 seconds (Charge 4).

9.It was said at no time did the defendant either expose his penis or ask the victim to touch him. The touching of the victim on these two occasions were made outside the victim’s panties or shorts. There was no penetration.

Mitigation

10.Mr McGowan, Counsel for the defendant. started the mitigation by offering a public apology to the victim and her family on behalf of the defendant. Defence counsel referred to various paragraphs of the psychologist’s report to outline the personal background of the defendant. The defendant had been the victim’s private tutor for about 18 months and developed a certain kind of emotional attachment to the victim. Even the defendant could not explain why he perpetrated this crime.

11.Counsel emphasised that the touching was brief and they happened outside the panties or jeans. The incidents did not happen in the victim’s home. The defendant pleaded guilty at the earliest opportunity in order to relieve the stress on the victim, as the latter would not be required to testify in court. The defendant claimed that the incidents were a momentary lapse of his character and he has to face the dire consequences of his wrongdoings. His future career as a teacher will be ruined.

12.Counsel made reference to two Magistracy appeal cases, namely, HKSAR v Chan Chuen Hin, HCMA 240 of 2003, and HKSAR v Chan Kam Wing, HCMA 1107 of 2005, concerning the sentence. Counsel on behalf of the defendant pleaded for leniency.

13.It was submitted that this case has exceptional circumstances which justify a departure from normal sentence. Counsel for the defendant also submitted mitigation letters written by the defendant’s wife, the defendant’s close friend, business associate and parents of his tutorial students. The latter two authors were in court on the last occasion and are in court today to show their support to and confidence in the defendant.

Sentence

14.The defendant was the private tutor of the victim, who was aged 5 at the material time. It is apparent that what the defendant did on these two occasions was a serious breach of trust. The defendant, a British, is aged 43 and had a clear record in Hong Kong. He completed his university studies back in England and started as a part-time English tutor in Hong Kong since 2007. He is married and the premises was his residential address.

15.It has been made very clear by the Court of Appeal in HKSAR v Kong Yun Chiu [2007] 4 HKC 391 that:

“The fact that the victim is a child is always a severely aggravating feature as children are vulnerable members of society.  The deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own.  The trauma and distress, immediate and long-term, is not confined to the child but also her parents.  Children are much more likely than adults to suffer trauma in silence rather than report, particularly in cases of breaches of trust.  The absence of other aggravating factors should not be permitted to derogate from the inherent seriousness of any indecent assault on a child.”

The Court of Appeal in that case further commented that some of the sentences imposed in the past for indecent assault on children had been remarkably low.

16.In the present case, I accept that the defendant might have exercised restraint to a certain extent in not pursuing further to indecently assault the victim or to perpetrate a more serious sexual crime. There was no evidence to show that the defendant was exposing himself, or was undressing himself, or was making any indecent conduct towards the 5-year old victim. He indecently assaulted the victim outside the latter’s panties or shorts.

17.The degree of culpability could be regarded as not of the worst type. That said, the two charges were committed within one week. He was clearly abusing his trust position by touching the victim’s vagina. The fact that the parents of the victim placed so much trust on the defendant for a long period of time demonstrated the gravity of the breach. It is fortunate that the offences were discovered soon after. Otherwise, it is not difficult to foresee that the evil deeds towards the victim could be even more aggressive and vulgar. I understand there is no evidence to show that the defendant had taken any photos of an indecent nature from the victim.

18.From the victim’s assessment report, the clinical psychologist took the view that the victim had strong emotional ties with her parents and maternal grandmother and her mood was stable throughout the interview. It was reported that intense feelings of unhappiness, fear, annoyance and anger haunted the girl over the period of time she was repeatedly molested by the abuser.

19.I also noted that in the report, the victim recounted that every time she went for private tutorial class, the abuser took off her trousers and touched her private parts. The abuser then treated the victim with chocolate or other snacks. To that end, I have to stress that I am duty bound to sentence the defendant on the basis of the Admitted Facts.

20.It was further reported that, since the abuse, distressing nightmares relating to the abuse disturbed the girl for a long period of time. The victim’s trust in adult males unavoidably diminished. Fortunately, there is no marked psychological disturbance on the victim, although it could not be certain if the abuse-related impact might re-visit the victim or emerge in other forms in future. No psychological intervention was recommended at the present stage.

21.On the other hand, the psychological evaluation of the defendant revealed that the defendant was born to a complicated family in the UK. He had saddening upbringing experiences and was often physically abused by his father. The defendant had learning difficulties and was diagnosed with dyslexia at the age of 13. Subsequently, the defendant managed to study in the UK and obtained a Master’s degree in business administration. The defendant married twice and has three biological children and two stepchildren.

22.The defendant was impressed to be a person who was isolated, suppressive of his feelings and harboured a lot of life frustrations. It was reported that the defendant appeared to be remorseful for the harm done on the victim. He showed emotional attachment towards the victim but insisted that he is sexually interested in adult females only.

23.The clinical psychologist considered that it was difficult to conclude that the defendant showed prominent features resembling the profile of a paedophile and the defendant’s risk of sexual re-offending was estimated to be low to moderate. It was recommended that the defendant should receive psychological interventions on a number of his inner conflicts.

24.From what was submitted by the defence counsel and the psychological report of the defendant, I accept that the defendant was remorseful for the criminal conduct he had perpetrated. He was not regarded as a paedophile and his chance of re-offending is low to moderate if he is receptive to psychological interventions.

25.I have to stress that the court needs to send a clear message to sexual offenders who are preying on young victims and who are in serious breach of trust, would receive sentence of deterrent effect. The severe sentence is also to show the abhorrence of members of the public to crimes of this nature. The court has the utmost duty to protect vulnerable members of society and to redress the grievances suffered by the victim, her parents and family members. It is worthy to note that since 1991 the maximum sentence of the offence has increased from 5 to 10 years. The victim in this case was only 5 years old at the time, and I repeat, the two offences were committed within a short period of time.

26.Needless to say, the most important mitigating factor for the defendant is his guilty plea. That allows him to receive one-third reduction in sentence. The young victim does not have to recount the terrible experience again in open court.

27.There is no sentencing guideline for this kind of offence. I have considered all the circumstances of the case, the previous sentencing authorities including HKSAR v Ng Kwok Wai, CACC 141 of 2007, which is a Chinese judgment, and the personal background of the defendant. I would adopt 2 years as the starting point for Charge 3. With the defendant’s guilty plea, the sentence is reduced to 16 months. For Charge 4, the same starting point is adopted and the sentence is reduced to 16 months.

28.I take into account the totality principle and I am prepared to take a lenient stance. I order that 2 months of the second sentence be served consecutively to the first sentence. Hence, I sentence the defendant to a total of 18 months’ imprisonment.

29.During the defendant’s imprisonment term, it is expected that psychological intervention or counselling should be provided to the defendant.