HKSAR v. Wong Kam Hung

DCCC440/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 440 OF 2010

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Reasons for Sentence

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1.The defendant has pleaded guilty to a total of five charges. The first two charges are that he procured a mentally incapacitated person to have unlawful sexual intercourse. The 3rd charge is for indecent assault, the 4th charge is for procuring a mentally incapacitated person to have unlawful sexual intercourse and the 5th charge is one of indecent assault.

2.The victim in all five charges is a 19-year old female, but she has been assessed by a clinical psychologist as having an IQ score of 48, so her ability is similar to that of a person of 9 years and 5 months of age. She is classified as a mentally incapacitated person with mild grade mental retardation.

3.The offences came to light when, in January this year, the victim revealed to a social worker that she had had sexual intercourse with another trainee at the Vocational Training Centre which she attends, whom we shall call Y. She also revealed that on these occasions the defendant was present. The matter was then reported to the police.

4.The defendant was subsequently arrested on 27 January this year and admitted the offences under caution. The defendant admitted that he knew that both the victim and Y were mentally incapacitated. Y was an ex-classmate of this son, who was also mentally incapacitated. The defendant admitted that he had taught and procured X and Y to have sexual intercourse on three occasions and he indecently assaulted the victim on two occasions.

5.Charge 1 happened in early December when he ran into the victim and Y at a shopping centre in Sau Mau Ping. The victim and Y asked him to teach them how to perform sexual intercourse, so the defendant took them to the podium level of a staircase in the shopping centre and told them to take off their trousers. Then he instructed the victim to touch Y’s private parts and asked Y to penetrate into the victim’s vagina. They complied and sexual intercourse was achieved.

6.Charges 2 and 3 relate to another incident in late December when the victim and Y went to the defendant’s home to look for the defendant’s son. The defendant’s son was not in and the defendant claimed that the victim and Y asked him to teach them how to perform sexual intercourse again. He took them to a staircase and again instructed them and they had sexual intercourse.

7.Whilst the victim and ‘Y’ were having sexual intercourse, the defendant fondled the victim’s breasts and inserted his finger into her vagina and kissed her vagina. This is the 3rd charge.

8.Charges 4 and 5: On another occasion in December, the victim and Y again attended the defendant’s home. Again at their request he instructed them how to perform sexual intercourse. Again on this occasion the defendant similarly indecently assaulted the victim.

9.The defendant is aged 55 and has previous of similar offences. In 2007, he was convicted of four charges of indecent assault when he was sentenced to a total of 3 years and 6 months.

10.I called for the case file of that case and it transpired that the defendant was charged with indecently assaulting several young girls aged between 6 and 8. Apparently, these young girls were neighbours of the defendant. I also called for psychiatric, psychologist’s and background reports of the defendant. It appears that the defendant himself is found to have mild grade mental retardation.

11.He is a man who is married and has two children. One of the children, a son, is aged 19 but has mild grade mental retardation and is studying at the Kwun Tong Skills Training Centre. His elder daughter and wife work. The defendant is said by his wife and children to be very lazy. He does not go out to work and so really he has nothing to occupy his mind.

12.As far as the psychiatric report is concerned, the psychiatrist says he does not display any active psychiatric symptoms and so he has no medical recommendation to make. As far as the psychologist’s report is concerned, Miss Yeung was very detailed in her assessment. It is clear that the defendant had previous psychological treatment before. In fact after his release from prison, he was subject to post-release supervision and he was required to receive psychological service. But the psychologist responsible says the scope of intervention was limited by the defendant’s intellectual deficiency and inadequate motivation for treatment.

13.The responsible psychologist at that time opined that external control - for example, close supervision - would be most helpful in preventing him from re-offending. It was therefore suggested to him that he indulge in some meaningful work or other activities to lower his risk of re-offending but the defendant lacked motivation and did not co-operate.

14.The defendant has been assessed again by a clinical psychologist, Miss Yeung. She is of the opinion that taking into account his offending patterns, risk of committing similar offences against vulnerable persons such as children and people with mental retardation in the future is fairly high.

15.In conclusion, she recommends that he may benefit from some basic training on ways to handle sexual needs and what he needs to avoid in preventing himself from re-offending. It is essential get him steady employment to reduce his boredom and opportunities to offend, but unfortunately the defendant lacks insight into his problem and motivation.

16.This is a very difficult case to sentence. The court has a duty to protect the young and the vulnerable like mentally incapacitated persons from themselves. In this case, although the victim is aged 19 she has a mental age of about 9½ years and though she and her friend may have sought out the defendant to teach them to have sexual intercourse, the defendant should not have done so.

17.The defendant, although himself suffering from mild grade mental retardation, has managed to have a family and has children himself so he should have known better. This court fears that unless the defendant has a longer time to be looked after and to be supervised by clinical psychologists in order to help him get an insight into his problem, the risk of re‑offending is very high.

18.The defendant falls into a no man’s land in that he is not serious enough to be incarcerated in a psychiatric hospital. There is nowhere to put him; no facilities suitable for a person like him, except to put him in gaol. Inside gaol there are clinical psychologists who can work with him on his situation.

19.Having listened to mitigation from Mr Ip, and considering all the facts of the case, I have come to the conclusion that the defendant has to go away to prison. He will be sentenced in the following way.

20.On the 1st charge, the starting point for sentence will be one of 2 years, reduced to 16 months because of his plea.

21.The 2nd charge has again a 2-year starting point, reduced to 16 months because of his plea. The 3rd charge has a starting point of 18 months, reduced to 12 because of his plea. The sentence in Charges 2 and 3 will be served concurrently, making a total of 16 months’ imprisonment, but 12 months of this sentence will be served consecutive to the sentence in Charge 1.

22.The 4th charge has again a starting point of 2 years, reduced by one-third to 16 months. The 5th charge is 18 months, reduced to 12 because of the defendant’s plea. For the 4th and 5th charges, the sentences will be served concurrently making a total of 16 months. Twelve months of that will be consecutive to the sentences in Charges 1, 2 and 3, giving a total of 14 months’ imprisonment.