HKSAR v. Lui Yau Suen

DCCC 680/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 680 OF 2010

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to the indecent assault of a 10-year-old girl at the leisure area outside Ground Floor, Yiu Wah House, Yiu Tung Estate, Shau Kei Wan. The girl was mild grade mentally retarded. She was a P.4 student. On a certain day in February 2010, she attended after school Methodist Epworth Village Community Centre ("Centre") situated at ground floor in front of the said leisure area.

2.When she was drinking water at a drinking machine outside the Centre, the Defendant approached her and held her hand. He took her to the leisure area. When they were alone there, he put his hand underneath her underpants and shirt. He touched her private parts and breasts continuously. She found it painful, uncomfortable and embarrassing. He also kissed both sides of her face.

3.Afterwards he took her to Yiu Tung Shopping Centre to buy her candies. He told her to return home. She returned home in fear.

4.Two months later, she revealed to her mother the indecent assault. Her mother reported to the police.

5.Another month later, the victim was on the street with her mother. She saw the Defendant. She told her mother. The Defendant was arrested.

6.Under caution, he said he was wrong and remorseful to have touched her private parts and breasts. In a subsequent interview, he said that the touch was accidental.

7.The Victim Impact Report reported that the victim’s full scale IQ score is 55. She has a social equivalent age of 6 years and 7 months old. After the incident, she had become easily irritable and displayed signs of anxiety at home. She had lost her sense of security and had to seek a company when going out. She was scared by old men in the street. Fortunately her symptoms do not appear to be pervasive and crippling. It is likely that her symptoms will diminish over time and eventually disappear given her family and social support.

8.His solicitor asks me to consider a term of imprisonment.

Personal background and mitigation

9.The Defendant is 66 years of age. He received only 2 years of education. He was a farmer in China. He has a string of previous convictions but none of them related to sex offences. He had a stroke 2 to 3 years ago. He could not walk stably. He had to quit his manual jobs. He presently suffers nasopharygeal carcinoma, hypertension and diabetes. He has repeated suicidal attempts. His wife and sons have handed in mitigating letters for him.

10.I find it highly unusual for a married man aged 66 to suddenly find joy in indecently assaulting a girl aged 10. He has not received any psychiatric attention before. I order 2 psychiatric reports. Both Dr Choi and Dr Liu diagnosed him as having depressive disorder. Dr Choi says his condition is moderate to severe and recommends a 3 – 4 months’ detention in Siu Lam Psychiatric Centre. Dr Liu says it is severe and recommends a 2 – 3 months’ detention in Siu Lam .

11.According to Dr Choi, hospital order is recommended because of his symptoms of prominent depressive cognitions and suicidal ideation. According to Dr Liu, hospital order is recommended because of his poor physical health and dissatisfactory marital relationship. From both reports, there is no link proffered between the commission of the present offence and his mental condition.

Sentencing principles

12.Although there is no sentencing guideline, probably because the circumstances of the offence can vary tremendously, indecent assaults on mentally retarded girls customarily lead to imprisonment.

13.The defence has put forward a case, HKSAR v Lau Chin Yu CACC 529/2005, which involved a 24-year old mild grade mentally retarded girl. The applicant was her neighbor. He used to let her play computer games in his flat. In one instance, he lifted her upper clothing and fondled her breasts. He also took three or four photos of her exposed breasts. The Court of Appeal affirmed a starting point of 2 years.

Sentencing this Defendant

14.It is for me to factor in the need for general deterrence, the impact on the victim and the culpability, and the Defendant’s personal and psychiatric circumstances. I think the most appropriate option is prison. The Defendant may benefit from its in-house psychiatric treatment. I take a starting point of 2 ½ years. After plea, it is reduced to 1 year and 8 months.