HKSAR v. Ho Tung Yuen

DCCC945/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 945 OF 2010

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to an offence of indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong, the particulars being that on 26 January of last year you indecently assaulted X, a woman.

2.The summary of facts, which you have agreed, establish that the victim, a 28 year old lady, in the early hours of 26 January of last year after having had dinner and drinks with a male friend ordered a taxi in a drunken state with the assistance of her friend who told the taxi driver to take her to a location in Yau Ma Tei.

3.Later that morning at about 5 o’clock, the victim found herself lying on the back seat of another taxi, your taxi, which was parked at the junction of Temple Street and Kansu Street in Yau Ma Tei. Miss X found that her pantyhose and panties had been removed and her private parts were wet. You at the time were standing outside the taxi telling the victim to get dressed. The victim initially could not recall what had happened due to her intoxication but finally recollected that whilst she was lying in the back seat, a male had molested her. She discovered that her handbag was missing, you took her to Wong Tai Sin Police Station to make a report and whilst at the police station the victim told the police that she suspected that she had been molested by someone.

4.You were eventually arrested and told the police during the taking of a video interview under caution that you had picked Miss X up in Nathan Road. You further told them that when you were attempting to get instructions from the victim as to her destination, you took advantage of her drunken state and the fact that she had thought that you were somebody else and you kissed her, touched her breast, kissed her breast, took off her pantyhose and boots and inserted your finger into her vagina, the whole incident lasting some 30 minutes.

5.You are 47 years of age and have a clear criminal record. I am told by way of mitigation that you are remorseful. That of course is reflected by your plea of guilty and I will give you due credit for that in the sentence that I propose to pass. The letters that have been produced to the court on your behalf and which I have read speak of this offence as being out of character.

6.This, however, I find to be a particularly nasty incident which comes at the higher end of indecent assaults. As a taxi driver, your only purpose was to transport the victim wherever she wanted. Instead, you callously took advantage of her state of inebriation and her mistaking you for somebody else when you responded to her advances and molested her in the most repugnant of ways. These I find to be aggravating features.

7.I have before me a psychological assessment report on the victim from Rain Lily dated 10 January of this year. I am told that the victim has suffered post-traumatic stress disorder symptoms as a result of this incident. To date, exactly a year after this incident, the victim dare not go out at night alone. She suffers from anxiety as she is aware that you know where she lives due to the fact that you drove her home that early morning. She worries that you will go to her home and harass her. She, the victim, cannot even be sure if you had sex with her as she was so inebriated. I mention this because the summary of facts, which you have admitted, speak of semen containing DNA which matches your DNA and which was found on the lower back surface of the victim’s underpants. The victim was necessarily concerned as to whether or not she had contracted a sexually transmitted disease. The psychologist is of the view that the victim up until the present moment suffers emotional disturbance and anxiety as a result of this incident and is still in need of further counselling to alleviate the impact of this incident on her life. This is another aggravating feature which I will take into account in sentencing you.

8.In view of the seriousness of this indecent assault, I adopt a starting point of 3½ years’ imprisonment. Due to the aggravating features that I have identified, I will increase this starting point by 12 months’ imprisonment, coming to 4½ years’ imprisonment. You are entitled to a discount of one‑third to reflect your plea of guilty arriving therefore at a sentence of 3 years’ imprisonment.

Defendant's leave to appeal against sentence dismissed by Court of Appeal. Please refer to CACC59/2011 dated 15 September 2011