HKSAR v. Poon Yam Fai
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DCCC1170/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1170 OF 2010 ----------------------
--------------------- Reasons for Sentence --------------------- 1.Defendant, you have pleaded guilty to two offences of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200. 2.The first offence took place between 1 January and 31 July 2010. The second offence took place on 9 September 2010. Both offences took place at a flat in Hin Pui House, Hin Keng Estate, Shatin, on the same girl. For the first offence she was aged about 14, and for the second offence she was 14 years of age. 3.Defendant, you are the girl’s (victim’s) uncle by marriage. You are married to her maternal aunt. The premises in question are that of her grandmother or your mother-in-law. At the material time the grandmother, or mother-in-law to you, was taking care of the victim, her sister and your son. Your son being aged about three and the victim aged 14 and the victim’s younger sister. You would regularly go there to have dinner and visit your son. 4.The offences itself are as follows. In respect of the 1st charge, on a day unknown in January, at around 7 to 8 pm, while the victim was using her computer inside her room you came in and sat beside her. You then suddenly put your hand inside her clothes and fondled her breasts over her underwear for a while. She asked you to stop, and you left the room. 5.In respect of the 2nd charge, that is at around 7 to 8 pm on 9 September, when she was using her computer in her room, you went in and asked to use her computer for playing a game. She let you use the computer and stood beside you doing her homework. Suddenly you put your hand into her T-shirt and fondled her breasts. She immediately asked you to stop, and you took your hand out. However, you then lowered your jeans and underwear and you then pulled down her shorts and her underwear. You then used your penis to rub against her private parts for a while. She was very scared and asked you to stop. You stopped when you heard someone walk by the room. 6.In respect of the disclosure of the offence, on that very evening, after you had molested her, she had chatted with one of her classmates on MSN, and her classmate urged her to report the matter to her teachers. The next day she disclosed the incident to her social worker, and the matter was subsequently referred to the police. 7.On 13 December, defendant, you were arrested by a police officer for indecent assault. Under caution, you admitted that you had committed the offence out of impulse. In a subsequent video-recorded interview, you also admitted the incidents as described by the victim, but went on to say that you had further kissed her lips and embraced her. 8.Mr Adrian Yeung, your solicitor, has mitigated fully and thoroughly on your behalf, and I have taken into account all that he has had to say. Prior to sentencing you today, I also called for a background report and a psychological report on yourself, and a victim impact report on the victim girl, your niece. These reports are full and thorough, and have given me the psychological opinions of the psychologist on yourself and the victim. 9.Defendant, you were 34 years of age at the time of the commission of these offences. You are now 35. You are a man of clear record. You had married the victim’s aunt in 2006 and cohabitated with her since 2001. You had therefore known the victim since she was about 7 years old, when you became acquainted with your wife. You were gainfully employed at McDonalds since you left school in 1994, and rose through the ranks from junior grade to assistant manager. You had worked for them for 13 years until you resigned in 2009, when you established your own delivery service business, in which you make deliveries driving a van. 10.As your wife and yourself both work, the care of your son was taken up by your mother-in-law. It appears to me, from the reports, that you are obviously very remorseful for your misdeeds. The report itself says, however, that there are no significant features of psychopathology identified upon you. You had presented to be an ordinary man, with a stable employment and family. You yourself do not understand why you had molested the victim. 11.You have said quite frankly that when the victim sat on your lap you got sexually aroused, and you have attributed your wrongdoing to your poor control of sexual impulse. The psychologist is of the view that the risk of recidivism is low. The psychologist is of the view, however, that psychological intervention is necessary so that you can improve and contain your poor sexual impulse control. 12.Mr Yeung has submitted on the last occasion that you yourself held a view that you cannot face the victim and her family members again, and this incident, of course, has wholly destroyed the trust of your own family members, mother-in-law and the victim. 13.I received various letters written by your wife, your mother-in-law, and one from a cousin of your wife, and have also been told by the victim herself that she forgives you. I called for a victim impact report to see more clearly what effect it has on her. She herself comes from quite an unfortunate background. She is left in the care of her grandmother as her mother was a single mother, and her mother seldom showed concern to her. But in recent years the mother had resumed contact with the maternal family, and the victim occasionally sees her mother. 14.She is suffering from moderate degree of post-traumatic stress disorder symptoms. She has very low self-esteem. She is seriously affected by this experience. Her feelings, I am informed, are confused. On the one hand, she says that you have admitted your guilt and you are a good person who loved her and cared for her, and your own family. She claimed she missed you and wanted to visit you. However, she could not tell what she wanted to do if she really met you, nor could she articulate what kind of feeling she had for you. 15.She also, on the other hand, alleged that she had frequent nightmares about you, although these had gradually reduced in the past month. She also felt insecure at home. She was anxious about how her friends perceived her after this incident, particularly about her friends’ responses when she resumed schooling. What is clear is that she was deprived of parental love since she was young. She has the need for attention, love and security, which remains unsatisfied. Though she accepts that she has the love and care of her grandmother, that is insufficient to fulfil her psychological depravation. 16.Therefore, for years she has clung on to her relatives, who would try to love her as her parents, which clearly includes yourself and your wife. What is clear here is that she says, that she loved you both and likes to be taken care of by you both. However, this was a serious blow to her, and it gives a great sense of insecurity towards human beings and the world. 17.In summary, the psychologist says that much psychological intervention was needed. She would anticipate it to be a very slow and long recovery process. In a nutshell, defendant, the person the victim loved and seemingly cared for the most, was yourself and your aunt. You have breached the trust she placed upon you. 18.This is, in my view, a very serious breach of trust. You were there, her uncle, at her grandmother’s house, someone she loved and respected. From the first time that you indecently assaulted her, she, of course, did not report the matter. Therefore, no doubt, this would have caused some trauma to her, suffering in some silence. It is always very difficult for children to make reports against their loved ones. She only reported the matter after being advised, rightly, by her schoolmate. 19.I had asked your solicitor, Mr Yeung, if there were any cases he wished to submit to me. He has submitted to me the case of HKSAR v Leung Kin Wai HKMA465/2000, and referred to the case of HKSAR v Kam Wing Yin CACC515/2005. I, myself, have found a case HKSAR v Kong Yun Chiu CACC315/2006, which I consider is similar on the facts of this case, and I have given this case to your solicitor to read and submit to me on. 20.I accept, as was stated in the case of Kong Yun Chiu, that these types of offences are committed in a very wide range of circumstances, and that the provision of guidelines would be unwise, if not impossible. However, reference to some cases can demonstrate what sentences were passed upon various defendants. Some are, of course, more serious than the others. 21.I referred to this case of Kong Yun Chiu because the facts are similar to the present case in that, in Kong’s case, the defendant was the uncle. The victim was the niece. He was 28 or 29 years old. The niece was then 8. At the time of sentence, however, the niece was 14. He had been in the flat. Whilst she was on her bed, with her clothes on, the defendant went up to her and touched her under her nightdress. He touched her breasts and private parts over the underpants she was wearing at the time. He pulled down her underpants and touched her private parts, which woke her up fully. Then he pulled down his own trousers and underwear and rubbed his penis against her private parts, and masturbated and ejaculated. She was frightened because she thought the defendant wanted to have sexual intercourse with her. She resisted him, pushed him away and ran out of the room. 22.The defendant had a minor criminal record, which the judge disregarded for the present exercise of sentencing. There was also, before the judge, a victim impact report. The judge noted that there were no real long-term effects on the victim. The judge at First Instance adopted a starting point of 6 years' imprisonment. However, on appeal, the 6 years was reduced to 5 years. 23.I accept that case can be distinguished from the present on a number of aspects. The victim was very much younger, 8 years old. In this case the victim is 14. The defendant in that case had touched her private parts, and also masturbated and ejaculated. And, in that case, there was an attempt by the defendant to contact the child with a view to persuading her not to report the matter. So those are the main distinctions between the two. 24.Having regard to the indecency, at least in the 2nd charge, I do consider that to be between the mid and higher range of indecency. Defendant, it is clear, from many cases before the court, that there is a need to deter others from committing offences like the present, and also to show the abhorrence of members of the public to crimes of this nature, and also to redress the grievance suffered by the victim herself, her friends and relatives. 25.Defendant, the victim here was 14 years old, a young child. You were her uncle by marriage, and therefore breached your trust upon her. The impact on the victim is, at the present time, unknown, but she needs long-term psychological intervention, which is expected to be slow to recovery. 26.Your strongest and greatest mitigating factor is your plea of guilty. What that shows to me is your clear remorse, and the fact that by pleading guilty you have saved the victim from having to relive her experience in the witness-box. Further, you admitted this at the very outset and have a clear record. 27.Defendant, for Charge 1 I would have taken a starting point of 2 years' imprisonment after trial. However, giving you full credit for your plea of guilty, that term is reduced to 16 months' imprisonment. On Charge 2, defendant, had I convicted you after trial, I would have taken a starting point of 3 years' imprisonment. Giving you full credit for your plea of guilty, I reduce that term to one of 2 years' imprisonment. The two offences were separate offences, taking place some 9 months apart. A partly consecutive sentence is appropriate. I order 2 months of Charge 1 to run consecutive to Charge 2. 28.That makes a term of 2 years 2 months’ imprisonment, to which you are so sentenced.
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