HKSAR v. Ng Pak Lok

DCCC710/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 710 OF 2012

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Reasons for Sentence

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1.Defendant has pleaded guilty to one charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap.200.

2.On 8 April this year at home the defendant indecently assaulted his daughter who was at that time 12 years and 7 months old.  The defendant’s wife and younger daughter were not in Hong Kong at the time. 

3.Defendant admitted that he approached the victim whilst she was asleep, pulled down her pants and his pants, he then rubbed his penis on her body for about a minute and then ejaculated. 

4.According to the facts, the parts of her body that came in contact with his penis were her thighs and abdomen.  She then left the room, and the matter came to light some time later when her friend informed the social worker of the victim’s recent emotional problem.  The social worker approached the victim, and as a result of what the victim told the social worker, a report was made to the police.

5.According to the victim, this only ever happened once. 

6.Defendant’s best mitigation is his plea of guilty.  He spared the victim the ordeal of giving evidence.  But I am sure from the facts and mitigation, he never intended to deny this offence.  He admitted as soon as it came to light, he apologized to the victim and admitted it to police, his wife and sought help from a preacher of a Christian church the family attends. 

7.He explained to the probation officer and to a psychologist why he committed this offence.  His daughter, the victim, at such a young age had acquired a boyfriend.  His view was that she was too young to date, but she refused to take his advice.  He was concerned and told her he was concerned that boys would take advantage of her.  He wanted to show her how easy it was for a boy to take advantage of her, and this was his way of demonstrating.

8.I am sure he has never done this before nor, according to the reports, does he harbour any sexual feelings towards children or his own daughters. 

9.Defendant is 47 years old and has no criminal convictions.

10.According to the background from all the reports and mitigation, he is a family man with no vices and had a very good relationship with his entire family.  He is only educated to a primary school level but has worked hard all his working life, providing an income for his family.  He married his wife in 1997 and had two daughters.

11.In 2010 he developed a kidney problem which now requires medication daily.  This has affected his work and meant his wife has had to take a part-time job to help him supplement the family income.

12.The wife has told the probation officer that the defendant is a very good husband and has always been a loving father.  Both children have been attached to him.  She says he is strict with them but only out of concern.  She reiterated that the victim would not listen to his advice and stop dating a particular boy, and this had caused a problem in the family.

13.From all the details before me, I am sure the defendant is remorseful, and this comes from the reports, his wife and letters of mitigation put forward.

14.He accepts that he must be punished and hopes fervently that no harm has come to his daughter.

15.After his plea, I adjourned this case and called for several reports including a victim impact assessment report.  It is clear the Social Welfare Department has concluded that this is a sexual abuse case and will follow up with the family and the victim regularly.

16.The victim’s mother and school social worker say that since this offence and the defendant’s arrest, the victim has not exhibited any emotional or behavioural problems.  She has told those professionals that she has forgiven her father and in fact written a letter of mitigation to the court.  She wants the family reunited and her father to come home. 

17.I will not repeat the details of that assessment report but it concludes that she is under stress due to the destruction caused by her father’s arrest and her mother’s subsequent emotional reactions.  She wants things to be the way they were.  Sadly she feels responsible and I hope both the defendant and her mother will reassure her time and time again that she is not at fault. 

18.In addition to this report, I called for a background report and a psychologist’s report on the defendant.  Those reports conclude that the defendant is a loving but overprotective father.  He demands his daughters follow his rules and instructions.  He crossed the acceptable moral and legal boundaries by his bizarre parenting views and he will receive and is willing to receive parenting skill counselling. 

19.The psychologist is of the view that he is not a sexual deviant or a paedophile and the risk of him re-offending is low. 

20.Defence counsel said all the reports before the court are favourable. 

21.In addition to these reports, I have, as I have referred to, letters of mitigation from the defendant, his wife, the victim, their younger daughter and two church preachers. 

22.There are no tariffs for the court to follow with this offence because there are diverse circumstances arising from offences of this nature.  The maximum of this offence was increased to 10 years a decade ago to reflect the gravity of this offence.  It is also clear from previous sentences imposed that where the victims are young children, the court will impose deterrent and severe punishment.  It has been stressed that if a victim is a child, then that fact alone is a severe aggravating feature.

23.Courts must in sentencing deter others from committing this offence.  The courts must show the public that these offences are intolerable.  Courts must protect children and the courts must consider the grievance suffered by particular individual victims. 

24.I have referred myself to the authority of HKSAR v Chan Ching Ho [2003] 3 HKLRD 476.

25.Other factors I consider relevant in sentencing today are that there is no evidence of long lasting psychological damage to this victim fortunately; this offence was carried out by the father of the victim and hence a serious breach of trust.  The degree of indecency is also relevant, and in this case it is bad but it is not the worst of its kind for this offence.  I would also take into account the actual age at the time of the offence of the victim being 12 years and 7 months. 

26.In addition, I accept that the defendant is not a sexual deviant and it was a one-off assault, and the risk of him re-offending is deemed to be low.  I also take into account the impact on the family since this offence has come to light to be significant.  However, the impact is significant because of the destruction by the defendant no longer being head of this family. 

27.As I have said, I accept the defendant’s remorse is genuine, but remorse where this offence is concerned carries little weight.

28.I have considered the authorities that the prosecution have taken me through.  There is no tariff because these cases can be so different, but they are always difficult to sentence.  Sentencing is a balancing act.  The offence is abominable, unacceptable; the offence itself is unacceptable and the breach of trust involved sad and unforgivable.  Yet the family and the victim do forgive the defendant.  And the professionals accept that he is not a sexual predator.  Clearly, his parenting skills are in need of professional help.  And the impact on his family has been, as I have said, significant.  Sadly the longer he is imprisoned, the worse, I am sure, the situation will get.

29.The impact on the victim is not very clear but no problems have emerged since the offence.  Her views are clear; she has forgiven the defendant and wants him to return home as soon as possible. 

30.I have taken into account all of these factors I have referred to.  This is not a case where a heavy sentence is warranted. Having considered all of the reports and the family situation, including the victim’s state of mind and her wishes, a more merciful approach from this court can be warranted.

31.I will take after careful consideration a starting point of 2 years’ imprisonment.  Because of the defendant’s plea, he will be entitled to a discount of one-third.  I do not intend to discount that any further because I have taken a low starting point.  After discount, the defendant is sentenced to 1 year and 4 months’ imprisonment.  Do you understand, defendant?

DEFENDANT: Understand.