HKSAR v. Lai Chun Ho

DCCC 1120/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1120 OF 2012

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Reasons for Sentence

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Charges

1.The defendant pleads guilty to 3 charges. On a day in late August 2012, he committed an act of gross indecency with or towards X, a boy aged 9 (1^st Charge).  On 16 September 2012, he indecently assaulted X, the same boy (2^nd Charge), and X’s younger brother, Y, a boy aged 6 (3^rd Charge). 

Facts

2.X and Y sometimes played at the game centre, “Jumping Gym USA”, situated on 2^nd Floor, Kai Tin Shopping Centre, Kai Tin Estate, Lam Tin, Kowloon.  On 17 September 2012, X complained to his mother that he was molested by the defendant.  She made a report to the police.   

3.On 18 September 2012, the police interviewed X and Y.  X gave the following details which led to 1^st Charge:

(1) At midnoon of a day in late August 2012, X and Y went to the said “Jumping Gym USA” (“the Game Centre”) where they met the defendant. He asked them if they wanted to play. They replied yes. He gave them 10 tokens for playing there.

(2) He said he was aged 12.

(3) He asked them to go to the male washroom. In the washroom, he took off his own pants and asked them to do the same, which they did.

(4) He touched his own penis. Upon his instructions, he (X) masturbated him who ejaculated.

(5) When they were about to leave, a cleaner passed by and asked what was going on, he (the defendant) replied that they were talking about certain secret.

4.They gave the following details which led to 2^nd and 3^rd Charges:

(1) In the afternoon on 16 September 2012, X and Y met him at the Game Centre again. He asked them to go to the washroom. Upon Y’s refusal, he promised Y that he would not take off Y’s pants.

(2) In the disabled washroom, he locked the door and asked Y to take off his own pants but Y refused. He inserted his hand into Y’s pants and pulled Y’s penis. Y felt uncomfortable.

(3) Upon his instructions, X took off his own pants, sucked and masturbated his (the defendant’s) penis whereas he (the defendant) did the same to X.

(4) He took out a pair of tweezers to pinch X’s penis for some time despite X’s crying in pain.

(5) When Y asked him for tokens, he promised to give each of them 50 tokens next time.

5.Medical findings showed fresh injuries of redness and abrasion on X’s penis.  He was discharged after observation.  Y suffered no physical injuries.   

6.On 19 September 2012, the defendant was arrested.  After caution, he admitted the offences generally relating to X but denied the offence relating to Y.  He said, moreover, that in order not to be identified or arrested by others, he had changed his top garment to the one prepared in advance inside his rucksack and took off his eye glasses before leaving the washroom on 16 September 2012. 

Psychological impact on the victims

7.The psychologist, who interviewed the older boy and the mother, made the following findings:

(1) The older boy was of mild mental retardation;

(2) He lives with his younger brother, Y, and their single mother, a waitress;

(3) He avoids social or environmental cues that would arouse recollections of the abuse;

(4) He at times screams frantically with no environmental trigger while playing with Y at home;

(5) His avoidance behavior and increased arousal reactions are post-traumatic stress reactions associated with the abuse;

(6) He is struggling with the subclinical post-traumatic stress symptoms with positive results by virtue of his supportive mother, who resigned from her work to live on public assistance in order to take good care of him;

(7) Psychological treatment shall be continued in his aid.

8.The psychologist, who interviewed the younger boy and the mother, made the following findings:

(1) He feels unhappy whenever occasionally flashing back to the abuse;

(2) It seems that the abuse has disturbed his sense of security and safety in the midst of other people;

(3) He becomes clingy to his mother and prefers to stay home and not to interact with others, including children;

(4) He has bedwetting behavior since then;

(5) He exhibits various post-trauma related symptoms;

(6) He requires psychological intervention to mitigate the impact of the abuse.

Personal background and mitigation

9.The defendant was 17 at the time of offences and is now 18.  He has a clear record.  He is in F. 6.  His father is a ward manager and his mother is a head nurse.  They are very caring parents.   He has a young sister aged 13. 

10.He received commendations for first in class in the subjects of Chinese History, Visual Arts, Design Technology and English Language at times between 2007 and 2010.  He took part in 4 flag days and 1 charity walk between 2008 and 2010. 

11.At 5, he was diagnosed to suffer from attention deficit syndrome.  His full scale IQ is in the range of low average. He is on medication, Ritalin, to help his concentration, on school days.  His counsel informs me that the offences took place whist he was not on medication in the summer holiday (1^st Charge) and a weekend (2^nd and 3^rd Charges). 

12.Dr Chiu Siu Ning, a private psychiatrist, had compiled a report of the defendant after arrest for the present proceedings.  Dr Chiu attributed the sexual assault as stemming from a sense of being respected by the 2 boys for his skill at the basketball game.  He was seldom respected in his school life.  Dr Chiu said it provided a false sense of closeness between him and the 2 boys.  This closeness triggered the sexual urge with him.  He had used to masturbate himself.  Out of curiosity, he wanted to take risk by touching the bigger boy’s penis and having the latter masturbate him.  Without medication, his impulse control ability was jeopardized.  With a low average intelligence, he was unable to find an alternative way to suppress his sexual curiosity.   Dr Chiu recommended social and psychological treatment apart from medication.  He concluded that the chance of recurrence was small.    

13.I have considered Dr Chiu’s analysis.  I look at the dates of the offences.  The first offence was in late August 2012.  The second and third were on 16 September 2012.  On the latter occasion, he was with a pair of tweezers, with which molested X’s penis.  He also admitted under caution to have brought the top garment in his rucksack beforehand and he had taken off his glasses afterwards.  In my view, after the first offence, he already knew it was wrong.  There was at least 16 days to reflect on it.  Instead of desisting, he planned the second and third offences.  After commission of the second and third offences, he then had the presence of mind to change his top garment and take off his glasses to foil recognition as he left the scene.

14.As Dr Chiu’s analysis had not canvassed such proactive acts, his analysis of the defendant’s mentality, the prognosis, the cure and the chance of recurrence would have been biased in favour of the defendant.

15.With strong reliance on Dr Chiu’s analysis, his counsel asks for other institutional placement reports apart from the Training Centre report.  I do not find those other placements as options commensurate with the range of sentences here.   

Sentencing considerations

Statutory maximum

16.The maximum penalty for both offences is likewise 10 years’ imprisonment.  There are no sentencing guidelines. 

Factors for sentencing sexual offences with child victims

17.In HKSAR v. Chow Yuen Fai [2010] 1 HKLRD 354, 365, the Court of Appeal laid down 3 factors as follows for sentencing paedophiles:

(1) The individual circumstances of the offender, including in particular in the present context, the risk of re-offending;

(2) The impact on the victim and the victim’s family; and

(3) The abhorrence that right-thinking members of society would regard the relevant offences, and thus the need for deterrence.

18.I regard these factors, which in substance referred to the respective circumstances of the defendant, the victim and the offence, equally applicable to sexual offences preying on child victims in general as our instant case. 

Sentencing examples

19.In HKSAR v. See Tak-man [1998] 1 HKLRD 794, the 31-year-old defendant took a 12-year-old boy to a public toilet cubicle where the boy was then in fear.  Afterwards they both undressed and had oral sex.  He ejaculated in the boy’s mouth.  There was nothing in the psychiatric report to indicate that the defendant was a paedophile or a menace or danger to society.  The family of the child refused to be examined for the psychological impact.  The sentence was reduced from 3 ½ years to 2 ½ years on a guilty plea.  The notional starting would have been 3 years and 9 months based on a one-third discount. 

20.In Secretary for Justice v. Wong Tsz-kin [1998] 4 HKC 32, the defendant was aged 22.  He pleaded guilty to the charges.  His mother was to take care of some children in her flat.  One of them was an 8-year-old girl.  One day, he called her into his room where he removed her pants and underpants to fondle her genitalia.  On another day, he called her into the bathroom where he placed his penis in her mouth and told her to suck it.  He ejaculated in her mouth.  The sentencing judge found no force or coercion used on either occasion but a certain degree of trust on the part of the defendant.  The psychological and psychiatric reports of the defendant showed no paedophilic tendency, hence a remote chance of recurrence.  The community service report was also most favourable.  The Court of Appeal regarded 9 – 12 months appropriate on a guilty plea but reduced it to 6 months as it was an application for review of a non-custodial sentence.         

21.In HKSAR v. Kam Wing Yin CACC 515/2005, the defendant, a private piano teacher aged 20, giving lessons in his room at home, touched his 9-year-old pupil’s chest, abdomen and private parts with his hand.  He also used a hard object, seemingly a wooden drumstick to insert into her private parts, causing reddening for a few days.  He touched another pupil’s private parts on 2 occasions.  The 3 offences took place within 2 months. 

22.At the age of 6, he had been diagnosed to have attention-deficit disorder and a conduct problem.  He had stopped his follow-up treatment when he was 18.  He said he committed the offence out of curiosity to see if different victims would respond in the same way as characters in pornographic stories he had read.    Pre-sentencing psychological and psychiatric reports showed that he was within the range of low average intelligence with a lack of social skills, victim empathy and sexual understanding.  For those 3 charges, he was sentenced to an overall sentence of 20 months on his guilty pleas. 

23.The Court of Appeal commented that the sentencing judge had overweighed his low intelligence as a mitigating factor. Both the breach of trust and the experts’ view that his condition would be difficult to cure would call for a much higher sentence.  An overall starting point of 5 years was ordered, resulting in 3 years and 4 months for the pleas.

24.In HKSAR v. Lam Tsz Fung HCMA 1196/2007, the defendant was aged 16 and the boy aged 11.  He met the boy in a lift of a housing estate.  He grabbed the boy from behind and used a ballpoint pen to point at his neck.  He took him to a staircase for some persistent sexual abuse involving mutual oral sex.  A Training Centre order was ordered despite a recommending probation report.  The order was upheld on appeal.     

25.In Secretary for Justice v. Huang Long Wei (黃龍威) [2009] 3 HKLRD 136, the defendant was aged 18 at the time of the offences, to which he pleaded guilty.  He had frequently visited a community centre for the children.  He came to know 2 boys, aged 7 and 9 respectively.  Within a span of 3 months, once at the centre, once outside a building near the centre and once at a shopping mall, he put his hand into the older boy’s underpants to molest his penis for 5 – 10 seconds.  Once he did the same to, and kissed, the younger boy inside the lift at the centre.  A favourable probation order was obtained. The Secretary for Justice applied to review an 18-month probation on a plea. One clinical psychologist regarded his risk of recidivism as moderate whereas another regarded it as low if he would undergo psychological counseling.  The Court of Appeal recognized it the most important to protect children in general but considered a training centre order an option too severe in the particular case.  A rehabilitation order, with a statutory detention period for 3 – 9 months, was ordered in place of the probation. 

Sentencing this defendant

26.Adopting the approach of Chow Yuen Fai (above), I consider the respective circumstances of the defendant, the victim and the offences. 

27.First, the defendant was 17 at the time of the offences and 18 now, a student.  Although he had attention-deficit syndrome and a low intelligence, there is no demonstrated nexus between these and the commission of the offences except on the very general level that he was less able to resist an urge to do a wrong thing.  He had prior planning for committing the second and third offences.  He had prepared a pair of tweezers to harass the victim and a top garment for change after the offences.  He had the presence of mind to take off his glasses to foil recognition afterwards.   He offered to pacify the victims by offering them game tokens.  Without taking into account the aforesaid mentality, Dr Chiu projected the chance of recurrence to be small.     

28.Secondly, the older brother, X, was 9 and of mild mental retardation.  The younger brother, Y, was 6.  They were from a single parent family.  There was persistent sexual abuse in the washroom on each occasion.  The older boy’s penis suffered an injury.  Both victims suffered varying degrees of post-traumatic syndromes which required continual psychological treatment.  

29.Thirdly, the 3 acts related to 2 encounters over a period of 2 – 3 weeks.  He engaged in persistent sexual acts with the 2 victims who were aged 6 and 9 respectively.  He met them in a game centre where many children, not all accompanied by adults, might have frequented.  The mutual sucking of penes between him and X was, in particular, outright depravity.  The need for general deterrence speaks for a heavy sentence. 

30.The Training Centre report considered him mentally and physically suitable.  I consider it in the best interest of him and the community to order for his detention there.  That shall cover all 3 charges.