HKSAR v. Mak Chun Sing

DCCC 292/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 292 OF 2013

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Reasons for Sentence

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1.The defendant pleaded guilty to three charges of indecent assault. The 1st and 3rd charges relate to his indecently assaulting a young girl known as Y who at the time of the offences was 10 years of age. The 2nd charge related to his indecently assaulting a young girl who is known as X in these proceedings, and at the time she was only 8 years of age.

2.At all material times, the defendant was a scout leader at the Mei Foo Children and Youth Integrated Services Centre of the Boys’ and Girls’ Clubs Association of Hong Kong, Mei Foo Plaza in Broadway, Lai Chi Kok, Kowloon.  I will refer to this organisation as BGCA.

3.X and Y were both members of BGCA.

4.Y was born on 22 June in 1998.  In the Christmas of 2008, she was 10 years of age and she participated in a camp organised by BGCA.  The defendant was the leader of the camp.  The camp was held at Pak Tam Chung Camp Site, Pak Tam Chung in the New Territories.  One afternoon during the camp, Y and other participants were at an outdoor open space, and someone touched the middle buttocks of Y.  She turned round and found that the defendant was behind her.

5.X was born on 19 October 2000.  On a day unknown in January 2009, X was 8 years old and was a scout.  She attended a scout training session in a room located on the 3rd floor of the centre.  The defendant was X’s instructor at the training session.

6.At about 8.30 pm on that day, the defendant asked the participants of the training session to gather for a story-telling session.  Besides X, there were about 10 other participants about the same age as X.  Some of the lights in the room were turned off for the story-telling session.  Before the session began, the defendant asked the participants to sit down on chairs.  However, he told X to sit on his thighs because there were not enough chairs.  The little girl hesitated but the defendant told her that it was fine.  X therefore agreed to the request.  During the story-telling session, the defendant inserted his hand into X’s shorts through one of the legs.  He touched the area of her private parts for a while.  He then lifted her underpants and touched her private part with his finger.  He fondled the little girl’s private part for about half an hour.  X was afraid and did not say anything.

7.After the incident, X experienced emotional distress.  Her parents had been seeking medical assistance for X and she was referred to a clinical psychologist in November 2011.

8.In October of 2012, X saw the defendant at a scout gathering.  The defendant asked X to take a group photograph.  X at that time thought about the incident which had occurred in January 2009, and she later told her mother that she did not want to be a scout any more.  On 17 December 2012, in a session with the clinical psychologist, X informed her mother and the clinical psychologist about the incident which had occurred in January of 2009 and the matter was reported to the police.

9.In relation to Charge 3, on a day unknown in early 2009, Y went to the 3rd floor of the centre.  She asked the defendant for the keys to open a locked cupboard containing toys so that she could get some toys to play with.  When Y was choosing the toys, the defendant stood behind her.  Someone touched the middle of her buttocks.  She immediately turned round and saw the defendant, and there was nobody else except the defendant near her.  And Y informed the social worker of the centre about the incident.

10.On 9 January 2013, the police arrested and cautioned the defendant.  And when cautioned and later video-interviewed by the police, he made certain admissions. 

11.In relation to the 1st charge, he admitted that he led the camp organised by BGCA at Pak Tam Chung, and he admitted that he touched the back of Y, using his right hand to touch her buttocks for about two to three seconds. 

12.In relation to the 2nd charge, he said that he was aware that at the time, X was about 7 to 8 years old.  He admitted leading a scout gathering at the 3rd floor of the centre.  He admitted using his right hand to insert into X’s shorts through one of the legs and touching her private parts over her underpants and later inserting his hands into the underpants and touching her private part.

13.In relation to the 3rd charge, he admitted using his right hand to touch Y’s buttocks for about two seconds.  He admitted that he had feelings towards Y. 

14.According to X’s psychological report dated February 2013 and the psychiatric report dated 19 February 2013, X had a history of anxiety disorder with features of post-traumatic stress disorder.  The symptoms flared up at times of stress.  Psychiatric and psychological follow-ups were recommended.  The psychologist opined that pharmacological treatment may be required if X’s mental condition deteriorated.

15.In the case of Y, she did not require either psychiatric or psychological attention.

16.In the case of X, I note from the full medical report that X was first seen at Kwai Chung Child and Adolescent Psychiatric Clinic in December 2008.  That was before this incident.  At that time, she presented with anxiety and crying spells because she was bullied by some classmates in school.  She also reported to have on-and-off pseudo-hallucination which completely resolved a year later without any medication.

17.In the report which is dated 19 February 2013, it notes that over the previous year, her mental condition improved although she still had bad dreams, anxious mood and on-and-off abdominal pain related to anxiety, and it was not until December of 2012 that she revealed the history of being indecently assaulted by the defendant in January 2009.  

18.The defendant has a previous record.  In 2001, for three charges of indecent assault, he was ordered to go to a detention centre.  Those offences related to young boys aged 7, 8 and 10.  I was told in mitigation that the defendant was born in Hong Kong, is aged 30 and was educated to Form 5 at secondary school.  He lives with his family in Shatin.

19.I adjourned the case on a previous occasion so that I could have the advantage of the psychological report.  In that report, the psychologist noted that the defendant admitted that he preferred doing jobs in relation to children and adolescents.  His first job was an information technology assistant in a primary school.  He had worked for a year until he was arrested for his first offence in 2001.  After he was discharged from the detention centre in 2002, he worked as a cleaning worker and later joined a full-time course in computer engineering as well as the youth pre-employment training programme and youth work experience and training scheme. 

20.Despite his previous conviction, the defendant started to be employed as a programme assistant by youth centres in 2003.  He had worked in four non-government organisations.  Clearly, none of them had carried out adequate background checks.  Mr Mak, the defendant, was terminated from his position after he was complained by a victim’s parent from the present offences in mid‑2009.  Yet he continued to take a job in relation to children.  He was employed by the Scout Association of Hong Kong to work as a programme assistant in a secondary school between early 2010 and early 2011.  Again no adequate background checks were performed.

21.The report states that the defendant is a person with few friends, and according to his mother, spends much of his spare time at home playing on a computer. 

22.In the conclusion and recommendation of the report, the clinical psychologist opines that this was the second time Mr Mak was convicted of indecent assault against children.  He admitted the offences.  Personalitywise, the defendant was assessed to be of low self-esteem and socially inadequate.  He felt more accepted by children and preferred children’s company.  He has multiple kinds of sexual deviance, including paedophilia, fetishism and frotteurism as early as the age of 13.  He collected female garments in relation to prepubescent and teenage girls and indecently touched young females in public places.  Despite his problems, he intentionally involved himself in child-related work.  He abused the victims’ trust in him as a scout leader.

23.The clinical psychologist states that the insight into his problems was limited, and the psychologist opines that the defendant poses a serious danger to prepubescent and teenage girls.  Clearly, he should not be allowed to participate in any child-related work.  The psychologist states that in view of Mr Mak’s age, his criminal history, psychological profile, the nature of the present offences, long history and multiple forms of deviant sexual interest, his risk of re‑offending was assessed to be very high.  Psychological treatment targeting on his deviant sexual interest, prevention of sexual re‑offending and social skills is strongly recommended.

24.I have been presented by both the defence and the prosecution with a number of cases of a similar nature.  The Court of Appeal case of HKSAR v Lee Kwok Wah Francis CACC30 of 2011 identifies a number of features which the court should consider when dealing with offences of this kind.  The first factor is the age difference between the defendant and the victim.  In this particular case, at the time of the offences, the defendant was 26 and the victims were 10 and 8, clearly very tender age.  

25.The second factor to be addressed is the relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offences and whether there was a breach of trust.  Clearly, in this case, there was a gross breach of trust and it seems difficult to escape the conclusion that the defendant deliberately put himself in a position where he had the opportunity to take advantage of young children.

26.The third factor is whether the defendant had used threats or inducements to make the victim succumb.  There was no evidence of this in this case.

27.The fourth factor is the number of occasions of committing the offences and the duration of the offences.  The defendant has been involved in this sort of behaviour for a considerable period of time.

28.The fifth factor is whether inappropriate or unnecessary violence was used by the defendant to cause harm or discomfort to the victim.  There was no evidence of violence as such being used in this case.

29.The sixth factor is whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant.  That factor did not apply in this case.

30.The seventh factor is whether the sexual abuses have caused physical or psychological trauma to the victim.  Clearly, in this case, X has suffered psychological trauma. 

31.The court is asked to consider whether the offences had impact on the family members of the victim.  The family members of X’s family were affected.

32.The ninth factor is whether the defendant was involved in other inappropriate behaviour such as inviting other people to watch or take photo or videos of the offence he committed.  This factor does not apply in this case. 

33.The tenth factor is whether the defendant is psychologically imbalanced and paedophiliac and the likelihood of re-offending.  According to the clinical psychologist, the defendant is psychologically imbalanced, he is a paedophiliac and he is likely to re‑offend.

34.I was also referred to the case of HKSAR v Ng Ngok Wai Crim App No. 141 of 2007.  I was referred to this case for consideration of whether the offences themselves could be considered serious or in the sense that did they fall into the most serious category of indecent assault.  I accept that although these offences were serious, they did not fall into the most serious category.

35.Three letters have been submitted in relation to the defendant, one from the defendant himself, one from his mother and one from a scout leader.  The scout leader, who has known the defendant for some time, said he was shocked to learn of his involvement in these matters and felt regret.   

36.The defendant in his letter to the court says that he is heartbroken and feels sorry to see his mother giving him unconditional support, and he also apologises for the pain that he has brought to the victims and their families.

37.The mother in her letter to the court offers her unreserved apology to the persons affected by her son’s behaviour.

38.These offences are clearly serious especially in view of the age of the victims and the status of the defendant.  This was a gross breach of trust.  The 2nd charge is particularly serious and must have been an appalling and traumatic experience for the then 8-year-old victim.  She had to endure a sustained assault lasting some half hour while seated on the defendant’s knee.  Although this offence was committed whilst other children were present, some lights in the room had been turned off, and the defendant’s actions were concealed from view by her clothing.  The little girl was so afraid she did not say anything at the time.  In fact, she did not say anything about it for nearly four years.  Although she had been receiving counselling for other matters, it was not until December 2012 that she told her counsellor and mother about this incident.  This has clearly had serious effects for her with her history of features of post-traumatic stress disorder.

39.It is the duty of the court to protect the young and vulnerable from sexual molestation.  Substantial deterrent sentences are required not just to deter offenders but to demonstrate society’s abhorrence of this kind of behaviour.  In this case, the clinical psychologist has opined that in his assessment, the risk of this defendant re-offending is very high.  

40.In 1991, the maximum sentence for indecent assault was raised from 5 to 10 years.  In respect of Charges 1 and 3, I take a starting point of 18 months’ imprisonment; and for Charge 2, 45 months’ imprisonment.  The defendant is entitled to credit for his guilty pleas and those sentences will be reduced by one-third to sentences of 12 in relation to Charges 1 and 3 and 30 months in relation to Charge 2.

41.I have considered the question of totality.  I order that 5 months of each of the sentences on Charges 1 and 3 shall run consecutive to the sentence on Charge 2.  The defendant will therefore go to prison for a total of 40 months.

42.I would also like to say that organisations that deal with young children have a duty to those young children, to their parents and to society to make sure that they do adequate background checks on people who are trusted to look after children.  The defendant was convicted of indecent assault involving young boys in 2001 and yet thereafter, a couple of years later, he was allowed to work for non‑government organisations.  Having left employment in 2009 as a result of the complaint by one of the victims in this case, he was able to take up a position with the Scout Association of Hong Ko ng.

43.If measures are not in place, urgent steps should be taken to make sure that steps are taken to ensure that situations like this do not happen in the future.