HKSAR v. Chandra Aries-makmur

DCCC 196/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 196 OF 2013

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Reasons for Sentence

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1.The defendant is convicted after trial for two counts of indecent assault and also one count of common assault. 

2.While the victim, a 6-year-old girl, was living with her birth mother, her mother’s boyfriend, the defendant, had on one occasion at their home forced her to take off trousers, splay her legs and lick her private parts about 10 minutes.  Then, the defendant also put his lower part into her mouth and told her not to bite but to move her head up or down also for 10 minutes.

3.For the second incident, the defendant said teaching her sex education, took off her clothes and touched her private parts.

4.For common assault, the defendant had dragged her to the toilet, pushed her head with great force that her head had a bump against the toilet bowl and the defendant also hit her head with the showerhead.

5.The victim did not disclose all these incidents until she was about 12 and wrote in her school journal that she had great suffering before and revealed that she had been sexually abused. She was very scared that he would find her and come to beat her. 

6.The matter was subsequently reported to the police.  The defendant was arrested and positively identified by the victim.

7.The defendant is 39 years old.  He had a criminal conviction of unlawful sexual intercourse with a girl under 16 about 20 years ago.  The court shall treat him as a person of clear record according to the Rehabilitation of Offenders Ordinance.

8.The defendant had been in the catering service for some time but got married to the victim’s mother later on and they had two more sons afterwards.

9.Mr Yeung, in mitigation, stated that the incident was not the worst of its type.  The victim was not cross-examined on the incident, as the defendant’s case was just on wrongful identification.

10.The victim’s mother is still relying on the defendant and did write a letter supporting the defendant and said that the defendant is always caring and responsible.

11.Indecent assault is a serious offence, particularly in the present case when the victim was only 6 years old and the defendant was her mother’s boyfriend living with her.

12.The court has made it clear that indecent assault on young children by adults are serious offences and the respective sentence highlights some crucial considerations, including that to deter others from committing similar offences, to show the abhorrence of member of the public to offences of this nature and to redress the grievance suffered by the victim and her friends and relatives. See HKSAR v Chan Ching Ho [2003] HKLRD 476 and HKSAR v Yau Kin Wai CACC 398/2003 and also in Secretary of Justice v Huang Long Wei CAAR 5/2008.

13.Also bearing in mind that it is rather difficult to detect because the child victim would normally be at a loss and feel too embarrassed to complain and the court will regard the protection of children as the most important consideration.  See Secretary of Justice v Wong Tsz Kin [1998] 4 HKC 32 and HKSAR v Kam Wing Yin CACC 515/2005.

14.No doubt these incidents had been deep inside the victim for so long that she could not help disclosing it when she was 12.  The ordeals had been annoying and perplexing her life.

15.The impact report revealed that she could still remember the abuse vividly, that she had a fear of males whom she perceived to be completely unreliable or not trustworthy.  She is always on guard against male.  The psychologist also concluded that the violation did destroy her basic sense of safety and security, resulting in distorted and negative views towards self, others and the world.  One may easily find the aftermath is long-lasting and could not be likely forgotten nor healed.

16.In HKSAR v Kong Yun Chiu CACC 315/2006, similar but more serious acts were involved, the court adopted eventually 5 years’ imprisonment as a starting point; while in another similar but less serious case in HKSAR v Chen Guojin CACC 112/2010, 3½ years’ imprisonment was adopted.

17.Taking into account all the mitigation and circumstances of the present case, for Charge 1, I would also adopt 3½ years’ imprisonment as a starting point and there is no other matter to reduce further. For Charge 2, 3 years’ imprisonment and for Charge 3, 9 months’ imprisonment.

18.On totality principle, these incidents were separate and distinct. However, I assess that the overall sentence of 4 years’ imprisonment would be appropriate. Therefore, the sentence shall be as follows:

Charge 1: 3½ years’ imprisonment;

Charge 2: 3 years’ imprisonment;

Charge 3: 9 months’ imprisonment;

For Charges 2 and 3, 3 months from each be made consecutively to Charge 1, making a total of 4 years’ imprisonment.

19.So, defendant, for all the charges, 4 years’ imprisonment.