HKSAR v. Chan Kwing Tung

DCCC 212/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 212 of 2013

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Reasons for Sentence

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1.Defendant, I convicted you after trial of two offences of indecent assault on two young girls, aged 8 and 9 years old, contrary to section 122(1) of the Crimes Ordinance, Cap 200.

2.At the material time, you were the girls’ maths tutor, teaching them at a private residential flat at Ching Long House, Ching Ho Estate, in Sheung Shui.

3.The 1st charge relates to the indecent assault on girl “Y” on 5 January 2013.  The 2nd charge relates to an indecent assault on girl “X” on 13 January 2013.  These two offences occurred while you were tutoring them as your students.

4.The indecent assault on girl “Y”, aged 9, was by touching her private parts with your fingers, rubbing your fingers up and down on the outside of her pants on four separate occasions during her tutorial with you on 5 January.

5.The indecent assault on girl “X”, aged 8, was by putting your hand into her underpants and touching her private parts with your fingers on two separate occasions in her tutorial with you on 13 January.

6.Girl “X” made a complaint to her mother the day after you had indecently assaulted her, while girl “Y” told her mother about the indecent assault as a result of her mother inquiring from her whether you had touched her, some 10 days later.

7.The girls had effectively been your students for about four months and during their tutorials, which usually lasted about an hour and a half, you used this time, and when they inquired about problems or presented you with their work, you went over to them and indecently assaulted them in the tutorials.

8.Although there were other students in the class at that time, you stealthily touched their private parts either under the table or had blocked the other students view with your body.

9.As for girl “Y” she said that you had also scolded her that day and she was upset and cried.

10.As for girl “X”, she had said that she felt disturbed by you.  She told her mother that she thought that you were a bit strange.  She said at the time you touched her she was very scared and she did not dare say anything.

11.Mr Duncan Percy, your counsel, has mitigated fully and thoroughly on your behalf today.

12.Prior to sentencing you I called for two psychiatric reports and a psychologist’s report.

13.You are now aged 25 and have been to court on one previous occasion of which you have eight previous convictions.  Those convictions all relate to an offence of unlawful sexual intercourse with a girl under the age of 16, contrary to section 124(1) of the Crimes Ordinance, Cap 200.

14.You are studying Year 2 in Information Engineering at the Chinese University of Hong Kong. You also had a part-time job as a systems engineer in the Octopus Company, with a monthly salary of $8,500.

15.Since the arrest of this offence, I am informed you no longer work part-time at Octopus and are no longer tutor.  As a result of this conviction, Mr Percy has pointed out, obviously, you will not be able to continue with your university studies.

16.The contents of the reports have been accepted by you.  The doctors in both psychiatric reports say that you are not suffering from any psychiatric illnesses and no psychiatric intervention is required.  Dr Choi says that there may be a possibility that you have a paedophilic interest which cannot be overlooked.  Dr Hon says that further investigation by a clinical psychologist is suggested for suspected paedophilia.

17.The clinical psychologist, Miss Lee’s report, is full and thorough and has set out your background.  As Mr Percy has stated, you had a difficult upbringing in that you felt that your parents had left you without any love or affection, and supervision.  You were left in China and eventually reunited with your mother and brother in Hong Kong in your adolescence. Despite your union with them, you were not satisfied with your family life.

18.At school, you made very few friends and became a loner.  This was also the same at university or polytechnic.  You did, however, find a current girlfriend, who is now in court and who has written a letter, along with your mother, father and brother, who have also written letters to the court.  You have had a relationship with her for more than a year.

19.You expressed to the psychologist that you had no interest in child pornography.

20.Mr Percy has pointed out that you had eventually admitted that you had molested these two girls in the reports.  This has, of course, come very late in the day.  Nevertheless, your admission is that you did touch these girls.  Upon probing by the psychologist it is seen that you disliked the 9-year-old victim girl “Y” as you thought she was naughty and lazy, and you often scolded her.  On the other hand, you were close to the 8-year-old victim, who was more obedient.

21.And as to the offence itself, you admitted sexual excitement after touching the victims’ private parts.  You had erection, but no ejaculation upon touching them.  You knew one of the victims had no pubic hair and you were sexually attracted to the two victims, and having a bodily touch with them during your tutorial made you develop sexual fantasies like whether they had pubic hair or not.

22.As a result of the inquiry made with you by the psychologist, she is of the view that although you denied sexual interest in underage girls, it is likely that you are developing a paedophilic tendency.

23.She concludes that the core motivating force for this index offence was that you wanted to touch a female body with no pubic hair.  The present assessment finds that your risk of sexual re-offending to be high.  Major risk factors include your young age, paedophilic tendency, your particular sexual interest in bodies with no pubic hair, sexualised coping, emotional loneliness, sexual pre-occupation and previous history of sex offence.

24.However, your readiness for psychological intervention can be one essential protective factor.  She says that in view of the particular young age of the victims in this offence, you should be refrained from being alone with underage girls when returning to the community under statutory supervision.

25.Mr Percy has mitigated and accepted that the sentence must be one of deterrence and that you will be facing an immediate term of imprisonment.  He has submitted that I should not consider your high risk of re-offending to be an aggravating feature and also I should not assume that the victims have suffered any trauma.

26.There is no impact assessment report on the victims. Mr Percy submits that these cases are fact sensitive, whereby he points to the case of a rape on a young girl or buggery on young boys, the courts can look at those facts and assume trauma to the victims, but not in this particular case where the facts are less serious.

27.I turn then to consider the factors in sentencing the defendant.  Defendant, you have shown no remorse at all.  The two victims, aged 8 and 9, very young girls indeed, had to give evidence and were cross-examined at length by Mr Percy, having to recount the events that occurred to them.

28.Although you have admitted now in the psychological report and to psychiatrists to touching them, that has come extremely late in the day.  This was a repeated course of conduct.  You had molested girl “Y” on 5 January and then followed up with girl “X” on 13 January.  In the tutorials, you did not only touch them on just one occasion, you touched them on numerous occasions.

29.You were in a position of trust to the girls. The parents entrusted those girls for you to teach them mathematics.  Instead of only teaching them, you also molested them.  You breached that very high trust placed in you as a teacher or tutor to the girls.  That position of trust and the dominance you had over the pupils adds to the gravity of this offence.

30.In sentencing principles for these types of offences it is to deter others from committing similar offences to show the abhorrence of members of the public to offences of this nature and to redress the grievance suffered by the victim, their family or relatives.  As mentioned, there was no impact assessment report on the victims.

31.In the case of HKSAR v Chow Yuen Fai [2012] 1 HKC 181, Ma CJHC as he was then, considered at paragraph 26(3), “The trauma, distress and psychological harm that are caused to young children (and, we would underline, also to their families) from the type of offences in the present case cannot be underestimated.  While the courts are sometimes provided with psychological reports from the victims of such crimes, we are of the view that in a vast majority of cases this can be assumed.  A number of decisions of this court have made this very point.”

32.He then refers to Stock JA, now Stock VP, in the case of HKSAR v Kong Yun Chiu whereby it is stated that, “The trauma caused to a child by an indecent assault and the long term adverse impact is difficult to calculate, but trauma may safely be assumed in the vast majority of cases, perhaps all”.

33.I am not able to accede to Mr Percy’s submissions that there was no trauma caused to these young victims, aged 8 and 9.  I accept that each victim’s own personal characteristics play a part, but I think it is safe for me to assume that the youth of these very young victims, age 8 and 9, would have been affected as a result of the defendant’s touching their private parts in a tutorial.

34.As to the offence itself, the maximum penalty is one of 10 years.  There is no tariff for this offence.  References to previous cases are of limited assistance given the different facts, but they do, of course, provide some sort of indication of the degree of seriousness with which these offences are treated by the courts.

35.I refer to a case of HKSAR v Kam Wing Yin, CACC 515/2005, where Stuart-Moore VP, gave judgment for the court in respect of three indecent assault charges on two victims.  Two charges of an indecent assault were on a five-year-old girl and the third charge was on a nine-year-old girl.  The defendant in that case was their part-time piano teacher.  He was 20 years old at the time of the offence.

36.As regards the five-year-old girl, he had touched her private parts with his hands for a couple of minutes.  The girl was frightened and complained to her mother.  As for the nine-year-old girl, which was more serious, he had touched her private parts and also inserted a drum stick into her vagina.

37.The Court of Appeal held that a 5-year starting point after trial was appropriate in that case for those three offences.  The court adopted a 3-year starting point on the indecent assault of the nine-year-old girl and 18 months each on the girl who he had indecently assaulted her private parts and ordered the sentence to run partly concurrent and consecutive to make 5 years’ imprisonment.

38.As I mentioned, each case depends on its own facts, but this case does give me some guidance as to the appropriate starting point in respect of the touching of the girls’ private parts by a part-time tutorial teacher.  The aggravating features in this case clearly include a breach of trust.  You were a part-time tutor of these girls.

39.I do consider that a further enhancement is warranted as you are at a high risk of re-offending.  Your act on the girls was also a repeated course of conduct in that you molested two separate victims on different days.  Further you have a similar related record of a sexual offence, that is, unlawful sexual intercourse with a girl under 16.

40.Defendant, taking all these matters into account, I consider a starting point for the offences without the aggravating features to be one of 18 months’ imprisonment.  Taking into account the aggravating features of breach of trust, your high risk of re-offending, your repeated course of conduct and your previous similar record, I enhance that sentence by a further six months to a total of 24 months’ imprisonment.  That is the sentence I impose for each offence.

41.I must, however, now consider the principle of totality.  Having considered the principle of totality, I consider a term of 3 years’ imprisonment to be appropriate for both these offences.  Therefore, one year of Charge 2 is to run consecutive to Charge 1, making a total term of 3 years’ imprisonment.