HKSAR v. Ho Lau Man

DCCC 1029/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1029 OF 2013

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REASONS FOR SENTENCE

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1.The defendant (male) (aged 59 years) appeared before me on 19 December 2013 and pleaded guilty to a single charge of indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance, Cap 200.

2.The particulars of offence avers that the defendant on 19 June 2013 at Room A506, King Lok House, Shan King Estate, Tuen Mun, New Territories in Hong Kong, indecently assaulted X, a girl of the age of 12 years.

Facts

3.The victim in this case, the girl X, was actually the daughter of the co-habited girlfriend of the defendant.  Since June 2012, the defendant and the victim’s mother started to cohabitate at Room A504, King Lok House, Shan King Estate, Tuen Mun, New Territories.  The victim was living with her foster parents since the defendant’s parents were divorced.  From time to time, however, the victim would go back to visit her mother.  The incident took place on 19 June 2013 when it was the 12 years birthday of the victim.  On that date, she went to visit her mother to celebrate her birthday.  They had a dinner with the defendant and at about 2300 hours when the victim was sleeping on the sofa and while the defendant was watching television on the same sofa, the victim’s mother was sleeping on the bed.  After about half an hour later, the victim felt itchy with her body.  She opened her eyes and saw the defendant.  What the defendant did was he fondled the victim’s breasts over her vest.  He then also inserted his hand into her vest and fondled her breast.  The victim was very scared and she pretended to be sleeping.  The defendant also inserted his hand into her pants and fondled her private parts.  Subsequently the defendant inserted his hand into her underpants and furthermore inserted his finger into her vagina.  This incident took place for about 5 to 10 minutes.  After the defendant had stopped, the victim immediately went to her mother’s bed and wrapped her body by the curtains.  The victim was very scared at that time and she dare not tell her mother about this.

4.The victim, however, later made a report to the police by dialling 999 when both her mother and the defendant were sleeping.  The victim then left the premises and waited for the police at the lift lobby.  When the police party later arrived at the lift lobby, the victim then told a woman police constable about the indecent assault incident and told her for the first time that she had been indecently assaulted by the defendant.  The defendant was then arrested inside the premises.  Under caution, he denied committing the offence. 

Criminal record and the background of the defendant

5.The defendant has eight items of convictions but has no similar sexual offence record.  He has been sentenced to the DATC twice both in 1995 and 2005 and he had once been sentenced to prison for as long as 18 months for a robbery charge back in 1977.  His last conviction was for theft which took place in 2011 in which he was only fined $500.

6.The defendant had only received a Primary 6 education in Hong Kong. Before this incident, he was unemployed.  According to the mitigation put forward by his lawyer Mr Lau, the defendant used to be a construction site worker until 2005 when he had received injuries and since then he was unable to work.  The defendant was a divorcee.  Before the defendant came to know the victim’s mother, between 1984 and 2011 he had cohabited with another woman, one Madam Ng in Tuen Mun, but unfortunately Madam Ng committed suicide in 2012. Since then, the defendant met up with the victim’s mother and they started to cohabitate in the Shan King Estate premises. 

Mitigation

7.Mr Lau, in his thorough mitigation, had informed the court that the reason why the defendant had committed this present offence was that the defendant was under the influence of alcohol.  On the material date, the defendant was celebrating the victim’s birthday and during the dinner, the defendant has consumed quite a lot of wine.  Mr Lau, however, stressed that the defendant had no intention of shirking his responsibility by saying that he was drunk.  The defendant had been very remorseful for what he had done to the victim and he had offered his apology to the victim and to her mother. 

8.Mr Lau also submitted to the court a letter of mitigation written by the defendant.  I am not going to refer to the full content of the letter, suffice it to say that the defendant had expressed his deep remorse.  Mr Lau told the court that the defendant decided to give up his drinking habit. 

9.As to the relationship between the victim and the defendant, Mr Lau told the court that the defendant had only met or seen the victim in the past on 10 odd occasions since his cohabitation with the victim’s mother.  His relationship with the victim all along is not that good as the victim does not like her mother’s boyfriends in general. 

10.In mitigation, Mr Lau stressed the fact that the defendant had tendered his plea of guilty at the earliest opportunity when he was brought before the Magistrate.  It indicates a strong sense of remorse on the part of the defendant and what is more, thereby avoided the victim to give evidence in the witness-box and to recall the bitter memory of the incident.  Mr Lau also submitted that the past criminal record of the defendant does not show that he has any propensity of indecent assault on young child and since the defendant had vowed to give up his drinking habit, he submitted that the chances of re-offending is very low.

11.Furthermore, Mr Lau submitted to the court that this case is not a breach of trust case and that there was no trust relationship established between the defendant and the victim and therefore on this account, the defendant should receive a lesser sentence that those defendants who were sentenced on the basis of a breach of trust cases.

12.Finally in his mitigation, Mr Lau related to the court that the victim’s mother had said that she has forgiven the defendant and also the victim’s mother had pointed out in a letter to the court that the victim had put the matter behind her.  I was concerned, however, given the relationship between the victim’s mother and the defendant, and therefore I decided to call for a Victim’s Impact Report prepared by a psychologist.  Today I have the benefit of looking at the Report.  The said Report has also been read and explained to the defendant.  It is sad to see that in fact, as I have been worrying, that the matter was not really behind the victim.  The psychologist in the Report had said that “the victim would have to take longer time to come to terms with the sexual abuse without familial concern and help”.  The Report had also told the court that “the victim particularly felt so heartbroken by the mother and was feeling frustrated about the distrust of the mother who would rather choose to believe a non-family member and wrongly accuse her of telling lies”.  The psychologist concluded by saying that “in her current adolescent stage, special difficulties and confusions about intimacy in heterosexual relationships are apparent and the need for psychological treatment is indicated and the victim would continue to receive service”.

13.All in all, after reading the Report, one cannot help feeling that the victim is feeling helplessness; is obviously traumatised by the incident and is now struggling to put the matter behind her.  In short, this incident had affected adversely the feelings and wellbeing of this young girl. 

Sentencing considerations

14.When I come to sentence this defendant, I bear in mind the mitigations put forward by the defence, the criminal records and the background of the defendant and the authorities submitted.  Indecent assault, and particularly indecent assault on young children, is always regarded as serious offences.  In the case of Huang Long Wei, CAAR 5/2008, the Court of Appeal had succinctly summarised the sentencing principles and I cannot do better than repeating the same principles here.  The Court of Appeal had said:-

“12. In 1999 the maximum term of imprisonment for the offence of indecent assault was increased from 5 years to 10 years in order to reflect the gravity of the offence. The court has to make it clear that indecent assault on young children by adults are serious offences, see HKSAR v Yau Kin Wai CACC 398/2003.

13. The sentencing principle laid by the court for the offence of indecent assault on young children by adults have highlighted the following three crucial considerations:-

(1) To deter others from committing similar offences;

(2) To show the abhorrence of members of the public to offences of this nature; and

(3) To redress the grievance suffered by the victim and his or her friends and relatives, see HKSAR v Chan Ching Ho [2000] 3 HKLRD 476.”

The Court of Appeal went on to say:-

“14. Given the diverse circumstances pertaining to this kind of offence, in particular the diversity of the acts of the indecent assault, the Court of Appeal has not seen fit to lay down any tariff for this kind of offence. That said, the court must sentence on the basis of the said sentencing principles. In addition, the court has to consider three other important factors:-

(1) Even if no psychological assessment report on abuse to the victim is available, the court cannot overlook the possibility of the victim suffering psychological damage as a result of the sexual abuse, see HKSAR v See Tak Man, [1998] 1 HKLRD 794, and HKSAR v Kong Yun Chiu [2007] 4 HKC 391.

(2) It is rather difficult to detect these type of offences because child victims of sexual abuse would normally be at a loss and feel too embarrassed to complain to their parents or teachers about the molestation, see SJ v Wong Tsz Kin [1998] 4 HKC 32; and

(3) In dealing with these type of offences, the court will regard the protection of children as the most important consideration, see HKSAR v Kam Wing Yin CACC 515/2005.”

15.During the course of mitigation, Mr Lau had diligently and helpfully submitted to the court a large number of authorities concerning indecent assault on young children including, as it were, some Magistracy Appeal cases. I am not here to refer to each individual case.  I am not saying that those cases are not important or useful for my consideration but I can only refer to the case of HKSAR v Tsang Ue Sum CACC 32/2010 where Justice Lunn (as he then was), pointed out that:-

“ sentencing for offences of this nature is a particular facts-sensitive exercise and covers a wide range of conduct. In those circumstances, references to sentences imposed in other cases are usually of very little assistance to the court”.

16.That said, however, in comparable cases, the sentences imposed by the sentencing court and particularly by the Court of Appeal will be of high value for references by the court and among all those cases which the defence has submitted to court, I find the case HKSAR v Chen Guojin, CACC 112/2010 particularly is of reference value.  In that case, the defendant was also a boyfriend of the victim’s mother.  The victim’s mother was married with a son and a daughter and the daughter in particular was about 9 years old.  At the material time, the defendant was entrusted by the victim’s mother to take care of her son and the daughter.  In charges 1 and 2, which is the same indecent assault as in the present cases, what the defendant in that case had done was that he climbed up to the upper bunk bed and slept next to the 9 year old daughter of the victim’s mother.  He then used his fingers to molest her vagina and her breasts for a few minutes despite the victim’s protest.  The victim then complained to her mother but the mother ignored her and just told her to lock the door.  The matter was finally exposed when the victim made a complaint to her godmother and a report was made to the police and the defendant was arrested. 

17.The case came before in the District Court.  The sentencing Judge used a starting point of 6 years and reduced the sentence to 4 years because of the plea.  On appeal, the Court of Appeal, after considering another two cases, Kong Yun Chiu, CACC 315/2006 and Chan Ching Ho, Owen, CACC 549/1999, came to the view that the degree of indecency were much worse in those two cases and as such, the sentences imposed by the sentencing Judge, was seemed to be on the high side.  In the end, the Court of Appeal was of the view that in relation to the two counts of the indecent assault, a starting point of 3½ years would be adequate and it would be reduced to 2 years and 4 months to reflect the guilty plea.

18.I consider that the facts of the present case was very similar to the facts of Chen Guojin (supra).  I was also wary of the fact that in the present case, and I do agree with the submission by the defence, that there is no breach of trust.  However, I took the view that the psychological damage to the victim in this case is great and because of that, in the end, I consider that an appropriate starting point in this case is 3 years and 3 months which is 39 months.

19.The defendant pleaded guilty and it is the only mitigating factor which is effective.  In the end, I sentence the defendant to an immediate custodial sentence of 26 months’ imprisonment.