HKSAR v. Wong Chi Fai

DCCC 1040/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1040 OF 2013

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REASONS FOR SENTENCE

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The defendant faces 3 charges of "Indecent assault". He pleaded guilty to Charges 2 and 3. In respect of Charge 1, the prosecution applied to leave it in the court file; not to be proceeded against the defendant without leave of court. I granted the application.

Summary of Facts

2.X was born on 8 December 2006.  Y is the mother of X and S, an 11-year-old boy.  Mr. CHEUNG (PW3), the defendant and the defendant's wife are friends of Y.  The defendant's son (W) is X's schoolmate. At the time of Charges 2 and 3, X was a 6-year-old girl.

Charge 3

3.Y went to the mainland on 18 August 2013. She left S and X to be cared for by PW3's family.  After having dinner, PW3 brought X to the defendant's home at Yau Oi Estate (Location 3) for her to play with W.  PW3 then went to the football court to look after his grandson and S, who were playing there.

4.At Location 3, the defendant sat behind X, who was lying on the floor in the living room watching television.  The defendant stretched his hand from behind X to touch her anus underneath her underpants for 1 to 2 minutes.  He inserted his finger(s) into X's anus.  X felt painful but remained quiet.  Some time later, the defendant took X to meet PW3.  They then went to a nearby restaurant from which Y picked up X and S.

5.Later on in the same evening, X related the incident to Y when she took a bath.

6.On the following day, Y phoned the defendant to question him and related the incident to the defendant's wife as well.  The defendant confessed his wrongdoing and asked for a chance.  Y eventually reported the matter to the Police.  X was admitted to the hospital for 2 days.

7.A clinical psychologist conducted a video-recorded interview with X on 26 August 2013.  In addition to the incident on 18 August, X revealed another incident, which is Charge 2.

Charge 2

8.On an unknown day in July 2013, X, Y and the defendant went to the home of C (a schoolmate of X) at On Ting Estate (Location 2) for a visit.  C's mother (M) and Y are friends.

9.The defendant sat on the sofa in the living room.  X sat on his lap playing with a mobile phone.  The defendant stretched his hand to X's front to touch and rub X's private part with his finger(s) underneath her underpants.  He also inserted his finger(s) into her vagina.  X felt painful.  Meanwhile, M and Y were checking the computer and did not notice the defendant's act.

10.X later told Y about this incident.  Y told X that she would call the Police if the same thing happens again.

The Defendant's Admissions

11.In his video recorded interview, the defendant admitted both offences.  In relation to Charge 3, he claimed that X was sitting on his lap and playing with his mobile phone.  He "had the impulse".  He used his left hand to touch X's inner thigh, buttocks and private part.  He initially used his finger(s) to tickle X's private part on top of her shorts.  He later stretched his hand underneath X's shorts and tickled her private part on top of her underpants for some 10 seconds.  X said nothing but pushed his hand away.

12.Regarding Charge 2, the defendant claimed that he went to Location 2 to help fixing the computer of Y's friend.  After fixing the computer, he sat on the sofa in the living room whilst Y and her friend stayed in the bedroom.  X asked to play with his mobile phone and she sat on his lap to play.  The defendant put his hand underneath X's dress to touch her outer thigh and buttocks on top of her shorts and underpants for a few seconds.  He then touched her inner thigh for a few seconds.  He might have also touched her private part by accident.

13.The defendant also admitted that he felt excited on each occasion.

Medical Examination of X

14.Forensic medical examination was performed on X on 3 September 2013.  It revealed "no tear, injury or scar or other abnormality in the hymen; and no injury was found in the anus or perineal region."

Mitigation & Sentence

15.The defendant is now 34, married and has 2 children (aged 7 and 1).  He has a clear record.  He completed F.5 and has been in stable employment since.  He last worked as a warehouse clerk earning about $10,000 per month.  After his arrest, his family resorted to social welfare.

16.In mitigation, Mr. MA submitted that at the time of the offences, the defendant's wife was due to give birth to their daughter, which caused the defendant depression and frustration with his finance.  As a result, he committed the present offences out of a moment of impulse.  Mr. MA stressed that the defendant has confessed to Y as soon as she called.  He also confessed to the Police.  Mr. MA further submitted that in both charges, X was present incidentally; there were no premeditated plans to assault her. 

17.Mitigation letters written by the defendant, his family members and friends were placed before me; their contents are duly noted.  In his own letter, the defendant stated that he is remorseful and is willing to reform himself.  He also offered his apologies to X and her family.

18.Sentencing was adjourned for a Victim's Impact Assessment Report.  The clinical psychologist made these comments:

[X] was impressed to be so overwhelmed by the abusive incidents that she persistently re-experienced the traumatic events in the forms of recurrent and intrusive distressing recollection of the abusive events as well as nightmares. The level of distress caused by her intrusions was impressed to be severe enough to put [X] on a hypervigilant state and restricted her behaviours. The child was impressed to manifest the following symptoms of hyperarousal, including hypervigilance, difficulty staying asleep, irritability and difficulty concentrating.[1]

[X] believed there would be more threats and dangerous people in the external world, but her failure to defend for herself had left her with a greater sense of insecurity, fear, uncontrollability and helplessness.[2]

The clinical psychologist concluded that the repeated sexual abuses have pervasive and severe impact on [X's] psychological state, and she was very disturbed internally. At her young age, [X] chose to cope by attaching to the mother for protection and comfort. Nonetheless, if the aggravated fear and overwhelming anxiety persist, more pervasive hindrance would likely be resulted in the child's psychological well-being and long-term development. The need for psychotherapy was indicated in X to help her cope with the aftermath of the present repeated sexual abuses.

19.In SJ v HUANG Long Wei [2009] 3 HKLRD 136, the Court of Appeal held (at p.140, paragraphs 13 and 14):

The sentencing principles laid down by the court for the offence of indecent assault on young children by adults have highlighted the following 3 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;

(3) to redress the grievance suffered by the victim and his/her friends and relatives.

Given the diverse circumstances pertaining to this kind of offence, in particular the diversity of the acts of indecent assault, the Court of Appeal has not seen fit to lay down any tariff for this kind of offence. That said, the courts must sentence on the basis of the said sentencing principles. In addition, the courts have to consider 3 other important factors:

(1) Even if no psychological assessment report on the abused victim is available, the court cannot overlook the possibility of the victim suffering psychological damage as a result of sexual abuse;

(2) It is rather difficult to detect this 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; and

(3) In dealing with this type of offences, the courts will regard the protection of children as the most important consideration.

20.When considering the appropriate sentence, I have borne in mind HKSAR v KONG Yun Chiu CACC 315/2006, SJ v WONG Tsz Kin [1998] 4 HKC 32, HKSAR v CHAN Ching Ho [2000] 3 HKLRD 476 and HKSAR v CHAN Chuen Hin [2004] 2 HKLRD 340.

21.I have taken into consideration the defendant's acts, their degree of indecency, the impact of his indecent acts on X as well as the defendant's background, I am of the view that the appropriate starting point for each charge is 15 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 10 months' imprisonment.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for each charge is 10 months' imprisonment.

22.Charges 2 and 3 took place 1 month apart.  Although no evidence of premeditation, the defendant indecently assaulted X twice, taking advantage of each occasion when he was with her alone.  Both offences are separate and distinct.  The sentences should run consecutively as a matter of principle.  Notwithstanding the totality principle, I order the sentences for both charges to run consecutively.  Thus, the total prison term is 20 months.