HKSAR v. Wong Lung Wai

DCCC 1138/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1138 OF 2013

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Reasons for Sentence

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1.In this case, the defendant has pleaded guilty to four charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200. The four charges relate to indecent assaults on young boys between the age of 8 to 11 years, between May 2008 and October of the same 2013.

2.In a brief summary of the offences to which the defendant has made full admission, on the 1st charge, that occurred on 13 May 2008.  The victim in this case was 8 but had been known to the defendant since the age of 7, and the victim was approached by the defendant in an open car park in Kwai Chung.  He unzipped the victim’s trousers, inserted his hand into the victim’s underpants and molested his private parts.  

3.In the 2nd charge, the victim was aged 8. Known by sight, the victim knew the defendant by sight, knew him by sight.  He could identify him.  He did not know him, speak to ‑‑ the assault occurred on an escalator in the Kwai Chung Shopping Centre.  The defendant approached the victim, touched his buttock and private parts for 5 to 10 seconds.  After this incident, the defendant was arrested and granted police bail.

4.In respect of the third offence, that occurred on 12 October last year.  The victim was aged 8, playing at the Jumpin Gym in the Kwai Chung Shopping Centre.  On that occasion, the defendant inserted his hands into the victim’s pants, touched his buttocks.  The victim had known the defendant for about two years, apparently. 

5.Finally, in respect of the fourth offence committed on 14 October, another assault committed at the Kwai Chung Estate, and the defendant inserted his hands into the victim’s underpants, molested his private parts and chest.  The defendant, when questioned about this, said he did it out of impulse.

6.The defendant admitted the basic facts of the offence and I convicted him.

7.Dealing with the defendant’s antecedents, he is currently aged 25.  He has a criminal record of similar offences, and in 2008, for four offences of indecent assault, he was placed on probation which was eventually substituted by a rehabilitation centre order.  In 2010, on 15 October, he received a sentence of 8 months’ imprisonment for indecent conduct towards a child under 16.  The next year, on 23 December, he received one sentence of 12 months’ imprisonment for indecent assault.  And on four further offences, he received a sentence of 12 months’ imprisonment, each on those with 3 months of each being consecutive to the first offence.

8.So the defendant has been convicted of the same offence on three separate occasions involving a number of offences.  He is in fact now a married man although the circumstances in which his marriage was contracted seem to be somewhat unusual.  He has no particularly regular employment record because of his periods that he spent in custody since he has become an adult.  The defendant, clearly, even though he is young, has become a recidivist and serial offender.  And because of that, it is important to assess his mental state and requirements.

9.I obtained psychiatric and psychological reports.  The defendant’s difficulties seem to range into both areas.  The psychiatric report assessed the defendant had a high risk of re-offending, and he had received treatment on his last period of incarceration in prison.  Psychiatric report concluded that the defendant has paedophilic disorder.  His risk of recidivism is high given his denial attitude, intimacy deficit and limited victim empathy, repeated convictions and minimal motivation to change, said to be in need of intensive psychiatric and psychological treatment and monitoring. So that report is somewhat discouraging.  

10.An extensive psychological assessment was made of the defendant which dealt with both his difficulties and his condition and also his treatment.  The conclusion reached of the defendant is immature, egocentric and impulsive, has poor problem-solving skills, suffers from low esteem and inappropriate relationships with young children, said to relate to others in a childish and unsophisticated manner, has a strong sense of emotional identification with children.  The psychologist concluded that the defendant is impressed to be a homosexual.  He has paedophilia.  His risk of sexual re‑offending is very high.  His willingness to participate in psychological treatment and genuineness of his motivation is doubted.  The psychologist concluded the defendant is considered to be a danger to pre-pubescent boys.  He has a need of intensive and comprehensive psychological treatment.  And the prognosis, however, is guarded.  

11.As far as the sentencing considerations are concerned, there is no usual tariff for indecent assaults because the circumstances of each case can vary considerably, and authority for that in Hong Kong can be seen in HKSAR v See Tak Man [1998] 1 HKLR 794. Nevertheless, certain principles have been established in cases and they can be of guidance to the courts in passing sentence.

12.In Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136, Court of Appeal said the principle to follow in sentencing cases of this nature, the most important principle is the protection of young children.  An important consideration in sentencing is to redress the grievance suffered by the victims and their families.

13.Victim-impact statements have not been obtained, but I will adopt the approach endorsed in HKSAR v Chow Yuen Fai. That is [2010] 1 HKLRD 35 that the trauma, distress and psychological harm caused to young children and their families in this type of offence cannot be underestimated, and that such can be assumed.

14.I also note in the case of HKSAR v Chow Yuen Fai, in that case, the defendant put his hands down the trousers of a young boy aged 10 and fondled his penis for five minutes.  The appropriate sentence the Court of Appeal adopted after trial was one of 3 years’ imprisonment.  The court also said the risk of re‑offending is an aggravating feature as is the repeated course of conduct.

15.These cases make clear this that the kind of conduct the defendant has indulged in gives rise to great abhorrence on the part of the public, and that young children require protection from men like the defendant who, on the basis of the report, the defendant basically seeks out young children for company and acts in a sexually inappropriate way towards them.  And, clearly, in cases such as this, the court has to consider deterrence as being an object in sentencing.

16.All the assaults in these cases took place in public places and were of a comparatively short duration, amounting to be assessed in periods of seconds, here between 5 to 15 seconds in the four different cases, no doubt shocking to the children to whom this kind of activity took place.  Nevertheless, the defendant is a serial offender, and that is an aggravating element in sentencing.

17.I consider that in each of the assaults, the starting point for sentence for a person of clear record would be one of 2 years 3 months’ imprisonment.  Having regard to the risk of re‑offending and the defendant’s previous offending, I consider that to be an aggravating feature.  This adds a further 9 months’ imprisonment to the starting point for each sentence.

18.So the starting point for sentence on each of these four charges will be one of 3 years’ imprisonment.  Now, each of those is subject to the one-third discount the defendant is entitled to.  So the sentence on each charge, 1 through to 4, is one of 2 years’ imprisonment.

19.I have to consider the question of overall totality of sentence since there are four separate incidents, each following one after the other over a period of a number of months and forming part of a series, and bearing in mind that certain, the last two offences were committed while the defendant was on bail for one of the early offences, so elements of the second, third and fourth offences will have to be served consecutively to the first offence.    

20.What I shall order in respect of the second, third and fourth offences is that 6 months of each will run consecutively to the first offence and each other.  That adds a further 18 months’ imprisonment to the first offence, giving an overall sentence of 3 years 6 months’ imprisonment.