The facts show that on that day in the afternoon of 31 August, the victim had gone shopping in a shopping centre, the Un Chau Shopping Centre which is near her home and in some of the shops nearby. She walked home and when she arrived at her building the main door to the building was opened and she walked up the staircase.
When she was still on her way up to the 1st Floor, the defendant suddenly grabbed her neck from behind and threatened her not to say anything if she did not want to die. The defendant then forced the girl to go up the stairs and on the way asked her for her name and address. The victim told him which floor she was living on and that she had to be home by 5.10 pm.
The defendant then took the victim to the rooftop and on the rooftop the victim saw a basin and clothes on the floor but did not see anyone. The defendant must have seen that someone was on the rooftop because then he took the victim down to the 5th Floor. Then he asked the girl to face the wall and he then hugged the victim from behind, putting his left hand on her breast and his right hand on her stomach. He told the victim he would let her go if she allowed him to touch her.
The victim, a brave little girl, though scared, had her wits about her because when she felt that the defendant’s hug loosened slightly, she then seized the opportunity and ran away and ran home. She then complained to her father and a report was made to the police.
Investigation subsequently revealed that a neighbour was on the rooftop and had seen the victim come to the rooftop with the defendant and at that time the defendant had his hand on the victim’s shoulder. The police reviewed the CCTV tapes of the Un Chau Shopping Centre and they showed that both the defendant and the victim were at the shopping centre separately at about 4.45 pm. CCTV tapes at the building where the victim lived had shown that the defendant had followed the victim a few steps behind her when she was on the way home.
The police worked very hard and on 5 September 2013 they arrested the defendant and, under caution, the defendant admitted the offence and said he could not control himself. The victim subsequently identified the defendant at an identification parade.
These facts are shocking but as we delve a little more into the defendant’s background and past record it becomes even more spine chilling.
The defendant is no stranger to our legal system. He is 35 years old and has been convicted of nine charges in the past including four charges of indecent conduct towards a child and indecent assault. When he committed this present offence he was under Correctional Services supervision as it was only 15 days after his discharge from prison.
To get a fuller picture of the defendant’s past convictions I have been helpfully referred by Ms Claudia Ng to the case CACC 268/2009. That was an appeal to the Court of Appeal from the District Court by the defendant against a sentence of 6 years and 6 months imposed upon him also for one count of indecent assault.
Now, the modus operandi in that case, and in previous cases, were similar, though in that case he actually made the 12‑year‑old perform oral sex on him.
The Vice President of the Court of Appeal, Mr Justice Stock in that case very helpfully listed in startling detail the previous sexual offences of the defendant starting in 2002.
In that year the defendant had pleaded guilty to indecent conduct towards an 11-year-old school girl and had forced her to masturbate him for which he was sentenced to 2 years’ imprisonment. Then, in May 2003, shortly after his release from prison he assaulted a 12-year-old school girl after following her home. He had hugged her but this little girl managed to escape and shout for help and for that crime he was convicted and sentenced to 28 months’ imprisonment and released in 2005.
He was then convicted of another offence of a different nature and released from prison in July 2005. Then six months later, in January 2006, he followed a 13‑year‑old girl into a lift, forced her to staircase to masturbate him. He was charged and he pleaded guilty in the District Court and, on that occasion, the late District Judge, his Honour Judge Macintosh, as he then was, called for psychiatric and psychological reports as he was of the opinion that the defendant was a serial sexual offender.
The learned judge then said, after reading the reports, that it was shocking reading as they revealed the defendant as a predatory paedophile driven by a desire to attack young girls. The learned judge then in 2006 categorised the defendant as a very dangerous man with a high risk of re‑offending and he also noted that the defendant did not respond to intensive psychotherapy and that he had a psychopathic personality.
The learned judge took a starting point of 4 years and increased it to 7 years taking into account the previous offences illustrating what Mr Justice Stock, the Vice President said:
“The danger which the applicant presented to the public, the need to protect the public and the fact that previous sentences had failed to deter him.”
Because the defendant had guilty he was given a one-third discount and so he was sentenced to 4½ years’ imprisonment. The defendant was released on 7 February 2009 and two months later he was arrested for the indecent assault offence which is the subject matter of CACC 268/2009. The Vice President in that case said that this was a serious aggravating future.
The learned trial judge, that is the sentencing judge in the District Court, also again called for psychiatric reports which again concluded that the defendant is a paedophile and has a psychotic personality and that little can be offered him by way of psychiatric treatment. The learned trial judge took into account the defendant was a persistent offender and the aggravating futures in the case and took a 7‑year starting point which the Court of Appeal considered was appropriate.
The Vice President at paragraph 22 of the same appeal case that the court had been taken to a number of decisions designed to show that the court’s duty to protect the public must not, for that reason, result in the imposition of a sentence that is incommensurate with the facts of the offence itself. That must be correct.
But what distinguishes this case from any to which we have been taken to illustrate that point, and putting aside the particular serious facts of this case, is the startling fact that sentences hitherto imposed upon this applicant have had no deterrent effect whatsoever upon him and that this offender keeps committing like offences again and again shortly after release from imprisonment.
The Court of Appeal concluded that the criminal history of the defendant is unusual and dramatically disturbing that the sentences imposed on him in the past had had no effect and the danger the defendant presents to girls is serious so the Court of Appeal said that ultimately the learned judge was not wrong in adopting ultimately a 10‑year starting point as it was not manifestly excessive because the learned trial judge had increased the starting point to 10 years to take into account these factors and dismissed his appeal.
So we have come full circle again because again we see another example of the defendant’s inability to benefit from his past incarceration and psychotherapy and, again, he has committed this present offence 15 days after his discharge from prison. I shudder to think what could have happened had the brave little girl not seized her opportunity to escape from the clutches of the defendant.
It was thus against this background that I took the course of inviting Ms Claudia Ng, the Acting Senior Public Prosecutor before me, to do some research as to how other common law countries deal with this matter and this court is indebted to Ms Ng for her diligent research to which I will shortly refer.
In Hong Kong the maximum sentence allowed under the law for indecent assault is set down in section 122(1) of the Crimes Ordinance, Cap 200, and that is 10 years’ imprisonment. There is no statutory regime for any additional form of punishment of a persistent sexual offender of indecent assault of young girls.
As a result of Ms Ng’s diligence, we do know that in the United Kingdom, for example, they have a provision under the Criminal Justice Act 2003 which provides for imprisonment of what is termed “dangerous offenders for public protection for serious offences over and above the appropriate custodial sentence of the predicate offence”.
That act provides under section 225, inter alia, that if the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the offender of further specified offences, then, the court must impose a sentence of imprisonment for public protection and that sentence of imprisonment for public protection is a sentence of imprisonment for an indeterminate period subject to certain other provisions.
Guidance is provided to the courts under that Criminal Justice Act of 2003 as to how to determine what a significant risk is. The significant risk to members of the public, it is stated, must be serious harm defined as death or serious personal injury, whether physical or psychological.
Ms Ng has very helpfully referred in her submissions and in her research to some Court of Appeal cases in England where the concept of “significant risk” was discussed quite extensively. There is no need for me to include them here but to conclude in this section with the words of Sir Igor Judge P, in the case of The Queen v Johnson & Or appeals, 2006, EWCA Crim 2486 it was said that:
“The rationale of imposing a sentence on dangerous offenders is concerned with the future risk and public protection.”
Canada also has similar provisions in their Criminal Code 1985. That code gives power to the prosecution to apply to the court to find the offender a dangerous offender. The code provides that:
“The court shall find the offender to be a dangerous offender if it is satisfied, inter alia, that his conduct in the offence has shown a failure to control his or her sexual impulse and a likelihood of causing jury, pain or other evil to other persons through a failure in the future to control his or her sexual impulses.”
Finally, also in Australia they have similar provisions particularly under the Penalties and Sentencing Act 1992 where both sexual assault and indecent treatment of children under 16 are qualifying offences which allow the court to impose an indefinite sentence on its own initiative or on the application of the prosecution.
More relevant for our present purpose is the Criminal Law (Amendment) Act 1945, which specifically deals with offenders who are proven to be incapable of controlling their sexual urges. The court may, in addition to imposing other sentences, declare that the offender is so incapable and direct that the offender be detained in an institution for an indefinite term. Offenders so declared shall not be released until the Governor in Council is satisfied on the report of two medical practitioners that it is expedient to release the offender.
Perhaps, in conclusion, what is more pertinent for our present purpose is the provision in Australia in the Dangerous Prisoners (Sexual Offenders) Act 2003 which covers the post-sentencing stage. Its object is to provide for the continued detention in custody or supervised release of a particular class of prisoners to ensure adequate protection of the community and to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.
Under this act, upon the application of the Attorney General during the last six months of the imprisonment of a prisoner serving imprisonment for a serious sexual offence which covers also sexual assault of children, if the court is satisfied that there are reasonable grounds for believing he is a serious danger to the community, in the absence of a continuing detention order or supervision order, the court may order that the prisoner undergo examination by two psychiatrists. Then a hearing will be fixed for the court to determine whether a continuing detention order or supervised release order should be made.
In the present case the hands of this court are tied because I only can sentence according to the statutory maximum of 10 years’ imprisonment.
It is therefore a most urgent matter, and I would strongly and respectfully urge the legislature and the Department of Justice to start without delay to consider putting in place similar legislation to protect our community, particularly our young girls.
In our present case the defendant is aged 35 and, as I have noted, he has had previous convictions and all of his previous sexual offences were in relation to young girls. These young girls are aged in the region of about 11 or 12‑year‑old girls in school uniform.
In mitigation Mr Luk had said everything he could possibly say on the defendant’s behalf in that the defendant is now remorseful and he has also read the defendant’s letter to the court, that he now belongs to a church and he hopes that with the church’s help now and in the future he can then turn over a new leaf. I very sincerely hope so but, according to the psychiatric reports, it is not such a simple matter.
The latest report which I have called for from both Dr Oliver Chan and Dr Amy Liu, have very helpfully, again, gone through extensively the background of the defendant and both doctors conclude he is a sexual sadist and paedophile. The past intensive psychological treatment programs he had been in had not helped him.
The in-patient treatment afforded by a hospital order would not help him because his core problem is not mental illness but it is with his personality and this court is grateful to both doctors for giving up their time to come to court to explain that at the moment there are no drugs that the defendant can benefit from to control himself.
As Dr Liu very succinctly pointed out, that although certain medication may control his impulse but his past offences, including the present one, was not an impulsive act but had planning included in it and this is as a result of his underlying personality disorder. In all these cases, and particularly in this one, he stalked his victim to their home to commit his offences.
In this present case, although Mr Luk says that the actual physical assault is not the most serious of its kind, nevertheless it appears to me that there are several serious aggravating features. I may add that the actual physical assault did not get more serious perhaps due to the timely escape of the victim herself.
The serious aggravating feature in this case is the threat to kill the little girl and the horror of abducting her from the staircase to the rooftop, back down the staircase to the 5th floor where he assaulted her. We cannot contemplate in the cool light of day the trauma to this little girl during that period of time.
We are talking about a young girl, just under 12 years old, having a nice afternoon, allowed to go shopping on her own on her way home, and being attacked in such a frightening manner. So even without the advantage of a victim impact report, commonsense tells us that this experience must make her less secure and frightened and possibly a shadow cast upon her future psychological development.
I therefore would impose a starting point of 7 years’ imprisonment and increase it to the statutory maximum of 10 years’ imprisonment to take into account the previous convictions and previous failure of the previous sentences to deter the defendant. I have to give the defendant his full one-third discount because of his plea and saving the little girl from having to give evidence and so, after discounting it by one-third, the defendant is sentenced to 6 years and 8 months’ imprisonment. I consider this sentence to be inadequate but unfortunately my hands are tied and therefore I repeat again my gravest concern that the defendant may re-offend again after his release from prison in a few years time.
So I therefore, in conclusion, respectfully call on the Department of Justice and our legislature to look into this matter as one of urgency for it is a ticking time bomb in our midst and it has been so since 2006.