HKSAR v. L S L
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DCCC 328/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 328 OF 2014 ----------------------
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--------------------- Reasons for Sentence --------------------- 1.The defendant has pleaded guilty to one count of indecent assault on another person, contrary to Section 122(1) of the Crimes Ordinance, Cap.200. 2.The facts of this case are as follows. 3.Some background first may make the facts simpler to understand. 4.The victim is a female with mild-grade mental retardation, but functions well enough to live with her husband alone, hold down a job, look after herself - but just. 5.Her husband is the defendant’s son (PW2 on the list). He also has been diagnosed from a young age with mild-grade mental retardation. His IQ is, in fact, lower than the victim’s. He and the victim live together. 6.The defendant is PW2’s financial guardian, so to speak. He looks after his disability allowance. 7.At the end of May last year, the defendant visited the victim and his son at their home. The purpose was to give them some rent money and food allowance. When he arrived, both were still in bed. He then watched television in their living room. He saw his son get up and go to the toilet. The victim remained in bed and the defendant clearly lost self-control. He lay next to her in bed, touched her breasts and indecently assaulted her. 8.It seems, because she did not resist or protest and continued to play on her mobile phone, the defendant did not cease his indecent acts. He ejaculated on her stomach. He cleaned her stomach and covered her up again. 9.It seems that his son (PW2) witnessed, if not all, part of the indecent assault. 10.Several days later, the victim told her mother of the incident. A police report was eventually made. 11.When the defendant was arrested, he made a full admission to the police. 12.The defendant has pleaded guilty and spared the victim the ordeal of giving evidence in court. This is very good mitigation. 13.Other mitigating factors that are very relevant is that the defendant is 58 years old and until now had a clear record. 14.On the last occasion, I adjourned the case sentence to today to call for a background, psychological and a Social Welfare Department report. The Welfare report was specifically in relation to whether the defendant’s son (the victim’s husband) and the defendant’s wife needed any Social Welfare assistance. 15.I also considered calling for a victim impact assessment report to assist me in sentencing, but the victim refused to consider attending appointments for such a report. 16.The defendant’s family background is complicated. The defendant married his first wife in 1980 and they had three children. One of those children was PW2. From a young age, he was diagnosed as being mild-grade mentally retarded. 17.They divorced in 1997 and his ex-wife left him, taking two children with her, and PW2 remained with the defendant. The defendant brought up PW2 single-handedly and who is now 30 years old. 18.The defendant did remarry and his second wife eventually came to live in Hong Kong in 2004. They have two children who are now 9 and 14. 19.The defendant’s second wife did not get on well with her stepson (PW2) and eventually he moved out and married the victim. 20.Despite his disability, PW2 did have a job as a cleaning worker, but sadly, in early 2013 he had to have surgery for a brain tumour. That left him deaf and having speech problems. He obviously then became unemployed. 21.As I have said, because he was unemployable and with disability, he was entitled to a disability allowance. The defendant manages his money. I have been told that the money in itself is not enough, so the defendant has to supplement that allowance. 22.It has been confirmed that PW2 goes to the defendant’s home most evenings for dinner and the defendant takes him to all his medical and hospital appointments, which are frequent and often. 23.PW2 requires a lot of care, which the defendant is responsible for. He also has a young family that he needs to look after. 24.The defendant’s second wife says that he is a good and kind husband and father. Their family rely on CSSA. The defendant used to be a carpenter, but work dried up and he has had to rely on public assistance. 25.The defendant’s second wife was obviously devastated about the commission of this offence, but she forgives him and continues to be supportive. 26.She is also prepared to help look after the defendant’s son (PW2) whilst the defendant serves a custodial sentence, but she asks for Social Welfare Department’s assistance to help her. That is understandable, as she also has two young children to care for. 27.Looking at the background of this family, it is ironic and sad that the defendant looks after PW2 so well and, in effect, also extends assistance to the victim as they are husband and wife. Yet, he took advantage of the victim. 28.I say “sad”, because the person that I see suffering the most will be the victim’s own husband (PW2) as well as the defendant’s wife and two young children, who are innocent parties. 29.I have read all the reports I called for. I do not need to repeat their contents. I do note from the Welfare report that the Welfare officer was in contact with PW2 and the defendant’s wife and offered assistance where necessary. 30.The Social Welfare officer also tried to contact the victim, but could not contact her. The defendant’s son (PW2) said that his wife often stays out overnight to have fun with friends and can often be away for days at a time. 31.Ultimately, the Social Welfare officer did not speak to or see the victim. 32.The background report I have taken into account. The defendant expresses his remorse; explains he lost control and will not do it again; expresses his concern about his family and his son (PW2). He has written a letter to the court expressing his remorse. 33.The psychologist’s report explains how the defendant said he lost control and, in conclusion, the psychologist says that in view of the defendant’s old age, clean criminal history, psychological profile, victim characteristics and the nature of the present offence, his risk of re-offending was assessed to be low. She does suggest some psychological treatment and the defendant has shown motivation to receive it. 34.Defence counsel has said all she can on the defendant’s behalf on the previous occasion. 35.The defendant clearly took advantage of the victim. I accept it was a solitary occasion and, for an offence of this nature, it was not the worst set of facts. 36.It is also the first offence of this nature for the defendant. A previous clear record means a lot when the defendant is at this age, 58 years old. 37.I take into account the psychologist’s opinion that the defendant is very unlikely to re-offend. 38.There are no guidelines for an offence of this nature. All cases depend on their own facts and mitigation put forward. 39.Defendant, please stand up. 40.After careful consideration of all the facts, the details in each report I called for, in particular, the defendant’s background and family circumstances, I intend to take a starting point of 15 months’ imprisonment. 41.I have to say here the starting point would have been higher if the mitigation was not so compelling. 42.The defendant has pleaded guilty and is entitled to a discount of one-third. 43.Accordingly, for this offence, the defendant is sentenced to 10 months’ imprisonment. COURT: Do you understand that sentence? DEFENDANT: Understood.
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