HKSAR v. C.Y.S.

DCCC 448/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 448 OF 2014

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REASONS FOR SENTENCE

The defendant faces 6 charges of "Indecent assault". She pleaded guilty to Charges 1, 2, 5 and 6. The prosecution applied to leave Charges 3 and 4 in the court file; not to be proceeded against her without leave of court. I granted the application.

Summary of Facts

2.X is the defendant's only child.  He was born in April 2002.  In the same year, the defendant was diagnosed suffering from mild grade mental retardation.  X was thus arranged to live in a small group home.  X would, however, stay in the defendant's residence ("the Flat") during his home leave on weekends and holidays.

3.On 16 January 2014, X informed the social worker of his small group home that the defendant had molested him by touching his lower body part.  A report was made to the Police on the following day.

4.A video recorded interview was conducted with X on 20 January 2014.  He disclosed that he was indecently assaulted by the defendant on 4 occasions.

Charge 1

5.On 13 April 2013, X spent the night at the Flat during home leave.  About 9:00 to 10:00 pm, on the lower deck of the bunk bed, the defendant touched X outside his pants for less than a minute.  She then reached her hand into his underpants and pressed the tip of his penis for 3 minutes with her thumb.  X felt an erection and excreted some urine.  He also felt pain at the tip of his penis and yelled.  The defendant apologized to X and asked him to forgive her.

Charge 2

6.On a day near 16 May 2013, X returned to the Flat after celebrating his aunt's birthday.  About 9:00 pm, he was sleeping in the lower deck of the bunk bed.  The defendant touched his penis inside his underpants with her fingers for 10 minutes.  He felt excretion of urine.  On the following day, the defendant asked X to forgive her.

Charge 5

7.About 9:00 pm on 19 July 2013, the defendant rubbed X's penis with her hand for about 8 minutes.  His penis was erected with white secretion and he felt discomfort.

Charge 6

8.About 10:00 pm on 20 July 2013, the defendant carried out the same act again and claimed that she was checking X. X told her not to do it again and she retrieved her hand.  The defendant apologized to him on the following day.

The Defendant's Admissions

9.The defendant was arrested by the Police on 20 January 2014.  Under caution, she admitted having touched the lower body part of X and that she could not control herself.

10.In her video recorded interview, the defendant admitted having touched X's penis inside his underpants on 13 April 2013; a day unknown in May 2013; 19 and 20 July 2013.  She admitted that she knew it was wrong to do so.  She apologized to him each time, but could not control herself.

Mitigation & Sentence

11.The defendant is now 47 and single.  She has a clear record.  At the time of the offences, X was 11.  X's father deserted the defendant and X, but she is unable to recall when he deserted them.  Both her parents passed away; the defendant lives alone.

12.Defence counsel Mr. YIP explained that the defendant was assessed in 2002 to ascertain if she was fit to look after X.  It was confirmed that she lacked the ability to take up gainful employment or to look after a baby.  As a result, the Director of Social Welfare assumed custody of X and X has been under the care of the Social Welfare Department since birth.  In 2013, X was allowed to stay with the defendant during home leave.  Mr. YIP submitted that the defendant has been under stress after giving birth to X.  She was unable to sleep and received psychiatric treatment.

13.The 2 Psychiatric Reports revealed that the defendant suffers from mild grade mental retardation, but has no other psychiatric illnesses.  On the other hand, both the Background Report and Psychologist's Report disclosed risks of re-offending owing to her inability to control herself and to properly handle her sexual impulse and emotion.

14.In the Victim's Impact Assessment Report, the clinical psychologist made these comments:

[X] indicated to me that he has no problem relating to the abuse. He reported no post-traumatic stress symptom or other negative emotion. Consistently, the social worker of his present small group home also told me that the boy's current adjustment is good and he shows no significant problem.[1]

The obtained data suggested that [X] has no clinically significant symptoms and he shows resilience despite the sexual abuse experience. Although the mother had committed mistakes, the boy holds no grudges towards her and wants to resume the relationship with her.[2]

The clinical psychologist concluded that since X has no clinically significant symptoms, psychological treatment is not recommended for him in this specific area. In passing, I note from the report that unfortunately, X's intelligence falls in the borderline range.

15.In SJ v HUANG Long Wei [2009] 3 HKLRD 136, the Court of Appeal held[3] :-

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.

… 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.

16.I have taken into consideration the defendant's acts, their degree of indecency, the impact of the indecent acts on X and the defendant's background[4]. I am of the view that the appropriate starting point[5] for each charge is 15 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 10 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for each charge is 10 months' imprisonment.

17.All 4 offences are separate and distinct.  The sentences should run consecutively as a matter of principle.  Having considered the totality principle, I order the sentences to run in the following manner :-

(i) 3 months in Charge 2 consecutive to Charge 1;

(ii) 3 months in Charge 5 consecutive to Charges 1 and 2; and

(iii) 2 months in Charge 6 consecutive to Charges 1, 2 and 5.

Thus, arriving at a total prison term of 18 months.

18.As recommended by the clinical psychologist, I invite the Commissioner of Correctional Services to arrange for the defendant to receive the necessary psychological assessment and/or treatment in order to reduce the risks of her re-offending.