HKSAR v. T.R.E.

DCCC 745/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 745 OF 2014

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Reasons for Sentence
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1.Yes, Defendant, you have pleaded guilty to five charges: four charges of indecent assault and one charge of attempted indecent assault. The victim of all five charges is your stepdaughter. She was born in October 2003 and is now 11 years old.

2.The dates of the five charges are as follows. The earliest offence is Charge 5.  And in between October 2008 and October 2009, the victim recalls that you on one occasion put your hands down her underpants and touched her private parts.  After the offence, she told her grandmother.  The grandmother recalls her telling her. 

3.The next date is between October 2010 and October 2011.  This is Charge 4.  The victim recalls you touching her private parts and was sure she was not wearing any underwear.  Again she told her grandmother after the incident.

4.Charge 3 was a date in 2013 where the victim recalls you hugging her from behind and that you inserted your hand under her upper garment and touched her breast area.  After this incident, she told her grandmother and her aunt of this assault.

5.The 2nd charge was also a date in 2013 where the victim recalls you hugging her from behind but failed to put your hands under her shirt because she pushed your hands away.  This is the attempted indecent assault charge.

6.The 1st charge and the last offence took place on 21 June this year at about 2 am when everyone was asleep.  The victim’s grandmother heard her crying.  She stood up to see you on top of the victim.  You were not wearing a shirt but you had your trousers on.  She saw that you had a towel over the victim’s mouth.  She shouted at you and you stopped.  The victim, who was wearing a T-shirt and shorts, told her grandmother that you had tried to pull her shorts down.  The police were called.  In my view, of all five charges, this is the most serious charge as there was an element of violence used when you covered her mouth.

7.The victim was medically examined and she had no injuries.  The doctor found no injuries.

8.All five offences took place at home, and those living at home include yourself, your wife, your son and the victim, your stepdaughter, as well as your mother-in-law, the victim’s grandmother. 

9.After your plea of guilty, I adjourned sentencing to today to obtain several reports.  Those include a psychiatric report, a psychologist’s report and a background report.  From the reports, you are 46 years old and a Filipino national.  You and the victim’s mother, your wife, were married in 1999 but she worked and lived in Hong Kong at the time.  You remained in the Philippines.  However, you did come to Hong Kong in 2009 because your wife had a child by a different man.  In order to salvage your marriage, you came to live in Hong Kong.

10.It seems you accepted the victim as your stepdaughter and supported her.  You have worked whilst you have been in Hong Kong, working as a waiter or a bartender.  The majority of your earnings you would give to your wife and some towards your mother-in-law. 

11.The background reports are very detailed.  I will not repeat the contents.  It seems that your wife and the victim have forgiven you and visited you whilst you have been in remand.  Your wife has told the probation officer she does not intend to reconcile with you when you are released.  What is important is that the victim is receiving counselling, doing well at school and at the moment not exhibiting any behavioural or psychological problems as a result of these offences.  She has been described as psychologically stable.

12.Reading the two doctors’ reports, neither doctor identify any underlying issue.  They do not deem you a sexual deviant or a paedophile.  The psychologist’s view is that the risk of you re-offending is low.  Both say that you feel remorse and ashamed.  Unfortunately, neither report throws any light on why you committed these offences.

13.In mitigation, Mr Morley has said all he can say on your behalf and produced three authorities to assist the court.  HKSAR v Kong Yun Chiu [2007] 4 HKC 391 has been referred to.  In the headnote of that authority, the Court of Appeal considers several factors, and I quote:

“(1) The fact that the victim is a child is always a severely aggravating factor. It is too easy for those who would prey on their naivety and trust to succeed, and for children who are by nature trusting and the deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly.”

14.Sadly, in this case, your behaviour could have been addressed and prevented years ago if those family members informed by the victim of your abuse had protected her.  She was severely let down by family members remaining silent. 

15.The Court of Appeal has said on numerous occasions there is no tariff for these types of offences, but these offences have relevant considerations the court should address, such factors as the following: this was not a one-off assault; there were several over a period of five years; the victim is your stepdaughter; there is a breach-of-trust element here; and she was young, between 5 to 10 years old when these offences were committed.  These are aggravating factors I will take into account.

16.What is also relevant would be the nature of the acts and the extent of the indecency.  Here they are serious but do not fall into the most serious category.  A term of imprisonment, however, is inevitable because there is a need to deter others, the need to show public disgust with such offences, and a need to redress the grievance suffered by the victim.  And I refer myself to paragraph 24 of the authority HKSAR v Chan Ching Ho, Owen CACC 549 of 1999.

17.Here, the best mitigation is your plea of guilty, and because of your plea, the victim does not need to give evidence in court.  That is a factor I also take into account when coming to a starting point.

18.After giving careful consideration to the aggravating factors I referred to as well as the mitigating factors, including the fact you have a clear record, I have also taken into account the facts of this case, the relationship between you and the victim as well as the extent of the indecency and nature of your acts, after careful consideration, I for Charge 1 take a starting point of 3 years’ imprisonment.  For Charges 2 and 3, I take a starting point of 2 years’ imprisonment. For Charges 4 and 5, I take a starting point of 2 years and 6 months.

19.You have pleaded guilty.  You are entitled to a discount of one-third.  After that is applied, for Charge 1, you are sentenced to 2 years’ imprisonment; for Charges 2 and 3, 1 year and 4 months’ imprisonment; for Charges 4 and 5, 1 year and 8 months’ imprisonment.

20.I will take into account the totality principle and order that Charge 2 be served concurrently with Charge 1, and that 2 months of Charges 3, 4 and 5 will be served consecutively to Charge 1 and the balance concurrently.  Therefore, I will add an additional 6 months to Charge 1 which makes a total sentence of 2 years and 6 months.