HKSAR v. Cyl

HCCC 505/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 505 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant has pleaded guilty to incest in that on or about the 21st day of October 2013 he had sexual intercourse with a girl X, whom he knew to be his daughter.

X was born in 1996 and the defendant is her biological father. X came to Hong Kong from China in 2000, and in 2012 the defendant and X’s mother divorced. X continued to live with the defendant.

In November 2013, the girl X found that she had no menstruation and suspected that in October 2013 when she woke up one morning and found the defendant sleeping next to her and her underpants had been removed and her vagina had felt painful and there was some substance inside her vagina, she suspected that that was when she may have been impregnated.

When in December the defendant heard that she had stopped menstruating, the defendant suggested to X that she could have an abortion in China.

In April 2014, X’s mother started living back home with X and the defendant. In May last year, X’s mother upon seeing and noticing the growth of X’s abdomen then did a pregnancy test on her which turned out positive. X’s mother then told the defendant she would call the police. The defendant begged her not to and said he was drunk at the time when the offence was committed. A report was however made to the police anyway.

By the time the report was made to the police, X already 30 weeks pregnant. She carried the baby to term and the baby was born in July last year.

DNA examination confirmed that the defendant was the biological father of X, and the defendant was the biological father of X’s baby. The date of conception of the baby was estimated to be on or about 21 October 2013.

The defendant is aged 55, and though he has a criminal record they are of very minor offences.

I called for a victim impact report on the last occasion, and sentencing was adjourned to today.

I have been told, also informed, that the baby was been adopted and hopefully the baby has a good home and will not realise that she had been the consequence of such tragic circumstances.

Miss Panesar in mitigation has said everything she could possibly say on behalf of the defendant. She recounted to this court about how he was responsible for not only the welfare of his daughter, he was also responsible for the welfare of his son from a different relationship and also for his aged mother and a mentally retarded sister. As a result of his arrest, his sister had committed suicide and his mother is in an old age home.

Now all this is a result of the defendant’s own action. He has single-handedly brought all this destruction on his family members. The only mitigation in this case is the fact of the defendant’s plea and thus saving X from having to come to court to give evidence. However, it is to be noted that the DNA evidence very strongly would prove that the defendant is the father of X’s baby in any event.

This court is grateful to the psychologist in this case, Miss Wu, for her comprehensive victim impact report.

From the victim impact report, the picture of X prior to this offence was that of a child who was a cheerful and smart girl studying in school. It is clear from the mother of X that X, after she started in Form 1 started behaving differently and looked depressed and got fearful easily. She became quiet and socially withdrawn. This is actually quite a common behavioural trait found in a lot of sexually abused children. She became forgetful, she had nightmares and her academic performance dropped significantly.

When the psychologist interviewed X, it was clear to her that X still harboured deep feelings of sorrow, worry and anger and is still heavily disturbed by what has happened to her.

As background to the present offence, X disclosed to the psychologist that since Form 1 she had found that, occasionally, when she woke up in the morning her underpants had been taken off or her buttons to the top part of her pyjamas would be undone, and she found unknown secretion in her underpants.

The psychologist said that throughout the past few years X had a heavy sense or horror, worry and hopelessness, and she did not dare tell her mother because her father had threatened that her mother would abandon her if she told her mother. So her coping strategy was she tried hard not to sleep at night and to wear tight clothes and that led, actually, to her having nightmares, and her concentration ability dropped, and thus her academic performance dropped. The psychologist found that she now has a deep distrust of any male member of society.

The psychologist, after interviewing X, said that it was not uncommon that victims of sexual abuse tended to adopt avoidance and suppression coping strategies to deal with painful memories in order not to be overwhelmed by intense negative emotions. Therefore, the psychological impact on her may not be fully reflected in this assessment.

Miss Wu also said in her report that the victim X showed signs of post-traumatic stress disorder in her inability to recall important aspects of the trauma, her restricted range of effect together with difficulty concentrating and this may be detrimental to X’s psychological recovery in the long run.

Although there are no prominent psychological disturbance at the moment identified, she is not sure if other abused‑related impact may emerge in later life. She had recommended psychological intervention to X, but X at the moment is reluctant to receive any psychological follow-up.

This is a most craven and vile offence, and the defendant is a totally shameless coward to prey on his own daughter. And at the age of 17, this young lady has to go through the rigors, the pain and the trauma of pregnancy to beget a new life into this world.

The defendant will go to prison, but when he comes out again he will regain his freedom. But one wonders when X can ever be released from the prison of her psychological distress that the defendant has so cowardly and single-handedly wrought on her. I hope it will be conveyed to X that this court hopes that she will listen eventually to the professional psychologist and doctors and the people who are around her to help her, and she will take the psychological counselling to help her heal.

I want to say to X, and those in similar positions, that you are no longer victims when you take the first brave step of reporting the sexual abuse that you have endured. You have become a hero bringing to light the evil people who do this to you. Having taken this first step of courage, you must continue the next step to heal yourself because the best revenge you can have is to heal yourself and show that you are no longer a victim to what has been done to you.

To the defendant I can only say this, that whilst you are in prison I hope you will reflect on all the destruction and damage that you have done.

As for the sentencing in this case, as has been said in the textbook in Sentencing in Hong Kong and approved by the Court of Appeal in HKSAR v Li Kin Ho [1999] 3 HKLRD 452, that sentences in this type of offence should both punish and deter.

There is no guideline for this type of offence because every case turns on its own facts and circumstances. The sentences so far is within a range of up to 10 years’ imprisonment because the maximum sentence at the moment for this type of offence is 14 years’ imprisonment.

I would ask, perhaps, and I would say that it is perhaps time for the legislature to consider raising the maximum sentence in this type of offence.

The aggravating factors in this case is that the defendant did not use a condom at the time of this offence, thus putting this young person at risk to any sexually transmitted diseases and pregnancy at her early age. And, furthermore, in aggravating this offence when he realised that his daughter might be pregnant, instead of seeking immediate medical attention for her, he selfishly suggested that she go to China to get an abortion. He did nothing about it until the mother of his daughter found out about it.

This is a case where instead of protecting his daughter, he violates her and in breach of the trust between father and daughter. And the impact, actually - one of the impacts on X can be seen from the victim impact report where Miss Wu concluded that at this time the victim, Miss X, had no interest in developing any heterosexual relationship at the moment when she is at the age when it is important for her to be making social friendships with both males and females.

As to the sentence, my hands are tied because the maximum is 14 years and to date the normal range of sentence is between 6 to 10 years’ imprisonment.

Taking into account the past cases, the sentences that have been handed down, the starting point for this offence would be in the range of 8 to 9 years. So I would impose a starting point of 8-and-a-half years, increase it to 10 years for all the aggravating factors that I have enumerated just now.

Because the defendant has pleaded guilty and saved the time of the court and also the victim from coming to court to give evidence, he is entitled to his full one-third discount reducing the sentence to one of 6 years and 8 months which, understandably, in the view of society as a whole, perhaps this may not seem to be a very strong deterrent sentence. But, as I have said, my hands are tied by the maximum limit that has been imposed by the legislature for this offence.

The defendant will go to prison for 6 years and 8 months.