區域法院（刑事）Deputy District Judge Bernard Chung24/11/2024[2024] HKDC 2004
DCCC833/2022
A A
B B
DCCC 833/2022
[2024] HKDC 2004
C C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 833 OF 2022
F F
G ------------------------------ G
HKSAR
H H
v
I SHABBIR Asim Defendant I
------------------------------
J J
Before: Deputy District Judge Bernard Chung
K Date: 25 November 2024 K
Present: Ms. Cheng Flora Suk Yee, counsel on fiat, for HKSAR
L L
Mr. Davies Oliver Howell, instructed by Messrs T.H. Wong
M & Co., assigned by the Director of Legal Aid, for the M
Defendant
N N
Offence: [1] Indecent conduct towards a child under the age of 16 years
O (向年齡在 16 歲以下的兒童作出猥褻行為) O
P
[2] – [3] Indecent assault on another person (猥褻侵犯另一 P
人)
Q Q
[4] Doing an act tending and intended to pervert the course of
R public justice (作出一項傾向並意圖妨礙司法公正的作為) R
-----------------------------------------
S S
REASONS FOR SENTENCE
T T
-----------------------------------------
U U
V V
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A A
B B
Introduction
C C
1. The defendant SHABBIR Asim (“D”) is convicted after trial
D D
of 4 Charges:
E E
Charge 1
F F
Indecent conduct towards a child under the age of 16 years, contrary to
G section 146(1) of the Crimes Ordinance, Cap.200. Particulars of Offence G
alleged that D, on a day unknown in 2017, at a flat at Fuk Wing Street,
H H
Sham Shui Po, committed an act of gross indecency with or towards X, a
I girl of the age of about 7 years. I
Charge 2
J J
Indecent assault on another person, contrary to section 122(1) of the same
K Ordinance. Particulars of Offence alleged that D, on a day unknown K
between 2018 and September 2021, at Room G, 7th Floor, No.110 Nam
L L
Cheong Street, Sham Shui Po, indecently assault X, a girl under the age of
M 16 years. M
Charge 3
N N
Same as Charge 2 except that the offence took place on a day unknown in
O September 2021, on an occasion other than that referred to in Charge 2, O
and X was of the age of 11 years.
P P
Charge 4 (as amended)
Q Doing an act tending and intended to pervert the course of public justice, Q
contrary to Common Law and punishable under section 101I(1) of the
R R
Criminal Procedure Ordinance, Cap.221. Particulars of Offence alleged
S that D, on a day unknown between 2017 and 2018, at a flat at Fuk Wing S
Street, Sham Shui Po, with intent to pervert the course of public justice,
T T
did an act which had a tendency to pervert the course of public justice, in
U U
V V
-3-
A A
B B
that he threatened X that he would kill X’s mother if X disclosed to anyone
C that D had sexually assaulted X. C
D D
2. All Charges related to the same girl X.
E E
Facts of the Case
F F
G 3. This case involved sexual abuses by D on girl X and his G
attempt to threaten X not to disclose his criminal conducts towards her to
H H
others. The full facts of the Case have been set out in the Reasons for
I Verdict, I will not repeat them here in detail. I
J J
4. Very briefly, D was born in Pakistan on 22 May 1983 and
K moved to Hong Kong in 2006. X was born in Hong Kong on 13 March K
2010. Her mother, Y, is an Indonesian who came to Hong Kong originally
L L
as a domestic helper but stayed on after completing her contract. She later
M had a relationship with a Pakistani and gave birth to X. X had never met M
her blood father.
N N
O 5. D and his wife, also an Indonesian whom X used to call O
“auntie”, came to know X when she was born as the father of X was D’s
P P
friend. In 2017 they were neighbours living in adjacent rooms in a sub-
Q divided flat as particularized in Charge 1. Y used to leave the care of X to Q
D and auntie, when she, for various reasons, could not take care of X.
R R
S 6. The relationship and arrangements continued when D and S
auntie moved to another sub-divided flat as particularized in Charge 2 in
T T
late 2018.
U U
V V
-4-
A A
B B
C 7. On a day in 2017, X was left in the care of D alone. She was C
7 years old at the time and D was 34. D bribed X with food, then put his
D D
hands into her clothes and touched her body and breasts. He then put his
E penis into X’s mouth and made her perform oral sex on him (Charge 1). E
During the time when D still lived in this flat, he threatened X that if she
F F
told anyone about his abuse on her, he would kill her mother (Charge 4).
G G
8. After D moved to the new flat, at one stage Y was arrested
H H
and detained by the Immigration Department for 4 months. X was left to
I the care of D and auntie. There was only 1 bed in D’s room and they slept I
together on it. One night, while X was sleeping facing the wall with D
J J
behind her, D lowered the trousers and underwear of X and rubbed his
K hard-on and exposed penis against the anus and private part of X from K
outside for a few seconds. X was awoken by this and was aware of D’s
L L
actions (Charge 2).
M M
9. On a day in September 2021, X was again left in the care of
N N
D alone in D’s flat. D touched the thighs and breasts of X, put his hands
O underneath her clothes and grabbed her breasts forcefully. He lied on top O
of her, pulled down her pants, he then took out his penis and robbed against
P P
her private part on the outside. X used her hands and legs to push and kick
Q him and screamed, but he kept doing this for about 1-2 minutes, saying Q
“like it or not” while doing so. He then jerked himself off and left home,
R R
leaving X alone until Y and auntie returned about 20 minutes later (Charge
S 3). S
T T
10. X did not disclose to Y about these incidents until late 2021.
U U
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A A
B B
She disclosed them to her school teacher on 29 April 2022 and the case
C was then reported to the police leading to the arrest of D on the same day. C
She was 12 years old then.
D D
E 11. X was interviewed by a clinical psychologist Ms. Salina Ho E
in May 2023 and October 20241. Without going into details, it suffices for
F F
me to say that according to the Reports prepared by Ms. Ho, X had been
G seriously affected by the traumatic experience of the sexual abuses by D. G
Trauma symptoms, recurrent suicidal ideations and attempts were
H H
demonstrated. The abuse also impaired her study as she had poor attention,
I concentration, and daydreaming at school, leading to repeated truancy; and I
her psychosocial development was also affected, becoming hypervigilant,
J J
insecure, mistrustful of people, and social avoidant. The mother Y also
K suffered as she always had self-blame and felt sorry for failing to have K
protected X. She blamed herself to have misunderstood the severity of the
L L
abuses by D on X due to her poor English and did not report the matter to
M the police before, leading to separation with X and distant mother- M
daughter-relationship for a few years.
N N
O 12. Reportedly, after receiving professional treatment services O
and reunion with Y, X had almost put a psychological closure to the sexual
P P
abuses by the end of 2023 after promoting to secondary school. D
Q originally indicated he would plead guilty and the case was set down for Q
plea and sentence on 6 September 2023. However, he subsequently
R R
changed his mind and decided to contest the trial, so that X, and Y also,
S had to testify in Court in August 2024, recounting the details of their S
T T
1
Victim Impact Assessment Reports dated 23 June 2023 and 13 November 2024
U U
V V
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A A
B B
traumatic experience and to answer embarrassing questions. X was
C inevitably reminded of the trauma and psychological pain, becoming C
tearful, reticent, had poor sleep and increased school absenteeism. During
D D
the interview with Ms. Ho, Y burst into tears when describing their anxiety
E and pressure arising from the Court hearing. The atmosphere of the family E
turned gloomy and tense during that period. There is no indication by Ms.
F F
Ho as to the long-term effect on X and Y, but it can be assumed that it will
G be a long time before they can get over with the adverse effect brought G
about by the criminal conduct of D, if at all.
H H
I Defendant’s Background and mitigation I
J J
13. D is 41 years old, born in Pakistan on 22 May 1983. He had
K received up to Secondary School education there. He moved to Hong Kong K
in 2006 and is a Form 8 holder reliant on ISS payments to support his living.
L L
He is married in Hong Kong and I am told that his wife gave birth to a son
M who is now 2 years old. He has 5 previous criminal convictions in Hong M
Kong, none of which is similar to the present offences.
N N
O 14. Mr. Davies, for D, submitted that so far as Charges 1 to 3 are O
concerned, there is no sentencing tariff or guidelines, the maximum
P P
sentence is 10 years’ imprisonment. He referred to the 10 factors to be
Q considered in assessing sentence for offences of this nature in HKSAR v Q
Tsang Chiu Tak2 and accepted that at least 8 of them are relevant to the
R R
present case. Accepting that sentencing in these cases is fact-sensitive, but
S S
T T
2
[2013] 1 HKLRD 427, at 431
U U
V V
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A A
B B
apart from Tsang Chiu Tak, he submitted 3 other cases for reference3. He
C submitted that the facts for Charges 2 and 3 are not as serious as in Charge C
1. So far as Charge 4 is concerned, the threat made in this case was a brief
D D
verbal threat that was not acted on, therefore, it is one of the less serious
E examples of this kind of offence. E
F F
15. On the factor of “breach of trust”, Mr. Davies submitted while
G this is relevant in the present case, it is less serious than the cases he had G
cited as D was merely a neighbour/caretaker of X.
H H
I 16. Citing the contents of the recent Report by Ms. Ho, the clinical I
psychologist, Mr. Davies submitted that X is recovering from the trauma
J J
of these incidents and that the long-term impact may not be great.
K K
17. On the issue of D being a Form 8 holder as an aggravating
L L
factor, Mr. Davies cited HKSAR v Junaid Ahmed4, and accepted this can
M constitute an aggravating factor, but submitted that this is not a case of D M
coming to Hong Kong to commit a crime, or of taking advantage of his
N N
situation to gain an advantage, and therefore any enhancement should not
O be significant. O
P P
18. Mr. Davies further submitted that D has never previously been
Q convicted of any similar offence, that all the offences in this case involved Q
the same victim, and that D is therefore unlikely to re-offend. He also urged
R R
S S
3
Including SJ v Huang Long Wei [2009] 3 HKLRD 136, at 140 paragraph 12, HKSAR v Y.C.W.,
HCCC 45/2021 and HKSAR v F.F.K, DCCC 169/2014
T T
4
unrep., CACC 79/2017, [2018] HKCA 159
U U
V V
-8-
A A
B B
the Court to take totality principle into account when deciding on the
C overall sentence. C
D D
Sentence
E E
19. In relation to Charges 1 to 3, there is indeed no tariff or
F F
guideline, each case depends on its own facts. In Tsang Chiu Tak5, the
G Court of Appeal stated: G
H H
“8. The Court of Appeal reiterated in many recent cases that the
Court had to protect innocent trusting children and prevent these
I vulnerable persons from sexual abuse which would cause them physical I
and psychological trauma. In cases involving sexual assault on a child,
it was necessary for the Court to adopt deterrent sentences to deter
J J
others from committing similar offences. Such deterrent sentences were
to show the abhorrence of members of the public to crimes of this nature
K and to redress the grievance suffered by the victims and their families. K
9. The Court of Appeal pointed out that when the Court dealt with
L offences of sexual assault on a child, the factors that it needed to take L
into consideration included:
M M
(1) The age difference between the defendant and the victim;
(2) The relationship between the defendant and the victim, including
N whether the defendant had taken advantage of his position or status to N
commit the offence and whether there was a breach of trust in the case;
(3) Whether the defendant had used threats or inducements to make the
O O
victim succumb;
(4) The number of occasions of committing the offences and the duration
P of the offences; P
(5) Whether inappropriate and unnecessary violence was used by the
defendant to cause harm or discomfort to the victim;
Q (6) Whether any safety measures were taken by the defendant in sexually Q
abusing the victim in order to avoid transmitting any venereal disease
R to the victim or getting her pregnant; R
(7) Whether the sexual abuses have caused physical or psychological
trauma to the victim;
S (8) Whether the offences have impact on the family members of the S
victim;
T T
5
supra, at 430-431
U U
V V
-9-
A A
B (9) Whether the defendant was involved in other inappropriate B
behaviours such as inviting other people to watch or take photos or
C videos of the offence he committed; and C
(10) Whether the defendant is psychologically imbalanced and
paedophilic and the likelihood of re-offending.
D See HKSAR v. Chow Yuen Fai [2010] 1 HKC 181, HKSAR v. Lee Hon D
Wah [2011] 4 HKLRD 319, HKSAR v. Ng Ka Kin (CACC 328/2010)
E
and HKSAR v. Lee Kwok Wai (CACC 199/2011).” E
F 20. In assessing the appropriate sentences in the present case, I F
also bear in mind the comments by the Court of Appeal in SJ v Yu Chun
G G
Hing6
H H
“As a general rule, when a sentencing court is confronted with an
offender who has committed multiple offences over a prolonged period
I it is best to conduct a sequential evaluation of the offending by reference I
to the chronological order of the offences or to any connection between
J the offences due to the nature of the offence, the involvement of the same J
victim or the offences arising from the same event.”
K K
21. In the context of the present case, in 2017 when Charge 1 was
L committed, D was 34 years old while X was only 7. X was still a young L
child and there was a big age difference. This factor alone calls for a
M M
deterrence sentence which can sufficiently reflect the seriousness of the
N offence. N
O O
22. There is no blood relationship between D and X but given the
P circumstances of the case, X was entrusted to the care of D by Y as a trusted P
adult friend. I consider D to be in loco parentis vis-à-vis X. Thus, it
Q Q
involved serious breach of trust.
R R
S S
6
[2022] 1 HKLRD 97 at 111, [2021] HKCA 1033
T T
U U
V V
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A A
B B
23. There is no evidence to suggest that D had adopted any safety
C measures when he made X to perform oral sex on him. C
D D
24. The Reports by the Clinical Psychologist indicated that the
E abuses, and D’s subsequent behaviour during Court proceedings, had E
caused psychological trauma to X and her mother Y. There is no indication
F F
in the Report that X is recovering from the trauma of these incidents and
G that the long-term impact may not be great, as suggested by Mr. Davies. G
She was indeed recovering in 2023 but D’s reverse of stands on his pleas
H H
had re-activated the sufferings by X and Y, and there is no observation or
I conclusion on the long-term effect on the family. I
J J
25. During the relevant period D also made the treat as
K particularized in Charge 4 to scare off this young child from disclosing his K
abuses on her. It is very mean and despicable indeed on the part of D and
L L
the criminal conduct involved struck at the heart of our criminal justice
M system. The suggestion that the treat had not been acted upon is neither M
here nor there in assessing the criminality of this Charge.
N N
O 26. For Charge 2, most of the factors mentioned above equally O
apply. Accepting the abuses involved is less serious than those in Charge
P P
1, it was a continuation of previous abuses. For Charge 3 the abuses were
Q no less serious than those in Charge 1 and was committed 4 years Q
afterwards. That means X had been subjected to similar abuses by D for no
R R
less than 4 years, from the age of 7 to 11 years old.
S S
27. D had no previous similar conviction, I will ignore his
T T
previous convictions in coming to my sentence in this case. Also, this case
U U
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A A
B B
involved only X, as such, I did not call for any psychological assessment
C of D but there is no basis to say, as suggested by Mr. Davies, that D is C
unlikely to re-offend, unless he meant against X only.
D D
E 28. Having taken all relevant factors into consideration, I adopt 3 E
½ years as the starting point for Charge 1, 3 years for Charge 2 and 3 ½
F F
years for Charge 3. For Charge 4, I adopt 12 months as the starting point.
G G
29. As conceded by Mr. Davies, and in line with the principles
H H
laid down by the Court of Appeal in Junaid Ahmed, D being a Form 8
I holder is an aggravating factor. For this factor I will increase the starting I
point of Charges 1 to 3 by 3 months and Charge 4 by 1 month.
J J
K 30. D is convicted after trial, and I see no other mitigating K
circumstances warranting a reduction of the sentence on each Charge.
L L
M 31. Charges 1 to 3 are separate and distinct offences which took M
place over a period of 4 years. The sentences should therefore be run
N N
consecutively. The criminality of Charge 4 had been taken into
O consideration in assessing the sentences for Charges 1 to 3, therefore the O
sentence should be run concurrently to avoid double punishment. Taking
P P
totality principle into consideration, I am satisfied that a total of 5 ½ years
Q is sufficient to reflect the overall criminality of D in the present case. Q
R R
32. For the reasons given above, for the 4 offences D is convicted
S of, he is sentenced as follows: S
Charge 1: 3 years 9 months
T T
Charge 2: 3 years 3 months, 9 months consecutive to Charge 1
U U
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A A
B B
Charge 3: 3 years 9 months, 1 year consecutive to Charge 1
C Charge 4: 13 months, concurrent with Charge 1 C
Total sentence: 5 years 6 months.
D D
E E
F F
( Bernard Chung )
G Deputy District Judge G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 833/2022
[2024] HKDC 2004
C C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 833 OF 2022
F F
G ------------------------------ G
HKSAR
H H
v
I SHABBIR Asim Defendant I
------------------------------
J J
Before: Deputy District Judge Bernard Chung
K Date: 25 November 2024 K
Present: Ms. Cheng Flora Suk Yee, counsel on fiat, for HKSAR
L L
Mr. Davies Oliver Howell, instructed by Messrs T.H. Wong
M & Co., assigned by the Director of Legal Aid, for the M
Defendant
N N
Offence: [1] Indecent conduct towards a child under the age of 16 years
O (向年齡在 16 歲以下的兒童作出猥褻行為) O
P
[2] – [3] Indecent assault on another person (猥褻侵犯另一 P
人)
Q Q
[4] Doing an act tending and intended to pervert the course of
R public justice (作出一項傾向並意圖妨礙司法公正的作為) R
-----------------------------------------
S S
REASONS FOR SENTENCE
T T
-----------------------------------------
U U
V V
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A A
B B
Introduction
C C
1. The defendant SHABBIR Asim (“D”) is convicted after trial
D D
of 4 Charges:
E E
Charge 1
F F
Indecent conduct towards a child under the age of 16 years, contrary to
G section 146(1) of the Crimes Ordinance, Cap.200. Particulars of Offence G
alleged that D, on a day unknown in 2017, at a flat at Fuk Wing Street,
H H
Sham Shui Po, committed an act of gross indecency with or towards X, a
I girl of the age of about 7 years. I
Charge 2
J J
Indecent assault on another person, contrary to section 122(1) of the same
K Ordinance. Particulars of Offence alleged that D, on a day unknown K
between 2018 and September 2021, at Room G, 7th Floor, No.110 Nam
L L
Cheong Street, Sham Shui Po, indecently assault X, a girl under the age of
M 16 years. M
Charge 3
N N
Same as Charge 2 except that the offence took place on a day unknown in
O September 2021, on an occasion other than that referred to in Charge 2, O
and X was of the age of 11 years.
P P
Charge 4 (as amended)
Q Doing an act tending and intended to pervert the course of public justice, Q
contrary to Common Law and punishable under section 101I(1) of the
R R
Criminal Procedure Ordinance, Cap.221. Particulars of Offence alleged
S that D, on a day unknown between 2017 and 2018, at a flat at Fuk Wing S
Street, Sham Shui Po, with intent to pervert the course of public justice,
T T
did an act which had a tendency to pervert the course of public justice, in
U U
V V
-3-
A A
B B
that he threatened X that he would kill X’s mother if X disclosed to anyone
C that D had sexually assaulted X. C
D D
2. All Charges related to the same girl X.
E E
Facts of the Case
F F
G 3. This case involved sexual abuses by D on girl X and his G
attempt to threaten X not to disclose his criminal conducts towards her to
H H
others. The full facts of the Case have been set out in the Reasons for
I Verdict, I will not repeat them here in detail. I
J J
4. Very briefly, D was born in Pakistan on 22 May 1983 and
K moved to Hong Kong in 2006. X was born in Hong Kong on 13 March K
2010. Her mother, Y, is an Indonesian who came to Hong Kong originally
L L
as a domestic helper but stayed on after completing her contract. She later
M had a relationship with a Pakistani and gave birth to X. X had never met M
her blood father.
N N
O 5. D and his wife, also an Indonesian whom X used to call O
“auntie”, came to know X when she was born as the father of X was D’s
P P
friend. In 2017 they were neighbours living in adjacent rooms in a sub-
Q divided flat as particularized in Charge 1. Y used to leave the care of X to Q
D and auntie, when she, for various reasons, could not take care of X.
R R
S 6. The relationship and arrangements continued when D and S
auntie moved to another sub-divided flat as particularized in Charge 2 in
T T
late 2018.
U U
V V
-4-
A A
B B
C 7. On a day in 2017, X was left in the care of D alone. She was C
7 years old at the time and D was 34. D bribed X with food, then put his
D D
hands into her clothes and touched her body and breasts. He then put his
E penis into X’s mouth and made her perform oral sex on him (Charge 1). E
During the time when D still lived in this flat, he threatened X that if she
F F
told anyone about his abuse on her, he would kill her mother (Charge 4).
G G
8. After D moved to the new flat, at one stage Y was arrested
H H
and detained by the Immigration Department for 4 months. X was left to
I the care of D and auntie. There was only 1 bed in D’s room and they slept I
together on it. One night, while X was sleeping facing the wall with D
J J
behind her, D lowered the trousers and underwear of X and rubbed his
K hard-on and exposed penis against the anus and private part of X from K
outside for a few seconds. X was awoken by this and was aware of D’s
L L
actions (Charge 2).
M M
9. On a day in September 2021, X was again left in the care of
N N
D alone in D’s flat. D touched the thighs and breasts of X, put his hands
O underneath her clothes and grabbed her breasts forcefully. He lied on top O
of her, pulled down her pants, he then took out his penis and robbed against
P P
her private part on the outside. X used her hands and legs to push and kick
Q him and screamed, but he kept doing this for about 1-2 minutes, saying Q
“like it or not” while doing so. He then jerked himself off and left home,
R R
leaving X alone until Y and auntie returned about 20 minutes later (Charge
S 3). S
T T
10. X did not disclose to Y about these incidents until late 2021.
U U
V V
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A A
B B
She disclosed them to her school teacher on 29 April 2022 and the case
C was then reported to the police leading to the arrest of D on the same day. C
She was 12 years old then.
D D
E 11. X was interviewed by a clinical psychologist Ms. Salina Ho E
in May 2023 and October 20241. Without going into details, it suffices for
F F
me to say that according to the Reports prepared by Ms. Ho, X had been
G seriously affected by the traumatic experience of the sexual abuses by D. G
Trauma symptoms, recurrent suicidal ideations and attempts were
H H
demonstrated. The abuse also impaired her study as she had poor attention,
I concentration, and daydreaming at school, leading to repeated truancy; and I
her psychosocial development was also affected, becoming hypervigilant,
J J
insecure, mistrustful of people, and social avoidant. The mother Y also
K suffered as she always had self-blame and felt sorry for failing to have K
protected X. She blamed herself to have misunderstood the severity of the
L L
abuses by D on X due to her poor English and did not report the matter to
M the police before, leading to separation with X and distant mother- M
daughter-relationship for a few years.
N N
O 12. Reportedly, after receiving professional treatment services O
and reunion with Y, X had almost put a psychological closure to the sexual
P P
abuses by the end of 2023 after promoting to secondary school. D
Q originally indicated he would plead guilty and the case was set down for Q
plea and sentence on 6 September 2023. However, he subsequently
R R
changed his mind and decided to contest the trial, so that X, and Y also,
S had to testify in Court in August 2024, recounting the details of their S
T T
1
Victim Impact Assessment Reports dated 23 June 2023 and 13 November 2024
U U
V V
-6-
A A
B B
traumatic experience and to answer embarrassing questions. X was
C inevitably reminded of the trauma and psychological pain, becoming C
tearful, reticent, had poor sleep and increased school absenteeism. During
D D
the interview with Ms. Ho, Y burst into tears when describing their anxiety
E and pressure arising from the Court hearing. The atmosphere of the family E
turned gloomy and tense during that period. There is no indication by Ms.
F F
Ho as to the long-term effect on X and Y, but it can be assumed that it will
G be a long time before they can get over with the adverse effect brought G
about by the criminal conduct of D, if at all.
H H
I Defendant’s Background and mitigation I
J J
13. D is 41 years old, born in Pakistan on 22 May 1983. He had
K received up to Secondary School education there. He moved to Hong Kong K
in 2006 and is a Form 8 holder reliant on ISS payments to support his living.
L L
He is married in Hong Kong and I am told that his wife gave birth to a son
M who is now 2 years old. He has 5 previous criminal convictions in Hong M
Kong, none of which is similar to the present offences.
N N
O 14. Mr. Davies, for D, submitted that so far as Charges 1 to 3 are O
concerned, there is no sentencing tariff or guidelines, the maximum
P P
sentence is 10 years’ imprisonment. He referred to the 10 factors to be
Q considered in assessing sentence for offences of this nature in HKSAR v Q
Tsang Chiu Tak2 and accepted that at least 8 of them are relevant to the
R R
present case. Accepting that sentencing in these cases is fact-sensitive, but
S S
T T
2
[2013] 1 HKLRD 427, at 431
U U
V V
-7-
A A
B B
apart from Tsang Chiu Tak, he submitted 3 other cases for reference3. He
C submitted that the facts for Charges 2 and 3 are not as serious as in Charge C
1. So far as Charge 4 is concerned, the threat made in this case was a brief
D D
verbal threat that was not acted on, therefore, it is one of the less serious
E examples of this kind of offence. E
F F
15. On the factor of “breach of trust”, Mr. Davies submitted while
G this is relevant in the present case, it is less serious than the cases he had G
cited as D was merely a neighbour/caretaker of X.
H H
I 16. Citing the contents of the recent Report by Ms. Ho, the clinical I
psychologist, Mr. Davies submitted that X is recovering from the trauma
J J
of these incidents and that the long-term impact may not be great.
K K
17. On the issue of D being a Form 8 holder as an aggravating
L L
factor, Mr. Davies cited HKSAR v Junaid Ahmed4, and accepted this can
M constitute an aggravating factor, but submitted that this is not a case of D M
coming to Hong Kong to commit a crime, or of taking advantage of his
N N
situation to gain an advantage, and therefore any enhancement should not
O be significant. O
P P
18. Mr. Davies further submitted that D has never previously been
Q convicted of any similar offence, that all the offences in this case involved Q
the same victim, and that D is therefore unlikely to re-offend. He also urged
R R
S S
3
Including SJ v Huang Long Wei [2009] 3 HKLRD 136, at 140 paragraph 12, HKSAR v Y.C.W.,
HCCC 45/2021 and HKSAR v F.F.K, DCCC 169/2014
T T
4
unrep., CACC 79/2017, [2018] HKCA 159
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A A
B B
the Court to take totality principle into account when deciding on the
C overall sentence. C
D D
Sentence
E E
19. In relation to Charges 1 to 3, there is indeed no tariff or
F F
guideline, each case depends on its own facts. In Tsang Chiu Tak5, the
G Court of Appeal stated: G
H H
“8. The Court of Appeal reiterated in many recent cases that the
Court had to protect innocent trusting children and prevent these
I vulnerable persons from sexual abuse which would cause them physical I
and psychological trauma. In cases involving sexual assault on a child,
it was necessary for the Court to adopt deterrent sentences to deter
J J
others from committing similar offences. Such deterrent sentences were
to show the abhorrence of members of the public to crimes of this nature
K and to redress the grievance suffered by the victims and their families. K
9. The Court of Appeal pointed out that when the Court dealt with
L offences of sexual assault on a child, the factors that it needed to take L
into consideration included:
M M
(1) The age difference between the defendant and the victim;
(2) The relationship between the defendant and the victim, including
N whether the defendant had taken advantage of his position or status to N
commit the offence and whether there was a breach of trust in the case;
(3) Whether the defendant had used threats or inducements to make the
O O
victim succumb;
(4) The number of occasions of committing the offences and the duration
P of the offences; P
(5) Whether inappropriate and unnecessary violence was used by the
defendant to cause harm or discomfort to the victim;
Q (6) Whether any safety measures were taken by the defendant in sexually Q
abusing the victim in order to avoid transmitting any venereal disease
R to the victim or getting her pregnant; R
(7) Whether the sexual abuses have caused physical or psychological
trauma to the victim;
S (8) Whether the offences have impact on the family members of the S
victim;
T T
5
supra, at 430-431
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A A
B (9) Whether the defendant was involved in other inappropriate B
behaviours such as inviting other people to watch or take photos or
C videos of the offence he committed; and C
(10) Whether the defendant is psychologically imbalanced and
paedophilic and the likelihood of re-offending.
D See HKSAR v. Chow Yuen Fai [2010] 1 HKC 181, HKSAR v. Lee Hon D
Wah [2011] 4 HKLRD 319, HKSAR v. Ng Ka Kin (CACC 328/2010)
E
and HKSAR v. Lee Kwok Wai (CACC 199/2011).” E
F 20. In assessing the appropriate sentences in the present case, I F
also bear in mind the comments by the Court of Appeal in SJ v Yu Chun
G G
Hing6
H H
“As a general rule, when a sentencing court is confronted with an
offender who has committed multiple offences over a prolonged period
I it is best to conduct a sequential evaluation of the offending by reference I
to the chronological order of the offences or to any connection between
J the offences due to the nature of the offence, the involvement of the same J
victim or the offences arising from the same event.”
K K
21. In the context of the present case, in 2017 when Charge 1 was
L committed, D was 34 years old while X was only 7. X was still a young L
child and there was a big age difference. This factor alone calls for a
M M
deterrence sentence which can sufficiently reflect the seriousness of the
N offence. N
O O
22. There is no blood relationship between D and X but given the
P circumstances of the case, X was entrusted to the care of D by Y as a trusted P
adult friend. I consider D to be in loco parentis vis-à-vis X. Thus, it
Q Q
involved serious breach of trust.
R R
S S
6
[2022] 1 HKLRD 97 at 111, [2021] HKCA 1033
T T
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A A
B B
23. There is no evidence to suggest that D had adopted any safety
C measures when he made X to perform oral sex on him. C
D D
24. The Reports by the Clinical Psychologist indicated that the
E abuses, and D’s subsequent behaviour during Court proceedings, had E
caused psychological trauma to X and her mother Y. There is no indication
F F
in the Report that X is recovering from the trauma of these incidents and
G that the long-term impact may not be great, as suggested by Mr. Davies. G
She was indeed recovering in 2023 but D’s reverse of stands on his pleas
H H
had re-activated the sufferings by X and Y, and there is no observation or
I conclusion on the long-term effect on the family. I
J J
25. During the relevant period D also made the treat as
K particularized in Charge 4 to scare off this young child from disclosing his K
abuses on her. It is very mean and despicable indeed on the part of D and
L L
the criminal conduct involved struck at the heart of our criminal justice
M system. The suggestion that the treat had not been acted upon is neither M
here nor there in assessing the criminality of this Charge.
N N
O 26. For Charge 2, most of the factors mentioned above equally O
apply. Accepting the abuses involved is less serious than those in Charge
P P
1, it was a continuation of previous abuses. For Charge 3 the abuses were
Q no less serious than those in Charge 1 and was committed 4 years Q
afterwards. That means X had been subjected to similar abuses by D for no
R R
less than 4 years, from the age of 7 to 11 years old.
S S
27. D had no previous similar conviction, I will ignore his
T T
previous convictions in coming to my sentence in this case. Also, this case
U U
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A A
B B
involved only X, as such, I did not call for any psychological assessment
C of D but there is no basis to say, as suggested by Mr. Davies, that D is C
unlikely to re-offend, unless he meant against X only.
D D
E 28. Having taken all relevant factors into consideration, I adopt 3 E
½ years as the starting point for Charge 1, 3 years for Charge 2 and 3 ½
F F
years for Charge 3. For Charge 4, I adopt 12 months as the starting point.
G G
29. As conceded by Mr. Davies, and in line with the principles
H H
laid down by the Court of Appeal in Junaid Ahmed, D being a Form 8
I holder is an aggravating factor. For this factor I will increase the starting I
point of Charges 1 to 3 by 3 months and Charge 4 by 1 month.
J J
K 30. D is convicted after trial, and I see no other mitigating K
circumstances warranting a reduction of the sentence on each Charge.
L L
M 31. Charges 1 to 3 are separate and distinct offences which took M
place over a period of 4 years. The sentences should therefore be run
N N
consecutively. The criminality of Charge 4 had been taken into
O consideration in assessing the sentences for Charges 1 to 3, therefore the O
sentence should be run concurrently to avoid double punishment. Taking
P P
totality principle into consideration, I am satisfied that a total of 5 ½ years
Q is sufficient to reflect the overall criminality of D in the present case. Q
R R
32. For the reasons given above, for the 4 offences D is convicted
S of, he is sentenced as follows: S
Charge 1: 3 years 9 months
T T
Charge 2: 3 years 3 months, 9 months consecutive to Charge 1
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A A
B B
Charge 3: 3 years 9 months, 1 year consecutive to Charge 1
C Charge 4: 13 months, concurrent with Charge 1 C
Total sentence: 5 years 6 months.
D D
E E
F F
( Bernard Chung )
G Deputy District Judge G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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