A A
B B
DCCC 598/2020
[2021] HKDC 489
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 598 OF 2020
E ____________ E
HKSAR
F v F
CHEUNG WAI HUNG
G G
____________
H H
Before: HH Judge Dufton
I Date: 22 April 2021 I
Present: Mr Thomas Iu, counsel on fiat, for HKSAR
J Ms Elizabeth Herbert instructed by Cheung & Liu, J
assigned by the Director of Legal Aid, for the defendant
K
Offences: Indecent assault on another person(猥褻侵犯另一人) K
Theft (盜竊罪)
L L
REASONS FOR SENTENCE
M M
1. On 24 March 2021 the defendant pleaded guilty to seven
N N
charges of indecent assault, contrary to section 122 of the Crimes
O Ordinance 1 (charges 1, 2, 4, 5, 7, 9 & 11) and three charges of theft, O
contrary to section 9 of the Theft Ordinance 2 (charges 6, 8 & 10) 3 .
P P
Sentence was adjourned for preparation of a psychological report and a
Q background report, the defendant being in breach of probation imposed for Q
an offence of indecent assault.
R R
S S
1
Cap 200.
2
T Cap 210. T
3
Charges 3 and 12 were left on the court file not to be proceeded with without leave of the court or
the Court of Appeal.
U U
V V
2
A A
B B
2. In summary between 24 September 2019 and 23 February
C 2020 the defendant indecently assaulted seven females by deceiving them C
to believe there was an insect on their back. The defendant said he would
D D
help to remove the insect but instead tried to unhook the brassieres of the
E ladies. On three occasions the defendant touched their breasts. The ladies E
were all aged over twenty, except one who was 16. The defendant also
F F
stole the property of three of the ladies.
G G
3. The defendant was arrested on 24 February 2020 when he
H admitted indecently assaulting ladies and stealing their things by falsely H
claiming there was an insect on the woman.
I I
J 4. The following is a brief summary of each offence. I do not J
however propose to detail full particulars of each offence which are set out
K K
extensively in the summary of facts admitted by the defendant on 24 March
L 2021. L
M M
Charge 1
N N
5. On 24 September 2019 the defendant followed a lady, aged
O 26, who was walking from the University MTR station to her dormitory at O
the Chinese University. The defendant tapped the lady on her shoulder and
P P
said there was a cockroach on her back. The defendant offered to get rid
Q of the cockroach and shook the lady’s clothes pretending to try remove the Q
cockroach.
R R
S 6. The lady feeling strange, ignored the defendant and walked S
away. The defendant continued to follow the lady and said the cockroach
T T
was on her back again. The lady was frightened and felt harassed and very
U U
V V
3
A A
B B
uncomfortable when the defendant touched her skin near the back of her
C brassiere. No cockroach was found and the lady shouted at the defendant C
that he had deceived her.
D D
7. The lady identified the defendant in an identification parade.
E E
F Charge 2 F
G 8. On 7 October 2019 the defendant followed a lady, aged 22, as G
she left the University MTR station and said there was a bug on her back.
H H
When the defendant pretended to look for the bug and looked towards the
I lady’s breasts, the lady immediately covered her breasts with her hands. I
J J
9. The defendant continued to pretend to look for the bug. When
K the defendant inserted both his hands underneath the lady’s shirt the lady K
felt her brassiere was loosened and immediately covered her breasts.
L L
Feeling that she had been indecently assaulted the lady said she would go
M to the toilet. Inside the toilet the lady could not find a cockroach. M
N N
10. The lady identified the defendant in an identification parade.
O O
Charge 4
P P
11. On 14 December 2019 the defendant followed a 16-year-old
Q Q
school girl who was walking by a playground in Sheung Shui. The
R defendant tapped the girl on her shoulder and said there was a cockroach R
on her back. While pretending to remove the cockroach the defendant said
S S
the cockroach had flown into her back. The defendant then inserted both
T his hands underneath the girl’s shirt. The girl felt her brassiere buckle was T
U U
V V
4
A A
B B
detached and realising that she had been indecently assaulted told the
C defendant to take out his hands. C
D 12. The defendant denied deceiving the girl and left. The incident D
was captured on CCTV. The girl also identified the defendant in an
E E
identification parade.
F F
Charges 5 & 6
G G
13. On 26 December 2019 the defendant followed a lady, aged 23,
H H
as she was walking down the stairs to the platform of the Mong Kok MTR
I station. The defendant said there was a bug on her back and offered to get I
rid of the bug. While pretending to get rid of the bug the defendant said
J J
that the cockroach had fallen into her back.
K K
14. The lady then sat on a chair on the platform. The defendant
L L
told the lady to put her bag on the ground. When the defendant said he
M could see the leg of the bug he put his hands inside the lady’s shirt. The M
lady was very frightened and asked the defendant to find a woman to help
N N
her. The defendant ignored her and touched her breasts for about ten
O seconds. The defendant then told the lady to fasten her brassiere and go to O
the toilet. In the toilet the lady could not find any bug.
P P
Q 15. The next day the lady discovered that her wallet containing Q
AUD500, HKD700, a crossed cheque for HKD120,000 with the payee’s
R R
name left blank, a credit card and an ATM card, was missing from her bag.
S S
16. The incident was captured on CCTV. The Australian dollars
T were found on a search of the defendant’s home. T
U U
V V
5
A A
B B
Charges 7 & 8
C C
17. At 12:40 p.m. on 4 February 2020 the defendant followed a
D lady, aged 23, as she was leaving the Heng On MTR station. The defendant D
told the lady there was a caterpillar on her and asked her to remove her
E E
jacket and let him hold her bag. When the defendant inserted his hand
F inside the lady’s shirt and touched her left breast with force for about two F
seconds, the lady immediately removed the defendant’s hand.
G G
H 18. The defendant returned the lady’s jacket and bag and walked H
towards the MTR station. The lady inspected her bag and discovered her
I I
wallet, valued at $6,000, was missing. The wallet contained her identity
J card, a home visit permit, a €5 banknote, HKD300 cash, a staff card, an J
ATM card, two credit cards and an Octopus card.
K K
L
19. CCTV captured the defendant using his Octopus card to enter L
the Heng On station at 12:48 on 4 February 2020. On arrest the police
M M
found the €5 banknote in the defendant’s wallet.
N N
Charges 9 & 10
O O
20. On 18 February 2020 the defendant approached a lady, aged
P P
27, who was sitting on a bench on the platform of the University MTR
Q station. The defendant told the lady there was a bug on her back and Q
offered to help remove the bug. The defendant inserted his hand inside the
R R
back of the lady’s shirt and lightly touched the skin.
S S
21. At the same time the defendant told the lady to take off her
T jacket. The lady put her jacket and bag on the bench. The defendant T
continued trying to fix the back of the lady’s clothes. After three to four
U U
V V
6
A A
B B
minutes, the lady feeling this was strange, picked up her jacket and bag and
C went to the toilet. In the toilet the lady could not find any bug on her. C
D 22. The lady checked her bag and discovered her identity card, D
Octopus card, ATM card and credit card were missing from her bag. On
E E
arrest the police found the Octopus card in the defendant’s wallet, which
F the lady identified by the serial number on the card. F
G G
23. The incident was captured on CCTV. The lady also identified
H the defendant in an identification parade. H
I Charge 11 I
J J
24. At 10:45 p.m. on 23 February 2020 the defendant followed a
K lady as she was walking home from the Heng On MTR station. The K
defendant told the lady there was a bug on her jacket. Believing the
L L
defendant, the lady removed her jacket and swung the jacket in attempt to
M remove the bug. M
N N
25. The defendant then told the lady to walk aside at which time
O he stood behind the lady and pulled up her brassiere strap a few times. The O
defendant said he could see the bug and suddenly inserted his hand inside
P P
the lady’s shirt and touched her left breast for two seconds before removing
Q his hand. Q
R 26. The lady said she would handle the matter herself and walked R
home. At home the lady could not find the bug.
S S
T T
U U
V V
7
A A
B B
Mitigation
C C
27. In passing sentence, I have carefully considered the oral and
D written submissions of Ms Herbert, including that the defendant who is 31, D
is currently engaged to be married 4.
E E
F 28. Ms Herbert is instructed that the defendant expresses his F
remorse and regret for committing the offences and is willing to attend
G G
counselling on release from prison5.
H H
29. I have read the defendant’s mitigation letter in which he
I expresses his remorse; promises not to violate the law or hurt others and I
says he is determined to change his old lifestyle.
J J
K 30. I have also read the letters written by the defendant’s parents, K
fiancée and ex-employer in which they express their support in helping the
L L
defendant reintegrate into society. The defendant’s mother and sister have
M attended court to show their support for the defendant. M
N N
Criminal record
O O
31. In 2017 the defendant was sentenced to probation for two
P offences of indecent assault. The defendant again appeared in court for P
indecent assault in 2018 when he was sentenced to probation for 18 months
Q Q
on 31 December 2018.
R R
S S
T 4
T
See §§7 & 8 of the written submissions in mitigation.
5
See §§10 & 26 of the written submissions in mitigation.
U U
V V
8
A A
B B
32. The present offences committed between 24 September 2019
C and 23 February 2020 were therefore committed during the probation C
period.
D D
33. The brief facts of that case reveal the indecent assault was
E E
6
committed with the same modus operandi as the present indecent assaults .
F F
Reports
G G
34. I have carefully considered the psychological report and the
H H
background report.
I I
35. In summary the psychological report of clinical psychologist
J J
Mr Woo Chin Pang reveals that for some years the defendant has watched
K pornographic materials about sexually assaulting females. Gradually the K
defendant indulged in similar sexual fantasies and had the urge to peep and
L L
molest female strangers, including at work and in crowded areas where he
M believed he would not be noticed7. Indulgence in pornographic material M
about sexually assaulting females is also referred to in the background
N N
report8.
O O
36. Mr Woo is of the impression that the defendant has
P P
Frotteuristic Disorder and Voyeuristic Disorder and that his risk of re-
Q offending is assessed to be very high. Q
R R
S S
6
The brief facts of the case were shown to Ms Herbert together with the pre–sentencing reports.
T 7
T
See §§6 & 9 of the psychological report.
8
See §5 of the background report.
U U
V V
9
A A
B B
37. Psychological service focusing on proper control of sexual
C needs, deviant sexual interests and relapse prevention are believed to be C
9
beneficial to the defendant .
D D
38. I have also read the probation reports, the psychological report
E E
and the psychiatric report called for when the defendant was sentenced to
F probation in 2018. Frotteuristic Disorder was also the finding of the F
clinical psychologist who interviewed the defendant in December 2018 and
G G
who assessed the risk of sexual re-offending at that time to be at the higher
H end of moderate risk10. H
I I
39. From the court papers it would appear that the magistrate
J initially intended to impose a custodial sentence and not a probation order. J
The background report stated that to deal with his problems the defendant
K K
had approached Caritas Community Support Project on Inviting Men
L Against Sexual Offence for counselling service11. L
M M
40. The magistrate called for a further report from the probation
N service which recommended 18 months’ probation supervision with N
special conditions including receiving and completing psychological
O O
assessment and treatment and attending and participating in activities,
P groups or programmes as directed. P
Q 41. The reports before the court today show that the counselling Q
and supervision rendered to the defendant turned out to be ineffective
R R
S S
9
See §§11 & 13 of the psychological report.
10
T See §§12 & 14 of the psychological report of clinical psychologist Shirley Na dated 7 December T
2018.
11
See §§9 & 12 of the background report.
U U
V V
10
A A
B B
because he covered up all his wilful thoughts and acts from the counsellor
C and his supervising Probation Officer12. C
D 42. In response Ms Herbert is instructed that whilst on probation D
the defendant was very scared that if he was open and honest about these
E E
matters he would end up having his probation revoked and being sent back
F to custody. Ms Herbert says the defendant did not appreciate counselling F
and supervision were all there to assist him and were for his own good.
G G
H 43. I reject the defendant did not understand probation was there H
to help him. That was the second time the defendant had been placed on
I I
probation. As he told the clinical psychologist he was not motivated and
J did not really open-up with his problems during the treatment period13. J
K K
44. The probation officer was clearly misled into recommending
L
probation by the fact that the defendant attended the Caritas Community L
Support Project on Inviting Men Against Sexual Offence for counselling
M M
service from which the probation officer formed the view the defendant
N was ready to make change and explore his underlying problems by seeking N
14
help from different professions .
O O
45. The defendant was clearly not ready to make change as he
P P
continued to repeatedly commit further offences. I note that the defendant
Q told the clinical psychologist that he believed he had indecently assaulted Q
at least 70 female strangers by using the same modus operandi 15. The
R R
S 12 S
See §§7 & 11 of the background report.
13
See §7 of the background report and §7 of the psychological report.
T 14
T
See §§9, 10 & 12 of the probation report
15
See §9 of the psychological report.
U U
V V
11
A A
B B
defendant is however only to be sentenced for the seven offences of
C indecent assault to which he has pleaded guilty. C
D Indecent assault D
E E
46. The maximum sentence for indecent assault is 10 years’
F imprisonment. F
G 47. There are no guidelines for offences of indecent assault. G
There are three important considerations to bear in mind in sentencing for
H H
indecent assault: the need to deter others, the need to mark the public
I abhorrence of such crimes and the need to redress the grievance suffered I
by the victim16.
J J
K 48. I have considered the cases referred to the court by Ms K
Herbert17. Sentencing is very much fact sensitive, offences of this nature
L L
covering a wide range of conduct18.
M M
49. The defendant having deceived his victims into believing that
N N
there was a cockroach, a bug or caterpillar on their back indecently
O assaulted his victims and on three occasions stole their property. O
P 50. The assaults were neither a quick brush of a hand over the P
clothing of the victim nor a single touch. The defendant was persistent in
Q Q
his assaults; he inserted his hands inside their clothing and except for one
R R
16
S See for example Attorney General v Lee Kui Man [1997] HKLRD 576; HKSAR v Chan Ching Ho S
[2001] 3 HKLRD 476 and HKSAR v Cheung Kwai Sang HCMA 47/2002.
17
T Attorney General v Wai Yan Shun [1991] 1 HKC 112 and HKSAR v Li Shui Keung HCMA T
150/2002.
18
See for example HKSAR v Tsang Ue Sum CACC 32/2010.
U U
V V
12
A A
B B
occasion (charge 9) touched the breasts or brassiere of his victims, one of
C whom was a 16-year-old schoolgirl. C
D 51. Although the defendant did not touch the breasts of all his D
victims that was clearly his intention19. I am satisfied the same starting
E E
point is appropriate for each charge of indecent assault.
F F
52. Taking into account the nature of the assaults in which the
G G
defendant deceived his victims; this is the third time the defendant has been
H before the court for indecent assault; the defendant is in breach of probation H
imposed for an offence of indecent assault; the risk of re-offending is
I I
assessed to be very high and bearing in mind the need to deter others, the
J need to mark the public abhorrence of such crimes and the need to redress J
the grievance suffered by the victims, I am satisfied that a starting point of
K K
9 months’ imprisonment is appropriate for each offence.
L L
53. Giving the defendant full credit for his pleas of guilty reduces
M M
the sentence on each charge of indecent assault to 6 months’ imprisonment.
N N
Theft
O O
54. Ms Herbert equates the theft charges with cases of
P P
pickpocketing20. I am not satisfied the thefts are properly described as
Q pickpocketing. They are however no less serious than pickpocketing, the Q
defendant taking advantage of his victims by deceiving them there was an
R R
S S
19
The defendant told the clinical psychologist that he was obsessed with women’s breasts and that
T he would always pay attention to women’s breasts whenever he met strangers. See §6 of the T
psychological report.
20
See §§17-20 of the written submissions in mitigation.
U U
V V
13
A A
B B
insect on their back and then indecently assaulting them and stealing their
C property. C
D 55. I am satisfied a starting point of 12 months’ imprisonment is D
appropriate for each theft. Giving the defendant full credit for his pleas of
E E
guilty reduces the sentence on charges 6, 8 & 10 to 8 months’
F imprisonment. F
G G
Restitution
H H
56. Mr Iu confirms that during the adjournment the defendant’s
I family have made full restitution via the police of the amounts stolen in I
charges 6, 8 & 10 in the total sum of $8,630 21. I reduce the sentence on
J J
each theft charge by 1 month to 7 months’ imprisonment.
K K
Totality
L L
M
57. Total sentence must reflect that there were seven separate M
indecent assaults on seven different victims, over a period of about five
N N
months and that the defendant stole property belonging to three of the
O victims. O
P 58. I am satisfied that a total sentence of 2 years and 6 months’ P
imprisonment properly reflects the defendant’s criminality on the ten
Q Q
charges and takes into account the defendant’s personal circumstances and
R the seriousness of the offences22. R
S S
T 21
T
Also see §27 of the written submissions in mitigation.
22
See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.
U U
V V
14
A A
B B
59. The defendant is convicted and sentenced as follows:
C C
Charge 5 – 6 months’ imprisonment;
D D
Charges 1, 2, 4, 7, 9 & 11 – 6 months’ imprisonment on each charge with
E E
3 months of the sentence on each charge consecutive and 3 months
F concurrent to charge 5; and F
G Charges 6, 8 & 10 – 7 months’ imprisonment on each charge with 2 months G
of the sentence on each charge consecutive and 5 months concurrent to
H H
charges 1, 2, 4, 5, 7, 9 & 11
I I
Breach of probation
J J
K
60. As noted already the present offences were committed while K
the defendant was on probation. By virtue of section 6 (6) of the Probation
L L
of Offenders Ordinance the court may deal with the defendant for the
M
offence for which he was placed on probation, in any manner in which the M
magistrate’s court by which the probation order was made could deal with
N N
him if he had just been tried for or convicted of that offence by or before
O that court23. O
P 61. Counselling and supervision rendered to the defendant having P
turned out to be ineffective because the defendant was not motivated and
Q Q
covered up all his wilful thoughts and acts from the counsellor and his
R supervising Probation Officer, I am satisfied that it is just to deal with the R
defendant for the offence for which he was placed on probation.
S S
T T
23
Cap 298.
U U
V V
15
A A
B B
62. I am satisfied a starting point of 4½ months’ imprisonment is
C appropriate. Giving the defendant full credit for his plea of guilty reduces C
the sentence to 3 months’ imprisonment.
D D
63. The defendant was remanded in custody from 27 November
E E
2018 to 31 December 2018 for the preparation of the pre-sentence reports.
F By virtue of section 67A (1) (c) of the Criminal Procedure Ordinance this F
period of custody will be disregarded for the purpose of computation of
G G
sentences of imprisonment. In the circumstances I reduce the sentence by
H 1 month to 2 months’ imprisonment. H
I I
64. The offence is separate and distinct from the offences for
J which the defendant is sentenced today. I am satisfied a consecutive J
sentence is appropriate.
K K
L
65. I order the sentence to be served consecutive making a total L
sentence to be served by the defendant of 2 years and 8 months’
M M
imprisonment which I am satisfied properly reflects the defendant’s
N criminality on the eleven charges and takes into account the defendant’s N
personal circumstances and the seriousness of the offences.
O O
P P
Q Q
R (D. J. DUFTON) R
District Judge
S S
T T
U U
V V
A A
B B
DCCC 598/2020
[2021] HKDC 489
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 598 OF 2020
E ____________ E
HKSAR
F v F
CHEUNG WAI HUNG
G G
____________
H H
Before: HH Judge Dufton
I Date: 22 April 2021 I
Present: Mr Thomas Iu, counsel on fiat, for HKSAR
J Ms Elizabeth Herbert instructed by Cheung & Liu, J
assigned by the Director of Legal Aid, for the defendant
K
Offences: Indecent assault on another person(猥褻侵犯另一人) K
Theft (盜竊罪)
L L
REASONS FOR SENTENCE
M M
1. On 24 March 2021 the defendant pleaded guilty to seven
N N
charges of indecent assault, contrary to section 122 of the Crimes
O Ordinance 1 (charges 1, 2, 4, 5, 7, 9 & 11) and three charges of theft, O
contrary to section 9 of the Theft Ordinance 2 (charges 6, 8 & 10) 3 .
P P
Sentence was adjourned for preparation of a psychological report and a
Q background report, the defendant being in breach of probation imposed for Q
an offence of indecent assault.
R R
S S
1
Cap 200.
2
T Cap 210. T
3
Charges 3 and 12 were left on the court file not to be proceeded with without leave of the court or
the Court of Appeal.
U U
V V
2
A A
B B
2. In summary between 24 September 2019 and 23 February
C 2020 the defendant indecently assaulted seven females by deceiving them C
to believe there was an insect on their back. The defendant said he would
D D
help to remove the insect but instead tried to unhook the brassieres of the
E ladies. On three occasions the defendant touched their breasts. The ladies E
were all aged over twenty, except one who was 16. The defendant also
F F
stole the property of three of the ladies.
G G
3. The defendant was arrested on 24 February 2020 when he
H admitted indecently assaulting ladies and stealing their things by falsely H
claiming there was an insect on the woman.
I I
J 4. The following is a brief summary of each offence. I do not J
however propose to detail full particulars of each offence which are set out
K K
extensively in the summary of facts admitted by the defendant on 24 March
L 2021. L
M M
Charge 1
N N
5. On 24 September 2019 the defendant followed a lady, aged
O 26, who was walking from the University MTR station to her dormitory at O
the Chinese University. The defendant tapped the lady on her shoulder and
P P
said there was a cockroach on her back. The defendant offered to get rid
Q of the cockroach and shook the lady’s clothes pretending to try remove the Q
cockroach.
R R
S 6. The lady feeling strange, ignored the defendant and walked S
away. The defendant continued to follow the lady and said the cockroach
T T
was on her back again. The lady was frightened and felt harassed and very
U U
V V
3
A A
B B
uncomfortable when the defendant touched her skin near the back of her
C brassiere. No cockroach was found and the lady shouted at the defendant C
that he had deceived her.
D D
7. The lady identified the defendant in an identification parade.
E E
F Charge 2 F
G 8. On 7 October 2019 the defendant followed a lady, aged 22, as G
she left the University MTR station and said there was a bug on her back.
H H
When the defendant pretended to look for the bug and looked towards the
I lady’s breasts, the lady immediately covered her breasts with her hands. I
J J
9. The defendant continued to pretend to look for the bug. When
K the defendant inserted both his hands underneath the lady’s shirt the lady K
felt her brassiere was loosened and immediately covered her breasts.
L L
Feeling that she had been indecently assaulted the lady said she would go
M to the toilet. Inside the toilet the lady could not find a cockroach. M
N N
10. The lady identified the defendant in an identification parade.
O O
Charge 4
P P
11. On 14 December 2019 the defendant followed a 16-year-old
Q Q
school girl who was walking by a playground in Sheung Shui. The
R defendant tapped the girl on her shoulder and said there was a cockroach R
on her back. While pretending to remove the cockroach the defendant said
S S
the cockroach had flown into her back. The defendant then inserted both
T his hands underneath the girl’s shirt. The girl felt her brassiere buckle was T
U U
V V
4
A A
B B
detached and realising that she had been indecently assaulted told the
C defendant to take out his hands. C
D 12. The defendant denied deceiving the girl and left. The incident D
was captured on CCTV. The girl also identified the defendant in an
E E
identification parade.
F F
Charges 5 & 6
G G
13. On 26 December 2019 the defendant followed a lady, aged 23,
H H
as she was walking down the stairs to the platform of the Mong Kok MTR
I station. The defendant said there was a bug on her back and offered to get I
rid of the bug. While pretending to get rid of the bug the defendant said
J J
that the cockroach had fallen into her back.
K K
14. The lady then sat on a chair on the platform. The defendant
L L
told the lady to put her bag on the ground. When the defendant said he
M could see the leg of the bug he put his hands inside the lady’s shirt. The M
lady was very frightened and asked the defendant to find a woman to help
N N
her. The defendant ignored her and touched her breasts for about ten
O seconds. The defendant then told the lady to fasten her brassiere and go to O
the toilet. In the toilet the lady could not find any bug.
P P
Q 15. The next day the lady discovered that her wallet containing Q
AUD500, HKD700, a crossed cheque for HKD120,000 with the payee’s
R R
name left blank, a credit card and an ATM card, was missing from her bag.
S S
16. The incident was captured on CCTV. The Australian dollars
T were found on a search of the defendant’s home. T
U U
V V
5
A A
B B
Charges 7 & 8
C C
17. At 12:40 p.m. on 4 February 2020 the defendant followed a
D lady, aged 23, as she was leaving the Heng On MTR station. The defendant D
told the lady there was a caterpillar on her and asked her to remove her
E E
jacket and let him hold her bag. When the defendant inserted his hand
F inside the lady’s shirt and touched her left breast with force for about two F
seconds, the lady immediately removed the defendant’s hand.
G G
H 18. The defendant returned the lady’s jacket and bag and walked H
towards the MTR station. The lady inspected her bag and discovered her
I I
wallet, valued at $6,000, was missing. The wallet contained her identity
J card, a home visit permit, a €5 banknote, HKD300 cash, a staff card, an J
ATM card, two credit cards and an Octopus card.
K K
L
19. CCTV captured the defendant using his Octopus card to enter L
the Heng On station at 12:48 on 4 February 2020. On arrest the police
M M
found the €5 banknote in the defendant’s wallet.
N N
Charges 9 & 10
O O
20. On 18 February 2020 the defendant approached a lady, aged
P P
27, who was sitting on a bench on the platform of the University MTR
Q station. The defendant told the lady there was a bug on her back and Q
offered to help remove the bug. The defendant inserted his hand inside the
R R
back of the lady’s shirt and lightly touched the skin.
S S
21. At the same time the defendant told the lady to take off her
T jacket. The lady put her jacket and bag on the bench. The defendant T
continued trying to fix the back of the lady’s clothes. After three to four
U U
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6
A A
B B
minutes, the lady feeling this was strange, picked up her jacket and bag and
C went to the toilet. In the toilet the lady could not find any bug on her. C
D 22. The lady checked her bag and discovered her identity card, D
Octopus card, ATM card and credit card were missing from her bag. On
E E
arrest the police found the Octopus card in the defendant’s wallet, which
F the lady identified by the serial number on the card. F
G G
23. The incident was captured on CCTV. The lady also identified
H the defendant in an identification parade. H
I Charge 11 I
J J
24. At 10:45 p.m. on 23 February 2020 the defendant followed a
K lady as she was walking home from the Heng On MTR station. The K
defendant told the lady there was a bug on her jacket. Believing the
L L
defendant, the lady removed her jacket and swung the jacket in attempt to
M remove the bug. M
N N
25. The defendant then told the lady to walk aside at which time
O he stood behind the lady and pulled up her brassiere strap a few times. The O
defendant said he could see the bug and suddenly inserted his hand inside
P P
the lady’s shirt and touched her left breast for two seconds before removing
Q his hand. Q
R 26. The lady said she would handle the matter herself and walked R
home. At home the lady could not find the bug.
S S
T T
U U
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7
A A
B B
Mitigation
C C
27. In passing sentence, I have carefully considered the oral and
D written submissions of Ms Herbert, including that the defendant who is 31, D
is currently engaged to be married 4.
E E
F 28. Ms Herbert is instructed that the defendant expresses his F
remorse and regret for committing the offences and is willing to attend
G G
counselling on release from prison5.
H H
29. I have read the defendant’s mitigation letter in which he
I expresses his remorse; promises not to violate the law or hurt others and I
says he is determined to change his old lifestyle.
J J
K 30. I have also read the letters written by the defendant’s parents, K
fiancée and ex-employer in which they express their support in helping the
L L
defendant reintegrate into society. The defendant’s mother and sister have
M attended court to show their support for the defendant. M
N N
Criminal record
O O
31. In 2017 the defendant was sentenced to probation for two
P offences of indecent assault. The defendant again appeared in court for P
indecent assault in 2018 when he was sentenced to probation for 18 months
Q Q
on 31 December 2018.
R R
S S
T 4
T
See §§7 & 8 of the written submissions in mitigation.
5
See §§10 & 26 of the written submissions in mitigation.
U U
V V
8
A A
B B
32. The present offences committed between 24 September 2019
C and 23 February 2020 were therefore committed during the probation C
period.
D D
33. The brief facts of that case reveal the indecent assault was
E E
6
committed with the same modus operandi as the present indecent assaults .
F F
Reports
G G
34. I have carefully considered the psychological report and the
H H
background report.
I I
35. In summary the psychological report of clinical psychologist
J J
Mr Woo Chin Pang reveals that for some years the defendant has watched
K pornographic materials about sexually assaulting females. Gradually the K
defendant indulged in similar sexual fantasies and had the urge to peep and
L L
molest female strangers, including at work and in crowded areas where he
M believed he would not be noticed7. Indulgence in pornographic material M
about sexually assaulting females is also referred to in the background
N N
report8.
O O
36. Mr Woo is of the impression that the defendant has
P P
Frotteuristic Disorder and Voyeuristic Disorder and that his risk of re-
Q offending is assessed to be very high. Q
R R
S S
6
The brief facts of the case were shown to Ms Herbert together with the pre–sentencing reports.
T 7
T
See §§6 & 9 of the psychological report.
8
See §5 of the background report.
U U
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9
A A
B B
37. Psychological service focusing on proper control of sexual
C needs, deviant sexual interests and relapse prevention are believed to be C
9
beneficial to the defendant .
D D
38. I have also read the probation reports, the psychological report
E E
and the psychiatric report called for when the defendant was sentenced to
F probation in 2018. Frotteuristic Disorder was also the finding of the F
clinical psychologist who interviewed the defendant in December 2018 and
G G
who assessed the risk of sexual re-offending at that time to be at the higher
H end of moderate risk10. H
I I
39. From the court papers it would appear that the magistrate
J initially intended to impose a custodial sentence and not a probation order. J
The background report stated that to deal with his problems the defendant
K K
had approached Caritas Community Support Project on Inviting Men
L Against Sexual Offence for counselling service11. L
M M
40. The magistrate called for a further report from the probation
N service which recommended 18 months’ probation supervision with N
special conditions including receiving and completing psychological
O O
assessment and treatment and attending and participating in activities,
P groups or programmes as directed. P
Q 41. The reports before the court today show that the counselling Q
and supervision rendered to the defendant turned out to be ineffective
R R
S S
9
See §§11 & 13 of the psychological report.
10
T See §§12 & 14 of the psychological report of clinical psychologist Shirley Na dated 7 December T
2018.
11
See §§9 & 12 of the background report.
U U
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10
A A
B B
because he covered up all his wilful thoughts and acts from the counsellor
C and his supervising Probation Officer12. C
D 42. In response Ms Herbert is instructed that whilst on probation D
the defendant was very scared that if he was open and honest about these
E E
matters he would end up having his probation revoked and being sent back
F to custody. Ms Herbert says the defendant did not appreciate counselling F
and supervision were all there to assist him and were for his own good.
G G
H 43. I reject the defendant did not understand probation was there H
to help him. That was the second time the defendant had been placed on
I I
probation. As he told the clinical psychologist he was not motivated and
J did not really open-up with his problems during the treatment period13. J
K K
44. The probation officer was clearly misled into recommending
L
probation by the fact that the defendant attended the Caritas Community L
Support Project on Inviting Men Against Sexual Offence for counselling
M M
service from which the probation officer formed the view the defendant
N was ready to make change and explore his underlying problems by seeking N
14
help from different professions .
O O
45. The defendant was clearly not ready to make change as he
P P
continued to repeatedly commit further offences. I note that the defendant
Q told the clinical psychologist that he believed he had indecently assaulted Q
at least 70 female strangers by using the same modus operandi 15. The
R R
S 12 S
See §§7 & 11 of the background report.
13
See §7 of the background report and §7 of the psychological report.
T 14
T
See §§9, 10 & 12 of the probation report
15
See §9 of the psychological report.
U U
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11
A A
B B
defendant is however only to be sentenced for the seven offences of
C indecent assault to which he has pleaded guilty. C
D Indecent assault D
E E
46. The maximum sentence for indecent assault is 10 years’
F imprisonment. F
G 47. There are no guidelines for offences of indecent assault. G
There are three important considerations to bear in mind in sentencing for
H H
indecent assault: the need to deter others, the need to mark the public
I abhorrence of such crimes and the need to redress the grievance suffered I
by the victim16.
J J
K 48. I have considered the cases referred to the court by Ms K
Herbert17. Sentencing is very much fact sensitive, offences of this nature
L L
covering a wide range of conduct18.
M M
49. The defendant having deceived his victims into believing that
N N
there was a cockroach, a bug or caterpillar on their back indecently
O assaulted his victims and on three occasions stole their property. O
P 50. The assaults were neither a quick brush of a hand over the P
clothing of the victim nor a single touch. The defendant was persistent in
Q Q
his assaults; he inserted his hands inside their clothing and except for one
R R
16
S See for example Attorney General v Lee Kui Man [1997] HKLRD 576; HKSAR v Chan Ching Ho S
[2001] 3 HKLRD 476 and HKSAR v Cheung Kwai Sang HCMA 47/2002.
17
T Attorney General v Wai Yan Shun [1991] 1 HKC 112 and HKSAR v Li Shui Keung HCMA T
150/2002.
18
See for example HKSAR v Tsang Ue Sum CACC 32/2010.
U U
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12
A A
B B
occasion (charge 9) touched the breasts or brassiere of his victims, one of
C whom was a 16-year-old schoolgirl. C
D 51. Although the defendant did not touch the breasts of all his D
victims that was clearly his intention19. I am satisfied the same starting
E E
point is appropriate for each charge of indecent assault.
F F
52. Taking into account the nature of the assaults in which the
G G
defendant deceived his victims; this is the third time the defendant has been
H before the court for indecent assault; the defendant is in breach of probation H
imposed for an offence of indecent assault; the risk of re-offending is
I I
assessed to be very high and bearing in mind the need to deter others, the
J need to mark the public abhorrence of such crimes and the need to redress J
the grievance suffered by the victims, I am satisfied that a starting point of
K K
9 months’ imprisonment is appropriate for each offence.
L L
53. Giving the defendant full credit for his pleas of guilty reduces
M M
the sentence on each charge of indecent assault to 6 months’ imprisonment.
N N
Theft
O O
54. Ms Herbert equates the theft charges with cases of
P P
pickpocketing20. I am not satisfied the thefts are properly described as
Q pickpocketing. They are however no less serious than pickpocketing, the Q
defendant taking advantage of his victims by deceiving them there was an
R R
S S
19
The defendant told the clinical psychologist that he was obsessed with women’s breasts and that
T he would always pay attention to women’s breasts whenever he met strangers. See §6 of the T
psychological report.
20
See §§17-20 of the written submissions in mitigation.
U U
V V
13
A A
B B
insect on their back and then indecently assaulting them and stealing their
C property. C
D 55. I am satisfied a starting point of 12 months’ imprisonment is D
appropriate for each theft. Giving the defendant full credit for his pleas of
E E
guilty reduces the sentence on charges 6, 8 & 10 to 8 months’
F imprisonment. F
G G
Restitution
H H
56. Mr Iu confirms that during the adjournment the defendant’s
I family have made full restitution via the police of the amounts stolen in I
charges 6, 8 & 10 in the total sum of $8,630 21. I reduce the sentence on
J J
each theft charge by 1 month to 7 months’ imprisonment.
K K
Totality
L L
M
57. Total sentence must reflect that there were seven separate M
indecent assaults on seven different victims, over a period of about five
N N
months and that the defendant stole property belonging to three of the
O victims. O
P 58. I am satisfied that a total sentence of 2 years and 6 months’ P
imprisonment properly reflects the defendant’s criminality on the ten
Q Q
charges and takes into account the defendant’s personal circumstances and
R the seriousness of the offences22. R
S S
T 21
T
Also see §27 of the written submissions in mitigation.
22
See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.
U U
V V
14
A A
B B
59. The defendant is convicted and sentenced as follows:
C C
Charge 5 – 6 months’ imprisonment;
D D
Charges 1, 2, 4, 7, 9 & 11 – 6 months’ imprisonment on each charge with
E E
3 months of the sentence on each charge consecutive and 3 months
F concurrent to charge 5; and F
G Charges 6, 8 & 10 – 7 months’ imprisonment on each charge with 2 months G
of the sentence on each charge consecutive and 5 months concurrent to
H H
charges 1, 2, 4, 5, 7, 9 & 11
I I
Breach of probation
J J
K
60. As noted already the present offences were committed while K
the defendant was on probation. By virtue of section 6 (6) of the Probation
L L
of Offenders Ordinance the court may deal with the defendant for the
M
offence for which he was placed on probation, in any manner in which the M
magistrate’s court by which the probation order was made could deal with
N N
him if he had just been tried for or convicted of that offence by or before
O that court23. O
P 61. Counselling and supervision rendered to the defendant having P
turned out to be ineffective because the defendant was not motivated and
Q Q
covered up all his wilful thoughts and acts from the counsellor and his
R supervising Probation Officer, I am satisfied that it is just to deal with the R
defendant for the offence for which he was placed on probation.
S S
T T
23
Cap 298.
U U
V V
15
A A
B B
62. I am satisfied a starting point of 4½ months’ imprisonment is
C appropriate. Giving the defendant full credit for his plea of guilty reduces C
the sentence to 3 months’ imprisonment.
D D
63. The defendant was remanded in custody from 27 November
E E
2018 to 31 December 2018 for the preparation of the pre-sentence reports.
F By virtue of section 67A (1) (c) of the Criminal Procedure Ordinance this F
period of custody will be disregarded for the purpose of computation of
G G
sentences of imprisonment. In the circumstances I reduce the sentence by
H 1 month to 2 months’ imprisonment. H
I I
64. The offence is separate and distinct from the offences for
J which the defendant is sentenced today. I am satisfied a consecutive J
sentence is appropriate.
K K
L
65. I order the sentence to be served consecutive making a total L
sentence to be served by the defendant of 2 years and 8 months’
M M
imprisonment which I am satisfied properly reflects the defendant’s
N criminality on the eleven charges and takes into account the defendant’s N
personal circumstances and the seriousness of the offences.
O O
P P
Q Q
R (D. J. DUFTON) R
District Judge
S S
T T
U U
V V