SECRETARY FOR JUSTICE v. KONG TUNG SHEUNG

CAAR 6/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 6 OF 2004

(ON APPEAL FROM FLCC 1193 OF 2004)

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Dates of Hearing: 27 October 2005 and 17 March 2006

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  On 23 August 2004, the respondent pleaded guilty at Fanling Magistrates' Court to three charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200.  He was sentenced by the magistrate, Mr Anthony Kwok, on 6 September 2004 to concurrent terms of 2 months' imprisonment on each charge from which he was released on 6 October 2004.  On 10 November 2004, the magistrate declined an application, made by the prosecution under section 104 of the Magistrates Ordinance, Cap. 227, to review the respondent's sentence.  Following this, on 2 December 2004 leave was granted to the Secretary for Justice (the applicant) to apply to the Court of Appeal for a review of sentence pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221.

2.  The principal complaint made by Mr Zervos SC on behalf of the applicant is that an overall sentence of 2 months' imprisonment was manifestly inadequate and, as such, failed to do justice in a case which was much more serious than this sentence suggests.

The facts

3.  All the offences were committed on 15 November 2003 within a relatively short space of time after the victim, aged 14 years and 9 months, had got into the back of a taxi driven by the respondent at Sheung Shui Railway Station.  The victim asked to be taken to Tin Ping Estate.

4.  During the course of a journey occupying 20 minutes in all, the victim moved to the front seat after the respondent had asked her to do so.  Thereafter, she was driven to three separate locations in the vicinity of her home where, on each occasion, the respondent indecently assaulted her by fondling her breasts.  On the second occasion, he said that he could buy her many clothes.  He also kissed the victim on her face and asked for her mobile telephone number which she duly gave to him.  The victim indicated that she wanted to go home each time she had been indecently assaulted.

5.  The indecent behaviour reflected in the 1st charge lasted about four minutes.  The other two offences were committed over the space of about a minute in each case.  All the offences took place during the hours of darkness, soon after 10:20 p.m., and it was an agreed fact that they were committed without the victim's consent.

6.  Immediately after the taxi arrived at the victim's home, she ran inside and reported these incidents to the police.  While the matter was being investigated, the respondent telephoned the victim to tell her that he was waiting for her outside.  He was then located and arrested by the police.

7.  When he was interviewed, the respondent denied the allegations but said that he had taken her telephone number because he wanted to "date" the victim.  It was only later that traces of the respondent's DNA were found on the victim's brassiere.

Character and mitigation

8.  The respondent had previously been before a court on 31 December 1987 when he was sent to a detention centre for offences of indecent assault and impersonating a police officer.  At that time he was 23 years old.  When he came before the magistrate in the present case, he was aged 38 and was married, with 2 daughters aged 14 and 10.  He had been a taxi driver for about 6 years.

9.  The mitigation which was advanced in the court below largely laid emphasis on the fact that this was not by any means the worst kind of indecent assault.  At no stage was violence used by the respondent and he had made no threats to the victim in order to make her submit to him.  The indecent touching of the victim was confined to the acts we have already set out which were, it was said, committed on a girl who the respondent thought was aged between 18 and 19.  The last aspect of the mitigation was disputed by counsel then appearing for the prosecution but when the magistrate asked if he could see a photograph of the victim, he was told that none was available.

Sentencing

10.  Before imposing sentence, the judge had obtained a probation officer's background report.  This revealed that the respondent had been a hardworking family man since his marriage in 1989 and that he had been in more or less continuous employment for twenty years.  Passing sentence the judge said:

"…. the nature of this case is very serious.  The victim, the lady was only 14 years old at that time.  At the material time, she was still on board of your taxi and it was night-time.  You made use of these circumstances to take advantage of her.  For such behaviour, the court considers that it has a duty to impose a sentence which can protect this kind of women who are weak and small from being assaulted like this, and also to send a message that the court and the society will not tolerate such behaviour."

We observe that at this stage there was no finding on the magistrate's part which indicated an acceptance of the respondent's mitigation to the effect that he had thought the victim was 18 or more.

11.  The magistrate rightly took into account the pleas of guilty which had spared the victim the further embarrassment of attending court.  He referred to these having been entered "at an early stage" which reflected what had been said in mitigation.  Perhaps, with respect, a better choice of words would have been to say that these were timely pleas in the sense that they enabled the respondent to be given the full discount.  We observe that the respondent was arrested on 15 November 2003 and was charged on 18 April 2004, but notification that he would be pleading guilty was only given on about 10 August 2004.  Had this been done earlier, no doubt his case would have been dealt with sooner and the victim's anxieties over the pending case might more quickly have been put to rest.

12.  The magistrate also indicated, in circumstances where he would have been justified in taking quite the opposite view, that he would ignore the respondent's previous record in view of the long time which had elapsed since his earlier conviction.  Its relevance to the present offences was that they were not out of character tending, therefore, to suggest that the respondent had a propensity to commit offences of this kind.

13.  The magistrate concluded, in the light of the respondent's background, that "the most lenient way of dealing with the case" was to adopt a short and immediate custodial sentence.  He then took a 3-month starting point for each offence which he discounted by a third to reflect the guilty pleas, and he made the resulting 2-month sentences run concurrently with each other.

The magistrate's reasons for refusing to review sentence

14.  On 10 November 2004, Mr Zervos put similar arguments before the magistrate to those he has put before us in these proceedings. Having considered the submissions, the magistrate, when declining to review the sentence he had imposed, noted that the maximum sentence he could pass within his powers of jurisdiction was 2 years as if to indicate that this was somehow a benchmark for the worst case of its kind.  The magistrate then provided the following explanation for the short sentence he had imposed:

"14. In arriving [at] this decision, I bore in mind what Mr Zervos had tried to say but I cannot bring myself into agreeing some of Mr Zervos' observation – for example, when he said that the act of the defendant was committed in a calculated fashion and not on the spur of the moment.

15. And, also, Mr Zervos has [said] that the [victim] was entrap in the taxi.  Well, broadly speaking, one may argue that the victim was, at that time, entrapped in the taxi but one should not lose sight of the fact that - and which is also a point which is relied upon by Mr Kwong - that there is no actual or threat of violence made by the defendant to the victim.

16. When all these molestation took place, the vehicle remained stationary and, to start with, the victim voluntarily, although under the suggestion of the defendant, got out of the taxi and then got back to the front seat on her own.  And, what is more, from the fact disclosed, which is prepared by the prosecution and which is admitted by the defence, during the course of the incident, when the assault took place, there was never really any signs of struggles put up by the victim or any distress displayed by the victim.

17. All that is a[n] indication of the unwillingness on the part of the [victim] was the fact that she had [on] numerous occasion[s] urged the defendant to drive her back home.

18. But, against this background also, in the end, the victim also willingly gave the defendant her telephone number for future contact purpose.

19. So it is also true that she had, once alighted from the taxi, according to the facts, immediately called to report the matter to the police.  But, if [s]he were really distressed during the incident, which is suggested by her prompt reaction to call the police after getting out of the taxi, what is her behaviour during the time when she was [in the] taxi surely was something in contrary to this impression.

20. I have considered here is very important because as a matter which is perceived by the defendant as what really happened, at that time.

21. Now, each case depends on its own fact.  As Mr Zervos has rightly pointed out, there is no tariff for this kind of cases.  In my judgment, while defendant's conduct was wholly uncalled-for and improper, especially we now all know that the girl was under age, but it remains very important that, from the point of view of the defendant, [he] was under the impression that the girl was consenting to [his] act.

22. Now, according to the mitigation advanced on behalf of the defendant in the original hearing, counsel told me that the defendant's belief was that the girl was bordering in the age between 18 or 19.  That is a belief on the part of the defendant.  What the prosecution challenged was that, despite the belief, this according to the photographs which is on the hands of the OC Case of the police, the prosecution does not agree that the [victim] looks like that old.

23. Mr Zervos submitted that the defendant's belief is irrelevant, as long as the victim is actually 14 years, when I come to consider the issue of mitigation.  Now, I have here considered the case of So Wai-lun, which is only published, I think, two days ago … and there the Court of Appeal had said that:

'We would also like to add that, while not relevant to the conviction, a defendant's belief as to the victim's age may be highly relevant to sentence.'" (Appeal bundle pp. 23-24)

The reference (now reported) to HKSAR v So Wai-lun [2005] 1 HKLRD 443 was in the context of a case concerning unlawful sexual intercourse with a girl under the age of 16.

The application

15. In these proceedings, Mr Zervos again recognised that there are no sentencing guidelines for offences of indecent assault.  He submitted that the combined circumstances on the facts of this case had simply not been given sufficient emphasis by the magistrate particularly bearing in mind the age of the victim and that it had been agreed in the Summary of Facts that each of the acts of fondling the victim's breasts and the single act of kissing her on the face was done without the victim's consent.  This, as Mr Zervos submitted, must have been known to the respondent because, after the first sexual assault, the victim had repeatedly requested to be taken to her destination.

16. We derived no assistance from the earlier decisions of the courts which Mr Zervos placed before us.  Amongst these, we observe that in R v Cheung Yan-chee [1989] 2 HKC 474 the decision pre-dated the change in the Crimes Ordinance which, on 12 July 1991, doubled the maximum sentence to 10 years' imprisonment.  We would hope that in future the facts of that case will never again be relied upon for any proposition whatsoever.

17. Each case, as the magistrate rightly observed, is to be determined on its own facts.  However, by the time of the review, it seems that the magistrate had come to the conclusion that the respondent's own belief was that the acts of indecency were carried out more or less with the consent of the victim.  It is not appropriate to refer to this as a generous assessment as it had hitherto, seemingly, not even been the respondent's case that this was so.  It had not formed any part of the mitigation that the respondent believed the victim had consented to what he was doing to her and it formed no part of the original reasons provided by the magistrate for sentencing in the way he did.  Quite properly, the reasons for sentence given originally would have been based upon the agreed ‘Summary of Facts' that each of the sexual assaults was committed without consent and that, after the first indecent assault, the victim had repeatedly asked to be taken to her destination.  It goes almost without saying that if this had been raised as an issue, the magistrate would have been under a duty to consider holding a Newton hearing.  We should, in this context, add that in the original mitigation speech on 23 August 2004, counsel had stated that the respondent understood he had been "extremely stupid" and "wondered whether he himself had some psychological problems …".  A background report was ordered on that occasion.  The second speech in mitigation, on 6 September 2004, was made by different counsel when again there was no suggestion that the respondent had believed the victim had consented to his actions.  We have also noted that the probation officer's background report gave no indication of the respondent having made such a suggestion.

18. In this regard, it seems to us, therefore, that the magistrate may have fallen into serious error by stating (in paragraph 14 [above] in paragraph ‘21' in the magistrate's review of sentence) that it "remains very important that, from the point of view of the defendant, [he] was under the impression that the girl was consenting to [his] act".

19. At the proceedings before us on 27 October 2005, Mr Zervos and his learned junior, Mr David Leung were unable to remember whether anything was said to the magistrate by a third legal representative who then acted for the respondent which may have caused the magistrate to make such a finding in favour of the respondent.  Mr Burkett, now representing the respondent, was not involved in any of the lower court proceedings and was for this reason unable to assist.  We came to the conclusion that we had no option but to adjourn these proceedings for a transcript of the submissions heard by the magistrate before he gave his reasons for declining to review the sentence he had imposed.

20. We have now considered the additional transcript from which it has emerged that nothing of any significance was said to the magistrate which was not already known to him.

21. The fact remains that if it seems a little curious that the victim agreed to get into the front seat of the taxi and did not run away or struggle or shout out at any stage when the taxi was stationary, this was the way this particular 14-year-old girl reacted to the respondent who was about 24 years her senior.

22. There were important factors to be weighed in the balance most of which did not support a lenient approach being taken towards the respondent.  In particular, whilst it may have been an aggravating feature of the case if the respondent had admitted a realisation of the girl's true age, we do not think that in the circumstances of this case that the respondent's misunderstanding of her age made any material difference to the gravity of the offence.  By simple virtue of his occupation, the victim was placed in a particularly vulnerable position and the respondent made short work of taking full advantage over the victim.

23. Effectively, although Mr Zervos did not express his submission in quite this way, it was contended that the magistrate had allowed the mitigation to obscure the underlying gravity of these offences leading to the imposition of a sentence which would have been appropriate for assaults in a much less serious class of indecency.

24. With his customary care and sense of realism, Mr Burkett advanced the best points which could be made on the respondent's behalf.  He also informed us about the chronology of events following the respondent's release from prison on 6 October 2004 which, with the present proceedings and the earlier review before the magistrate, can only have deepened the respondent's anxiety.  It is now about 2 years and 4 months since the offences were committed.

Conclusion

25. Cases of this kind are never easy to decide.  It is apparent to us that the magistrate had given close consideration to all the facts which were important to the issues involved, both for and against the respondent.  Having said this, it is our view that the true seriousness of this case was, with respect, overlooked by the magistrate.  Women, travelling at night by taxi, and young girls in particular, are entitled to expect that they can do so in complete safety without the unwanted attentions of the taxi driver being foisted upon them.  Of course it is true that this was not the worst kind of indecent assault.  Had it been more serious, no doubt the prosecution would have selected a different venue for trial where a higher sentence could be imposed.

26. As it is, however, we are satisfied that the sentences, individually and collectively, were manifestly inadequate and that these offences called for a total sentence in the region of 18 months after trial.  Having regard to the respondent's timely pleas, this would be reduced to 12 months.  Although there is strictly no longer a requirement to make a further reduction on a review of sentence, the fact is that the overall sentence was originally only 2 months and the respondent has long since been released.  In such circumstances, we consider that 6 months' imprisonment should be imposed on each charge to be served concurrently.

27. Accordingly, this application is allowed.  The 2-month sentences on charges 1 to 3 are quashed.  In their place, the respondent is sentenced, for the reasons we have given, to concurrent terms of 6 months' imprisonment on each charge.