HKSAR v. CHEUNG KWAI SANG

HCMA47/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.47 OF 2002

(ON APPEAL FROM KCCC 3162 OF 2001)

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J U D G M E N T

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1. The appellant was convicted on 14 December 2001 of one count of indecent assault and sentenced to nine months' imprisonment. The charge was that on 23 November 2001 at a health centre in Cameron Road, Tsimshatsui, he indecently assaulted an Australian woman who was a tourist.

2. The facts accepted by the magistrate were that the woman had come to Hong Kong with her husband. She was in her mid-twenties. Having had a foot massage together with her husband in the establishment run by the appellant, she decided to return the next day. Her husband did not wish to have a further massage. She was led to a massage bed by the appellant who pulled a curtain around the bed. In the course of the massage that took place thereafter the magistrate found an indecent assault took place to the breasts and the private parts of the woman.

3. The defence was that many of the acts complained of had not occurred. A position that was maintained by the appellant throughout the psychiatric and background reports that were applied for and supplied in respect of him. The magistrate made specific findings that all the acts complained of by the appellant had been performed by him and that each and every one was an indecent assault.

4. The first ground of appeal is that the magistrate erred in placing too much emphasis on the fact that the woman's trip to Hong Kong was totally spoiled, given that there was no evidence that the defendant had knowledge that she was a tourist. It is an increasing factor in sentencing that the impact on the victim be taken into consideration. This is not a charter to victims to address courts as to what happened to them and the effect it had upon them but it is appropriate for courts to consider the overall effect the particular offence would have had upon the victim.

5. In the course of her Reasons for Sentence, the trial magistrate said this :

"... She wanted to try the 'authentic style of Chinese massage'. However, it turned out to be a case of indecent assault. She felt humiliated and her trip to Hong Kong ended up in a traumatic experience. Her trip was totally spoiled."

6. I do not take from that the magistrate relied unduly on the fact that her trip was totally spoiled. Her comment at that point is little more than a description of what actually happened rather than a factor in the mind of, or which ought to have been in the mind of, the appellant at the time of the commission of the offence. This ground of appeal must fail.

7. The second ground of appeal is that the magistrate, having found rightly that the case was a breach of trust, erred in failing to consider sufficiently that the facts of the present case were not of the most serious type of breach of trust case, and with this, I must agree. There is some force in what Mr Chan for the appellant says. Quite clearly, although having placed herself in the hands of the appellant in circumstances of privacy where she was entitled to consider that she would be properly and decently dealt with, it is not the most serious case of breach of trust nor the most serious type of case in where breach of trust occurs, and having said that I would also comment that if it were of the more serious type of case, then the sentence would be far greater than has been passed. The case referred to me by Mr Cheung for the respondent and also commented upon by Mr Chan of HKSAR v. Chan Ching-ho [2001] 3 HKLRD 476, is such a case and rightly reflected the breach of trust towards a young child of six years of age in a total sentence of five years' imprisonment which was undisturbed by the Court of Appeal. The level of the breach of trust is reflected in the comparatively light sentence passed in this case.

8. The third ground of appeal is that the magistrate failed to consider sufficiently the good character of the appellant. The magistrate said :

" I took into account all the mitigating factors before me. I also bore in mind that the Appellant had a clear record. He was 57 years of age."

Further, in the description of the mitigation placed before her, the magistrate said :

" He was a man of good character."

9. In fact, the magistrate took fully into account that the appellant had reached the age of 57 years. He was a hardworking man, a responsible husband and was a man of good character. What Mr Chan complains of is that having considered that, she should have reduced the sentence more than she did. Full consideration was given and the issue before me is not whether the magistrate failed to sufficiently consider the good character because she did so. What I must consider is whether the sentence passed bearing the mind that good character is an appropriate one which brings me onto the last ground of appeal and that is that the sentence is inappropriately long, being manifestly excessive or wrong in principle, given that deterrence is not a factor which is necessary for the magistrate to take into account in this case.

10. The cases quoted of R. v. Lui Ho, HCMA981/1992 and R. v. Maclennan [1996] 4 HKC 507 are old cases and neither of which take into account, as Mr Cheung has argued, the impact on the victim. Mr Cheung quotes the case that I have already referred to of HKSAR v. Chan Ching-ho where Stuart-Moore V-P said :

"In short, we consider the judge had recognised three important sentencing consideration in cases of this kind, namely the need to deter others, the need to mark the public abhorrence of such crimes and the need to redress the grievance suffered by the victim, her relatives and friends."

11. Mr Chan argues that this case is distinguishable upon the basis that the victim in that case was six years of age whereas the victim in this was a mature married woman of 27 years of age.

12. I agreed with that distinction. However, it is for the judge to recognise those three important sentencing considerations in the light of the facts the particular case before her. It is important that in all cases involving indecent assault that there be an element of deterrence of others to mark the public abhorrence and a need to redress the grievances suffered. Those necessities, those requirements and those considerations will vary depending upon the nature of the indecent assault.

13. In this case, I am satisfied that the magistrate's approach was proper, that she took into account those three sentencing considerations at a level at which she ought to have considered them and that the sentence she passed in all the circumstances was wholly appropriate, was neither manifestly excessive nor wrong in principle. The appeal against sentence is dismissed.