TAM CHI YIM v. R.

IN THE COURT OF APPEAL

1993, No. 319
(Criminal)

___________

_______________

J U D G M E N T

________________

Hon. Yang, CJ

1. In this application TAM Chi Yim seeks leave to appeal against sentence.

2. He originally faced 15 counts of indecent assault, attempted incest and incest. The victim in each count was his daughter, then just under 13 years of age.

3. After trial TAM was acquitted by the jury of all counts except Counts 13 and 14 (attempted incest), and Count 15 (incest). He was sentenced to concurrent terms of eight years' imprisonment on each of the three counts. The offences covered a period of about three months from March to May 1992; they were committed at the applicant's home.

4. It is not necessary here to relate the sordid details of the offences, save to say that no violence was used.

5. In passing sentences, the trial judge correctly adopted a starting point of six year's imprisonment: vide Attorney-General's Reference (No. 1 of 1989) 1 WLR 1117, at 1123. However, he went on to take as an aggravating factor the applicant's "malicious accusation" made in the course of the trial against his daughter, thereby indicating that not only had he not shown any remorse, he had "in fact aggravated the psychological damage" to the girl.

6. With respect to the judge, we think he erred in taking into consideration the conduct of defence in court when assessing sentence : vide Siu Hei-nam v. The Queen (1979) HKLR 188. The act of pleading guilty and thereby relieving the victim of the ordeal of giving evidence is a factor in mitigation of sentence. However, the fact that an accused contests the issue of guilt is not a matter which justifies an increase in a proper sentence.

7. Also the judge does not appear to have considered that the applicant was suffering from pulmonary tuberculosis and that he had a clear record. There was some doubt about his age. According to his Identify Card, he is 46, but he claimed to be 57. The judge did not come to a view as to the correct age, but we thought he was nearer 57 than 46, and counsel for the Crown did not dispute this. In our judgment, the judge should have considered the mitigating factors mentioned above, namely, his clear record, his illness and his age.

8. In the circumstances, we allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal. The sentence on each of the three counts is reduced from eight to six years, sentences to run concurrently.