R. v. LEUNG KWONG

IN THE COURT OF APPEAL

1993, No. 76
(Criminal)

Headnote

Sentence - Man aged 59 with no previous convictions - pleaded guilty to unlawful sexual intercourse with patient receiving treatment at mental hospital contrary to s.65(2) (c) Mental Health Ord. Cap. 136. Held: Appeal against sentence of eighteen months' imprisonment allowed. Deterrent sentence not justified. Principle regarding immediate custodial sentence for first offenders in Lau Chu-tak [1985] HKLR 23 at 27 applied. Observation on principle embodied in the expression "clang of the prison gate".

IN THE COURT OF APPEAL

1993, No. 76
(Criminal)

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J U D G M E N T

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Litton, J.A.:

The applicant Leung Kwong was convicted on 9 February 1993 on two charges on his own plea. The offences occurred in September 1991, on two separate occasions in that month. The offence charged was sexual intercourse with a woman receiving treatment for a mental disorder at the Castle Peak Hospital contrary to section 65(2) (c) of the Mental Health Ordinance, Cap. 136.

After having obtained a probation report the District Judge, Her Honour Judge Beeson, sentenced the applicant on 18 February 1993 to 18 months' imprisonment on each charge to be served concurrently.

The applicant is a married man aged 59 years. He had received little education but he and his wife have brought up a large family of six children who are now all grown-up. The applicant has never been in trouble with the law and the members of the family seem to be all gainfully employed. The applicant has lost one of his fore-arms in an accident in 1980 and at the material time he was employed as an orderly at the Castle Peak Hospital. The probation report was extremely favourable as regards the applicant and his background.

The judge in imposing the concurrent sentences of 18 months' imprisonment said this :

"Castle Peak is home to a great many patients and those patients and their families and friends are entitled to the assurance that patients under treatment or care are not taken advantage of in this way."

We would support this expression of view. However there are two matters of concern on this application for leave to appeal. (1) The judge thought that in the circumstances of this case a deterrent sentence was justified. In this regard she had failed to take into account the decision of this court, sitting in a bench of five in A.G. v. Lau Chu-tak [1984] HKLR 23 at p.27 that generally speaking a deterrent sentence in relation to a first offender is not justified. It has to be borne in mind that the applicant was not, strictly, in a position of trust vis-a-viz the "victim" in that he was not in any position of authority over the patients in Castle Peak Hospital. A suspended sentence should have been within the range of punishment under consideration.

(2) The judge took three years' imprisonment as a starting point for sentence, having regard to the fact that the maximum sentence for this offence was five years. Even if an immediate custodial sentence was considered justified, this appears to us to be far too high a starting point, considering the lowly position of this applicant in the hierarchy in Castle Peak Hospital and the fact that the woman concerned was plainly a willing party. No element of seduction by this applicants seems to have been involved. This was in effect conceded, very properly, by Mr. Bruce.

We feel that these two matters of error in principle do impeach the sentence passed by the District Judge. As a result of the commission of the offence the applicant has lost his job and, at his time of life, he is unlikely to find another job. He has brought considerable shame on himself and on his family and appears to be fully contrite and on this account he must have already suffered considerably.

An immediate custodial sentence on a man of the applicant's background is a traumatic experience; even if the general approach of the District Judge in imposing an immediate custodial sentence was justified, we feel that this is the sort of case where the principle embodied in the expression "The clang of the prison gate" is appropriate: a short sharp period of imprisonment is all that is called for; there is no possibility of the applicant repeating the offence. The applicant has served nearly six months in prison and we feel that this operates as a sufficient punishment in relation to the crimes committed. The result is that the application is allowed. We treat the hearing of the application as the hearing of the appeal on sentence, set aside the sentence imposed by the District Judge and impose one which enables the applicant to be discharged from prison today.