HKSAR v. POON KAR YUE

CACC 356/2017

[2018] HKCA 684

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 356 OF 2017

(ON APPEAL FROM DCCC NO 269 OF 2017)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  On 30 August 2017, in the District Court, the appellant pleaded guilty before Deputy Judge M Chow (“the judge”) to three charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200. The judge adjourned the case for a psychiatric report and a psychological report to be prepared on the appellant, as well as three victim impact reports from the respective victims. On 26 October 2017, the appellant was sentenced to an overall term of 2 years and 4 months’ (or 28 months’) imprisonment.

2.  On 20 July 2018, the appellant was granted leave to appeal against sentence by the Single Judge.  On 5 September 2018, having heard argument from the parties, we allowed the appeal and reduced the overall sentence to 18 months’ imprisonment, indicating that we would give our reasons in due course.  These are our reasons.

The facts admitted by the appellant

3.  Each of the offences in question took place in different rooms of the same Student Hall of Residence at the Hong Kong Polytechnic University (“the University”), of which Ms X, the victim of Charge 1, Ms Y, the victim of Charge 2, and Ms Z, the victim of Charge 3, were the respective occupants.  The appellant, who was also a student at the University, was not a resident of the Student Hall in question but would go there regularly to visit his girlfriend, since she was also occupying a room in the same Student Hall, although their relationship had terminated shortly before the commission of the offences.  All of the victims (who were 22 years of age at the time) were casual friends of the appellant.

Charge 1

4.  On 14 October 2015, at about 7:10 am, the appellant entered Ms X’s room while she was asleep.  Ms X felt that someone was beside her, hugging her from behind.  When she turned around, she saw the appellant and tried to get up.  However, he hugged her tightly.  She tried to push him away two or three times.  The appellant then inserted his hand into her T‑shirt and molested her belly.  Ms X claimed that she felt unwell and went to the toilet, where she took the opportunity to put on a brassiere.  When she tried to go towards the door, the appellant stopped her from opening it saying that he did not want others to know he was there.  The appellant told Ms X that he was unhappy because he had broken up with his girlfriend.  Ms X ended up sitting on the side of the bed, where the appellant managed to hug her again and touch her thigh.  He also tried to bite her neck but Ms X was able to pull away from him.

5.  Later, Mr Ho, who was a common friend of Ms X and the appellant, entered the room and in his presence, the appellant hugged Ms X again and lay against her thighs.  The appellant stayed in the room for some 50 minutes until Ms X left at about 8 am.

Charge 2

6.  On 18 October 2015, at about 11 am, the appellant entered Ms Y’s unlocked room where she was sleeping with her roommate.  The appellant put his hand inside Ms Y’s T‑shirt and molested her belly.  She requested him to stop and tried to push him away.  He then hugged her from behind but she pushed him away again, after which she asked him to leave.  The appellant duly left the room.

Charge 3

7.  On 21 October 2015, at about 8 pm, the appellant entered Ms Z’s room where she was studying alone with the door open.  The appellant switched off the light, picked Ms Z up and placed her on the bed, where he began to tickle her.  Ms Z immediately asked him to stop and tried to push him away.  However, the appellant lay on her body, kissed her, inserted his tongue into her mouth and molested her breasts over her brassiere.  He then inserted his hand into her shorts to touch her private parts and managed to penetrate her vagina with his finger.  Observing that Ms Z was shocked and shaking, the appellant stopped and apologised to her.  Later, Ms Z’s roommate returned and the appellant left the room.

The arrest

8.  Ms Z reported the incident to the Hall Warden, as a result of which the appellant was prohibited from entering the Student Hall.  The appellant sent Whatsapp messages to Ms X and Ms Z on 14 and 23 October respectively apologising to them.  The three victims reported the matter to the police on 28 October 2015, as a result of which the appellant was arrested the same day.

9.  In a subsequent cautioned interview, the appellant admitted the commission of all of the offences.  He explained that he was looking for someone to talk to because he was unhappy following an argument with his girlfriend.  He said he had subsequently apologised to Ms X and Ms Z onWhatsapp, and had approached a social worker of his own volition in order to prevent these incidents from happening again.

Mitigation

10.  The appellant was also 22 years of age at the time of the offences, and of clear record.  His parents had separated when he was a child.  It was submitted by his counsel that, despite what was said to be an “average” academic performance, the appellant had worked hard to get into and complete university[1]. In 2017, he obtained a Bachelor’s degree in mechanical engineering, which, it was suggested, might nevertheless be taken away by the University as a consequence of the offences[2].  We have since been informed that the University has decided to confer the degree, but that it will be deferred until 2019.

11.  Although the appellant did not suffer from any psychiatric disorder[3], it was suggested in the psychological report that the offences could be related to his repeated and maladaptive use of intimacy and sex to cope with emotional distress, leading to him exploiting the trust of the victims for personal gratification.  His risk of sexual recidivism of offences of a similar nature was assessed to be at the low end of moderate level.  He indicated his willingness to receive psychological assistance in respect of his intimacy skills, stress coping and mood management, which the clinical psychologist considered would be beneficial in preventing him from re‑offending[4].

12.  No less than 20 mitigation letters, written by the appellant’s school friends and teachers, were adduced before the court.

The victim impact reports

13.  The three victims were assessed by their respective clinical psychologists after the incidents.  We shall not go into any great detail concerning their findings in this judgment.  Suffice it to say, two of the reports suggest that the respective victims were badly affected by the incidents, and continue to be affected by them, and their conclusions do not assist the appellant.  However, it is to be noted that the clinical psychologist, who interviewed Ms Z and subsequently compiled her victim impact report, remarked that “although she believed that her abuser deserved legal penalty for his unlawful acts, she found the broadcast of his identity and outlook unnecessary and over‑punishing.  Such effect, she believed, would destroy his entire future and that was not what she expected but felt responsible for”.

Sentence

14.  In passing sentence, the judge noted that the offences were very serious and that there were no sentencing guidelines for the offence.

15.  The judge formed the view that there were two particular aggravating features present in the facts of the case.  Since the argument before us has centred on these two features, we shall set out the judge’s findings in respect of them.  She held that:[5]

“All the three offences had taken place inside the resident hall, a place where those victims considered to be safe to such an extent that they did not lock their doors. In such circumstances, those offences were akin to taking place in their homes. That was an aggravating factor. The defendant was allowed to enter into the resident hall as a guest, not to take advantage of those victims. That amounts to a breach of trust, another aggravating factor.”

16.  The judge considered that, in the circumstances, the only mitigating factor was the appellant’s pleas of guilty, which had spared the victims from having to testify in court[6].

17.  She considered that an overall starting point of 3½ years’ (or 42 months’) imprisonment was appropriate for the three offences. To achieve that end, she adopted starting points of 21 months’ imprisonment in respect of Charge 1; 15 months’ imprisonment in respect of Charge 2; and 3 years’ imprisonment in respect of Charge 3.

18.  After giving the appellant a full one‑third discount, the judge arrived at the following sentences:

(i) Charge 1: 14 months’ imprisonment, 2 months of which was ordered to run consecutively to, the remainder concurrently with, Charge 3;

(ii)  Charge 2: 10 months’ imprisonment, 2 months of which was ordered to run consecutively to, the remainder concurrently with, Charge 3; and

(iii)  Charge 3: 2 years’ imprisonment.

The resulting sentence was, therefore, 2 years and 4 months’ (or 28 months’) imprisonment.

Grounds of appeal

19.  Mr David Ma, counsel for the appellant in this Court but not below, has advanced four grounds of appeal.  First, he argues that the judge erred in finding that there was a “breach of trust” element in the offences, given that there was no relationship in loco parentis between the appellant and any of the victims (Ground 1).  Secondly, the judge was wrong to treat the location of the commission of the offences as an aggravating factor (Ground 2).  Thirdly, the starting point for each offence was manifestly excessive (Ground 3).  Fourthly, the overall sentence was manifestly excessive (Ground 4).

20.  For the purposes of developing his grounds of appeal, Mr Ma referred this Court to 15 cases[7], all of which were sentences either at first instance in the High Court or District Court, or decisions in Magistracy Appeals.  However, as he pointed out, an indecent assault case would seldom come before the High Court for trial by itself unless associated with a more serious offence such as rape.  Most indecent assault cases would typically come before a Magistrate’s court or the District Court.

Respondent’s submissions

21.  In relation to Ground 1, Mr Ira Lui, on behalf of the respondent, submitted that the appellant had clearly abused the trust or privilege granted to him as a guest, although he accepted that “breach of trust” might not be the most apt term to describe the appellant’s conduct.  However, he argued that the notion of “breach of trust” should not be given too narrow an interpretation nor confined to a situation where the appellant was entrusted with the care or custody of the victim.

22.  In relation to Ground 2, Mr Lui submitted that the authorities had made clear that it was a serious aggravating feature for an indecent assault to be committed in a place considered by the victim as a personal sanctuary or safe haven.

23.  In relation to Ground 3, Mr Lui submitted that each starting point was appropriate.  He pointed to the circumstances in which the offences were committed, namely:

(a)	The victims were the appellant’s casual acquaintances with whom he had had no previous intimacy.	*
(b)	The indecent assaults took place in dormitory rooms.	*
(c)	There was an abuse of trust or privilege.	*
(d)	The degree of indecency was considerable and escalating.	*
(e)	The indecent assaults were persistent.	Charges 1 and 3
(f)	The victim was molested in the presence of a roommate.	Charge 2
(g)	The offences took place within a short period of 8 days.	*
(h)	The victim suffered profound psychological trauma.	Charges 2 and 3
(i)	The risk of re-offending was moderate.	*

The symbol * indicates that this factor is applicable to all charges.

24.  In response to Ground 4, Mr Lui submitted that the judge was correct in imposing partially consecutive sentences because there was no nexus between the three offences, which were all serious and committed on a repeated basis over the space of 8 days.

Consideration

Breach of trust

25.  We feel we should deal with the issue of what amounts to a “breach of trust” for the purpose of aggravating a sentence, since we perceive a tendency among judges and magistrates on occasion to apply the term too liberally.  There is a danger that a convenient label can sometimes become misunderstood and misapplied with the frequency of its use.

26.  It is a well‑established principle of sentencing that where there exists a relationship of trust between a defendant and the victim of his crime, his criminality is seen in more serious terms, justifying a more severe, or different type of, sentence.  The classic examples of such a relationship are an employer and employee, a professional and client, customer or patient, a teacher and pupil and a parent and child.  However, there are other types of relationship which, depending on the facts and circumstances, may also fit within these categories; for example, a pastor and a member of the congregation, a police officer and a citizen and, in respect of a child, anyone who stands in loco parentis or an adult relative or friend of the family. There is also a relationship of trust between spouses, family members and close personal friends or colleagues.  The defining quality of such relationships is that, by virtue of a person’s position or authority, he is entrusted with access to something or someone he would not otherwise have, which he then misuses or abuses for his own personal advantage or pleasure.

27.  The danger with the label “breach of trust” is that the concept of trust can be given a very wide meaning and extend into many aspects of human life and activity.  For example, a taxi driver might be said to be trusted not to cheat on the fare, or place his passenger at risk.  The chef of a restaurant is trusted to avoid unsafe and unhygienic practices in providing food to his patrons.  Even the customer of a shop or supermarket can be said to be trusted not to take goods on display without paying for them.  Yet, it would not normally be suggested that the taxi driver, the chef or the customer had abused a position or authority in relation to the “victim” he would not otherwise have had, thus meriting an enhanced sentence.

28.  Although Mr Lui preferred to describe the appellant’s conduct as an “abuse of privilege” rather than a “breach of trust”, he had understandable difficulty in identifying what the privilege was.  For it became clear upon our enquiry that, at the time of these offences, any member of the University would have been able to enter the Student Hall in question at any time without a pass, without any specific permission and without any special possession or knowledge of a key or code to the floor in question. Moreover, the particular Student Hall housed both male and female students, albeit on different floors of the same building, and there were no rules restricting access by a member of the opposite sex at any particular time of the day.

29.  Of course, one would expect that a fellow student visiting the Student Hall would have a proper reason for doing so, particularly where the occupants had the habit of leaving their doors unlocked.  One might in those circumstances say that the students had a culture of trust or confidence amongst themselves not to take advantage of that practice.  However, whilst a judge would certainly be entitled to have regard to the context of the offences in assessing where in the range of seriousness they fell, we do not think that the appellant’s conduct in these circumstances amounted to a “breach of trust” in the way that term is meant to be used for sentencing purposes.

The place of the commission of the offence

30.  Although the Student Hall might be viewed as a quasi‑domestic or private setting, albeit a temporary and shared one, we do not think that this factor should be given too great a prominence in the circumstances prevailing in this case.  In Secretary for Justice v Leung Yuet Hung[8], Stock VP, giving the judgment of the Court, said:[9]

“… it is common in this territory for both parents to go to work, the majority of whom do not have the luxury of home help or relatives to look after children who come home alone from school to get on with their homework or other tasks until their parents come home. Parents have come to trust the relatively safe, albeit crowded, environment in which they thus conduct their daily lives and there is therefore required in cases such as the present a strong deterrent component – meaning a need to deter others who might be minded to take advantage of that setting, to sexually abuse children left at home on their own”.

31.  In the earlier decision of HKSAR v Mahal Harpeet Singh[10], in a separate judgment from Wright J, who gave the judgment of the Court, Stock VP had equated the home and school as:[11]

“… places to which the householder and the schoolchild, respectively, come and go on a daily basis, places where they feel and are entitled to feel comfortable and are places to which, unless forced by the experience to change home or school, the victim will be returning day by day after the violation of her person, a constant reminder, therefore, of the drama visited upon her by the act of rape”.

The purpose of Stock VP’s separate judgment was to take issue with a statement made in the earlier decision of a differently constituted Court in HKSAR v Chung Chi Wing[12].

32.  We would not dissent from either of Stock VP’s statements in these two judgments.  However, both HKSAR v Chung Chi Wing and Secretary for Justice v Leung Yuet Hung were respectively concerned with the rape and attempted rape of a minor by an adult; the former, by a stranger who had lured a 13‑year old girl into his vehicle outside her school, the latter, by a stranger who had inveigled himself into a 12‑year old girl’s home on the false pretence that he was there to read the gas meter.  Although the setting in which the offences took place in the present case was a matter to bear in mind in assessing the seriousness of the offences, we do not think that there is the same level of comparability in terms of aggravation between a sexual offence committed in the victim’s home or school by a stranger and an indecent assault committed in a Student Hall by someone who was a casual friend of each victim, a regular visitor to the Student Hall and a fellow student at the University.

33.  Accordingly, we accept Mr Ma’s submissions that the judge’s identification of this case as a “breach of trust” and her over‑emphasis on the place where the offences were committed led her to adopt aggravated starting points that were, in all the circumstances, too great.

34.  However, the judge was plainly right, in the context of three similar offences carried out over a relatively short period of time, to look at the whole course of criminal conduct, to ask herself what the overall starting point should have been and then to make the individual sentences for each offence partly consecutive or partly concurrent so as to achieve her aim.  She was also right to regard the third offence as the most serious both in terms of its facts, its effect upon the victim and the fact that it represented a significant escalation of the earlier acts of indecency.

35.  In our judgment, had the appellant been convicted after trial of all three offences, in particular bearing in mind that there were three separate offences committed within the space of 8 days, he could have expected an overall sentence in the region of 27 months’ imprisonment.  Having pleaded guilty at the first available opportunity, we consider that the individual starting points and sentences after plea should have been as follows:

(i) Charge 1: 6 months’ imprisonment after trial, reduced to 4 months’ imprisonment for plea;

(ii) Charge 2: 3 months’ imprisonment after trial, reduced to 2 months’ imprisonment for plea;

(iii) Charge 3: 24 months’ imprisonment after trial, reduced to 16 months’ imprisonment for plea.

We order that the sentences on Charges 1 and 2 should run concurrently with each other and with the sentence on Charge 3, save that 2 months of the sentence on Charge 1 will be ordered to run consecutively to the sentence on Charge 3; thus making a total sentence of 18 months’ imprisonment.

36.  Accordingly, the overall sentence on the appellant is reduced from 28 months’ imprisonment to 18 months’ imprisonment. To that extent, this appeal is allowed.

[1] Transcript: Appeal Bundle, p 22J-M.

[2] Transcript: Appeal Bundle, p 34K-M.

[3] Psychiatric report on the appellant, §6: Appeal Bundle, p 37.

[4] Psychological report on the appellant, §§14-15: Appeal Bundle, pp 40-41.

[5] Reasons for Sentence, §35: Appeal Bundle, p 18.

[6] Reasons for Sentence, §37: Appeal Bundle p 19.

[7] HKSAR v Siu Tsz Lung HCMA 624/2016, HKSAR v Tong Lap Wah HCMA 474/2014, HKSAR v Ng King Ho HCMA 102/2012, HKSAR v Yeung Fung HCMA 17/2012, HKSAR v Yeung David HCMA 201/2012, HKSAR v Chan Kam Wing [2006] HKCLRT 18, HKSAR v Man Ka Ho DCCC 829/2012, HKSAR v Law Wai Man HCMA 583/2006, HKSAR v Ma Tze Yeung HCMA 123/2012, HKSAR v Lai Chi Wai HCMA 123/2003, HKSAR v Yip Kei Kwan HCMA 1047/2006, HKSAR v Chan Tat Shing DCCC 42/2017, HKSAR v Au Alvin DCCC 962/2010 & 42/2001 (Consolidated), HKSAR v Keung Chi Wai HCMA 384/2009, HKSAR v Chan Siu Fung HCCC 370/2014.

[8] Secretary for Justice v Leung Yuet Hung [2014] 3 HKLRD 304.

[9] Ibid., at paragraph 44.

[10] HKSAR v Mahal Harpeet Singh [2012] 1 HKLRD 517.

[11] Ibid., at paragraph 43.

[12] HKSAR v Chung Chi Wing [2010] 5 HKC 75.