HKSAR v. KONG HO WAN

HCMA 776/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 776 OF 2015

(ON APPEAL FROM ESCC NO 167 OF 2015)

________________

________________

________________

J U D G M E N T

________________

INTRODUCTION

1.  The appellant was convicted in the Eastern Magistracy before Mr Lee Siu-ho, sitting as a Permanent Magistrate ("the Magistrate") on one charge of "indecent assault" (Charge 1) and another charge of "misconduct in public office" (Charge 2).  He was sentenced to 14 months' imprisonment on Charge 1 and 8 months' imprisonment on Charge 2 with 2 months of the imprisonment term of Charge 2 to run consecutively to the sentence on Charge 1, making a total of 16 months' imprisonment.

PROSECUTION CASE

2.  In the early hours of 13 January, 2015, it was alleged that the appellant, a serving police officer, led female X (PW2), an arrested person just released on bail by the police, to a female toilet at G/F, Arsenal House ("the female toilet"), East Wing, Police Headquarters, 1 Arsenal Street, Wanchai ("Police HQ").  The two went in and under the pretext of a body search, PW2 was told by the appellant to lift her clothing and remove her trousers.  The appellant lifted her brassieres and touched PW2's breasts on both sides and he also pulled over her underpants to have a look inside.  He also later asked PW2 to sit on the toilet bowl inside the cubicle and took off the underpants.  The Magistrate has succinctly outlined the prosecution case in his Statement of Findings (paras. 5-43) and I shall conveniently adopt it in this judgment as follows :-

"IVCommon ground[1]

5. The Defendant joined the Hong Kong Police Force in Aug 2009. On 12^th and 13^th Jan 2015, he was attached to District Investigation Team 3, Wanchai District (Team 3), whose office was at Room 304 of Wanchai Police Station (Wanchai PS).

6. PW2 is a Mainland resident. She was aged 34 at trial. She was married. She is a university graduate and a medical doctor by occupation. She came to Hong Kong on 31^st Aug 2014 for research internship lasting 6 months.

7. At 1840 hours on 12^th Jan 2015, PW2 was arrested for stealing some food items[2] (the theft case) in a supermarket of SOGO department store (SOGO) and she was brought back to Wanchai PS.

8. The theft case was investigated by District Investigation Team 9, Wanchai District (Team 9), whose office was at Room 303 of Wanchai PS. The officer-in-charge was then Inspector LUNG Sin Hang (PW10).

9. Defendant belonging to Team 3 was not involved in the investigation of the theft case at all.

10. At 1916 hours, at Room 112 of Report Room at 1/F of Wanchai PS, WPC14052 (PW6) assisted the arresting officer of PW2 in the theft case[3] to conduct a search.

11. At 2159 hours on 12^th Jan 2015, DPC54694[4] of Team 9 took PW2 from Duty Officer for taking photographs and fingerprints. At 2318 hours, he handed PW2 to WDPC9141 (PW5), with English name of Becky, of Team 9 for taking cautioned statement.

12. From 2339 hours on 12^th Jan 2015 to 0013 hours on 13^th Jan 2015, PW5 interviewed PW2 at Room 309 at 3/F of Wanchai PS. While PW5 was interviewing PW2, the door of Room 309 was open. A person who passed by outside Room 309 could see PW2 inside and vice versa. A photocopier was placed outside Room 309 close to it[5].

13. PW2 was at the end charged with theft and scheduled to attend court on 20^th Jan 2015.

14. On 12^th and 13^th Jan 2015, Sgt 46284[6] was Duty Officer of Wanchai PS. At 0022 hours on 13^th Jan 2015, PW5[7] handed PW2 to Sgt 46284 for making bail arrangement.

15. Released on bail, PW2 left the Report Room of Wanchai PS. It was raining outside and she was holding an umbrella. Soon after, she came across Defendant in the vicinity.

16. At 0032 hours on 13^th Jan 2015, Defendant led PW2 through a glass door and a turnstile into G/F, East Wing, Police HQ, and then to the Female Toilet.

17. At a narrow doorway outside the Female Toilet, Defendant[8] and PW2 met a night shift security guard stationed at East Wing Police HQ i.e. Mr LI Chih-peng (PW3), who happened to go out from the male toilet to return to his working post. PW3 later witnessed the two of them coming out from the Female Toilet.

18. At 0036 hours, Defendant swiped his warrant card to procure PW2 to leave East Wing Police HQ through another turnstile and through the same glass door she went in.

19. Later, Defendant himself left East Wing Police HQ through a different glass door and returned to Wanchai PS.

20. CCTV cameras installed at and/or inside Wanchai PS and East Wing Police HQ had captured the movement of PW2 and/or Defendant in the early hours on 13^th Jan 2015. A compact disc containing 21 such footages is produced as Exhibit P23.

21. A series of sketches, plans and photos, of East Wing Police HQ and Wanchai PS, including locations of subject CCTV cameras, are also produced before the court.

22. Around 1730 hours on 13^th Jan 2015, PW2 was picked up by WPC57033 (PW9) and DPC58880 (PW8) with vehicle arranged by police from hotel to police station, where she made a report. Various properties were seized from her by PW8 and produced as Exhibits P11-P18[9]. At 1900 hours, PW2 had a meeting with, inter alia, Chief Inspector LAM Siu Wah (CIP Lam), Senior Inspector WONG Sau Kwan (PW1) and PW9 (13^th Jan Meeting). At 2015 hours, PW2 started giving her first witness statement to PW9. After she finished giving her statement, she was taken back to hotel on vehicle arranged by police.

23. On 14^th Jan 2015, Defendant was arrested at his residence for the 1^st charge[10]. Various properties were seized from his residence by police and produced as Exhibits P19-21[11]. Under caution, he voluntarily gave answers which were accurately recorded in a police notebook (NB), produced as Exhibit P1.

24. On the same day, Defendant was voluntarily video-interviewed (VRI) by, inter alia, DSPC33303 (PW4) on 3 occasions, whose videos and transcripts are agreed accurate and produced as Exhibits P2, P3, P4 and Exhibits P2A, P3A, P4A.

25. On 15^th Jan 2015, PW2 was again picked up by vehicle arranged by police to police station where she positively identified Defendant in an identification parade between 1507 and 1514 hours. She started giving her second and third witness statements to PW9 at respectively 1615 and 1700 hours. PW2 was also taken back to hotel on vehicle arranged by police.

26. On the same day, Defendant was voluntarily video-interviewed by, inter alia, PW4 for the 4^th time, whose video and transcript are agreed accurate and produced as Exhibit P5 and P5A.

27. On 16^th Jan 2015, Defendant was charged with the 1^st charge by PW1, who had also taken up as officer-in-charge of the theft case.

28. The original hearing date of 20^th Jan 2015 for the theft case was re-scheduled by PW1 to 22^nd Jan 2015, on which day PW9 picked PW2 up from hotel to attend a hearing at Eastern magistracy (22^nd Jan Hearing) where PW2 was bound over (BO) for the theft case[12].

29. Finally, according to police general orders and directions (PGO)[13], the body search of a female theft suspect not in custody[14] must be carried out[15] by an officer of the same sex i.e. a female officer. If the situation is appropriate having considered privacy issue, a female officer can require such female suspect to remove all her underpants for search to be done but it has first to be approved by an officer of the rank of sergeant.

Prosecution case

30. PW2 gave evidence that, at Report Room of Wanchai PS, she was advised by a uniformed male officer of the route to get to N121 bus station to leave. Following such route, when she was about to get on a footbridge[16], she heard 'Ms, Ms' in Putonghua coming from behind. She turned around and saw Defendant in red 5 or 10m away. He waved his hand to ask her to come over to him, which she did.

31. Defendant told her 'Just now body search had not been done. Now you have to go back with me to do a body search'. Believing that body search had not been done on her, PW2 followed him. She once asked, 'Should body search be done by female?'. DefendantHe answered, 'Female officer had just knocked off for work' [17]. Having heard that, she did not ask further. PW2 said she had not met Defendant earlier. She thought at that time he was police officer because, inter alia, she saw a badge on his chest and he told her that she had not been bodily searched before.

32. Outside the Female Toilet, Defendant indicated to her to enter. She did[18] and he entered as well. Once inside, he asked her to put her things on the water basin and to take off her white jacket. She did as told. Defendant opened her plastic bag to take a look inside. Then he told her he would carry out body search. He patted her upper and lower arms. He asked her to turn round and patted her back. Then he patted both left and right sides of her legs, from ankle level to thigh level (PW2 had carried out demonstration in chief). Her buttocks were, she added, also patted.

33. Defendant then asked PW2 to turn round facing him, which she did. He told her to lift her clothing. PW2 took off her sweater and tight clothing underneath, exposing her 2 bras. He touched over the top of her bras a couple of times. He then lifted her bras, put his hands in and touched her breasts twice on both sides. He then said, 'It is finished'. PW2 put on her clothing, thinking that it was over.

34. But Defendant further asked her to remove trouser. PW2 lowered it to knee level, exposing her underpants. Then he pulled over her underpants and looked at it for a couple of times. He then asked her to sit on the toilet bowl inside the cubicle. After she went in and sat down, he added that she had to take off her underpants. PW2 took them off to knee level and sat on the toilet bowl[19]. He squatted down and looked at her private parts for a while, and then said, ‘It is finished’. PW2 put on all her clothing and collected her belongings[20]. They left the Female Toilet together. Before she left East Wing Police HQ, he asked her why she stole so many items and when she was to attend court[21], and reminded her to attend as scheduled.

35. PW2 made it clear, had Defendant had nothing to do with the investigation of the theft case, she would not have consented to his acts, and would not act as he required, inside the Female Toilet.”

THE MAGISTRATE’S FINDINGS

3.  In his Statement of Findings, the Magistrate was satisfied that PW2 was an honest and reliable witness and he found nothing inherently improbable about her evidence and he accepted her evidence to be the truth.  On Charge 1, the Magistrate ruled that any consent given by PW2 to the appellant's contacts with her body inside the Female Toilet was vitiated by the appellant's deception as to the nature of such acts and there is no basis at all for the appellant to believe that PW2 had consented to such acts.  On Charge 2, the Magistrate was satisfied that the appellant had wilfully and intentionally so conducted himself, knowing full well that such conducts were not in discharge of his duties, were in clear breach of PGO.  Such conducts, especially when they were committed inside Police HQ, further brought his office into disrepute and could damage the public confidence in the Hong Kong Police Force and/or law enforcement. 

4.  As for the defence case, after considering the mixed statements made by the appellant as a whole, the Magistrate decided to give full weight to such admissions the appellant had made in the NB and VRI.  Those inculpatory parts included, inter alias:-

(1)   The appellant had seen PW2 being interviewed by PW5 inside interview room at 3/F of Wanchai PS and overheard their conversation about the fact of the theft case outside the room;

(2)   The appellant knew that PW2 was a suspect under investigation by Team 9;

(3)   The appellant saw PW2 at the Report Room of Wanchai PS when he went down there and he knew that she was released on bail;

(4)   The appellant had touched Pw2's breast inside the Female Toilet.

5.  The Magistrate declined to attach any weight to the exculpatory explanations made by the appellant to the police as the same were not made on oath and have not been tested by cross-examination. 

APPEAL AGAINST CONVICTIONS

6.  Mr Cheng Huan SC, and with him Ms Money Lo and Mr Arthur Chan on behalf of the appellant, has raised three grounds of appeal against conviction:-

(1) The first ground (Ground 1) was that the reasons given by the Magistrate in concluding PW2 was an honest and reliable witness are plainly wrong and/or unsafe and unsatisfactory.

(2) The second ground (Ground 2) was that the Magistrate failed to analyse whether and how the "binding over", "special treatment" and the "partiality/impartiality of the investigation" would affect PW2's credibility and /or credibility.

(3) The third ground (Ground 3) is a general ground asserting that in all circumstances, each of the convictions is unsafe and unsatisfactory.

Ground 1

7.  Mr Cheng submitted that the Prosecution case rests exclusively on the credibility and /or reliability of PW2 and the Magistrate's analysis of PW2's evidence and why he accepted her evidence are critical to the Prosecution case.  He criticised the Magistrate's assessment of PW2's credibility and/or reliability under different headings below between paras. 61 and 110 of the Statement of Findings as plainly wrong and/or unsafe and unsatisfactory for the following reasons:

1.  Discrepancies re CR, BO and/or NCR (paras.61 to 69)

(a) PW2 alleged that the giving of evidence against the appellant in the present case had nothing to do with a theft case in which she was arrested and ultimately bound over. PW2 changed her evidence during cross-examination and she gave many evasive, inconsistent and incredible answers. In gist, PW2 alleged that she was not aware that binding over ("BO") would not carry any criminal conviction ("CR").

(b) PW2 alleged her search on the Internet revealed that there would be CR for BO. PW2 also alleged, most incredibly, that a police officer also told her during a private conversation that a BO would carry a CR. PW2 was also evasive about which date (whether 20 January or 22 January) that the BO was first mentioned to her after the theft case. She also alleged that it was only on 22 January 2015 after the binding over hearing that the police told her there would be no criminal conviction ("NCR").

(c) There was clear evidence that PW2 was told about the BO by PW5 (WDPC9141) on the evening of 12/13 January 2015 and that, "more probably than not" PW5 had told her a BO carried NCR. Therefore PW2 was aware that a BO would carry NCR when she left the police station on 12/13 January 2015. PW5 gave the impression to PW2 that BO was not a certainty and it is submitted that the Magistrate should not have ignored that this could have been a powerful incentive for PW2 to testify against the appellant in the present case to ensure she would be BO.

(d) Further, PW9 (WPC57033) was assigned to explain to PW2 about a BO and the consequences of NCR after PW2 was arrested for the theft case. This would have been at least the second occasion that PW2 would have heard about BO and NCR.

(e) PW9's evidence that she explained to PW2 that there would be "no conviction recorded" during the taking of the 3rd witness statement on 15 January is clearly contrary to the evidence of PW2 that she was only made aware of the issue of "no conviction recorded" on 22 January, 2015.

(f) TheMagistrate'sreasoningforreconcilingthesedifferences and/or discrepancies (between paras 65 and 69 of the Statement of Findings) are, individually or cumulatively, plainly wrong for the following reasons:-

(i) The Magistrate's acceptance from PW2 that there is no BO procedure in the Mainland (para. 65) is wrong as there is no evidence adduced and no judicial notice can be taken.

(ii) The Magistrate's finding that PW2 did not fully understand the information on the internet (para. 66) has no evidential basis and was based on speculations.

(iii) The Magistrate's finding in para. 67 does not explain PW2's evidence that she was only made aware of the NCR for the first on 22 January, 2015.

(iv) Under para. 68, the Magistrate's finding that PW2 had undergone various procedures and kept no written record was overtly generous as the issue of NCR is such an important issue.

(v) Under para. 69, the Magistrate's conclusion that PW2's memory played tricks on her causing inconsistencies in her answers was unfair as it was an attempt by the Magistrate to reconcile the discrepancies between PW2's evidence and those of PW5 and PW9.  It is more likely that she would have known about the NCR before 22 January 2015.

2.  No intention to work in Hong Kong (paras 70 to 72)

(a) While accepting that any criminal conviction would seriously affect PW2's prospect of working in Hong Kong, the Magistrate's acceptance of PW2's evidence that she never intended or sought to work in Hong Kong which is unreasonable and speculative.

(b) The fact that PW2 searched on the internet about BO and whether there would be CRO indicated that she was in fact very concerned with the CRO which would affect her future employment in Hong Kong.

(c) The Magistrate had arrived at contradictory conclusions on the issue whether PW2 had the intention to work in Hong Kong.

3.  Two separate cases (paras. 73 to 74)

(a) There was ample evidence of PW2's serious concern over the issues of BO and CRO and this would provide a very powerful motive for her to exaggerate or to implicate the appellant.

4.  Securing NCR for the theft case (paras. 75 to 80)

(a) PW2 was so anxious to benefit from NCR and it is impossible for the court to gauge the mind-set of PW2.

(b) The suggestion by the Magistrate that PW2 could have taken the simple and safer step of engaging lawyers is merely speculative.

(c) The conclusion that there was no linkage between BO and NCR is unsafe as it is based on the Magistrate's speculation as to the possible motive for PW2 to come back to Hong Kong on two separate occasions to give evidence.

5.  Bodily searched before? (paras. 81 to 88)

(a) PW2 had testified on many occasions that she would not have followed the appellant back to the police station if she had been bodily searched before.

(b) In her statement, PW2 admitted that she had been searched before meeting the appellant.

(c) It was only at trial that PW2 said she had not been searched by making the distinction between "search" and “bodily search” by stressing that PW6 did not touch her body during the search.

(d) PW6 however testified that she had touched PW2's thighs and her waist.

(e) PW2 said she agreed to cooperate with the appellant because she thought that he would only search her in the manner as shown on television but the acts by the appellant far exceeded what one would expect to see in the television.

(f) The Magistrate's finding that PW2 had reason to believe she had not been bodily searched is plainly wrong.

6.  Dishonesty (paras. 89 to 90)

(a) PW2 said that she did not think that she was dishonest in the theft case but she was only greedy.

(b) The Magistrate was wrong to attribute the question of dishonesty to a different Mainland culture was wrong to accept PW2’s thinking in this regard.

7.  Demeanour (paras 91 to 93)

(a) PW3, the security guard, was an independent witness and he testified that PW2 followed the appellant closely before they entered the Female Toilet and when they came out, they were "just like husband and wife".  PW3 did not find anything unusual in her voice and importantly, there was no sign of any distress or emotion on PW2.

(b) PW2 appeared to be normal as captured by the CCTV footage.  She said she was "silent" and acted in an "abnormal" manner which was contrary to PW3's observation.

8.  Time Factor (para 94 to 95)

(a) PW2 changed her evidence in order to justify her previous inconsistent answers.  She said in statement that the duration of her encounter with the appellant was about 10 to 15 minutes.  In fact the CCTV footage showed that it is less than 5 minutes.

(b) The Magistrate also failed to consider whether this short duration of time would be sufficient for all that PW2 had alleged had happened inside the toilet.

9.  Tight Clothing (para 96 to 97)

(a) PW2 mentioned that she wore a piece of tight clothing underneath her sweater at the material time at trial but she never mentioned this in any of her witness statements.

(b) The tight clothing was thus not seized by the police and there might be forensic evidence on it. 

10. Forensic evidence (paras. 98 to 99)

(a) No forensic evidence was found on PW2’s brassiere and underpants.

(b) The forensic evidence did not support PW2’s allegation but such evidence was dismissed by the Magistrate.

11. Private parts seen? (paras. 100 to 101)

(a) Referring to the relevant passages in the transcript, the appellant contends that it is inherently impossible to expose the private parts of a female by sitting on the toilet bowl.

(b) The Magistrate failed to consider that PW2 had changed her evidence from "looking at her private parts" to "looking at the direction of her private parts".

12. Beyond Body search (para. 102-108)

(a) The Magistrate's finding that PW2 wanted to cooperate with the appellant because she was “tired” and her mind was "blank" was contrary to PW5, the police officer’s evidence that she found PW2 to be physically fit, emotionally calm and did not look tired before she took a cautioned statement from PW2.

Ground 2

8.  Mr Cheng submitted on this ground that the Magistrate failed to analyse whether and how the following matters could have operated on PW2’s mind and affected her credibility and/or reliability:-

1.  Binding over (BO) reason (paras 50 to 51)

(a) The Magistrate found it reasonable for the Department Of Justice to offer binding over to PW2 in the theft case and hence concluded that there was no incentive for PW2 to cooperate with police to give evidence against the appellant;

(b) The Magistrate was plainly wrong in this regard as whether it was an incentive or not to PW2 was only a subjective matter.

2.  Special treatment (paras. 52 to 55)

(a) The appellant argued that even if the special treatment to PW2 by the police was warranted the question still remains whether such special treatment could have affected PW2’s attitude in implicating the appellant.

3.  Partiality/Impartiality of the Investigation (paras. 56 to 60)

(a) In the 13 January 2015 meeting, CIP Lam told PW2 that they wanted to get rid of the "bad element" in the force, ie to get rid of the appellant and told PW2 not to worry and to cooperate;

(b) The important issue is whether what the CIP had said had directly or indirectly encouraged PW2 to make allegations against the appellant.

Ground 3

9.  In all the circumstances, each of the convictions is unsafe and/or unsatisfactory.

DISCUSSION ON CONVICTIONS

10.  The first two Grounds of Appeals revolves around the credibility and reliability of PW2 which were already fully argued before the Magistrate.  As correctly identified by the Magistrate, the only live issue in this case is (1) why PW2 followed the appellant to the Female Toilet, and (2) what happened to them inside.  Ground (3) is only an all-embracing appeal ground in the most general terms which will rise or fall together with the outcome of the appeal of the first two grounds.

11.  Of the two most important characters in this case, the accuser and the accused, only PW2 has testified in the trial in this regard whilst the appellant elected not to give evidence as of his right but he gave mixed statements in response to PW2’s allegations during investigation.  After seeing and hearing PW2 in court, the Magistrate was satisfied that PW2 was an honest and reliable witness and he found nothing inherently improbable about her evidence and he accepted her evidence to be the truth.  He rejected the appellant’s explanation as recorded in the NB and in the VRIs that he only led PW2 to the Female Toilet upon her request when she approached him outside the Police HQ and that inside the toilet, he had only touched the breasts of PW2 outside her upper garment as he could not resist the seduction by PW2.  He also pointed out that the appellant’s version was not made and has not been repeated in the trial under oath and has not been tested by cross-examination.

12.  Two main grounds and no less than 15 sub-grounds are advanced by the appellant in the “Perfected Grounds of Appeal against Conviction” based on the various headings as discussed by the Magistrate in the Statement of Findings.  Largely, although not exclusively, they are based upon a line by line trawl through the evidence and the Statement of Findings in an attempt to uncover areas, many illusory rather than real, upon which criticism may be based, of the magistrate’s approach to the evidence, of his decision making process, of the absence of such a process and of the way in which and the extent to which he expressed himself in his Statement of Findings.  It has been said on many  previous occasions that such an approach to an appeal from a decision of the magistrate is unhelpful.  In many instances it becomes counter-productive. 

13.  Stock J, observed in R v KWONG Wing On and Another HCMA 574/1996 at page 4:-

“12. Pausing at this juncture, I would say this: that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. The magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.

13. In this case, there is a great danger of losing sight of the wood for the trees. ..." (emphasis added)

14.  These remarks, entirely and equally appropriate to the present case, may be thought to have been lent further force by the decision of the Court of Final Appeal in CHOU Shih Bin v HKSAR [2005] 1 HKLRD 838 when it was made clear that:

“17. ... An appeal under s. 113 allows the depositions before the magistrate to be ‘admissible as evidence of the evidence given' in the Magistrate's Court... , authorises the reception of fresh evidence... and empowers the judge on appeal to make whatever order the judge thinks just... Provisions of that sort are... the indicia of an appeal by way of rehearing.

18. In R v Lam Kan [1962] HKLR 234 Rigby J, speaking for the Full Court, held that provisions similar to those now under consideration created an appeal 'at large' and rejected a submission that the appellate court should not form its own independent judgment. ... a rehearing in this sense is not a rehearing de novo, ... Nor is it limited to errors of law or excess of jurisdiction...

19. An appeal under s.  113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory authority to do so. ... Where the facts are concerned, the appellate tribunal will recognize that it does not enjoy the advantage of having received the evidence at first hand which the magistrate enjoyed. ... [The Judge] may not have appreciated that his jurisdiction was 'at large' and that, while he had to bear in mind that he did not enjoy the advantage of having received the evidence at first hand, he was entitled, indeed bound, to come to his own conclusion..."

15.  This trial has extended over some eleven days according to the record.  The appellant was represented throughout by senior counsel with exclusive expertise in criminal trials together with also an experienced junior barrister: they made all the points on behalf of the appellant in cross-examination and, particularly, in the closing address to the Magistrate which could have been made on behalf of the appellant in the light of the evidence as a whole.

16.  The Magistrate obviously had the advantage of having seen and heard, which I do not, each of the witnesses who testified.  He was able to take into account all of the evidence, tested as it was by cross-examination, which those witnesses gave.  He had before him all the points which Mr Cheng could make on the appellant's behalf.  In these circumstances, he came to the conclusion that PW2 was a witness of truth upon whom he could rely and he rejected the version of the appellant as explained by him during investigation.

17.  The Magistrate is heavily criticized in Grounds 1 and 2 for the way in which he evaluated the evidence, or for a claimed failure to properly evaluate the evidence or to deal with aspects of the evidence which are referred to as discrepancies or inherent probabilities or improbabilities in the prosecution case.  I do not propose to traverse the passages in the evidence in great details which gave rise to these assertions.  Those criticisms were largely based on the premises that it was inherently probable that PW2 had fabricated or exaggerated of what happened between the appellant and her in the Female Toilet as an attempt to secure a BO and NCR in her theft case.

Ground (1)

1.  Discrepancies re CR, BO and/or NCR

18.  In this ground, Mr Cheng challenged the assertion by PW2 that the giving of evidence against the appellant in the present case had nothing to do with her theft case.  In fact, the same point has already been advanced in his final submission and the Magistrate was alive to this issue when he came to assess the credibility of PW2.  He was demonstrated to have fully considered all such alleged or possible discrepancies against the totality of the evidence.  The Magistrate correctly pointed out that he accepted the evidence of PW5 and PW9 to the effect that they have told PW2 that BO carried NCR before 22 January, 2015 and PW2’s evidence that she was only informed of the same for the first time on 22 January 2015 was wrong and she was mistaken.  The Magistrate clearly listed out his reasons why he believed PW2 had “got it wrong” for the following reasons in paras. 65 to 69 of the Statement of Findings:-

“65. First, I accept from PW2 that there is no BO procedure in the Mainland and that whenever a person is arrested in the Mainland for an offence, a record would be kept.

66. As PW2 was not sure or familiar with the laws of Hong Kong, she had, I accept, seen fit to search the internet for answers. She apparently, I think, did not understand, or did not fully understand, such information she found on the internet[22], and/or had received wrong information from it and got confused.

67. For example, PW2 said her search results indicated that, contrary to what police officer(s) told her, BO carried CR and that she had to 'deny' the facts before it carried NCR. She once said in the box she had ‘pleaded guilty’ in the theft case as she had “admitted” the facts at 22^nd Jan Hearing[23].

68. Secondly, during the short period of 10 days from 12^th to 22^nd Jan 2015, due to her arrest for the theft case and her complaint of the 1^st charge, PW2 had, I think, met with, discussed with, was interviewed by[24] and was arranged to undergo various procedures involving, no small number of police officers (be they male or female) on no small number of occasions. She kept no written record to refresh her memory of these discussions.

69. It therefore does not surprise me on lengthy cross-examination that PW2's evidence, on her own and/or compared with evidence of other witnesses, disclosed alleged or possible inconsistencies regarding CR, BO and/or NCR for the theft case[25]. PW2’s memory must also, I think, have played tricks on her.  Such discrepancies do not cause me to doubt her general credibility, reliability and her core evidence.”

19.  In my mind, it is not unreasonable for the Magistrate to come to the conclusion that PW2 was confused as she received numerous contradictory information on this topic from many different sources including the internet and different police officers especially given her mainland background and she was not familiar with the Hong Kong legal system.  He was fully entitled to make that finding having had the benefit of seeing the witness, listening to her evidence and having their shortcomings reiterated to him by the senior counsel on behalf of the appellant.  The reasons given by the Magistrate under this heading were both sound and logical. 

2.  No intention to work in Hong Kong

20.  I do not consider that the Magistrate had arrived at contradictory conclusions as submitted here because he accepted that a criminal record would seriously affect her prospect of working in Hong Kong in the future on one hand but he also accepted that PW2 never intended or sought to work in Hong Kong on the other hand.  Obviously the former conclusion is a universal truth as objectively any criminal record would jeopardise a mainlander’s opportunity of working in Hong Kong.  That said, it would not alter the fact that in this particular case, PW2 in fact had no plan to work in Hong Kong at the material time.  The two conclusions are therefore not mutually exclusive and it also goes to show, as the Magistrate had correctly said that PW2 was “frank to admit under cross-examination that CR would be important to her that pleading guilty in the theft case would leave her a CR for life, which seriously affects her prospect of working in Hong Kong.”  As the respondent also commented, PW2 was just being honest when answering question under cross-examination that a criminal conviction would be unfavourable to her if she seeks to work in Hong Kong.  It does not imply however that PW2 does want to work in Hong Kong.

21.  When the Magistrate accepted that PW2 however never intended or sought to work in Hong Kong, he did so not based on speculation but on the unchallenged evidence of PW2 that she had her medical career in the Mainland and she came to Hong Kong for only a limited period to study and not otherwise.  Also she was a married woman and thus she would need to go back to live with her husband in the Mainland after her training in Hong Kong.

3.  Two separate cases

22.  Mr Cheng relied on the serious concerns of PW2 over the question of BO/CR after the incident and submitted that this would be a powerful motive on her part to exaggerate or to implicate the appellant. 

23.  The Magistrate has fairly and adequately dealt with this submission in paras. 73-74 of his Statement of Findings.:-

“73. I further accept from PW2 that she was at all material times prepared to take whatever sentence the laws of Hong Kong imposes on her for the theft case. If it proceeds to plea, she would plead guilty and bear the CR after conviction.

74. PW2, I am satisfied for sure, always took the theft case and the 1^st charge as 2 separate cases having no relationship with one another.  CR for life for the theft case and the 1^st charge are to her two different things.  She thought she could not deny her theft and the sentence for it[26]. However, for the 1^st charge, she was, to quote her words, ‘a victim who seeks justice’.”

24.  I agree with the reply by the respondent that it is natural for anyone arrested for a criminal offence to search the internet about the offence and the relevant procedures and legal consequences of a binding over.  The fact that PW2 searched in the internet about BO/CR does not necessarily make her evidence that she treated the two cases entirely separate matters so unbelievable. 

4.  Securing NCR for the theft case?

25.  This is perhaps the core submission by the appellant in their final submission in the trial that the whole allegation against the appellant is a set-up or total fabrication in an attempt to secure NCR for her theft case.  The Magistrate had already, in my judgment, sufficiently explained why he did not subscribed to this view as stated in paras. 75 to 80 of his Statement of Findings.

26.  The Magistrate was right to point out that if PW2 wanted to use her testimony against the appellant to get herself out of the trouble of the law, she should and could have obtained the BO before making her witness statements but she did not.  Also the simpler and safer way to obtain a BO must be for her to engage a lawyer as advised by PW5, the female police officer, instead of bearing the risk of making a false allegation against a serving police officer.  In my judgment, the whole idea of PW2’s making a false allegation against the appellant is based not on facts as established by the evidence but rather on mere speculation by the defence based on instructions.  The fact remains that the decision to offer BO/NCR to PW2 was only made and confirmed by the Department of Justice on 15 January, 2015 after the consent of SOGO department store, the victim of the theft case, was sought but even before that, PW2 had already given two witness statements in relation to the present case.  It goes to show that securing NCR in her theft case was not a precondition for PW2’s giving of statements against the appellant.  In the circumstances, the Magistrate was perfectly entitled to come to the conclusion that there was no linkage between the favourable disposal of the theft case and her testifying against the appellant in the present case.  One must not also forget that PW2 is a doctor by profession albeit in the Mainland and more importantly, she has a hitherto clear record in Hong Kong.  It is not unusual in the Magistrate Court for the prosecution to agree to a defendant with such a background to be bound over and NCR without any condition attached.  As such, PW2 is just a perfect candidate for BO/NCR on her own right.

5.  Bodily searched before?

27.  The Magistrate had considered PW2’s Mainland background and her lack of experience in dealing with police in Hong Kong.  He gave detailed analysis as to why PW2 had reasons to believe and did believe that she had not been bodily searched for the theft case by PW6.  In gist, he concluded that while PW6 might has frisked or touched PW2’s waist or thigh, he also accepted PW2’s evidence that PW6 did not otherwise touch other parts of PW2’s body by “patting or touching arms and legs” which was contrary to her concept or perception of a body search.  Therefore, it is normal that PW2 was not sure if she had been bodily searched or just searched previously by the police.  On the other hand, one must also not forget that the appellant was a police officer, a person in authority, in the vicinity of police station when she met him for the first time and there was therefore every reason for PW2 to believe what he told her on the standard police procedure including that he needed to conduct a body search on her person.

6.  Dishonesty

28.  PW2 testified under cross-examination that she did not think she was dishonest in the theft case but she was only greedy.  Mr Cheng complained that the Magistrate was wrong to attribute her concept of dishonesty to Mainland culture and such conclusion was contrary to justice and common sense.  I judge the discussion in this topic is rather academic as the real issue of the present case is whether PW2 is frank or dishonest about her allegations against the appellant as opposed to whether she considered herself dishonest in the theft case.  In my judgment, it is even more contrary to common sense and justice to even impliedly suggest that a defendant of dishonesty offence could never be a witness of truth in any other matter.

7.  Demeanour

29.  The Magistrate was entitled to place no weight on PW3, the security officer’s blanket assertion that the appellant and PW2 acted like husband and wife when they came out from the Female Toliet.  Quite apart from the fact that different couples acted differently, the Magistrate was correct to point out that PW3 did not give any further evidence of intimate action or discussion, or other action, suggestive of husband and wife.  The lacking of any distress or emotion on PW2 as observed by PW3 was only neutral and was neither here or there.

8.  Time Factor

30.  It is not uncommon that a witness assertion of a specified duration of time is always at best an estimate based on subjective personal feeling and what happened in this case to PW2 was just the same.  As the Magistrate accepted that PW2 did not check her mobile phone for time or count the time when the incident occurred, it was not at all surprise that the estimate given by her in her 2^nd statement (10‑15 minutes) was in fact longer than the actual time (3 minutes 47 seconds) as captured by the CCTV footage.  One must paid attention however that according to the footnote 55 in page 24 the Statement of Findings, the time frame of 10 to 15 minutes was referring to the period from the moment they met at the footbridge until they separated from each other whilst the time frame of 3 minutes 47 seconds was confining to the time when the appellant and PW2 entered turnstile No 4 of the Police HQ until the time when the appellant swiped his warrant card to procure the exit by PW2 through turnstile No 3 of the police HQ.  In fact, PW2 said, “every second is very long” when she recalled the incident and it is not unreasonable for the Magistrate to find that she was not exaggerating the time but she just estimate it wrongly as really for her “time passed very slowly” in the unfortunate situation she found herself in.  More importantly, PW2 did not change her evidence after viewing the CCTV footage in the 3^rd statement.  The Magistrate accepted that she was not sure about the time when she was asked to give an estimate in the 2^nd statement but she was told it did not matter.  I also judge that objectively, the allegations by PW2 could take place with the actual recorded time.  In fact, if the allegations did happen, it would have happened in a rather quick manner as it only comprised of a mere touching of the breast of PW2 on both sides and the mere having a look of the private parts of PW2 by the appellant.  The whole incident allegedly took place in the Female Toilet of the Police HQ and any prolong and continuing presence of the two inside the toilet would be very suspicious.

9.  Tight Clothing

31.  The complaint by the appellant that PW2 failed to mention wearing tight clothing in all of her witness statement and as a result, no forensic examination could be conducted on the same was immaterial. The Magistrate had correctly pointed out that it was never alleged by either the prosecution or defence that the appellant had touched PW2’s tight clothing and I fail to see how her immaterial omission on this part of the evidence affects her general credibility as submitted by Mr Cheng.

10. Forensic evidence

32.  Merely reciting the appellant’s argument under this heading has demonstrated its falsity.  The negative findings of forensic evidence in respect of PW2’s brassiere and underpants were neither here or there and the Magistrate has committed no error when he held that it was insufficient to cast doubt on PW2’s evidence.  The respondent also properly referred me to HKSAR v MUHAMMAD SAQIB CACC 232/2015 (2 October, 2015) where McWalters JA held:-

“In respect of the lack of DNA and fingerprint evidence, this court has said many times that a lack of such evidence should be regarded as neutral and not as exculpatory of a defendant.” (see para 15)

11. Private parts seen?

33.  Mr Cheng submitted that it was inherently impossible that the private parts of a female could be exposed in the manner as described by PW2 by sitting on the toilet bowl and it would not be right for PW2 to say that the appellant looked at her private parts.  To me, it is really a red-herring as even it is indeed difficult, if not impossible, for a woman’s private parts to be exposed with her sitting on toilet bowl and underpants removed to knee level as submitted, it would not prevent the appellant from trying to take a closer look and better view of her private parts.  I totally agree with the Magistrate’s observation that:-

“... But whether he thought he could so see and whether he did so see in the end, as PW2 stressed in her evidence and I agree, is for him and not for her to tell.” (para 101)

12. Beyond bodily search?

34.  This argument centres on the Magistrate’s acceptance from PW2 that her mind went “blank” from her arrest to 8am the next day which was contrary to PW 5’s observation that PW2 was physically fit, emotionally calm and looked not tired before she was interviewed.  The Magistrate obviously has considered the totality of the evidence and the circumstances surrounding PW2 at the material times: that she was an arrested person in the police station; that the appellant was a police officer; that she believed in the appellant’s words that she had to be bodily searched; that she was anxious to leave the police station and she decided to cooperate even she did feel suspicious of the appellant’s acts inside the Female Toilet.  Having looked and heard PW2 in the trial, which I did not, the Magistrate was entitled to accept her evidence in this regard given the circumstances of the case.  Moreover, the state of mind of a person is not something that can be easily observed.  PW2 might look perfectly normal to PW5 on that night and yet her mind was still “blank” as described by her.  There was therefore no contradiction or serious contradiction that casts doubt on her evidence.  When the Magistrate said PW2 was very tired, he was referring to a much later stage when the appellant has finished giving her cautioned statements and met PW2 outside the police station after the mid-night.  Bearing in mind what PW2 had gone through before she met the appellant, it was indeed fair and reasonable for the Magistrate to find that she was tired.

Ground (2)

35.  In this ground, Mr Cheng sought to argue that the Magistrate failed to analyse how (a) the binding offer, (b) the special treatment by the police and (c) the partiality/impartiality of the investigation could have operated on PW2’s mind and affect her credibility and/or reliability.

36.  The arguments advanced on this ground lack substance and based only on unfavourable presumptions which were already flatly denied by PW2 under cross-examination.  The Magistrate had already properly analyzed that there was no linkage between BO/NCR and her complaint against the appellant as stated in Ground (1) and it is just a last ditched attempt to re-argue the point by the appellant.  As for special treatment arranged by the police to PW2, the Magistrate had already given sufficient and proper reasons in paras. 52 to 55 of the Statement of Findings why he considered that the special treatment, such as police transport, offered by the police to PW2 was warranted as this was a highly sensitive case and was extensively reported by the media at that time.  Finally what CIP Lam had said in the 13 January meeting PW2 to the effect that “getting rid of bad element of the force to protect the image of the force” was, in my judgment, only proper to reassure a hesitant witness such as PW2 to have the courage to come forward to testify against a serving police officer and not to worry about her personal safety and that the police is handling the complaint very seriously.  I failed to see there is any partial investigation as submitted.

37.  The evidence against the appellant was overwhelming and  Mr Cheng could only resort to the incidental offer of BO/NCR in her theft case by the Department of Justice as an incentive for her to falsely accuse the appellant in this case.  The appellant’s explanation to the police that he was approached and seduced by her in the manner as he described was frankly ridiculous and devoid of logic and reality. It is inherently improbable for PW2 to just randomly spot the appellant on the street after her release and purposely seduced him to have some bodily contact with her so that she could make use of it and file a complaint against a serving police officer with a view to secure a BO for her in the theft case.  The risks involved just far exceeded the benefit of NCR.  The explanations proffered by the appellant are just so far-fetched and cannot be true. 

CONCLUSION

38.  Based on the above reasons, I am satisfied that the appellant was properly convicted.  There is no reason to doubt the Magistrate’s decision to accept PW2 as a credible and reliable witness.  Once that position is attained, on the evidence as a whole, the conclusion that on Charge 1, the appellant was only making a pretext of body search to lure PW2 to go into the Female Toilet with him and that any consent given by PW2 to the appellant to touch her breasts must be vitiated by the appellant’s deception as to the nature of such acts and there is no basis at all for him to believe that PW2 had consented to such acts.  On Charge 2, the appellant had wilfully and intentionally so conducted himself, knowing full well that such conducts were not in discharge of his duties, were in clear breach of PGO and seriously jeopardize the public confidence in the Hong Kong Police Force and/or law enforcement. 

39.  The appeals against the convictions are dismissed and the convictions on Charge 1 and Charge 2 affirmed.

40.  I shall now turn to the submissions on sentence.

APPEAL AGAINST SENTENCE

41.  Mr Cheng also raised three grounds of appeal against sentence:-

Ground (1)

42.  The sentences imposed were manifestly excessive :-

(1) The starting point of 15 months’ imprisonment for the first charge is manifestly excessive and/or wrong in principle;

(2) The starting point of 9 months’ imprisonment for the second charge is manifestly excessive and/or wrong in principle.

Ground (2)

43.  The sentences imposed on both charges should run concurrently.

Ground (3)

44.  The overall sentence of 16 months’ imprisonment is manifestly excessive and/or wrong in principle.

45.  In Ground (1), the appellant referred to the three authorities as cited by the Magistrate when he came to consider the proper the sentences.

46.  Mr Cheng relied on the three case authorities as referred by the Magistrate in his Reasons for Sentence and submitted that the authorities do not support a starting point of 15 months’ imprisonment on Charge 1, both on the principle and on the facts of this case. 

47.  In Ground (2), he submitted that Charge 2 is really a mirror of Charge 1 as the facts are almost identical and it was wrong to impose a consecutive sentence of 2 months in relation to Charge 2.

48.  Lastly in Ground (3), he listed out a whole host of mitigating factors arguing that his sentence should be reduced.

DISCUSSIONON SENTENCES

49.  The Magistrate had correctly identified the features which he should take into account in determining the sentence starting point on each charge and he had also considered the principle of totality. 

50.  For Charge 1, the maximum sentence for the offence of “indecent assault” is 10 years’ imprisonment and in the magistracy, the maximum sentence for a single charge is 2 years’ imprisonment.

51.  There is no tariff or guideline for indecent assault cases.  Each case depends on its own facts. 

52.  In HKSAR v CHOW Yuen Fai [2010] 1 HKLRD 354, the Court of Appeal held:-

“27. In relation to buggery and indecent assault, as has often been observed, it is neither possible nor practical to fix a tariff for these offences given the varied circumstances in which these offences can arise. For this reason, references in previous cases are often of limited assistance.”

53.  The respondent properly replied that the other sentencing cases are of limited value for the following reasons:-

(1) each case depends on its own facts;

(2) as reiterated in HKSAR v Ng Man-yee [2014] 4 HKC 241 at para 48, the Court of Appeal held that a sentence imposed upon a defendant in another unrelated case is not authority for affecting sentence in the present case; and

(3) only if other cases for the same offence show an established range and sentence of the offence under consideration is clearly outside that range can the other cased be used to review the sentence.

54.  The analysis by Mr Cheng on those three cases is superficial.  Referring to HKSAR v Leung Lai-chung (unreported) HCCC 189/2009, he just submitted that the case is a High Court case involving rape charge  and thus it was too serious in nature and cannot be compared.  However, apart from the rape charge, the case also involves three counts of indecent assault by a serving police officer and the sentence on each count is from 16 months to 24 months’ imprisonment on a guilty plea. 

55.  In the other two magistracy appeal cases which the appellant relied: R v Maclennan [1996] 4 HKC 507 and HKSAR v Chow Koon Shing [2007] 3 HKLRD 10 where the sentence is only 6 months’ imprisonment after review and 6 months’ imprisonment, the factual matrix is very different from this case as the former does not involve any pretext or deception practised by the police officer on the victim while the latter was a “misconduct in public office” case involving the taking of a photograph by a police officer under a female victim’s skirt using his mobile phone. 

56.  The facts surrounding the indecent assault charge in Leung Lai-chung however bore close resemblance to the present case.  Count 1 is a case in point: the victim was a 17 year old girl and she had previous dealings with other police officers at the Mongkok police station but not with the defendant.  The defendant however obtained her contact details and telephoned her and asked her to attend the police station to assist with police enquiries.  This was in fact a charade as the defendant was not in any way engaged in the investigation involving the defendant.  The victim went to the police station and the defendant took her to the suspect assembly room of the identification parade suite and in this room the defendant indecently assaulted her by lifting her T-shirt and fondled her and finally the defendant also remove his trousers and underpants and exposed his penis to her.  Saw J adopted a starting point of two years’ imprisonment on this charge and the sentence was reduced to 16 months on account of defendant’s plea of guilty.

57.  In assessing the gravity of the offences Saw J said at page 5E-I as follows :

“Turning now to the gravity of these offences. The first four offences have,in their commission, a number of disturbing similarities. In each case you have improperly accessed information in police records to contact the victims. You were not in any way involved in any investigation with respect to complaints made by the victims, or, in the case of one of them,the offence for which she was being investigated.”

58.  At page 5R to page 6B, the learned judge spoke about abuse of trust as the offender was a police officer:

“Each of these victims was abused by you in circumstances which must cause the public in Hong Kong to reassess the trust they place in members of the Hong Kong Police. The people of Hong Kong pride themselves in the calibre and integrity of their police force and your conduct over these few days can only be described as reprehensible. You have abused the trust which is invested in you by reason of your appointment as a police officer.”

59.  The learned judge also quoted R v Millberry & Ors [2003]1 WLR 546 that where a rapist is a police officer it is an aggravating factor for sentence.  I agree therefore that where a police officer commits indecent assault it should also be an aggravating factor.

60.  I share the view of the Magistrate that the appellant’s commission of the offences was premeditated.  Obviously he overheard the conversation between PW5 and PW2 in the interview room and came to know that she was a suspect of a theft case coming from the Mainland and he targeted PW2 and apparently exploited her Mainland status as a vulnerable victim.

61.  The Magistrate noted that the distressing feature in this case was worse when the perpetrator of the offence was a police officer and PW2 was successfully deceived into believing that she was required to undergo a body search for the purpose of the investigation of the theft case she has committed.  Last but not the least, there was a total lack of remorse from the appellant.  As the Magistrate rightly observed:

“In his mitigation letter, he significantly omitted to give an apology to PW2, the very person he had hurt and who rightfully deserves an apology from him.”

62.  In my judgment, the aggravating feature of a serving police officer using an excuse of conducting investigation and molested a female citizen inside the police station in Leung Lai-chung was also present in this case.  As the indecent conduct by the appellant in this case was admittedly less serious that the male police officer in Leung Lai-chung, the starting point of 15 months’ imprisonment is clearly an appropriate sentence.  The other two cases cited by Mr Cheng, with respect, are of little reference value.  In fact, in HKSAR v Cheung Kwai Sang [2002] 3 HKC 589 (at para 10) the Court opined that R v Maclennan is an old case which does not take into account the impact of the victim.

63.  As for Charge 2, the maximum sentence for a “misconduct in public office” offence is 7 years and there is no tariff guideline for this offence.

64.  In HKSAR v Chow Koon Shing [2007] 3 HKLRD 10, it was held that the offender has to be punished in a manner that the public understands and expects, and such sentence should serve as a warning to others who are tempted to misconduct themselves in a similar fashion.  ( at page 17D)

65.  The case against the appellant on this charge was that after the appellant demanded PW2 to remove her trousers and underpants and to sit on the toilet bowl, he squatted down and looked at the direction of PW2’s private parts for about two seconds.  This gross misconduct by the appellant happened after he had committed the indecent assault on PW2.  The Magistrate was thus entirely correct that there are still separate conducts of the appellant to be punished for Charge 2 on top of those for Charge 1 and the sentencing considerations for the two offences are different.  I agree with him that a starting point of 9 months is entirely appropriate for this charge.

66.  On arriving the decision of the starting point for each charge, the Magistrate had properly took into account the previous good character and such likely loss of employment and benefit to him as a result of his conviction.  Because of this, in the end, he further reduced the starting point for one month on each charge which was only fair.

67.  Finally, on the question of totality, the Magistrate acknowledged that there was a certain degree of overlapping as far as the criminality of each charge concerned.  However, as he had rightly observed, Charge 2 does add to the culpability of Charge 1 and as a result, a partly consecutive sentence is called for and hence he ordered 2 months’ out of the 8 months’ imprisonment on Charge 2 to run consecutively to the 14 months’ imprisonment on Charge 1, making a total of 16 months’ imprisonment for the two charges.

CONCLUSION

68.  All in all, the reasons of sentence are sound and it demonstrated that the Magistrate understood the serious nature of the offences and dealt with them correctly.  He took into account all the aggravating features as well as the mitigation existed and the individual and overall sentence was neither excessive nor wrong in principle.  The appeals against the sentences are dismissed accordingly.