THE QUEEN v. CHAN KWONG WA

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 399 OF 1990

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BETWEEN

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JUDGMENT

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Fuad, V.-P.:

1. On 14th February 1990 the appellant Chan Kwong Wa who is 26 years old pleaded guilty before Mr. I.R. Britton to the offence of indecent exposure contrary to section 148(1) of the Crimes Ordinance.

2. The offence to which he pleaded guilty was committed on 7th January 1990 which was on the night of 7th/8th January 1990 which was during the operational period of a 4 months' sentence of imprisonment imposed on 2nd June 1988 and suspended for a period of 2 years.

3. The facts were that on that night a female staff member of a bowling centre at North Point opened a door and found herself facing the appellant who dropped his trousers and exposed his private parts. She screamed and the appellant was chased and caught by a male colleague.

4. In his Statement of Findings the magistrate noted that this was the fifth time that the appellant had been convicted for this offence, the last three offences having been committed in the same place. He noted that the appellant had been placed on probation for 18 months in April 1983, and again in May 1986 with a condition of the probation was that he should undergo such psychological treatment as a probation officer should direct. The probation officer's report indicated that the appellant had undertaken such treatment at the Yaumati and Hong Kong Psychiatric Centre. The magistrate then recorded that the appellant had been placed on 3 years' probation on 1st February 1988 and only 12 days later he had been found exposing himself again; this was when he received the suspended sentence. Again, on that occasion he was directed to undertake psychiatric treatment.

5. The magistrate imposed a sentence of 5 months' imprisonment and activated the 4 months' suspended sentence ordering it to run consecutively to the sentence he himself imposed.

6. Miss Wacks who did not appear for the appellant in the Court below submitted that the magistrate was wrong in principle in activating the whole term of the suspended sentence and ordering it to run consecutively after the present sentence. She contended that the magistrate had failed to give sufficient weight to the recommendations of the two psychiatrists whose reports were before him in passing the sentence which made no provision for his proper rehabilitation. She also submitted that the magistrate had failed to take into sufficient consideration the appellant's plea of quilt for it stemmed from general remorse and had spared the complainant the ordeal of giving evidence in Court.

7. Dr. Bernard Lau, a psychiatrist in private practice, reported that he was of the opinion that the appellant was a neurotic exhibitionist whose problems seemed to have their origins in a complex and fraught relationship with his broken family and parental deprivation leading to a deviant personality make-up and morbid channels for venting his emotions. His acts had a deeper significance than might first appear. They also indicated an element of compulsion which implied a difficulty in resisting the impulses and checking his own behaviour. The doctor was inclined to believe that the appellant was amenable to an intensive course of counseling and psychiatric/psychological treatment.

8. Dr. K.H. Ku, a Government psychiatrist, stated in his report that he was of the opinion that the appellant was not suffering from a formal psychiatric illness. His behaviour was of a deviant sexual nature, namely, exhibitionism. Although he did not need compulsory in-patient treatment, out-patient psychological treatment from a psychiatrist and a clinical psychologist would be beneficial to him. However, there was a probability of the appellant committing further offences.

9. After referring to the reports of the psychiatrists the magistrate summarised the probation officer's report which had been presented to him. He concluded from all that he had read that the appellant knew precisely what he was doing and that what he was doing was wrong and yet went on doing it. He felt the Courts had given him every chance and yet he was before the Court again with apparently every likelihood of going out and doing the same thing as many times as he pleased. This was not a trifling offence. The treatment he had received had not had any apparent effect and it seemed to him that the psychologists needed some help from the Courts to get their message through to the appellant. He had therefore concluded that prison would bring home to the appellant that when faced with the urge to expose himself he should desist. The appellant could resume his treatment upon release, and with the lesson he had learned it might at last succeed.

10. Since the maximum prescribed by law for this offence is months' imprisonment and the appellant had not actually served a sentence of imprisonment before, I think it can be said that the 5 months' sentence following a plea of guilty was unduly severe. The magistrate dealt with the case with anxious care, but I think that the purpose of the sentence of imprisonment would adequately be served by a shorter term.

11. On the other hand, in my judgment the magistrate was fully justified in activating the whole of the term of the 4 months' suspended sentence and ordering it to run consecutively to the sentence he was imposing (see the restraints in section 109C(1) and (2) of the Criminal Procedure Ordinance.)

12. This is a tragic case. The appellant is a nuisance to himself and to the public. I hope, as did the magistrate, that a spell of imprisonment will bring him to his senses and that somehow he will control his impulses to save further misery to himself and to his family, and stop his offensive behaviour.

13. I think that the justice of the case will be met if 1 were to allow the appeal to the extent of reducing the sentence of imprisonment imposed by Mr. Britton from 5 months' to 2 months' imprisonment and ordering that it run consecutively to the activated sentence of 4 months' imprisonment, so that the result of this appeal would be that instead of serving a total of 9 months' imprisonment the appellant will serve a total of 6 months' imprisonment. I so order.