HKSAR v. LO CHU CHOI

HCMA1157/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1157 OF 1997

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J U D G M E N T

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1. The Appellant was found guilty after trial of indecently assaulting the victim in this case who was at the time of trial a thirteen year old school-girl. This offence happened on the 6th of March 1997 and the prosecution's case was that the victim, PW1, at that time a school-girl, was returning home from school at around 1.00 pm. She entered the lift of the block where she was living followed by the appellant. When she was inside the lift, the appellant, who entered the lift with her with just only two of them in the lift, embraced her breasts and lower parts.

2. The appellant now appeals against his sentence of twelve months' imprisonment after he was found guilty on these facts by the magistrate.

3. In his reasons for sentence the magistrate reiterated that the defendant had 21 previous convictions, none of which were similar. He had called for psychiatric and background reports; that the appellant had been a drug abuser for a number of years although he had claimed to have given up the habit; that the appellant was suffering from a disease and requires regular medical check-up. The learned magistrate also recited that the appellant's psycho-sexual history revealed no abnormality but an indecent assault of a female in a lift is a serious matter, one that must attract a custodial sentence; that the aggravating features in this case were the age of the victim and the fact that she was obviously intellectually impaired. The magistrate then took twelve months' imprisonment as a starting point and in view of the fact that the appellant did not have the advantage of a guilty plea, he therefore passed a sentence of twelve months' imprisonment.

4. Mr TSE today bases his appeal, not on the fact that the defendant has been sentenced to a term of imprisonment, Mr TSE indeed accepts the fact that an immediate custodial sentence is called for, but the appeal is based on the fact that twelve months' imprisonment is manifestly excessive.

5. In making his submission Mr TSE has referred me to a number of authorities, those in relation to indecent assault on public transports particularly the MTR in crowded circumstances. He submits that the Court of Appeal has stated that the periods of imprisonment should range from fourteen to twenty-eight days. Let me immediately say this that indecent assaults taking place in public transports and MTR are in a category of their own, and in a case where the indecent assault occurs in a lift that is a very different matter from one taking place in such crowded public transports.

6. The other cases relied on by Mr TSE in support of his arguments show that in various forms of indecent assaults which take place in places other than public transport sentence varies from six months to nine months, depending on the facts of each case.

7. I should reiterate immediately that the Court of Appeal has deprecated the practice of appealing against sentence by comparing sentences imposed in other cases - what Mr WONG calls "the comparables."

8. In an appeal against sentence, it is always upon the appellant to show that within the framework of that case the sentence imposed was manifestly excessive. The learned magistrate had the advantage of seeing the victim who gave evidence at trial; he had some evidence from the victim's mother as to her low intelligence, or low IQ rating, and the fact that as a thirteen year old she was still in primary six. He also had the advantage of seeing the victim in person and forming his own views which he stated in his reasons for sentence insofar as the victim is concerned that she was obviously intellectually impaired. He correctly stated that the aggravating features in this case were that, as well as the age of the victim.

9. Having heard Mr TSE today, I am not convinced that the appellant has made out the case that the sentence of twelve months' imprisonment passed by the learned magistrate was manifestly excessive. For that reason this appeal against sentence is dismissed.

I/we certify that to the best of our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings

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B. Pirie
Date: 28 March 1998