THE QUEE v. CHEUNG YAN CHEE

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 988 OF 1989

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BETWEEN

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J U D G M E N T

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Cons, V. P.:

1. The Appellant, CHEUNG Yan Chee, is a taxi driver who was charged with indecent assault. He pleaded not guilty, but after a hearing before Mr. Meredith sitting as a magistrate in Kwun Tong, was convicted and sentenced to 15 months. He applied by notice to appeal against both his conviction and sentence. Howeve his appeal against conviction has not been pursued today and is accordingly dismissed.

2. The facts which appear from the magistrate's Statement of Findings were that the victim was a 17-year-old girl. She had been shopping and, at 11 o'clock on the evening of the 29th April, encumbered with parcels of the various things she had purchased, she boarded a taxi driven by the Appellant in Jordan Road. She asked him to take her to her home in Kwun Tong. He did not do so, although he drove off originally in that direction. He took her instead to a lonely spot in Sai Kung. There he leapt into the back seat of the taxi, before she was able to escape, attempted to kiss her and fondled her breasts. With great presence of mind she persuaded him, by a false promise that she would eventually be willing, to take her home "first". Again he did not do so, but this time took her to a villa in Kowloon Tong where he rented a room into which he took her.

3. There she employed her second stratagem, which was to persuade him to take a bath, also "first". While he was doing so, she escaped and in the road outside flagged down another taxi. Fortunately the driver this time was a man of integrity. He helped her to identify the driver and then report to the police. This resulted in the eventual arrest of the Appellant and his being charged and convicted.

4. Mr. Lunn, who appears for the Appellant today on the appeal against sentence, has raised, two matters. Firstly he draws attention to the actual circumstances of the indecent assault and suggests that, in passing the sentence, the magistrate took into account matters beyond those with which the Appellant was charged, that is those which took place subsequent to the assault itself.

5. It is, of course, an accepted principle that a defendant can only be sentenced for that of which he was convicted. The magistrate acknowleged the principle. He said,

"The Defendant was not charged with and was not sentenced for abduction, kidnap or false imprisonment. He was sentenced for his indecent assault on the complainant in the taxi in Sai Kung. However, the circumstances in which that assault took place were of the most serious in the case of indecent assault."

The circumstances he apparently had in mind were what he quite rightly called

" an humiliating ordeal which lasted from 11 p.m. when she boarded the taxi to 2 a.m. the next day when she entered the police station."

It is well accepted that the court may take into account the surrounding circumstances in which an offence is committed even though those may amount to circumstances which could found other charges which have not been brought. However it is not so clear how far the court may go when the circumstances, as in the present instance, take place after the offence and are to some extent independent of it.

6. But certainly the court may look at the setting of offence itself, which, as Mr. Leung for the Crown today has emphasized, were that the victim was a young girl, entrapped in a taxi in the absolute control of the Defendant.

7. The second complaint of Mr. Lunn derives from the comment of the magistrate that he was imposing

"imprisonment of a meaningful substantial length to punish the Defendant for what he had done and to discourage the Defendant and others from such conduct."

It is the words "and others" to which attention is directed. Without them there could be no possible criticism of the approach of the magistrate. With respect to the magistrate it has to be accepted that unless there are special circumstances sentences that are intended to deter others as well as the defendant himself should not be imposed upon a first offender. It is sufficient to mention R v Curran, 57 Cr. App. Rep. 945 and R v HO Kau, [1978] H.K.L.R. 197. No special circumstances existed in the present instance.

8. The Defendant, as the magistrate noted, has a clear record and a family dependent upon him. It is understandable that the magistrate should take a serious view of the Defendant's conduct. But even so, it seems to me that in all the circumstances 15 months' imprisonment is too heavy, and I therefore allow the appeal and substitute a sentence of nine months.