HKSAR v. POON KAR YUE

CACC 356/2017

[2018] HKCA 433

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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J U D G M E N T

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1.  On 30 August 2017, in the District Court, the applicant 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 applicant, as well as three victim impact reports from the respective victims. On 26 October 2017, the applicant was sentenced to an overall term of 2 years and 4 months’ imprisonment.

2.  On 9 November 2017, the applicant filed a Form XI Notice applying for leave to appeal against sentence.

Facts admitted by the applicant

3.  The offences in question took place in different rooms of the Student Hall of Residence at the Hong Kong Polytechnic 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 applicant was not a resident of the Student Hall but would, it seems, go there occasionally to visit his then girlfriend.  All of the victims (who were 22 years of age at the time) were casual friends of the applicant.

4.  The facts of Charge 1 were as follows.  On 14 October 2015, at about 7:10 am, the applicant 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 applicant and tried to get up.  However, he hugged her tightly.  She tried to push him away two or three times.  The applicant 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 applicant stopped her from opening the door because he did not want others to know he was there.  The applicant 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 applicant 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 applicant, entered the room and in his presence, the applicant hugged Ms X again and lay against her thighs.  This was witnessed by Mr Ho.  The applicant stayed in the room for some 50 minutes until Ms X left at about 8 am.

6.  The facts of Charge 2 were as follows.  On 18 October 2015, at about 11 am, the applicant entered Ms Y’s unlocked room where she was sleeping with her roommate.  The applicant 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 applicant duly left the room.

7.  The facts of Charge 3 were as follows.  On 21 October 2015, at about 8 pm, the applicant entered Ms Z’s room where she was studying alone with the door open.  The applicant switched off the light, picked Ms Z up and put her on the bed, where he began to tickle her.  Ms Z immediately asked him to stop and tried to push him away.  The applicant nevertheless 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 applicant stopped and apologized to her.  Later, Ms Z’s roommate returned and the applicant left the room.

8.  As a result of each victim making a report to the police on 28 October 2015, the applicant was arrested on the same day.  In a subsequent cautioned interview, the applicant admitted the commission of all of the offences.  He explained that he was looking for a companion because he was unhappy.  He said he subsequently apologized to Ms X and Ms Z via Whatsapp, and approached a social worker of his own volition.

Mitigation

9.  The applicant was 23 years of age at the time of sentence and of clear record.  His parents had separated when he was young.  It was submitted by counsel that, despite what was described as an “average” academic performance, the applicant had worked hard to get into and complete university[1] . In 2017, he obtained a Bachelor’s degree in mechanical engineering, which, it was submitted by his counsel, might nevertheless be taken away by the university as a result of the offences[2] . I understand today that the degree will be conferred, but it will be deferred until 2019.

10.  Although the applicant 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] 

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

The victim impact reports

12.  The three victims were assessed by their respective clinical psychologists after the incidents.  I will not go into any details concerning their findings in this judgment.  Suffice it to say, two of the reports do not assist the applicant at all.

Sentence

13.  In passing sentence, the judge noted that the offences were very serious and there was no tariff or guideline for the offence.

14.  The judge identified two aggravating features in the facts of the case, namely (i) the location where the offences had taken place was somewhere the victims were entitled to feel secure, as if in their own homes; and (ii) the applicant was allowed to enter the location as a guest but had abused that privilege and the trust reposed in him as a visitor[5] .

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

16.  The judge considered that an overall starting point of 3 years and 6 months’ imprisonment was appropriate.  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.

17.  After giving the applicant a 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 overall resulting sentence was, therefore, 2 years and 4 months’ (or 28 months’) imprisonment.

Grounds of appeal

18.  Mr David Ma, counsel for the applicant here but not below, has advanced four grounds of appeal.  First, 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 applicant and 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).

19.  For the purposes of developing his grounds of appeal, Mr Ma referred to 15 cases[7] , all of which were inferior decisions, either at first instance in the High Court or District Court, or decisions in Magistracy Appeals.

Respondent’s submissions

20.  In relation to Ground 1, Mr Ira Lui, on behalf of the respondent, submitted that the applicant had clearly abused the trust or privilege granted to him as a guest, whilst accepting that “breach of trust” might not be the best phrase to describe the applicant’s conduct.  He argued that the notion of “breach of trust” should not be narrowly interpreted nor confined to a situation where the applicant was entrusted with the care or custody of the victim.

21.  In relation to Ground 2, Mr Lui submitted that the authorities made it 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.

22.  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 applicant’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.	#

     # indicates that the factor is applicable to all charges.

23.  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.

Consideration

24.  I have listened for the best part of a morning and afternoon to arguments carefully presented by counsel on both sides, with reference to other cases and authorities which are said to support the judge’s sentence or distinguish it.  Not all of the cases are to the point, but the fact that I have been drawn into the exercise of examining them and the sentencing principles they establish, and considering whether they apply to the facts of this case, suggests that the argument is not clear-cut and there are reasonable arguments to be made on both sides.  At times, I have felt as though I am sitting on the appeal proper, having to determine on the basis of these cases and authorities whether a particular feature aggravates the offence or can be distinguished in some way.  That is not a criticism of counsel or their submissions but merely to point out that some aspects of the argument appear to be reasonably arguable, whether I ultimately agree with its validity or not.

25.  Given that I find myself in this position, I shall grant leave to appeal.  Leave will be granted on each ground because, ultimately, they are all concerned with whether or not the final sentence is manifestly excessive, even though individually one particular ground by itself may not be reasonably arguable, or as reasonably arguable as another ground.  This is a case which has to be looked at in the round and the ultimate question for the Court of Appeal will be whether, however the judge went about the exercise of sentence, the overall sentence is manifestly excessive and/or wrong in principle.

26.  Having granted leave to appeal, I turn to the question of bail pending appeal.  I am not satisfied that the applicant has attained the higher threshold necessary to satisfy me that bail pending appeal should be granted, particularly where I am dealing with an appeal against sentence alone.  The only question is whether the applicant is likely to have completed his sentence of imprisonment should his appeal ultimately be successful; bearing in mind that his earliest date for release is 21 March 2019. I do not think so.

27.  In any event, to ensure that that does not happen, I shall order that this appeal be brought on for hearing within three months from today, in accordance with both counsel’s diaries. 

28.  In these circumstances, bail pending appeal is refused.

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

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

[3] Psychiatric report of the applicant, §6: Appeal Bundle, p 37.

[4] Psychological report of the applicant, §§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] Namely 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, HKSAR v Keung Chi Wai HCMA 384/2009, HKSAR v Chan Siu Fung HCCC 370/2014.