HKSAR v. TIQUIA JOEL M

CACC 133/2024, [2025] HKCA 452

On Appeal From [2024] HKCFI 2235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 133 OF 2024

(ON APPEAL FROM HCCC NO 293 OF 2023)

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BETWEEN

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J U D G M E N T

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1.  The applicant pleaded guilty before a magistrate on 21 September 2023 and was duly committed to the High Court for sentence. On 29 May 2024, the applicant appeared before Andrew Chan J (“the judge”) when he was sentenced to an overall term of 6 years’ imprisonment in respect of three counts of indecent assault[1] on the victim (“X”), who was, on the dates when the offences took place in 2017, 2018 and 2019, aged 7, 8 and 11 years respectively.

2.  By his Form XI Notice filed on 28 June 2024, the applicant seeks leave to appeal against his sentence.

The facts admitted

3.  The applicant and X’s mother (“Madam Y”) began their relationship in September 2016. The defendant soon moved in to live with Madam Y and X.

4.  On one afternoon in April 2017, X, who was 7 years old at the time, was alone at home with the applicant. The applicant asked X to go into a room, where he proceeded to touch X’s breast area over her clothing for about 15 minutes. This conduct constituted Count 1.

5.  During another afternoon when she was alone with the applicant in May 2018, the applicant asked X, who was then aged 8, to go into a bedroom where he removed all of her clothing and instructed her to stand next to the bed with her upper body lying face down on the bed. The applicant then stripped naked himself, stood behind X and rubbed his penis against X’s private parts for about 1 to 1½ hours. This conduct constituted Count 2.

6.  On the night of 6 October 2021, when X, who was then aged 11, was about to go to sleep, the applicant came into her bedroom and switched off the lights. He proceeded to touch her breasts first over and then under her pyjamas. Then he inserted his finger into X’s vagina until she began to feel pain and discomfort and pushed him away. The incident lasted for about 45 minutes. This conduct constituted Count 3.

7.  Sometime in September 2021, X was taught about sexual abuse at school. During the evening of 7 October, X had an argument with Madam Y, during which X blurted out that the applicant had sexually abused her in the past. When Madam Y confronted the applicant about the matter, he apologised and asked her not to report the matter to the police. However, she refused, the matter was reported and the applicant was duly arrested by police on the same day.

Victim Impact Report of X

8.  A clinical psychologist interviewed both X and Madam Y and subsequently compiled a victim impact report on X, dated 31 October 2023. The report suggested, inter alia, that X had a low sense of self-esteem, blamed herself and felt helpless, believing that she would have to cope with the trauma of the assaults for the rest of her life. She found it difficult to form social relationships with others, particularly males, encountered sleep difficulties and mood problems and experienced suicidal ideation. The report concluded that it was evident that X was a victim of sexual abuse, physical punishment, and psychological maltreatment.

Background of the applicant and mitigation

9.  The applicant was a Filipino national, aged 51 at the time of sentencing. He had two sons by another woman. Prior to the incidents, he had worked as an electronic engineer, making about HK$45,000 a month. The applicant had one previous court appearance. The two indecent assaults in respect of the previous conviction concerned his conduct in touching the shoulder and the calf of the same female passenger on board a bus.

10.  The judge called for psychiatric and psychological reports on the applicant prior to sentencing. Both the psychiatrist and the psychologist in their respective reports stated that the applicant had sought to place all the blame on X. The psychologist noted that the applicant reported experiencing sexual arousal when he committed the offences. Nevertheless, he found the applicant’s risk of reoffending to be low.

11.  During mitigation, the applicant adduced mitigation letters written respectively by his wife, his children and two of his acquaintances. Counsel for the applicant submitted that despite the view of the psychiatrist and the psychologist, the applicant’s timely guilty pleas still reflected his genuine remorse. Furthermore, the circumstances of the three counts did not come within the most serious category of the offence.

Reasons for sentence

12.  The judge considered that the applicant had completely ruined X’s life. Moreover, he had exhibited no remorse in front of the psychiatrist or the psychologist and had no shame.

13.  In respect of Count 2, the judge found the applicant’s conduct was grossly indecent and bordered on attempted rape. He had also grossly abused the trust, which both X and Madam Y had placed in him. The judge adopted 5 years’ imprisonment as the starting point in respect of Count 2, which he reduced to 40 months’ imprisonment for the applicant’s plea.

14.  As for Count 3, the judge adopted 4 years’ imprisonment as the starting point, which he reduced to 32 months’ imprisonment for plea.

15.  In respect of Count 1, which was considered to be the least serious of the three counts, the judge adopted 3 years’ imprisonment as the starting point, which he reduced to 2 years’ imprisonment for his plea.

16.  Given the breach of trust involved in the offences, the grossness of the indecency and the lifelong consequences upon X, the judge found that “exemplary sentences were called for to deter such behaviour and redress the grievance of the victim, relatives, and the public, and the public abhorrence of crimes of this kind”[2]. Accordingly, the judge adopted an overall starting point of 9 years’ imprisonment. In arriving at the final sentence of 6 years’ imprisonment, the judge ordered that 16 months of Counts 1 and 3 were to run consecutively to each other and to the 40 months’ imprisonment imposed on Count 2.

Applicant’s grounds of appeal and submissions

17.  In his letter dated 5 November 2024, the applicant has advanced no less than 9 homemade grounds of appeal against his sentence. Essentially, he complains that the sentence was disproportionate to the circumstances of his case, given the maximum sentence for the offence of indecent assault. He argues that his conduct lacked premeditation or the use of physical violence, force or aggression.

18.  The applicant further argues that his sentence was excessive when compared with other cases of a similar nature, citing the first instance decisions of HKSAR v P Y F[3] and HKSAR v T Y K[4], which were said to involve greater degrees of harm being inflicted over a longer period of time. He contends that ordering the sentences of the counts to run as the judge did resulted in a total sentence which was disproportionately long in comparison with similar cases with more severe circumstances.

19.  In particular, the applicant complains that the judge’s equating Count 2 with an “attempted rape” introduced a level of seriousness that was unwarranted on the facts, since his conduct and intention did not approach the legal threshold for attempted rape. This mischaracterisation of his conduct had contributed to a harsher sentence, which did not accurately reflect the nature of the offence.

20.  The applicant submits that the judge did not give adequate consideration to the report of the psychologist, who found that the risk of re-offending was low. He suggested that contrary to the findings in the reports, he was genuinely remorseful for what he had done.

21.  The applicant has also applied for leave to adduce fresh evidence comprising mitigation letters of his sister and a member of his church, pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221 (the Fresh Evidence Application) in support of the ground. The applicant submits that the admission of this material would better enable the Court to assess the propriety of his sentence.

Respondent’s submissions

22.  Ms Lisa Go, on behalf of the respondent, submitted that the sentences, individually and collectively, imposed by the judge, were neither wrong in principle nor manifestly excessive. She emphasised, firstly, that the Court of Appeal has said many times that a comparison between cases is of limited value, in light of the infinitely various factual background within the offence of indecent assault. Secondly, the lack of physical violence, coercion or attempted penetration amounted to an absence of aggravating factors rather than the presence of positive mitigation.

23.  Ms Go agreed with the judge’s assessment of the applicant’s conduct in respect of Count 2. Not only were his actions repellent and akin to attempted rape, but they persisted for over an hour. Referring to HKSAR v Kong Yun Chiu[5], she argued that in view of the young age of victim and the applicant’s breach of trust, the absence of other aggravating features should not derogate from the seriousness of the offence of indecent assault on a child and a substantial term of imprisonment was called for. Citing the decision in HKSAR v K K K[6], she submitted that the courts must protect children and visit condign punishment upon those who abuse the trust of children.

24.  Ms Go disagreed that the applicant had demonstrated any genuine remorse. The lack of remorse recounted by the psychiatrist and psychologist was a factor that could be considered in sentencing, while remorse itself was generally subsumed within the discount for plea. Citing HKSAR v Chow Yuen Fai[7], HKSAR v Tsang Cho Kiu[8] and Secretary for Justice v Yu Chun Hing[9], she submitted that it was well established that no discount beyond one-third was warranted for remorse or for sparing the victim the ordeal of testifying in court. Moreover, the low risk of re-offending was not in itself a mitigating factor.

Consideration

25.  I am concerned about the overall starting point of 9 years’ imprisonment in this case. Whilst one must be cautious in this branch of criminal sentencing of comparisons with other cases with different facts (particularly decisions at first instance) where circumstances may vary considerably, 9 years’ imprisonment would be a sentence for the rape of an adult with several aggravating features present. These offences, of course, involved repeated indecent assaults on a young child and that is a particularly aggravating feature of the case. The fact that the applicant was in a position of trust would also necessarily elevate the sentence. Nevertheless, the maximum sentence for rape is life imprisonment; for indecent assault, it is 10 years’ imprisonment.

26.  I have quoted the judge’s remarks about exemplary sentences and the need for deterrence at [16] supra. No one could disagree with these sentiments, which appear to have derived from the authority of HKSAR v Wong Ying Ho[10], at 830A-B. However, where one looks at the facts of Wong Ying Ho, which were described as “a gross breach of trust which marks this case out as an indecent assault of a very serious kind”[11], the starting point taken was 6 years’ imprisonment, resulting in a sentence of 4 years’ imprisonment after plea. The Court, in dismissing the appeal, held that the applicant’s “depravity was of such seriousness as to have justified a sentence in this range”[12]; although it also indicated that a higher starting point might have been warranted. The applicant in that case was a medical practitioner and the victim, his 8-year-old patient, who may, according to her mother, have been mentally impaired.

27.  Ms Go mounted before me a spirited defence of the sentence, listing and emphasising several aggravating features present on the facts, whilst nevertheless properly acknowledging that the sentence is “on the high side”. In my judgment, it is reasonably arguable that the overall starting point in this case was manifestly excessive. Whether it is found to be manifestly excessive or merely “on the high side” is a matter which the Court of Appeal should determine after hearing full argument.

28.  Accordingly, I shall grant leave to appeal against sentence. To enable the appeal to be argued properly, I shall also grant the applicant an appeal aid certificate so that he may be fully represented at his appeal. Many of the 9 grounds of appeal advanced by the applicant are not strictly grounds of appeal, but arguments that can be employed during submissions. Once legal aid counsel is assigned, I shall expect perfected grounds to be filed identifying properly arguable grounds of appeal.