ATTORNEY GENERAL v. NG SAI MAN

1993, NO. 11
Application for Review

H E A D N O T E

1. Guidelines in Attorney General v. Wai Yan-shun [1991] 2 HKLR 209 on sentences for indecent assault not affected by increase in maximum penalty for such offence brought about by legislation following that case.

2. In the present case, applying those guidelines, a mere fine was wrong in principle and manifestly inadequate, and had to be replaced by 28 days' imprisonment.

IN THE COURT OF APPEAL

1993, No. 11
Application for Review

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court)

1. This is an application for review of sentence.

2. On July 1 last year, the defendant, a factory worker in his early twenties and of previous good character, appeared in the Sha Tin Magistrate's Court on a charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap.200. He pleaded not guilty, but was convicted after trial.

3. Before passing sentence, the magistrate, M.C. Jenkins Esq, sent for a probation officer's report. As to that report, this is what the magistrate said in his Reasons for Sentence:-

"The probation officer's report was in general unremarkable but suggested that he had learnt a lesson from the incident. However, at the same time he maintained his innocence."

4. Sentence was passed on August 18. The defendant was fined $3,000.

5. The indecent assault here in question took place on a Kowloon and Canton Railway train during the morning rush hour on May 24 last year. This, according to the magistrate's notes, is how the victim, a woman in her mid- twenties, described that assault:

"It was quite crowded. About a minute after the train started I felt someone use a finger to disturb my private parts. It happened two or three times. I was not sitting down I was standing about 2 feet from the door. It was very crowded - about 6 people were in my close vicinity. Our bodies were touching each other.

I felt someone used his finger or fingers molest the deeper part of my lower body - not just touching the surface. This happened four to five times. It lasted about five seconds.

I used my right hand to push away the hand. I was pushing it away and kept in contact with it. I then looked up - my eyes following the arm, his body and face. I saw it was a man.

I can identify the defendant as this man. I didn't say anything. The defendant grabbed my hand, pushed it towards the lower part of his body with force pressing on it. He used his right hand. He grabbed my right hand. The defendant was standing in front of me slightly to the right. His body was touching my body.

I withdrew my hand. The train reached Kowloon Tong. I shouted 'This man has indecently assaulted me. Can someone help.' Nobody responded. The defendant said, 'No, I did not.' I grabbed hisT-shirt at his chest. He said, 'It's not me. I didn't do it.' I was wearing a red T-shirt and blue jeans.

When the defendant grabbed my right hand I did not notice his left hand.

Subsequently someone did come up and help and then the police were called."

6. In his Statement of Findings, the magistrate did not rehearse the whole of those sordid facts. Nevertheless, that what the victim said represents the truth as the magistrate found them is indicated by his statement that he was convinced that she was a truthful witness and that he could safely rely on her evidence.

7. In Attorney General v. Wai Yan-shun [1991] 2 HKLR 209 at pp.210J to 211A, this Court accepted that:

"the circumstances giving rise to the commission of the offence of indecent assault can vary considerably - ranging from the quick brush of a hand against the fully clothed anatomy of a victim in a well lit crowded environment to a situation little short of a violent rape."

8. Even by the time of that case, indecent assault on crowded trains had become prevalent. In the present case, the magistrate said that such cases were "not common" in the Sha Tin Magistrate's Court. He spoke of one or two cases a week. To our way of thinking, one or two such cases a week in a single magistracy suggests prevalence.

9. The circumstances of the present case are not of course such as to put it at the most serious end of the scale. That is not saying very much for the defendant given that the maximum penalty for this offence is ten years' imprisonment. Certainly, those facts do not put the case at the opposite end of the scale either.

10. In Attorney General v. Wai Yan-shun (supra) at p.213B-D, this Court, noting that "the circumstances of this offence can vary infinitely", nevertheless went on to provide guidelines in these terms:-

"In our view, given the prevalence, for a first offence the 'clang of prison gates' should now be the normal sentencing option. A period of imprisonment between 14 and 28 days, depending on the place in the scale warranted by the facts would not be interfered with. For a second offence, sentence could well be between 2 to 6 months' imprisonment.

Fines are not being ruled out as a sentencing option. In the possibly rare case where the circumstances of the offence are such that the magistrate is satisfied that a fine is a proper punishment, then the fine must be geared to the ability of an offender to pay and inquiry must be made by the sentencer as to that."

11. The magistrate's Reasons for Sentence concludes thus:-

"In all the circumstances I thought that the defendant had been sufficiently deterred and I felt a moderate fine was appropriate penalty.

When the matter came on for review I and having considered the argument. I felt on reflection that a short sentence of imprisonment should have been imposed. There was really little in the case that distinguished it from Wai Yan Shun's case apart from the question of prevalence. However, I confirmed the original sentence noting that the Court of Appeal did not in fact vary the fine imposed in Wai Yan Shun's case."

12. As to why the sentence in that case was not disturbed, this is what this Court said in Attorney General v. Wai Yan-shun (supra) at p.213 G-J:-

"From the submissions of Mr. Cross it seems to us that, while he would wish this court to take the view that a fine was manifestly inadequate, the Attorney General by the bringing of this application is mainly seeking guidelines applicable to future offence of this nature and using this case to that end.

In all the circumstances of this offence and of the offender we agree that the sentence imposed was manifestly inadequate. We consider however that this particular respondent has been brought to his senses by everything that has happened to him and that he personally has been sufficiently deterred. In the light of all this we do not consider ourselves to be obliged either to impose the sentence we consider should have been imposed at trial or to dismiss the application: Attorney General v. Chan Tak-king [1989] 2 HKLR 429. From now on, offenders who contemplate such action must fully realise where their conduct will bring them."

13. The message as to the future was there clear.

14. Before leaving the case of Attorney General v. Wai Yan-shun (supra), we note Mr Cross's point that shortly after that case was decided the maximum penalty for this offence was increased from five year's imprisonment to ten year's imprisonment. The courts should not be unmindful of such developments. But, on the whole, we are not disposed to revise the Attorney General v. Wai Yan-shun (supra) guidelines simply on the strength of this development. After all, those guidelines cover terms of imprisonment counted by weeks rather than months when it comes to a first offence and months rather than years when it comes to a second offence. The revision upwards of the maximum penalty was probably a reflection of the reality, recognised in Attorney General v. Wai Yan-shun (supra), that at the top end of its seriousness this offence borders upon rape.

15. Now, there is not the slightest doubt that no court wishes to impose a short term of imprisonment if that can possibly be avoided: because in broad terms one would be disposed to think along the lines that if is not necessary to send a man to prison for very long it may well not necessary to send him to prison at all. That is a perfectly natural initial reaction. But it does not govern all the circumstances which can arise.

16. Equally, when dealing with a review of sentence this Court is never unmindful of the impact upon a man of being sent to prison when the lower court has passed a sentence resulting in him being set at liberty. But the endeavour of the courts to afford to women adequate protection against this kind of behaviour is an earnest one. Actions speak louder than words. In these cases it seems that words can be misunderstood not only by offenders but even by, as this case demonstrates, judicial officers.

17. We allow this application for review. In allowing it, we set aside the fine - a mere fine being wrong in principle and manifestly inadequate in the circumstances - and impose instead a sentence of imprisonment for 28 days.