HKSAR v. KONG YUN CHIU

CACC 315/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 315 OF 2006

(ON APPEAL FROM HCCC NO. 77 OF 2006)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. On 24 July 2006 this applicant was sentenced to a total term of six and a half years’ imprisonment by Beeson J in respect of two offences of indecent assault to which he had pleaded guilty.  He now seeks leave to appeal against that sentence.

2. The applicant is the maternal uncle of the victim.  At the date of the first offence, in 1999, he was aged 28 or 29 years.  The victim was then aged eight years.  He was lodging in the same premises where the victim was living with her mother and father.

3. We take the facts from the judge's remarks upon sentencing:

“

On [the first occasion which was in 1999] he asked the victim to take a bath.  She removed her clothing until she had only her knickers on.  While she was in the bath, the defendant came in, having taken off his clothing, except for his underpants, and touched her breasts and private parts and felt excited by that.  He later watched a pornographic video showing sex acts.  At that time, the victim came over to him; the defendant rubbed his penis through her trousers and his trousers, experiencing an erection.  He later stripped the victim's trousers and knickers to below her knees, took off his trousers and underwear and rubbed his penis on the outside of her private parts.  He masturbated and ejaculated at that time.”

“

The second incident [charged in the indictment as having occurred in the winter of 2002/2003] took place at a different flat, the family having moved.  The victim was on her bed, almost asleep, with her night clothes on.  The defendant came up and touched her under her nightdress; he touched her breasts and private parts through the underpants she was wearing at the time.  He pulled down her underpants and touched her private parts which woke her up fully.  The defendant pulled down his own trousers and underwear and rubbed his penis against her private parts and masturbated and ejaculated.  The victim, who had seen the defendant take off his clothes, pull down her trousers and feel her private parts with his penis, was frightened and thought the defendant wanted have sexual intercourse.  She resisted him by pushing him and ran out to the living room.”

4. The victim did not tell anyone about these assaults until 2005 when she complained to a school tutor after a talk about sexual attacks.  Even so, at that stage the family made no report to the police but a couple of months later the applicant made contact with her and she became frightened and consequently the family reported the matter to the law enforcement authorities.  When the applicant was arrested, he said that he wanted to apologise for the indecent assaults he had committed.

5. The judge had the advantage, when sentencing, of a probation report and a psychologist’s report.  She noted that he had had an unhappy upbringing and was assessed to be rather inadequate in terms of social contacts.  The psychologist felt that whilst there was a low risk of sexual recidivism, he appeared to have little insight into his problems and downplayed the role of pornography in his life.  He was evasive when talking about the offences and even at one stage seemed to place blame on the victim for what had happened.  The judge accepted that the applicant had shown some remorse though she commented that he did not strike her as being particularly remorseful.

6. The applicant has a minor criminal record, juvenile offences, a loitering offence in 1989 and in 1992, possession of an obscene article for the purpose of publication.  The judge disregarded these for the present sentencing exercise.

7. A statement was before the judge from the victim, aged 14 years at the time of sentencing, in which she said that despite her unpleasant experiences, she had encountered no difficulty in relating to male friends.  The judge noted that the long-term effects on the victim did not seem to be serious although a rift had been created with the maternal grandmother’s family as a consequence of the offences.

8. The judge took a starting point of six years’ imprisonment for each of the two counts and accorded the normal one-third discount because of the pleas of guilty.  Accordingly, she sentenced the applicant to four years’ imprisonment on each count.  She ordered that two years and six months’ imprisonment on the second count were to run consecutively to the term imposed in respect of the first count, making a total of six years and six months’ imprisonment.

9. In his able submissions, Mr Stirling on behalf of the applicant presents a straightforward argument which is that the starting point in relation to each count was manifestly excessive and that in any event the totality of six and a half years was manifestly excessive.  Although he recognises that comparison with other cases is usually of little help because the facts of each case differ so much, he has drawn our attention to a series of cases which carried sentences materially less than the totality in this case for offences against minors by relatives or others in a position of trust.

10. In his recognition that sentences imposed in other indecent assault cases are of limited value, Mr Stirling takes an approach that is correct.  The offence is committed in such a wide range of circumstances that the provision of guidelines would be unwise, if not impossible.  That said, an examination of the cases to which we have been referred, and additional cases which we have studied after the hearing, does demonstrate that the resulting sentence in this case is significantly higher than any to which we have been taken, even though the facts of this case, bad though they were, are not more serious than some.  That comparison of cases also demonstrates a marked disparity in sentences imposed for offences of gross indecency with children, in some cases where the facts have been relatively alike.  Compare, for example, the sentence said in Secretary for Justice v Wong Tsz Kin [1998] 4 HKC 32, to be appropriate, with the sentence in HKSAR v Chan Ching-ho [2000] 3 HKLRD 476.

11. In Chan Ching Ho, at page 481, Stuart-Moore VP cited with approval the words of the sentencing judge who had spoken, of the importance of punishing crimes against children of this kind “with a sentence severe enough to deter others from acting like the defendant, and also to show the abhorrence of members of the public to crimes of this nature, and also to redress the grievance suffered by the victim, her friends and relatives.”  It should go without saying that children are particularly vulnerable members of society.  It is too easy for those who would prey on their naivete and trust to succeed, for children are by nature trusting and the deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly.  The trauma caused to a child by an indecent assault, and the long-term adverse impact, is difficult to calculate but trauma may safely be assumed in the vast majority of cases, perhaps all.  Similarly, the trauma and distress, immediate and long-term, is not confined to the child.  Parents of child victims will almost certainly be haunted by images of what has been done to the child and, in addition, will nurture a deep sense of guilt either for having entrusted the child to the company of someone who breaches that trust or, in other cases, for having left the child unguarded for the odd moment.  It should be remembered too, particularly in cases of breaches of trust, that children are much more likely than adults to suffer the trauma in silence rather than report, and in cases where there are threats levelled at the child not to report, whether the threats are express or implicit, fear is added to the initial offence and the culpability is that much the greater.  Whilst the range of offences within the category of indecent assault is wide, the fact that the victim of such an offence is a child is always a severely aggravating feature.  Viewed in the light of these factors, offences of the kind in this case call for substantial terms of imprisonment and one is bound to say that some of the sentences imposed in the past for indecent assault on children, for example those in Wong Tsz Kin, above, and HKSAR v See Tak Man [1998] 1 HKLRD 794, have been remarkably low.

12. Of course there will be a range of offences against children the facts of which are more serious than the present, including for example – and these are only examples – where there has been violence additional to that constituted by the indecent assault, where there have been previous convictions for the same type of offence, and where there have been a number of victims.  Yet the absence of such factors in a particular case should not be permitted to derogate from the inherent seriousness of any indecent assault on a child.

13. In this particular case we are satisfied that the starting point adopted by the trial judge for each offence, that of six years’ imprisonment, was too high and that the resulting sentence of six and a half years’ imprisonment, after pleas of guilty – and the benefit of a plea of guilty in such cases in avoiding the child having to re-live her experience in the witness box is significant – was manifestly excessive.  Although we have remarked that some of the sentences in the past have been too low, the sentences imposed by the learned judge in this case were materially higher than any case to which we have been referred where the facts have been similar and, on any view, the resulting term of six years six months’ imprisonment after a guilty plea was manifestly excessive.  The acts of indecency were themselves most distasteful, the case was one of a breach of trust, and there was an attempt by the applicant to contact the child no doubt with a view to persuading her not to report the matter.  In these circumstances, we consider that an appropriate starting point for each offence was one of five years’ imprisonment; and that with the normal discount for a plea of guilty, sentence upon each count should have been one of three years four months’ imprisonment.

14. Accordingly, we grant the applicant leave to appeal against sentence and treating the hearing of the application as the appeal, we set aside the sentences imposed and substitute upon each count a sentence of three years and four months’ imprisonment.  We shall order one year and two months of the term imposed in relation to the third count to run consecutively to the term imposed on the first, the remainder to run concurrently, making a total of four years six months’ imprisonment.