R. v. YU YUN HEI

IN THE COURT OF APPEAL

Application for Review
1995, No.3

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The respondent faced two counts of indecent assault. He pleaded guilty to both and was sentenced to 15 months on each by District Judge Surman and the sentences were ordered to be served concurrently. The Attorney General now seeks to review those sentences on the ground that they were inadequate and wrong in principle.

2. The offences occurred at Room 210, Block 4, Lek Yuen Estate, Shatin. This is the residence of the first victim who was 8 years of age. At the time the second victim who was 9 years of age was visiting her. Fortunately, as it turned out, the 14-year-old brother of the first victim was in a nearby room where he was able to overhear what occurred in Room 210.

3. At about 5 p.m. on 15th October 1994 while the two victims were playing inside the premises, there was a knock at the door and when it was opened the respondent stating he was "from the Government" pushed open the door and rushed in. He grabbed the first victim, pushed her onto the floor, removed her shorts and underpants and inserted his finger into her vagina. He then released her and grabbed the second victim. He pushed her onto the floor and did the same thing to her. The first victim's brother heard his sister crying and he intervened. When he did so the respondent desisted and ran away but he was pursued and after a struggle was apprehended.

4. His blood sample was taken some five hours after he was apprehended and that showed a high blood alcohol level. This indicated, according to Professor Kumana of the University of Hong Kong Department of Medicine, severe intoxication at the time of the offence. The Professor said that there was a possibility of involuntary abnormal behaviour which could have contributed to diminished responsibility.

5. Dr. Yuen, a Government psychiatrist, said that the respondent had no psychotic symptoms but that it was possible that the offence was committed under the "disinhibitory effect of alcohol".

6. These reports stripped of their technical jargon indicate no more than that the inhibitions of the respondent being lowered by voluntary intoxication he sexually assaulted the two victims. He has a bad record but there are no similar offences and he has not committed any offence since 1980.

7. The trial judge when sentencing said:

"I am told that the Defendant at one time had a Drug problem, but he has overcome that. It now appears that he has an Alcohol problem. That will have to be cured too. The fact of intoxication by alcohol is no excuse or defence here.

I have taken the precaution of obtaining Medical, Psychiatric, and Probation Reports. There is nothing wrong with the Defendant ..... physically or mentally. Not recommended for Probation even if that was appropriate.

However I have taken into account the remorse expressed, the fact that the Defendant has admitted the Offences and saved the Children from having to give evidence. Also that the Defendant has apparently not been in trouble since 1980.

A sentence of Imprisonment is the inevitable consequence for this type of Offence, especially when it involves young Children."

8. The judge in that passage briefly but accurately canvassed most of the pertinent points. The Crown suggests however that he did not lay sufficient emphasis on matters such as deterrence and public outrage and issue taken with the next sentence of the judgment when he said:

"I start at 18 months and reduce it to 15 months for the plea of guilty".

9. It is argued by Mr. Saw, who appears for the Attorney General, that the 18 months starting point did not reflect the seriousness of the offences. He points out and asks this court to bear in mind that in 1991 the legislature increased the maximum for this offence from five years to ten years. He submits, relying upon what this court has said previously, that in this type of offence deterrent sentences are called for.

10. The question for this court is a simple one. Bearing in mind the need to deter and the public outrage at an offence of this kind was 15 months overall, a sentence which properly met the gravity of the two offences?

11. Mr. Saw asks us carefully to consider the circumstances. Two children are playing in the sanctity the home of one of them, the applicant, in a drunken state, forces his way into the premises, assaults them, partly strips them of their clothing and then sexually assaults them. The facts are, we have no doubt, such as would outrage any right-minded person. We are also satisfied that a deterrent sentence is called for.

12. Mr. Saw referred us to The Attorney General v. HO Yu-ping (Application for Review No.8 of 1993). That case concerned a school teacher and involved a breach of trust. This court approved of a sentence of 18 months. It must be said, however, that the assaults were of a much less serious and less intimate nature than the assaults in the present two cases.

13. We were also referred, and Mr. Saw laid particular emphasis thereon, to the case of The Queen v. Osmond No. 453 of 1994. In that case the applicant was sentenced to four years' imprisonment on an indecent assault charge. Osmond was, however, on any view of it, a very much more serious case than the present one.

14. Because the judge made the sentences concurrent we must take it that the starting point for the two offences was 18 months. We are satisfied that that starting point was too low but we take into account also that the discount given for plea was, in our view, less than it should have been. What we really have to ask ourselves is whether the eventual sentence was so far outside the proper range that we are called upon to interfere. Was it, in the words of the application, wrong in principle. We think it proper to indicate that had this been an appeal against sentence and had a somewhat longer sentence been imposed, we would have been very unlikely to have interfered with it. It is not however an appeal against sentence. In the outcome we were satisfied that while this sentence was at the very bottom of the proper range it was not outside that range and was therefore not wrong in principle. The application of the Attorney General must, therefore, be refused.