R. v. IP LUNG FAI

IN THE HIGH COURT

1994, No. 716

Magistracy Appeal

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J U D G M E N T

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Litton, J.A. (sitting as an additional Judge of the High Court):

1. This is an appeal against sentence by the appellant Ip Lung-fai, leave to appeal against sentence having been earlier given out of time. The appellant was convicted before Mr Tong Man at the Eastern Magistracy on 22 June this year on one charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance. The appellant is 31 years of age and was until the incident a police constable. He is married with one child. He was sentenced to two months' imprisonment but was immediately released by the magistrate on bail: cash bail of $2,000 and surrender of travel documents.

2. The incident occurred at Wong Nai Chung Gap Road near the Stubbs Road roundabout on 22 December 1993. The complainant is a young woman aged 24 at the time. What happened was this. At about 1.30pm the complainant was driving a car down Wong Nai Chung Gap Road when she was stopped at a bus stop by the appellant who accused her of dangerous driving and crossing a double white line. The appellant was in uniform, on traffic duty on a motor-cycle, and told the complainant that she had cut across his path. The appellant asked her for her particulars and she asked him to give her a chance. It was in the course of this encounter that the indecent assault occurred.

3. The way the complainant described the incident is this:

"He asked me where I was going to, I said I was going to Causeway Bay. He said if that is the case, he asked me to wait for him outside a furniture shop in Happy Valley. He stretched out his hand to touch me once very quickly. He told me to wait for him there in Happy Valley. He was standing outside the car. I was sitting, he used his right hand to touch me here (Demonstrates indicating the right breast of the witness)."

4. What happened thereafter was that the appellant proceeded to arrange a rendezvous with the complainant. He in fact met her three days later. In the meanwhile the complainant had made a complaint to the police and when he. attended the rendezvous he was arrested.

5. It is clear from these facts that what happened was a fleeting encounter and as, Mr McCoy describes it, by that one moment's action the appellant's whole life lies shattered. Although the appellant originally appealed against his conviction, as an expression of his remorse he has abandoned that appeal and in effect now throws himself upon the mercy of the court.

6. The consequences of the conviction are (1) dismissal from the Police Force (2) loss of the police married quarters and (3) loss of his pension accrued from 10 years' service: a loss which those instructing by Mr McCoy estimate at about $350,000.

7. The actual incident itself lies at the low end of the spectrum of criminality for this offence. On the other hand I cannot ignore the fact that the appellant was a police officer on duty at the time and he took advantage of his position to perpetrate the crime. This is a difficult case to entertain on appeal because the magistrate has not set out his reasons for sentence; understandably so, since there was in fact no appeal against sentence until leave was given earlier today.

8. Mr Joseph To, Counsel for the Crown, has very fairly conceded that the case is exceptional and that it cannot easily fall into the guidelines set out in A.G. v. Wai Yang-sun (1991)2 HKLR 209. Mr To also concedes that by the nature of the appellant's occupation the consequences of the conviction are very profound upon him.

9. As Mr McCoy correctly points out, section 97 of the Magistrates Ordinance empowers the magistrate to impose a fine in the circumstances of this case; whilst in A.G. v. Wai Yang-sung, the Court of Appeal stated that generally-speaking the "clang of the prison gate" should be the normal sentencing option for indecent assault committed in the MTR, fines should not be ruled out as a possibility. Needless to say, the appellant before me is a first offender and therefore some form of punishment other than an immediate custodial sentence ought to be considered. As indecent assault is an excepted offence for the purposes of suspended sentences, the only viable alternative to an immediate custodial sentence is a fine.

10. Having regard to the powers conferred upon me under the provisions of section 119(1)(d) of the Magistrates Ordinance, and bearing in mind in particular Mr To's observations, this is in my judgment one of those rare cases where, without concluding that the magistrate had either erred in principle or imposed a sentence manifestly excessive, it is nevertheless open to an appellate court to interfere: particularly, where, on the face of the record, the adoption of a fine does not appear to have been considered by the magistrate as an option.

11. Having considered now all the circumstances, I conclude that the sentence of imprisonment of two months ought to be set aside and a fine by way of punishment should be substituted. At the time of the offence, the appellant was earning $14,000 a month. He is of course at present without any income and the family is sustained by his wife who works as a clerk earning $6,000 a month. The fine I impose is the sum of $15,000 and I order that if it be not paid within ten days then the appellant shall go to prison for two months. I so order.