R. v. YEUNG KAM FAT

Cr. App. No. 533 of 1991

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

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J U D G M E N T

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Barnett J.

1. This is the judgment of the court.

2. The applicant has three daughters who are aged 22, 20 and 16. On 23rd October 1991, he pleaded guilty to eight counts of incest, two involving his eldest daughter, four involving his second daughter and two involving his youngest daughter. He was sentenced by Wong J. to three years' imprisonment on each of the first two counts, four years' imprisonment on each of the next four counts, and five years on each of the last two counts. The sentences relating to each daughter were ordered to run concurrently, but consecutively to the sentences passed in respect of the other daughters. The applicant also pleaded guilty to one count of doing an act intended to pervert the course of public justice for which he was sentenced to one year's imprisonment, that sentence to run consecutively to the other sentences. He was, therefore, sentenced to a total of thirteen years' imprisonment.

3. The applicant now seeks leave to appeal against the sentences of five years passed in respect of the third daughter, and against the totality of the sentences, as being manifestly excessive. At our suggestion we were addressed principally in relation to totality.

4. The offences took place over a period of years between 1984 and 1990 at the family home, the counts to which the applicant pleaded guilty being but a few samples of his conduct. Sexual intercourse with the eldest daughter occurred regularly almost every other night until she left home in 1986 aged 17. Intercourse with the second daughter began in 1985 and occurred every seven or ten days. In 1987, the second daughter became pregnant. The applicant arranged for the child to be aborted. Intercourse resumed in January 1988 and continued regularly until July 1990. Intercourse with the youngest daughter began when the eldest daughter moved out and took place every two or three nights. In July 1988, the third daughter ran away from home. She was located by the police and returned to the applicant. Intercourse resumed until September 1990, when she complained to some friends and the matter was reported to the police. Upon being interviewed by the police, the applicant immediately admitted that he had had regular intercourse with his three daughters.

5. Later, while on remand in Lai Chi Kok Reception Centre, the applicant asked his son to try and persuade his second and third daughters not to testify against him. This was the gravamen of the offence contained in the last count.

6. For the applicant, Mrs. Robertson, who also appeared for him below, did not try to minimize the seriousness of the offences. In mitigation, she explained that the applicant's wife left him in 1975, so that the applicant had to bring up the children alone, not an easy task which imposed a heavy burden and considerable financial hardship upon him. She said that by pleading guilty the applicant spared his daughters from the ordeal of giving evidence. She pointed out that sexual offenders, particularly when children are involved, faced additional difficulties in prison. Finally, she said that the applicant's family is now completely broken up.

7. The judge, echoing the words of a witness contained in a deposition, described the offences as "beastly". He said that the case is the worst he had seen, a sentiment from which this court finds difficulty in dissenting. He said he would have had little hesitation in sentencing the applicant to life imprisonment if he had not pleaded guilty. Life imprisonment, we observe, is the maximum sentence for this offence when involving a daughter under the age of 13 years, otherwise the maximum is seven years' imprisonment. However, the judge said that he was sentencing the applicant strictly for the offences of which he had been convicted on his own plea.

8. We were referred to the Attorney-General's Reference (No. 1 of 1989) (1989) Vol. 11 Criminal Appeal Reports 409, in which the English Court provided detailed guidelines in relation to incest offences. In relation to girls aged from 13 to 16, the Court indicated that sentences from three to five years are appropriate, although the sentences will usually be from two to four years after giving credit for a plea of guilty. It is, of course, girls of this age group with which this application is concerned. The Court went on to list six aggravating factors which a sentencing court may take into consideration, of which only three apply here. First, if the incest has continued at frequent intervals over a long period of time. Second, if the girl has become pregnant by reason of the father failing to take contraceptive measures. Third, if the defendant has committed similar offences against more than one girl.

9. The Court then mentioned five mitigating factors which may be taken into consideration, of which only one applies here, namely, a plea of guilty.

10. These guidelines were canvassed by another division of this court in The Queen v. Hui Yee Chun Cr. App. 153/90 delivered on 26th February 1991. That appeal involved two sample counts of incest, the daughter being aged under 13 and the first offence being committed when she was aged about 10. The sentencing judge took the view that a starting point of nine years' imprisonment was appropriate. The Court of Appeal agreed with that approach.

11. Here there was a consistent course of conduct on the part of the applicant over several years. The judge was clearly heavily influenced by this. Perhaps he did not stand back sufficiently when considering the totality of sentence as another division of this court recommended be done in The Queen v. Wong Kwai Pui Cr. App. 522/1989 the judgment being delivered on 5th June 1990. In delivering the judgment of the court, Silke VP said:

"In passing the sentence he did the trial judge, as we have indicated, stated that he had in mind totality. Given all the circumstances here we do not consider that he "stood back" far enough in his evaluation. It is proper for a trial judge to consider the individual sentences - there is no suggestion that individually the sentences are in any way wrong - then to consider circumstances such as the necessity to inhibit other persons from committing the same type of offence, the seriousness of the individual offences and matters of that kind. Having done that, he should stand back and look at the sentences overall and come to a proper sentence neither too heavy nor too light."

12. Standing back as we do, and taking into account all that has been urged upon us by Mrs. Robertson together with the overall facts of the case, we think that the offences demand a totality of ten years' imprisonment.

13. We, therefore, allow the application and treating the application as the hearing of the appeal, we allow the appeal as follows:

14. Counts 4 and 5: The sentences of three years' remain unchanged.

15. Counts 6, 7, 8, 9: The sentences of four years' imprisonment are set aside, and substituted therefor are sentences of 3 years' imprisonment to run concurrently amongst themselves, but consecutively to the sentences in respect of counts 4 and 5.

16. Counts 14, 15: The sentences of five years' imprisonment are set aside and substituted therefor are sentences of three years' imprisonment to run concurrently amongst themselves, but consecutively to the sentences in respect of the earlier counts.

17. Count 16: The sentence of one year's imprisonment consecutive to the other offences remains unchanged.

18. Accordingly, the totality of the sentence imposed upon the applicant is ten years' imprisonment.

19. We wish to emphasize that we have been dealing with the totality of the sentence, and would not wish to be thought to suggest that three years' imprisonment is necessarily the appropriate sentence for multiple offences of incest involving one daughter.