NG YING WAI v. R.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1011 OF 1996

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R E A S O N S

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1. The appellant, a serving police officer, pleaded guilty before a magistrate to a charge of indecent assault and was sentenced to sixteen months' imprisonment. He appeals against that sentence.

2. The facts were that sometime after midnight on 26th March 1995 the appellant and another police constable were on duty in uniform in the vicinity of Tuen Mun Pier when they intercepted the complainant, a 14 year-old girl and her 15 year-old boyfriend. Upon questioning, the boy admitted that on a number of occasions he had had unlawful sexual intercourse with the girl. Before allowing the girl to leave, the appellant arranged to meet her later that day and told her that both she and her boyfriend would be in trouble if she failed to meet him.

3. At about 1 p.m. on the same day, the appellant, who was off duty, contacted the girl and they subsequently met. He took her to his police quarters where he asked her to massage him but the girl said that she did not know how to do it. In the course of demonstrating to her how to massage, the appellant rubbed her back, removed her pullover and touched her breasts. He also lay on top of her in a way that she could feel his penis was erect. The indecent acts continued and were only stopped when the wife of the appellant returned home by chance. The matter was later reported to the ICAC.

4. The magistrate took a starting point of two years' imprisonment which is the maximum sentence that a magistrate is permitted to impose for a single offence. He gave a one third discount and reduced the sentence to sixteen months' imprisonment on account of the appellant's guilty plea.

5. In passing sentence, the magistrate told the appellant:

"You used your position as a police officer to frighten a 14 year-old girl who you've met in the street in the course of your uniform duty, and to come into your home. There, for your sexual gratification, you indecently assaulted her. Her natural objection to such intimacy with a stranger was overcome by your status of being a police officer. The age of the victim, the abuse of your trusted position and the power that came with it, are grave features aggravating this indecent assault. It was not done in the heat of the moment, the facts reveal a deliberate course of conduct between the meeting in the street and the subsequent conduct with the girl ...... and the incident ended only because of the arrival of your wife.

The abuse of power by officials and policemen is something to be feared, and where such abuse of power facilitates a crime, the sentence is bound to reflect that with a substantial increase."

He described this as the worst case that had ever come before the magistracy. I cannot agree more with these remarks and observations.

6. Mr. Jenkyn Jones, who appeared for the appellant in this appeal, accepted that this was a serious case of indecent assault with an element of abuse of authority. He also accepted that an immediate custodial sentence was inevitable. In his best endeavour to persuade me that the sentence of sixteen months' imprisonment was manifestly excessive, he referred to a number of authorities on sentence in indecent assault cases ending with R. v. Peter MacLennan Mag. Appeal No. 8 of 1996 (Application for Review No. 16 of 1995). This was a case where an expatriate superintendent of police pulled or pushed a cleaning woman into the toilet in a police mess. Inside the toilet, he pushed her against the wall, fondled her breast inside her clothing and her 'lower parts'. He tried to unbutton her jeans but failed. He removed his own trousers and rubbed his penis against her. His appeal against conviction was dismissed. He was fined $5,000 by the magistrate who convicted him but on an application for review by the Attorney General, the Court of Appeal substituted a sentence of six months' imprisonment which was to take immediate effect and indicated that a sentence of no less than nine months' imprisonment should be imposed upon a trial.

7. There is no doubt that Peter MacLennan was a bad case. He was a police officer and a very senior one too. But he had not abused his authority in the sense that he did not threaten the woman that if she did not comply with his wishes he would use his police power to arrest or do harm to her. The gross abuse of authority by the appellant must take this case out of the ordinary range of sentence in indecent assault cases. It is the worst feature of this case. The facts are so shocking, frightening and outrageous that it cries out for a heavy deterrent sentence.

8. I would uphold the sentence of sixteen months' imprisonment and dismiss the appeal.