SECRETARY FOR JUSTICE v. CHAU CHI YAN

CAAR 7/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 7 OF 2008

(ON APPEAL FROM HCCC NO. 184 of 2008)

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BETWEEN

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J U D G M E N T

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Hon Tang VP:

1.  The respondent, a policeman, was convicted on his own plea on two counts.

2.  First, for unlawful sexual intercourse with a girl under 13, contrary to section 123 of the Crimes Ordinance, Cap. 200. The particulars of the offence state that the respondent, between 1 June 2005 and 31 July 2005, had sexual intercourse with a girl X, who was 11 years old at the time.

3.  The 2^nd offence was for unlawful sexual intercourse with a girl under 16, contrary to section 124(1) of the Crimes Ordinance, Cap. 200. The particulars of the offence show that the offence was committed between 1 June 2007 and 30 June 2007, when he had unlawful sexual intercourse with X, who was then 13 years old.

4.  The victim X was the step-daughter of the respondent. The mother of the victim (PW2) (I will refer to her as the mother), a Mainlander, gave birth to X in 1994 in the Mainland and a younger daughter (PW3) (I will refer to her as the younger sister) in 2000 in Hong Kong, her then husband (the father of the two girls) was a Hong Kong resident. The mother and the father separated in 2002. The mother has lived in Hong Kong since 2002.

5.  In 2003, the mother and the respondent started cohabitation in a studio flat in Mongkok. In July 2003, X came to Hong Kong and started to live with her mother and the respondent. In 2004, the mother divorced her father. In the same year, the mother changed the surname of X and the younger sister to that of the respondent. In January 2006, the whole family moved to the police quarters in Sau Mau Ping, Kowloon. In August 2006, the mother and the respondent married. I understand that the mother has petitioned for a divorce.

6.  In late afternoon on a day between 1 June 2005 and 31 July 2005, only X and the respondent were at home in the flat in Mongkok. X was then 11 years and 3 months old and the respondent close to 45. The respondent was in bed. X was tired and as she found the sofa bed uncomfortable, she went to the bed and slept next to the respondent. While X was sleeping, the respondent took off her clothes. She was sleepy and ignored what was happening. Soon she woke up and found both she and the respondent were naked. She saw the respondent putting his penis into her vagina and had intercourse with her. At that time the respondent was not wearing a condom. The respondent also tried to kiss the breasts of X. The respondent continued the intercourse for a while and then put on a condom. He resumed the intercourse until ejaculation. After the incident, the respondent told X not to disclose the incident.

7.  About two years later, in June 2007, when the victim was 13 years and 2 months old and the family was living at police quarters, in late afternoon when the mother had gone to work, the respondent asked X to go into the master bedroom with him. X refused. Eventually the respondent brought her into the master bedroom, locked the door behind him and turned on the volume of the television, leaving the younger sister in the sitting room. X thought she had little choice and gave in. She laid on the bed. The respondent took off his shorts and told X that it would be the last time. He put his penis into X's vagina and had intercourse with her for 5 minutes without a condom. He then put on a condom and continued the intercourse. When he touched X's breast, she tried to cover her breasts with her hands. The respondent pulled away her hands. The respondent continued until ejaculation.

8.  In the morning of 15 March 2008, X refused to return home. The matter was reported to the police by the mother and the respondent. X was contacted and she turned up at the police station. She disclosed to a woman police officer that the respondent had interfered with her at the flat in Mongkok and at the police quarters. The respondent was arrested on the same day and has been remanded in custody since. Under caution, the respondent admitted that he knew the age of the victim, that he had sexual intercourse with her but could not recall the exact dates.

9.  On 8 August 2008, the respondent pleaded guilty at the Eastern Magistrates’ Court. He was committed before the Court of First Instance for sentence. On 19 November 2008, Deputy High Court Judge Line sentenced him to a total term of imprisonment for 3 years. He was 48 years old when he was sentenced. As I have said, he was a policeman. He had been a policeman for 29 years. The victim’s mother was his third wife.

10.  The learned judge, in respect of count 1, took a starting point of 6 years. He then reduced that by reason of the plea to 4 years. He said:

“… But I remember this is not incest. And I am going to give you that extra credit for not seeking to lie your way out of the matter and saving the girl.

I have taken those two main factors with the other attractive mitigation that was advanced on your behalf, and the sentence I shall pass on Count 1 is a merciful one in the circumstances of 3 years’ imprisonment.”

He also said that was less than what he had in mind when he came into court and that it was a merciful sentence.

11.  In respect of the 2^nd charge of unlawful sexual intercourse when the victim was 13, the learned judge took a starting point of 4 years which he then reduced to 2 years and 8 months by reason of his plea. He said:

“… I am not going to tinker any further with that 2 years and 8 months because my intention is to make that concurrent to the sentence on Count 1. And I do that because in this case I judge the right totality on a plea of guilty in these circumstances is one of 3 years' imprisonment.”

12.  This is the Secretary for Justice’s application to review the respondent’s sentence pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221. Leave was granted by the Chief Judge on 9 December 2008.

13.  The approach of this court to a review of sentence was stated by Silke VP in Attorney-General v Tai Chin Wah [1993] 1 HKC 1, he said at page 7:

“… This court does not alter a sentence merely because, in its opinion, the sentence imposed was somewhat less than the court itself would have given. That is not the test. As Lord Lane put it in Attorney General's Reference No.4 of 1989 (1989) 11 Cr App R (S) 517, the court will only increase sentences which it concludes are unduly lenient and

… A sentence is unduly lenient, we were told, were it to fall outside the range of sentences which the judge, applying his mind to all relevant factors, could reasonably consider appropriate.

While the empowering English legislation, unlike that in Hong Kong, uses the expression ‘unduly lenient’, the principle is the same.”

14.  I turn to consider first the sentence of 3 years for the 1^st count. The learned judge had adopted a starting point of 6 years. In doing that, he took account of the Reference by the Attorney-General under Section 36 of the Criminal Justice Act 1988 (No. 1 of 1989) reported in [1990] 90 Cr App R 141, where the English Court of Appeal provided certain broad guide as to the level of the sentence to be imposed for different categories of the crime of incest. We are concerned with incest with girls under 13. The Lord Chief Justice said at page 147:

“(3) Where the girl is under 13.

It is here that the widest range of sentence is likely to be found. If one can properly describe any case of incest as the ‘ordinary’ type of case, it will be one where the sexual relationship between husband and wife has broken down; the father has probably resorted to excessive drinking and the eldest daughter is gradually, by way of familiarities, indecent acts and suggestions made the object of the father’s frustrated sexual inclinations. If the girl is not far short of her thirteenth birthday and there no particularly adverse or favourable features on a not guilty plea, a term of about six years on the authorities would seem to be appropriate. It scarcely needs to be stated that the younger the girl when the sexual approach is started, the more likely it will be that the girl's will was overborne and accordingly the more serious would be the crime.

Other aggravating factors, whatever the age of the girl may be, are (inter alia) as follows:

1. If there is evidence that the girl has suffered physically or psychologically from the incest.

2. If the incest has continued at frequent intervals over a long period of time.

3. If the girl has been threatened or treated violently by or was terrified of the father.

4. If the incest has been accompanied by perversions abhorrent to the girl, e.g. buggery or fellatio.

5. If the girl has become pregnant by reason of the father failing to take contraceptive measures.

6. If the defendant has committed similar offences against more than one girl. Possible mitigating features are (inter alia) the following:

1. A plea of guilty. It is seldom that such a plea is not entered, and it should be met by an appropriate discount, depending on the usual considerations, that is to say how promptly the defendant confessed and his degree of contrition and so on.

2. If it seems that there was a genuine affection on the part of the defendant rather than the intention to use the girl simply as an outlet for his sexual inclinations.

3. Where the girl has had previous sexual experience.

4. Where the girl has made deliberate attempts at seduction.

5. Where, as very occasionally is the case, a shorter term of imprisonment for the father may be of benefit to the victim and the family.”

15.  The LCJ then turned to the facts of the case and said:

“S was 11 at the time when the incest began, thus a starting point of not less than six years' imprisonment is appropriate. The offender confessed at an early stage and pleaded guilty, for which he gets credit. There are no other mitigating features which we can see. On the other hand, there is the serious aggravating feature that this conduct went on with regularity over a period of four or five years.

We have come to the conclusion that in those circumstances an appropriate sentence would be one of six years' imprisonment on counts 2 and 3 each of which alleged incest with S when she was under the age of 13. The sentence of three years on count 4 alleging incest with her when she was 15 will remain unaltered. Those three sentences will run concurrently, making a total of six years.”

16.  It is to be noted that in Attorney-General under Section 36 of the Criminal Justice Act 1988 (No. 1 of 1989), on the facts of that case a term of 6 years' imprisonment was considered to be appropriate, where the offender had confessed at an early stage and pleaded guilty.

17.  Earlier in his judgment, the Lord Chief Justice referred to the case of Corless [1989] Crim LR 517, where the Court of Appeal:

“… considered sentences totalling 12 years imposed upon a father for indecent assaults and incest committed upon his daughter starting when she was 11 and progressing to incest when she was 12. The incest continued for some two years. This Court took the view that the father had deliberately set out to corrupt his daughter at the age of 11 and had succeeded. The sentence was however reduced to nine years on the grounds that insufficient credit had been given for the plea of guilty.”

18.  There is no tariff for the offence of unlawful sexual intercourse with an underage girl. Mr David Leung, SPP, has referred us to numerous dicta of this court on the need for substantial sentences in order to deter and to punish sexual offences involving young children.

19.  It is important always to bear in mind what Stock JA (as he then was) said in HKSAR v Kong Yun Chiu, CACC 315/2006, unreported, dated 6 August 2007:

“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 …”

20.  I also note what the clinical psychologist Ms Tso Chi-wai, Janet, said in her report about the victim:

“3. Perceptions and feelings towards the abuse

(X) described that her relationship with her step-father was good. At home, Mr. Chau took the discipline role. If she had misbehaviors, her step-father would give explanation to her. After the abuse occurred, her feeling towards him was ambivalent. Since she did not understand why a father would abuse his daughter, she attributed the reason to bad luck (唔好采). Regarding the abuse, feelings of guilty, worry and upset were reported. She felt guilty because she did not reject her step-father. She revealed that she did not know how to refuse his abusive acts when she was small. As she grew older, she could reject him and tried to stay away from home. According to her, she was not angry at her step-father because he treated her well. She did not disclose the abuse incidents earlier because the abuser was her mother’s husband. Her reason for keeping the abuse as secret was for protecting her mother and the whole family. If her mother knew the incidents, she worried about the family could not keep intact and her mother would get hurt.”

21.  Mr McGowan for the respondent has submitted that this is not a true case of incest, and that at the time of the 1^st offence the respondent had not yet married the victim’s mother. But he had been living with the victim’s mother and the two girls as a family for two years and I agree with Mr Leung that he stood in loco parentis to the girls. In my opinion, a starting point of 6 years is fully justified simply on the basis that a middle age man had sexual intercourse with a girl just over 11 years old when that girl was living under his roof and in his power. No other aggravating factor is required.

22.  The respondent was rightly given a one-third discount for his plea. Mr Leung submitted that the learned judge was wrong to have in effect given the respondent a discount of 50%. He accepts that given the positive evidence in the present case that X was glad that she did not have to testify in the court, some additional discount on top of the one-third might be appropriate.

23.  The reason for this additional discount was explained by Bokhary JA (as he then was) in R v Pang Siu Hong, CACC 698/1995, unreported, dated 23 February 1996, at page 4 of the judgment:

“We can see the force of the argument that the discount for the guilty plea in respect of the attempted rape should have been more than the one-third allowed by the sentencing judge. That is because it is the sentencing policy of the courts to give particularly generous ‘guilty plea’ discount in such cases so as to encourage pleas which spare victims from having to relive their ordeal by recounting the same in the witness-box.”

24.  I agree the respondent should be given a further discount but I do not believe the further discount of 1 year can be justified.

25.  It is said that the respondent could have tried to lie his way out of it, and the fact that he did not choose to do so should be awarded by a further discount. I do not agree. In that case he would have run the risk of losing the discount for a plea. It is not a good reason for any further discount.

26.  I appreciate that the learned judge, with his great experience, has seen fit to give the respondent what he described as a merciful sentence. As HKSAR v Wong Ying Ho [1999] 4 HKC 825 shows, for such offences, matters such as remorse, previous unblemished record and extra-judicial punishment (such as loss of a profession) carry little or no weight. In the circumstances of this case, I believe no reduction beyond a further 4 months can be justified. The sentence for the 1^st offence should be 3 years and 8 months.

27.  The 2^nd offence was committed two years after the first, and would normally have attracted a consecutive sentence, provided that the total sentence is not excessive.

28.  Mr Leung submitted that at least 1 year of the sentence should be served consecutively, making a total sentence of 4 years and 8 months. There is force in this submission. However, since I am raising the sentence substantially, I will order only 10 months of the sentence for the 2^nd count to be served consecutively so that the total sentence will be 4 years and 6 months.

Hon Yuen JA:

29.  I agree.

Hon Saw J:

30.  I agree.

Hon Tang VP:

31.  The application for review is granted and the respondent is sentenced to a total term of imprisonment of 4 years and 6 months.