HKSAR v. L.C.H.

CACC 435/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 435 OF 2015

(ON APPEAL FROM DCCC NO. 886 OF 2015)

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REASONS FOR JUDMENT
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1.  The applicant sought leave to appeal against the sentences of 3 years and 4 months’ imprisonment imposed on the applicant by District Court Judge Yip on 15 December 2015 followinghis conviction on his pleas of guilty to two offences of indecent assault on Ms X, a mentally incapacitated person, contrary to section 122(1) of the Crimes Ordinance, Cap. 200. The offences occurred on an unknown day in the period July to September 2014 (Charge 2) and an unknown day in January 2015 (Charge 4). The judge ordered that four months’ imprisonment of the sentence of imprisonment imposed in respect of Charge 4 was to be served consecutively to the sentence of imprisonment imposed in respect of Charge 2. Accordingly, the total sentence imposed on the applicant was 3 years and 8 months’ imprisonment.

The facts

2.  The applicant, a married man of 57 years of age, was employed as an instructor at a Vocational Rehabilitation Centre operated by a voluntary agency, at which Ms X, who suffers from mental retardation, was employed.  The Centre provided employment opportunities and training for mentally retarded and mentally handicapped persons.  Ms X had been employed at the centre for 10 years.  Ms X’s condition is such that she is a mentally incapacitated person within the definition stipulated in the Crimes Ordinance and the Mental Health Ordinance.  Ms X was 32 years of age.  Each of the two offences was committed at the applicant’s home.  The applicant accepted that on each of the occasions of the events the subject of the charges he, “knew or had reason to suspect Ms X to be a mentally incapacitated person.”

Charge 2

3.  On the occasion of the events the subject of Charge 2, Ms X had visited the applicant’s home to discuss her personal problems.  Having touched her breasts and private parts, the applicant removed the clothing worn by Ms X on the upper part of her body, whereas she removed the clothing she wore on the lower part of her body, after which they lay together on a bed.  Although his penis came into contact with her vagina, the applicant failed to achieve penile erection and he did not penetrate her vagina.  Rather, he masturbated to ejaculation.

Charge 4

4.  On the occasion of the events the subject of Charge 4, at Ms X’s instigation, the applicant arranged for Ms X to watch television at his home.  After he had touched her breasts, she removed her own clothing, as did the applicant, and they lay together on his bed.  Again, although his penis came into contact with her vagina, the applicant failed to achieve penile erection and he did not penetrate her vagina.  Rather, he masturbated to ejaculation.

5.  The matter came to light on 25 January 2015, when Ms X complained to another instructor at the Centre of sexual abuse by the applicant.  On being arrested and cautioned in respect of an allegation of indecent assault, the applicant not only admitted that conduct but also admitted that there had been a second occasion.  The prosecution confirmed that Ms X had complained of one incident only to the police.[1]  The applicant was summarily dismissed from his employment at the Centre.

Reasons for sentence

6.  In his reasons for sentence, the judge noted that the applicant was 57 years of age and had no previous criminal convictions.  Also, he acknowledged that the applicant had lost his employment.  The applicant had been employed at the Centre for 13 years.

7.  Of the circumstances of the commission of the two offences, the judge noted that, although there was contact between the applicant’s penis and the vagina of Ms X, sexual intercourse had not taken place only because the applicant was unable to achieve penile erection.  As a result, the applicant had masturbated to ejaculation.  Having noted that the events the subject of the two charges had come to light because of the complaint by Ms X or “being sexually abused”, the judge determined, “That connoted her aversion to the sexual acts.”

8.  The judge said:

“ The maximum sentence for the offence is 10 years. Before me is a case of serious breach of trust reposed on the Defendant by X and X’s family. She had come up to talk about her personal problems or watch TV, as the case may be, while he would rather have sexual intercourse with her. He had exploited her lesser intelligence and life experience in the solitude of his residence.”

9.  Of the absence of a victim impact report, the judge noted that Ms X had declined to participate in this compilation, her younger sister having explained that she did not wish to talk about the matter and was under stress.

10.  In determining the appropriate sentence to impose on the applicant, the judge said that he had regard to the “important sentencing factors” identified in the judgment of this Court in HKSAR v Chan Ching Ho,[2] namely:

“ (1) The need to deter others;

(2) The need to mark the public abhorrence of such crimes;

(3) The need to redress the grievance suffered by the victim, her relatives and friends.”

Starting point and discount

11.  In imposing sentence, the judge said:

“ If there had been penetration together with the attending risk in hygiene and of pregnancy, I would have taken a much higher starting point than what I take now, ie 5 years, for each charge. One-third off for the guilty plea, the sentence is 3 years and 4 months. The sentences shall be consecutive but subject to the totality principle.”

Totality of sentence

12.  In his consideration of the appropriate total sentence, the judge said that he had regard to observations made by this Court in HKSAR v Chan Ching Ho in respect of the approach to sentencing for offences that were separate and distinct.  In that case the applicant was convicted of four charges of indecent assault of his six-year-old niece.  In the judgment of this Court, Stuart-Moore VP noted that “Three of the offences allegedly occurred on different days in 1998.  The last offence was alleged to have occurred on 13 March 1999.”

13.  The judge said:

“ On the issue of concurrent or consecutive sentences, the Court of Appeal observed as follows:

‘Here, the offences were entirely separate and distinct. There was no requirement on the part of the Judge, subject to the principles of totality, to have made any of the sentences to run concurrently unless it had been alleged, which it was not, that two of the offences had been committed in the course of what is often referred to as a “single transaction” (See: A-G v Cheung Pit Yiu [1989] 2 HKC 12.) It does not help the applicant that he chose more or less the same method to approach his victim in the commission of each offence. These remained separate and distinct offences, each deserving of separate punishment and, on this aspect, we reject [his counsel]’s argument to the contrary.’ ”

14.  In the result, the judge ordered that four months of the sentence of imprisonment imposed in respect of Charge 4 was to be served consecutively to the sentence of 3 years and 4 months’ imprisonment imposed in respect of Charge 2.

Ground of appeal against its sentence

15.  By ground 1 of the grounds of appeal against sentence advanced on behalf of the applicant by Mr HY Wong, it was submitted that the “total starting point” the judge had taken for the two offences, 5 years and 6 months’ imprisonment, and the total sentence of 3 years and 8 months’ imprisonment imposed on the applicant was manifestly excessive compared with the sentences imposed on other offenders in more serious circumstances.[3]  Mr Wong invited the Court to note that in the course of mitigation on behalf of the applicant the prosecution confirmed to the judge that it accepted that, in the course of enquiries made of him by police officers into the commission of the offence the subject of Charge 4, the applicant had volunteered an admission of the commission of the offence the subject of Charge 2, which Ms X had not reported.[4]

16.  By ground 2, it was submitted that the judge had erred in “double counting the ‘element of exploitation of lesser intelligence and life experience’ and ‘breach of trust’ as aggravating feature”.

17.  By ground 3, it was submitted that the judge had wrongly equated the offence with rape and failed to take into account that Ms X appeared to consent.  Further, that the judge had failed to take into account that in consequence of the applicant’s pleas of guilty she had been spared the ordeal of giving evidence.  

The respondent’s submissions

18.  Mr Daryanani, for the respondent, opposed the grant to the applicant of leave to appeal against sentence.  He invited the Court to note that the maximum sentence for the offence was 10 years’ imprisonment.  He submitted that the offences were to be regarded as most serious because the applicant had intended to have sexual intercourse with Ms X and did not do so only because he failed to achieve penile erection.  Having pointed out that the offences were committed at the least three months apart, he submitted that, subject to the principle of totality, the sentences of imprisonment ought to have been ordered to be consecutive.  Whilst he accepted that the applicant had volunteered the information that led to the laying of Charge 2, he submitted that the grant of any discount to the applicant for that reason lay within the discretion of the judge, not to be interfered with by this Court.[5]

A consideration of the submissions

19.  As noted earlier, the judge said in terms that he afforded the applicant a discount from the starting point taken to sentence of one-third to reflect his pleas of guilty.  Under the now well established approach to sentencing the fact that Ms X was thereby saved from the ordeal of having to testify is subsumed in the one-third discount afforded to the applicant.[6]

Ground 2

20.  Far from equating the circumstances of the commission of the offences with that of rape, the judge made it clear that if sexual intercourse had taken place, “I would have taken a much higher starting point” than the 5 years’ imprisonment starting point that he stipulated.  He explained that he would have done so because of the attendant risk of infection and pregnancy.  With respect, there is no merit in this ground of the team.

Ground 3

21.  In addressing the issue of the breach of trust involved in the commission of the offence, the judge said:

“ Mr. Lee seeks to argue that there was no breach of trust because the offences were not committed in the workplace to which trust was attributed. In his residence, they had to be seen as friends. I do not agree with this argument. It was essentially X’s family who applied to have X placed in the Centre based on their trust of the staff there, a fact accepted by Mr. Lee. The trust was attached to its staff, not the venue. The Defendant’s acts were in serious breach of such trust.”

22.  In my judgment, the judge was correct that the applicant’s conduct was a breach of trust, notwithstanding that the offence occurred at his home.  As the judge determined, trust was reposed in the staff of the Centre.

23.  Of the issue of exploitation, the judge said:

“ Mr. Lee concedes that there is an element of exploitation. I agree that such is the case in light of the Defendant’s ascendency of intelligence and life experience over X.”

24.  The observations that this Court made in its judgment in HKSAR v Lau Chin Yu that, in circumstances where the applicant had raped a mentally incapacitated person, and where the judge stated that she passed, “an enhanced sentence for aggravated rape for two reasons, the victim’s mental incapacity and the applicant breached trust”, was made in the context of reference by the judge to the judgment of the Court of Appeal in England and Wales in R v Millberry & Ors.[7]  Of those two factors, this Court said that they were:

“ ...virtually indistinguishable. The applicant was, in reality, only in a position of trust because of the victim’s mental incapacity. These two factual considerations amounted, in our view, to a single ground for adopting a higher sentence than might otherwise have been the case.”

25.  In this case, there is no question of the judge having increased the sentence separately having regard separately to each of the two factors.  Rather, it is clear that he treated them as subsumed into one consideration relevant to sentence.  Obviously, the factors overlapped: the applicant was in breach of the trust reposed in him to take care of her because she was mentally incapacitated.  There is no merit in this ground of appeal.

Ground 1 : the starting point taken for sentence

26.  Neither of the judgments of this Court [8] to which the judge said that he had regard under the rubric ‘Sentencing considerations’ concerned an indecent assault on a mentally incapacitated person.  The only such judgment to which this Court has been referred is the judgment of this Court in HKSAR v Lau Chin Yu, to which Mr Wong referred.  There the applicant, a man aged 23 years, pleaded guilty to the indecent assault and subsequent rape of his 24-year-old neighbour, who “suffered from a mild great mental retardation”.  The indecent assault was committed in circumstances where the applicant lifted up the victim’s clothing and fondled her breasts, taking photographs of her exposed breasts, notwithstanding her expressed lack of consent.  Similarly, on a subsequent occasion when sexual intercourse took place, the victim again expressed her lack of consent.  This Court noted that the judge remarked that the victim had an “IQ of around 52”.  Of the starting point taken for sentence of 2 years’ imprisonment for the offence of indecent assault, this Court said that it was “appropriate”, but went on to say that the judge was wrong to have discounted that sentence by, “more than one third on account of his plea of guilty.”

27.  Of course, the circumstances of the commission of an offence of indecent assault may vary widely, so that the appropriate sentence in any one case must depend on the particular circumstances of the case.  In the instant case, in the absence of a victim impact report, there is no specific evidence of the impact of the indecent assault on Ms X.  Other than the fact that Ms X was a ‘mentally handicapped person’, within the meaning of that phrase in the Crimes Ordinance Cap. 200[9]and the Mental Health Ordinance, Cap. 136[10],there was no evidence of the degree of her handicap.  The judge noted that, although Ms X had removed her own clothing on each of the occasions the subject of the charges, otherwise, “she had remained passive throughout.”  Nevertheless, the complaint that she voiced soon after the second occasion was of sexual abuse. In the context of a determination that one of the factors relevant to sentencing was the need to redress the grievance, “suffered by the victim relatives and friends”, the judge had observed in an interchange with counsel for the applicant that in placing Ms X at the Centre her family had trusted that good care would be taken of her.[11]

28.  In stipulating a starting point for sentence of 5 years’ imprisonment, the judge did not explain or identify how he determined to adopt that particular sentence.  Furthermore, the judge did not advert to the undisputed fact that the applicant had volunteered the information which resulted in the laying of Charge 2.  In all the circumstances, in my judgment it is reasonably arguable that the judge erred in stipulating that starting point for sentence and in imposing a total sentence of 3 years and 8 months’ imprisonment.

Conclusion

29.  Accordingly, for the reasons set out above I granted leave to appeal against sentence on ground 1 only of the grounds of appeal against sentence.