SECRETARY FOR JUSTICE v. LAM YU WAI

[English Translation –英譯本]
CAAR 2/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 2 OF 2014

(ON APPEAL FROM DCCC 925 OF 2013)

________________

REASONS FOR JUDGMENT

Hon Yeung VP (giving the reasons for judgment of the Court):

Introduction

1.  The Respondent (Lam Yu Wai) was charged with two counts of indecent conduct towards a child under the age of 16 years.  After plea bargaining, he pleaded guilty to the first count before Judge Stanley Chan (the trial judge) in the District Court and the prosecution did not proceed with the second count which was kept in court file.

2.  On 13 January 2014, after having read the Respondent’s psychologist report and psychiatrist report and the victim’s psychological trauma assessment report, the trial judge took 2 years as the starting point for the charge and, giving one-third discount on his guilty plea, reduced it to 16 months (the sentence).  As the Respondent was sentenced to 15 weeks’ imprisonment suspended for 3 years for having committed an offence of theft in 2012, the trial judge ordered that the sentence of 15 weeks had to be activated immediately, 10 weeks of which shall run consecutively to the 16 months imposed for the charge in the present case.  For the two offences, the Respondent had to serve an overall sentence of 16 months’ and 10 weeks’ imprisonment.

3.  The Secretary for Justice (the Applicant) is of the view that the sentence is unduly lenient, as it falls outside the range of sentences which a judge, applying his mind to all the relevant factors, could reasonably consider appropriate.  Therefore he makes an application under section 81A of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong, asking the Court of Appeal to review the sentence.  On 30 January 2014, the Chief Judge of the High Court granted leave for the Applicant to make an application for a review of the sentence.

4.  After hearing, we allow the application and increase the sentence to 4 years’ imprisonment and the sentence of 10 weeks stated above has also to be served consecutively.  The overall sentence of the Applicant is increased to 4 years and 10 weeks.  Our reasons for judgment are set down below.

Facts

5.  The victim in the case (X) was born on 5 September 2007. At the material time, he was under 6 years of age and was residing with his grandparents at 6/F of Lee Hong House, Shun Lee Estate, Shau Mau Ping.

6.  On 2 August 2013 at about 10:30 am, X, with the approval from his grandmother, was playing with a video game machine on his own in a shop on the podium of Lee Hong House.  Later on he was found missing, resulting in police investigation.

7.  At about 12:30 the same day, X returned to his residence at 6/F of Lee Hong House.  When being questioned by the police, X said that a male touched his penis first and then took him to the staircase of Lee Hong House telling him to kiss his penis.  After investigation, the Respondent was arrested.  Under caution, he admitted that he did tell X to kiss his penis “once”.

8.  On 3 August 2013, X told a clinical psychologist what had happened.  X said that when he was queuing up for playing with the video game machine, the Respondent suggested bringing him home.  This was initially refused by X.  However, the Respondent insisted on doing so and took X to Lee Hong House for taking a lift.  Having taken X to the staircase of the 17/F, the Respondent pulled down his shorts telling X to kiss his penis.  X acted accordingly and kissed the Respondent’s penis for about two minutes, during which the Respondent put his arms around X.

9.  Then the Respondent took X to one floor down along the staircase where he told him to kiss his penis again.  X also acted accordingly and kissed it for about a minute.  Only after that did the Respondent take X back to the floor at which he was residing.

10.  While attending a video-recorded interview conducted by a police officer, the Respondent admitted that he did take X to Lee Hong House for taking a lift and they came out on arriving at 17/F.  He said that when he was chatting with X at the staircase, X’s lower cheek was accidentally in contact with his penis or belly button.  Then X asked the Respondent to take him to the park of Shun Lee Estate for playing, as a result of which the Respondent took X to the toilet in the vicinity of the park for obeying the call of nature before taking him to 6/F of Lee Hong House.

11.  The Respondent said that the only purpose of taking X to 17/F of Lee Hong House was to collect some old newspapers.

12.  On 6 August 2013, X, in an identification parade, identified the Respondent as the “bad guy” who told him to kiss his penis at the material time.

13.  The CCTV footage of Lee Hong House showed that while waiting for a lift in the lobby on the 3/F of Lee Hong House, the Respondent did grab hold of X and put his arms around him.  Inside the lift, the Respondent also held X, and when X put up struggle, he even kissed his face and mouth.  At the end only on arrival at the 17/F did he come out from the lift with X.

The Respondent’s Background

14.  The Respondent, who was born in April 1972, is mildly mentally handicapped with Full Scale IQ score of around 64.  He has been receiving treatment from psychiatric rehabilitation centre since 1998.  The psychiatric examination conducted on him after the incident showed that his mood was stable and he could speak to the point coherently.

15.  The Respondent has 22 conviction records, most of which are related to theft.  Since 1993, he has committed sexual offences on 4 separate occasions in total, including indecent assault on a male in 1993 and indecent conduct towards a child under the age of 16 years on 3 occasions in 2000, 2004 and 2006.  He was sentenced to 1 year’s, 16 months’ and 3 years and 9 months’ imprisonment respectively.

16.  What happened when the Respondent committed indecent conduct towards a child under the age of 16 years in 2006 is similar to the present case.  The Respondent took a 5-year-old boy from a playground to the staircase of a building when his mother was not paying attention to him.  He not only touched the boy’s penis, but also told the boy to grab hold of his penis and perform oral sex on him, during which he even told the boy to rub his penis in order to get “milk”.  In fact, the Respondent ejaculated in the boy’s mouth.

17.  Clinical psychologist pointed out that the Respondent, being moderately mentally handicapped, only felt superficial remorse to the incident and the likelihood of his re-offending was very high.  Psychiatrist also agreed that the Respondent was mildly mentally handicapped.   However, he had tendency of paedophilia and character problems with high likelihood of re-offending.

18.  Psychological trauma assessment report showed that X was moderately angry about the offence committed by the Respondent.  He also blamed himself for having been greedy for sweets resulting in being induced by the abuser.  The expert is of the view that X’s rehabilitation is in good progress and the incident should not have long-term adverse impact on him.

The Trial Judge’s Reasons for Sentence

19.  The trial judge pointed out that lack of strong family support, coupled with being mildly mentally handicapped and having a small social circle made the Respondent a dangerous re-offender.  However, in his view, the indecent conduct involved in the case was not the most serious type, nor did the evidence show that the Respondent had forced X to perform oral sex on him.

20.  Although the Respondent has similar previous records, the trial judge was of the view that what he needed was professional counseling. Coupled with the minor trauma suffered by X, he decided to be lenient taking 2 years as the starting point.  When imposing the sentence, the trial judge had also taken the mitigation letter submitted by the Respondent into consideration.

The Applicant’s Stance

21.  Mr Eddie Sean, Senior Assistant Director of Public Prosecutions for the Applicant, contended that in the case there were several aggravating factors, including:

(1) The Respondent’s likelihood of re-offending is high;

(2) The incident has adverse impact on X and his family;

(3) The court has to deter others from committing any kind of sexual abuse on children; and

(4) The Respondent is a re-offender.

22.  Mr Sean stressed that there was a very big age difference between the Respondent and X, and the incident also involved the use of threats or inducements on the part of the Respondent to make X succumb.  In his view, the court should impose a deterrent sentence on the Respondent.  He stressed that the Respondent had committed similar offence repeatedly, and in 2006, he was even sentenced to 3 years and 9 months’ imprisonment on a plea of guilty because, similarly, he told a 5-year-old boy to perform oral sex on him.  However, he showed no remorse and committed a further offence.

23.  Mr Sean contended that although the Respondent was moderately mentally handicapped, he knew what he had done was wrong, and therefore discount should not be given on the ground of mental handicap, and the court should not allow the Respondent to use his own moderate mental handicap as an excuse for committing offences.

Discussion

24.  Sexual abuse on children is an extremely serious offence per se, and the circumstances of the present case are even special.  The Respondent targeted a child aged only 5 to 6 and, while his parents or guardians were neglecting him, induced him to follow him to a quiet place so that he could sexually abuse him as he liked.

25.  The offence committed by the Respondent will not only cause psychological distress to the victim, but also make the victim’s parents reproach themselves bitterly for having neglected the victim resulting in the Respondent taking advantage of the situation.  The harm and sadness caused by the Respondent to the victim’s parents is self-evident.

26.  We are mindful of the fact that the Respondent is not a first offender.  He has three similar conviction records.  In 2006, he was even sentenced to 3 years and 9 months’ imprisonment for having induced a 5-year-old boy to perform oral sex on him.  He is not remorseful and continues to commit a similar offence.

27.  The court has the duty to protect children from being abused by the Respondent.  The court also has the duty to reflect the abhorrence of the public to the offence committed by the Respondent and try its best to redress the pain and grievances caused by the Respondent to the victim’s family.

28.  In our judgment, the sentence imposed on the Respondent must serve the following purposes:

(1) To reflect the seriousness of the offence committed by the Respondent;

(2) It must be deterrent in order to prevent others from committing similar offences;

(3) It must be able to deter the Respondent from committing similar offences; and

(4) If it fails to deter the Respondent, at least it can prevent him from committing similar offences again within a length of time.

29.  When sentencing is considered from the above angle, the starting point of 2 years adopted by the trial judge and the final sentence of 16 months are manifestly inadequate and cannot serve the purpose which they are supposed to.

30.  In HKSAR v Chan Chi Hou CACC 1/1997, the defendant, aged 18, was a young man studying Form 7 with a clear record.  When two girls, aged 10 and 15, were on their way home after school, he followed them into the lift of a building, and when they came out from the lift he grabbed them from behind dragging them to the staircase where he threatened them with a metal ruler to take off their clothes, with which their heads were covered.   Then he fondled the girls’ breasts and private parts and even forced them to perform oral sex on him.  Not only affirming the sentence of 6 years on each count with 1 year to be served consecutively making the overall sentence of 7 years, the Court of Appeal also said that the starting point for each count should have been 7 to 8 years, and it had the following comments to make in page 4 of the judgment:

“There is no tariff for this type of offence because of the often significantly different circumstances in each case. However, we would emphasise that young girls must be protected. Parents are entitled to expect that their girls would go to school happily and return home safely. It is the duty of the Court to protect these young children and to assure their parents of their safety.”

31.  Although the victim in the present case is a boy, the above comments are also absolutely applicable.

32.  In HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, the Court of Appeal was of the view that the appropriate starting point for a paedophile who, in breach of trust, told an 8-year-old boy to perform oral sex on him was 6 years’ imprisonment.  In that case, there were other aggravating factors, including the fact that the defendant was a sexual predator who, in the course of abusing the victim, even took photos and made video-recordings with a mobile phone.

33.  In his judgment, Hon Ma CJHC, as he then was, relied on HKSAR v Kong Yun Chiu [2007] 4 HKC 391 and pointed out that the defendant in that case had indecently assaulted an 8-year-old girl by taking off her clothes and masturbating until ejaculation took place. The Court of Appeal was of the view that the appropriate starting point was 5 years’ imprisonment.

34.  Hon Ma CJHC reiterated the following comments given by Stock JA in Kong Yun Chiu to reflect the seriousness of similar offences:

“It is too easy for those who would pray 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.”

35.  We agree to the above observations and, in particular, point out that X was under 6 when he was abused by the Respondent.

36.  We know that the Respondent is mentally handicapped. However, his commission of the offence has nothing to do with his mental capability.  Nor is there any information to show that his mental handicap has resulted in his failure to be aware of the seriousness of the offence committed by him.  The mitigation letter submitted by the Respondent to the court shows that he understands the consequence of the unlawful act done by him.  He knows that what he has done is wrong, and he also knows of the seriousness of the offence committed by him.  There is information showing that the Respondent hopes that a lenient sentence will be imposed on him after the commission of the offence on the ground of his mental handicap.  We stress particularly that the sentence imposed on the Respondent is based on his repeated commission of similar offence, and his moderate mental handicap does not constitute a reason for reducing sentence.

37.  We do not agree with the trial judge that there is no evidence to show that the Respondent did force X to perform oral sex on him. According to X, the Respondent pulled down his shorts telling him to kiss his penis on one occasion for about two minutes and on another for about one minute.  What X referred to as kissing the Respondent’s penis is tantamount to performing oral sex on him.  A boy under 6 does not know the expression of “oral sex”, nor is he able to resist the improper behaviour of the Respondent. There is no need for the Respondent to use violence on X in order to force him to succumb.

38.  We have taken the overall circumstances of the case into consideration.  We agree that the 2 years’ starting point adopted by the trial judge is manifestly inadequate, as it falls outside the range of sentences which a judge, applying his mind to all the relevant factors, could reasonably consider appropriate.  Therefore we should review the sentence.

39.  In our judgment, looking at the nature of the case, particularly the age of X and the previous similar records of the Respondent, even if it is an application for review of sentence, the appropriate starting point should not be lower than 6 years.  We have to stress that if that starting point still fails to deter the Respondent from continuing to sexually abuse children, the court will consider a lengthier sentence to prevent the Respondent from endangering the society again.

40.  The Respondent, on a plea of guilty, is entitled to a one-third discount.  Therefore his sentence should be 4 years’ imprisonment.

Conclusion

41.  We allow the application of the Applicant for review of sentence and increase the sentence imposed on the Respondent from 16 months to 4 years which shall run consecutively to the 10 weeks which has to be activated under the suspended sentence.

42.  Therefore, we increase the overall sentence of the Respondent from 16 months and 10 weeks to 4 years and 10 weeks.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law