THE QUEEN v. YUEN CHUN LIN

HEADNOTE

Gross indecency - young person - custodial sentence appropriate in principle.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 348 OF 1990

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JUDGMENT

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APPEAL AGAINST SENTENCE

1. This Appellant pleaded guilty before A. Crawshaw, Esq. at South Kowloon Magistracy Court to a charge of gross indecency. The brief facts were that on February 1st 1990 in a public toilet in Yaumatei, the Appellant masturbated a boy who was a few days short of 16 years of age. He was sentenced to 3 months imprisonment, having already been in custody for 3 weeks, and the boy was placed on probation for 12 months.

2. It appears that the boy was tall and well built for his age and was a willing participant in this act.

3. The sexual abuse of any young person is always a serious matter and even though that young person willingly engages in sexual activity, the duty of the court is to protect the young person from himself and to make it clear that those who become sexually involved with young people face serious punishment.

4. Offences against S.31 of the Ordinance vary enormousy as to nature and surrounding circumstances. It is clear that in this case the Appellant had no prior knowledge of the age of the boy, who may well have given the impression of being much older. Presumably, in public toilets at night little consideration is given to someone's precise age, as long as he is a willing partner.

5. Nevertheless, the Appellant should have realised the risk he ran.

6. The Appellant, aged 32, was a hard working married man, whose wife was pregnant; he had never been in trouble and was deeply remorseful. As a matter of principle, a custodial sentence is appropriate for the sexual abuse of a young person.

7. Each case must, however, be examined on its on facts - there was no evidence here of persuasion, prior relationship or corruption. In my judgment, if the proper sentence was of a 'clang of the prison doors' type, the 3 months imprisonment was excessive, particularly having regard to the mitigation put forward.

8. As the Appellant has effectively served 1 month's imprisonment, I consider that sufficient. However, I also impose a nominal fine of $2,000. this must not be taken as indicative of the level of penalty which should be imposed - it is only because the Appellant has been in custody 3 weeks.