HKSAR v. CHEUNG KWOK YIP, PETER

CACC 268/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 268OF 2009

(ON APPEAL FROM DCCC NO. 543 OF 2009)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving judgment of the Court):

Introduction

1.  On 2 July 2009 the applicant pleaded guilty before Deputy Judge Tallentire (as he then was) in the District Court to one charge of indecent assault. On 29 July 2009, he was sentenced to a term of six years and six months’ imprisonment. He now seeks leave to appeal against sentence.

The facts

2.  The offence was committed on 14 April 2009. The applicant was then aged 30 years. The victim was a schoolgirl aged 12 years. She was on her way home from school, in uniform, and ascending the stairs of the building where she lived when the applicant, who had been following her, approached her from behind, put his hand on her shoulder and then told her that if she made any noise he would kill her. He took her to the rooftop of the building. There he embraced her from behind for a while, told her to turn round and squat in front of him, lowered his trousers and underwear and told her to perform oral sex upon him. She refused. He told her that either she did so, or he would molest her. Thereupon, she performed oral sex upon him. He then told her that if she disclosed the incident to anyone, he would kill her. He then instructed her to meet him at the rooftop on the following day and when the girl said that she could not because she had a prior engagement, he told her to meet him instead two days later at the exit to the Cheung Sha Wan MTR station. He asked for her name and telephone number and the girl provided a false name and false number. They left the rooftop, with the applicant telling the girl to keep a short distance behind him and when they parted company he told her that if he found out that the telephone number she had provided was incorrect, he would do something to her. The CCTV cameras captured the girl and the applicant walking away from the building where the assault had taken place. The girl went home in a very distressed condition, made a complaint to her mother and the matter was reported to the police.

3.  At the time arranged for the meeting at the MTR station, the applicant was apprehended by the police where he admitted the offence. His home was searched and the paper upon which the name and telephone number had been written by the victim was there found. He was subsequently identified by the girl at an identification parade.

A history of previous sexual offences

4.  The applicant has a number of previous convictions. Three of the convictions are for sexual offences against young persons:

(1)  In 2002 the applicant pleaded guilty to indecent conduct towards a child.  He approached an 11-year-old schoolgirl whom he followed into a lift and told her he had a cutter.  He made her follow him to a secluded staircase and there he forced her to masturbate him to ejaculation.  He warned her not to report him and told her that he would meet her at a bus station in order to check on her.  He was sentenced, after plea, to a term of two years’ imprisonment, a sentence which appears to us to be dramatically low.

(2)  In May 2003, very shortly after his release from prison he assaulted a 12-year-old schoolgirl on her way home.  He followed her into a lift, threatened her with an object which he placed against her neck and forced her to follow him to a staircase.  He made her hug him but before other acts could take place she shouted for help and escaped.  He was sentenced to 28 months’ imprisonment, having pleaded guilty.  He was released in 2005, committed an offence of an entirely different nature and was released from imprisonment for that offence in July 2005.  Six months later he struck for the third time.

(3)  In January 2006 he followed a 13-year-old girl into a lift in the block where she lived.  She was in her school uniform.  When she wanted to leave the lift he pounced on her, grabbed her around the neck from behind and took her to a staircase.  He told her that she had a choice: either she had to touch him sexually or he would do that to her.  He made her masturbate him to ejaculation.  The sentencing judge on that occasion, District Judge Mackintosh (as he then was), noted that the applicant had targeted the girl.  He referred to the applicant as a serial sexual offender and he called for psychiatric and psychological reports which, he said, made shocking reading.  They illustrated that the applicant was a predatory paedophile driven by a desire to attack young girls.  The reports revealed a number of attacks for which he had never been charged, although the judge emphasized that he did not take them into account in sentencing.  The judgecategorised the applicant as a very dangerous man with a high risk of re-offending and noted that he had not responded to intensive psychotherapy.  He had a psychopathic personality.  What the judge did was to take a starting point of four years’ imprisonment for the offence itself and increased that to a term of seven years’ imprisonment to take into account the previous offences since they illustrated the danger which the applicant presented to the public, the need to protect the public and the fact that the previous sentences had self-evidently failed to deter him.  Giving a one-third discount for the plea of guilty which saved the victim from testifying, he imposed a sentence of four years six months’ imprisonment.

5.  Mr Andrews, who appears today for the applicant, argues that Judge Tallentire was in error in saying that the present case was infinitely more serious than the case before Judge Mackintosh. We say in answer to that that the sentence for the offence in January 2006 was markedly low; that the death threats in this particular case makes this offence more serious; and that the sexual act itself in this case was particularly vile. All these factors render fully justified a significantly more serious view.

6.  The last sentence was imposed on 28 April 2006. The applicant was released under supervision on 7 February 2009 and it follows that whilst still under supervision and only two months after his release, the applicant committed the present offence. This in itself is a serious aggravating feature.

Reports

7.  Judge Tallentire called for reports, copies of which we have. Amongst those reports was a psychological report from Dr Yvonne Lee which shows that the applicant suffered an unhappy childhood. By watching videos, he became attracted to the depiction of sexual assaults against adolescent girls in school uniform. He conceded that his offences had escalated in severity and that he sometimes took a cutter with him to subdue the victim and would cruise about for target victims, sometimes following a victim for several days. On one occasion, he had followed a victim for three days. His description of the offence with which we are concerned differed in some detail from the description provided by the girl but those details matter not. Dr Lee’s assessment was that the risk of sexual re-offending was high and she suggested a number of strategies by which this risk might be modified.

8.  One of the psychiatric reports concluded that the applicant is a paedophile and has a psychopathic personality and that there was little to offer him by way of psychiatric treatment.

9.  The sentencing judge also had the advantage of a victim impact report. It said that the girl experienced intense fear during the assault and was able vividly to recall the offender’s threats. She remains insecure and frightened to go out alone. As with most sexual abuse cases, there was the possibility of long-term impairment of her “self concept, social and heterosexual relationship and value system”.

The judge’s analysis

10.  The judge concluded that the applicant was a dangerous and violent paedophile and expressed some dismay, given the nature of the offence and the applicant’s history, that the case had been brought before the District Court rather than the Court of First Instance. We share the judge’s surprise. Had the applicant contested the case and been convicted after trial, the sentencing power in the District Court would have been wholly inadequate to meet the criminality disclosed by the offence itself in combination with the history of offending. One has to wonder whether those taking the decision had examined the previous history either at all or with sufficient care.

11.  The judge noted the principle that whilst a person is not to be sentenced twice for the same offence, the fact of repetitive offending for the same type of offence might warrant aggravation of sentence to take into account persistence, the failure of previous sentences to deter and the court’s duty to protect the public. He then said that there was an added necessity in this case for the protection of little girls with whom the applicant was obsessed and said that the applicant had stalked the victim in this case for three days prior to the commission of the offence and noted in particular the repeated threats to kill. Given these factors, the judge viewed the offence as “the most serious example of indecent assault that I can envisage”. He took the view that the current offence was more serious than the immediately preceding one. The judge then said:

“19.  Defendant, this crime is so vile, indeed your total conduct is so vile that I cannot articulate my disgust for you.  In all the years that I have been a member of the judiciary, I have rarely come across an individual for whom I feel such an absolute sense of revulsion.  You are not part of the human race.  You are a crazed and dangerous predator.  You are evil.  You are simply evil.”

12.  He then noted that the maximum sentence for the offence of indecent assault was 10 years’ imprisonment and he said that:

“For the victim of this horrendous crime, for all the girls of 11 to 14 in Hong Kong, and for all their parents, I can do no more than remove you from society for as long as possible.  Therefore, in the District Court, I take what I believe to be a wholly unprecedented step though one which is fully justified.  I take as a starting point the maximum sentence available to me, that is 10 years’ imprisonment.  I am bound to acknowledge your plea of guilty, and indeed it is right that I should do so, and to acknowledge that you have saved the girl the trauma of the witness-box by extending to you a one-third discount and a further 2 months’ discount for the second factor.”

13.  Accordingly, he sentenced the applicant to a term of six years and six months’ imprisonment.

This appeal

14.  Mr Andrews complains in his written submissions, first, that the judge expressed himself in such terms as to give the impression that he had been insufficiently objective in his analysis of the appropriate sentence for the offence itself.

15.  There is, we feel bound to say, justification in this complaint. The judge would have been entitled to categorise the offence as one that was bound to evoke a sense of gross revulsion on the part of right thinking members of the public but some of the phraseology which he has used and which we have cited was unnecessarily personal and extreme. No matter how unattractive and serious an offence, a judge’s duty is to approach sentencing level-headedly and the type of language used in this case runs the danger of giving the reasonable observer the notion that the necessary objectivity has been undermined. This particular judge is highly experienced and the preponderant probability is that he in fact remained sufficiently objective; but it is the perception which is affected.

16.  The second complaint is that the judge erred in his apparent conclusion that the applicant stalked this particular victim for three days prior to the commission of the offence. The three-day stalking suggestion is to be found in the report of Dr Lee, the psychologist, but it is an account of another occasion and another victim. In the event, the judge erred in this regard but we are satisfied that the error is of no significance. It is perfectly obvious that this applicant made a habit of following schoolgirls and that he did so on this occasion. Whether he did so for an hour or for a number of days is, in all the circumstances, immaterial.

17.  It is then contended that the judge erred in categorising the offence itself as being the most serious of its type. It is further asserted that he was in error in taking a starting point that was three years in excess of the starting point adopted in the 2006 case when the facts did not warrant such a stark differentiation, an assertion with which we have already dealt. Finally it is argued that no meaningful discount was given for the plea of guilty from the maximum term permissible in the District Court.

18.  It would have helped had the sentencing judge indicated the starting point which he adopted for the offence itself, shorn of the aggravating feature of the previous convictions. Instead, he merely said that he took a starting point of 10 years’ imprisonment without indicating how much of that term was attributable to the aggravating features of persistence and the failure of previous sentences to deter. Given this aspect of the sentencing exercise and the criticism we have made of the judge’s remarks, it is appropriate for us to analyse the matter afresh.

19.  The judge is criticised by Mr Andrews as effectively treating the offence as the most serious of its kind and we note that the judge categorised the offence as the most serious example of indecent assault that he could envisage. Whether the judge would have socategorised had it stood on its own as the first offence, is a question we do not need to answer for it suffices to conclude that when the judge adopted a starting point of 10 years’ imprisonment he had more than the offence itself in mind; he self-evidently had also in mind the fact that the applicant was a persistent offender; for it is a combination of the facts of the offence together with that aggravating feature that drove him to take an ultimate starting point at the permissible maximum.

20.  That said, the offence itself was a very serious one of its kind. The indecency itself was gross, and the victim was young. As has been said in HKSAR v Chan Chi Hou, CACC 1/1997, 13 January 1998 (unreported):

“The maximum penalty for indecent assault is 10 years imprisonment.  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.  A sufficiently heavy deterrent sentence is required for sexual offences of this nature against young girls.”

In this case the applicant targeted this girl aged merely 12 years, a complete stranger to him, and subjected her to an act of the grossest indecency.  Although no violence was used upon her, he twice threatened to kill her, once before and once after he had made her perform oral sex upon him.  These threats must have terrified the girl.  In addition, they were threats made in order to achieve the sexual objective and also to prey upon the innocence of a young person in an attempt to prevent reporting and thereby discovery.  The threats therefore constitute a further serious aggravating feature.  The offences themselves were not spontaneous; they were planned in the sense that the applicant was on the lookout for whichever schoolgirl caught his predatory eye.  In addition, using a further threat that he would harm the girl if he found out that the telephone number she had provided was wrong, he sought to secure a further meeting where he might assault her again.

21.  In our judgment, an appropriate starting point for the offence itself was one in the region of 7 years’ imprisonment.

22.  We have been taken to a number of other decisions designed to show that the court’s duty to protect the public must not for that reason result in the imposition of a sentence that is incommensurate with the facts of the offence itself. That must be correct. But what distinguishes this case from any to which we have been taken to illustrate that point, and putting aside the particular serious facts of this case, is the stark fact that sentences hitherto imposed upon this applicant have had no deterrent effect whatsoever upon him and that this offender keeps committing like offences again and again shortly after release from imprisonment.

23.  It is accepted that the fact of previous convictions of an identical or similar nature may constitute a gravely aggravating factor, this to take into account the fact of persistence, the failure of previous sentences to deter, and the court’s duty to protect the public: see Cross & Cheung, Sentencing in Hong Kong 5^th ed., pp 6-7. In this particular case, this applicant went to prison in 2002 for an offence of gross indecency towards a child and shortly after his release committed an offence of a similar nature for which he was sentenced in 2003. Not long after his release in 2005, he offended yet again and was sentenced in 2006. Only two months passed after his release from the 2006 sentence when he committed the current offence, and he did so whilst still under supervision. This history is unusual and dramatically disturbing. The sentences imposed thus far appear to have had no effect upon this applicant and the danger that he presents to girls is serious. The facts of persistence and of failure of previous sentences to deter are stark and the duty upon the court to protect the public is brought into sharp focus. When the applicant was sentenced in 2006, the sentencing judge increased the sentence on account of these features substantially – by over 50% – but even that step proved an insufficient deterrent. Insofar as imprisonment is capable of providing a deterrence in this case, it must be accorded high priority as must the court’s duty to protect the public. It is perhaps unrealistic to assume that this alone will achieve the desired effect, and it is to be hoped that the measures which the psychologist has in mind will have some beneficial impact. Given the starting point for the offence and its surrounding circumstances and the aggravating feature of persistence, we are unable to say that the 10-year point before mitigation at which the judge arrived, or the resulting sentence after mitigation, was manifestly excessive.

24.  There is nothing in the “meaningful discount” argument that has been advanced that is in our judgment meritorious.

25.  Because we are of the view that the judge expressed himself in a way that gave rise to an arguable ground of appeal, we grant the applicant leave to appeal and treat the hearing of the application as the appeal. But, for the reasons we have provided, the appeal against sentence is dismissed.