HKSAR v. HO TUNG YUEN

CACC 59/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 59 OF 2011

(ON APPEAL FROM DCCC NO. 945 OF 2010)

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BETWEEN

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J U D G M E N T

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

Introduction

1.  The applicant (Ho Tung Yuen), a taxi driver, pleaded guilty to a charge of indecent assault before Judge Geiser in the District Court and was sentenced to 3 years’ imprisonment. Represented by Mr Jasper Kwan, the applicant seeks leave to appeal against sentence.

The Facts

2.  The victim, a 28-year old lady, had dinner and drinks with a friend until the early hours on 26 January 2010. She was drunk and her friend ordered a taxi and told the driver to take her to a location in Yaumatei.

3.  The victim did not know what exactly had happened to her, but at about 5.30 a.m., she found herself lying on the back seat of the applicant’s taxi at the junction of Temple Street and Kansu Street in Yaumatei. The victim’s pantyhose and panties had been removed and she found that her private parts were wet. The applicant, who was standing outside the taxi, told the victim to get dressed.

4.  The applicant offered to take the victim home and in a state of confusion, she agreed. On the way, the victim found her handbag missing and her attempt to find it failed.

5.  The victim was then able to recall that whilst she was lying on the back seat of the taxi, a man molested her. As the victim was crying badly, the applicant drove her to Wong Tai Sin Police Station to make a report.

6.  The applicant, in an interview with the police, claimed to have picked up the victim in Nathan Road. He said when he tried to get instruction from the victim on her destination, he found the victim drunk and she had mistaken him as someone else. The applicant then kissed her, touched and kissed her breast, took off her pantyhose and boots before inserting his finger into her vagina. The applicant said the whole incident lasted about 30 minutes.

7.  There was evidence of the presence of semen in the victim’s underpants and the semen matched the applicant’s DNA.

8.  The incident had a serious impact on the victim who suffered post-traumatic stress disorder symptoms. The victim could not be sure if the applicant had sex with her and was concerned if she had contracted any sexually transmitted disease. She is worried that the applicant knows where she lives as he had driven her home. The victim does not dare to go out at night alone after the incident.

9.  The psychologist took the view that the victim, as in January 2011, was still suffering from emotional disturbance and anxiety as a result of the incident and was still in need of further counseling to alleviate the impact of the incident on her life.

The Applicant’s Background

10.  The applicant is 47-year old and he has a clear record. He said he was remorseful of what he had done and he produced letters from friends and associates to say that the offence was out of his character.

11.  It was said that the applicant was a responsible person to his family, and he took good care of his parents and siblings including a younger brother who suffers from leukemia.

The Judge’s Approach

12.  The judge considered the offence committed by the applicant a bad case of the type and particularly nasty when the applicant took advantage of the victim’s state of inebriation.

13.  The judge pointed out that as a taxi driver, the applicant’s duty was to transport the victim wherever she wanted, but instead he molested her in the most repugnant of ways.

14.  The judge considered such matters and the impact on the victim aggravating features in the case.

15.  The judge adopted an initial 3½-year starting point, but increased it to 4½ years on account of the aggravating features. The judge reduced the starting point by one-third to reflect the applicant’s plea of guilty and sentenced him to 3 years’ imprisonment.

Grounds of Appeal

16.  Mr Kwan argues that both the starting point and the enhancement adopted by the judge are too high, resulting in a manifestly excessive sentence, and he refers this court to a number of previous decisions on sentences in indecent assault cases to support his contention.

17.  Mr Kwan emphasizes that the applicant had positive good character and that the offence was completely out of character. Mr Kwan suggests that the applicant did not use any violence on the victim and had co-operated with the police during their investigation. Mr Kwan even suggests, as a mitigation factor, that the applicant was only responding to the initiation of the victim who mistook him as someone else.

18.  Mr Kwan points out that the judge had mentioned, in his reasons of sentence, that (1) the victim was not sure if she had sex with the applicant; and (2) the presence of semen in her underpants, and suggests that the judge might have sentenced the applicant for other offences than indecent assault.

19.  Mr Kwan further points out that the victim’s psychological condition had improved possibly because of the applicant’s guilty plea, which had relieved her of the pressure and anxiety from giving evidence in court.

Discussion

20.  As rightly pointed out by Mr Kwan, the ultimate issue for our decision is whether the 3-year sentence imposed on the applicant is manifestly excessive on the facts of the case.

21.  As the victim was in a serious state of inebriation at the time of the assault, she was unable to challenge the applicant’s description of the event. However, that does not mean that the applicant’s description of the event was correct or was the complete truth.

22.  We do not accept the suggestion that the applicant was responding to the victim’s advances. It was a clear attempt to lessen the applicant’s culpability. If the judge somehow seemed to have accepted such a suggestion from the applicant, we would say in no uncertain terms that we do not agree with it. The applicant’s account of the event did not explain the presence of semen on the victim’s underpants.

23.  Whilst an accused could only be sentenced on proven facts and not on speculation, on the evidence, the gravity of what had happened was not limited to the applicant’s admission as to what he did. The judge was right to refer to the victim’s concern, including the presence of semen in her underpants.

24.  In any event, a taxi driver indecently assaulting a drunken female passenger is in a different class of its own and sentences in most of the indecent cases cited by Mr Kwan are not particularly helpful.

25.  Taxi journeys expose drivers and passengers to each other in circumstances which can be exploited by criminals. There is an element of trust in each other and the breach of that trust is viewed seriously by courts. That is why passengers attacking taxi drivers is an aggravating factor in robbery cases. Likewise, taxi drivers attacking passengers, particularly female passengers, should be viewed with similar degree of severity.

26.  It is a common phenomenon for people under the influence of alcohol to travel by taxi when drunken driving is rightly discouraged and widely targeted at. Passengers, particularly female passengers, must be able to feel safe when travelling in a taxi.

27.  We wish to emphasize in no uncertain terms that a taxi driver who takes advantage of a drunken female passenger by indecently assaulting her can expect no mercy from the court and such unscrupulous behaviors will be severely punished. We wish to repeat what Stuart Moore VP said in HKSAR v Chan Ching Ho [2000] 3 HKLRD 476:

“…we consider the judge had recognized three important sentencing consideration in cases of this kind, namely the need to deter others, the need to mark the public abhorrence of such crimes and the need to redress the grievance suffered by the victim, her relatives and friends.”

28.  We agree with the judge’s observation that this is a bad case of the type as the applicant had molested the victim in the most repugnant of ways. The judge was also right to emphasize the impact of what the applicant did on the victim.

29.  The interest of the society demands deterrent sentences against taxi drivers who molest drunken female passengers, irrespective of their previous good character. The sentence must be adequate to mark the public abhorrence of the crimes and redress the grievance suffered by the victim, her relatives and friends. It is hoped that such an approach would maintain and restore people’s confidence in using taxi services.

30.  A three-year sentence, on a plea of guilty, for an offence of indecent assault, is not a light sentence. However, on the fact of the case, we are satisfied that despite the applicant background and clear record, such a sentence is fully justified and not manifestly excessive.

31.  The application for leave to appeal against sentence is dismissed.