HKSAR v. HO KAM WAH

HCMA 768 & 771/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS. 768 & 771 OF 1999

(On appeal from NKCC 2651 & NKCC 2934 of 1999)

____________

____________

_______________

J U D G M E N T

_______________

1. This Appellant appeals against sentences in two cases. In HCMA 771/99, he was sentenced to 9 months for an offence of Indecent Assault and in HCMA 768/99, he was sentenced to 12 months also for a conviction for Indecent Assault.

2. Today, it is argued that the sentences imposed are disproportionate to the gravity of the offences; that the offences were not serious and involved no violence and that the starting points were wrong.

3. It is also suggested that the Magistrate failed to take into consideration the totality principle when sentencing the Appellant; that he gave insufficient consideration to the Appellant's guilty pleas and that he placed undue emphasis on the Appellant's previous similar record.

4. This case is somewhat unusual in that these were the latest two in a long string of similar offences committed by this Appellant. The indecent assaults are comparatively minor. These two consisted of bumping incidents in the street where Appellant bumped against and touched the breasts of young women who were walking in the street.

5. The pleas were originally taken before two different magistrates but eventually the Principal Magistrate dealt with both cases together on sentence. It should be noted that the offence in HCMA 771/99 was committed while the Appellant was on bail for the offence in HCMA 768/99.

6. The Magistrate gave lengthy reasons for the sentences. He outlined the history of the charges. He noted that the Appellant had appeared before the court on 13 previous occasions; for 12 of those occasions, 15 indecent assaults were involved. Most recently he had been imprisoned for indecent assaults in January 1998 and again in October 1998.

7. Psychiatric reports which had been obtained for these cases and presumably for others as well, showed Appellant did not require in-patient treatment but required intensive psychological treatment. It suggested that he was a sexual recidivist who did not consider the crimes that he committed serious, that he had a sense of achievement after each act and had limited remorse.

8. The Magistrate did give consideration to alternatives other than imprisonment, in particular he considered the possibility of passing a Community Service Order. However, the Appellant had been placed on Community Service Orders in 1989 and in 1994, but each time had offended again. He also continued to offend after periods of Probation passed in 1986 and 1997.

9. The Magistrate considered that deterrence required a further prison sentence but noted from the record that sentences ranging from 2 months to 6 months had not deterred Appellant. When passing sentence, the Magistrate did have regard to Appellant's pleas of guilty, although he considered that he deserved little discount in the light of the circumstances in which he had pleaded guilty. In each case Appellant pleaded guilty only on the day fixed for trial when the victims had already been told to come to court. In determining the length of sentence, he also noted that the second offence, HCMA 768/99, had been committed whilst on police bail.

10. The Magistrate took the view that the time had come for the court to make the strongest possible statement to the Appellant that if he continued to offend in this way he could expect deterrent sentences. He believed that it was in the public interest that an exemplary sentence be imposed. It is on that basis that he imposed these sentences. He gave a discount in respect of the pleas. He took a starting point in HCMA 771/99 of 10 months and imposed a sentence of 9 months. In HCMA 768/99, he took 14 months as the starting point and reduced that by 2 months for the guilty plea, which made a total of 12 months.

11. He considered consecutive terms were appropriate. He did look at the totality of sentence that Appellant had to serve and he recognised fully that what he was imposing would be markedly higher than sentences passed previously. He took particular account of the fact that although this Appellant might have required psychological treatment for his personality problems, he was not mentally ill and it was not possible to make any Hospital Order under the provisions of the Mental Health Ordinance. Appellant was not only fit to plead, but he understood fully the quality of his actions.

12. The Magistrate noted that the Appellant would be able to receive psychological treatment, if necessary, at Siu Lam at the Sexual Offenders Unit. He bore in mind the doctor's comment that this Appellant would need a substantial degree of supervision, even were he to return to the community.

13. Counsel for Appellant referred the court to comments made in Cross and Cheung "Sentencing in Hong Kong", as to sentences that are appropriate to recidivists and also that, regardless of the record of the accused, the sentence must always remain proportionate to the offence for which it is imposed, and courts must refrain from using prison as a convenient dustbin into which they put difficult cases.

14. However, having read the Brief Facts for these cases and having examined the Magistrate's Reasons for Sentence, I am not of the opinion these sentences are disproportionate to the individual offences, or that these sentences are wrongly based, or excessive. The Magistrate was entitled to take account of the previous record to the extent that he was imposing a deterrent sentence.

15. However, in this case, the totality principle could be better observed if each sentence was 9 months, given that these offences occurred so closely together and were dealt with together. Accordingly I reduce the sentence on the second case by 3 months thereby making a sentence of 9 months for 768/99. In considering totality I am mindful of the order that the sentences run consecutively. That would make a total sentence, therefore, of 18 months.

16. I accept that this is a harsh sentence in terms, generally, of the type of offences these are. Nevertheless the time has come in this case for sterner measures to be taken and in particular measures that will deter this particular offender. A longer period in prison will enable some meaningful programme of counselling to be devised for this Appellant; it will also give the public some respite from Appellant's offences.

17. The appeal against sentence is allowed in HCMA 768/99 to the extent that a sentence of 9 months will be imposed instead of 12 months. The sentence in HCMA 771/99 remains the same. Both sentences will be consecutive.