HKSAR v. CHEN GUOJIN

CACC 112/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 112 OF 2010

(ON APPEAL FROM DCCC 138 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the Reasons for Judgment of the Court):

1.  On 26 May 2011, we granted leave to the applicant (Chen Guojin) to appeal against sentence. Treating his application as the appeal proper, we allowed the appeal and reduced his total sentence from 5 years and 3 months to 4 years and 3 months. We indicated that we would hand down our reasons in due course and this we now do.

The Facts

2.  The applicant visited Hong Kong in 2001 on a two-way permit and was allowed to stay for 7 days. He remained in Hong Kong, befriended Madam T and became her boyfriend. Madam T was married with a son and a daughter (“the daughter”) who was born in November 2000. In November 2009, the applicant used a forged Hong Kong Identity Card in the name of a Mr Ho to obtain a job in a restaurant.

3.  Madam T and her husband had to leave home very early in the morning and they allowed the applicant to stay in their flat overnight to take care of their son and daughter.

4.  On two occasions in 2009 when the applicant was looking after the son and the daughter, who was then about 9-year old, he climbed up to the upper bunk bed and slept next to her. He used his fingers to molest her vagina and her breasts for a few minutes, despite the daughter’s protest. The daughter had complained to Madam T, but Madam T ignored her and just told her to lock the door. The matter was only exposed when the daughter made a complaint to her god-mother and a report was made to the police on 23 December 2009.

5.  The applicant was arrested at his place of work and cautioned. He said he touched the daughter on an impulse. A search of the applicant’s residence revealed the forged identity card in the name of Mr Ho.

6.  When further interviewed under caution again, the applicant admitted that he visited Madam T’s flat for dinner from time to time and stayed overnight. He admitted to have molested the daughter on many occasions by touching her private parts. He also admitted to have purchased the forged identity card for $1,200 and used it to obtain a job in a restaurant in November 2009.

The Charges and Sentence

7.  The applicant was charged with two counts of indecent assault (the 1^st and 2^nd count), one count of using a forged identity card (the 3^rd count), one count of breach of condition of stay (the 4^th count) and one count of possession of a forged identity card (the 5^th count).

8.  On 17 March 2010, the applicant pleaded guilty to all five charges before Deputy District Judge SM Sham.

9.  The judge emphasized that it was a severely aggravating feature in an indecent assault case when the victim was a child. The judge referred to the head note in HKSAR v Kong Yun Chiu [2007] 4 HKC 391:

“ (1) The fact that the victim is a child is always a severely aggravating feature. Children are vulnerable members of society. It is too easy for those who would prey 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.

(2) The trauma and distress, immediate and long term, is not confined to the child: parents are also affected.

(3) Children are much more likely than adults to suffer trauma in silence rather than report, particularly in cases of breaches of trust…” 

10.  The judge said what the applicant did to the girl was disgusting and despicable and the only thing he cared was to gratify his perverse sex desire. The judge took the view that the first and foremost consideration in sentencing a child molester was to protect those of tender age. The judge also took the view that whatever remorse that the applicant had was superficial.

11.  For each of the two counts of indecent assault, the judge adopted a starting point of 4½ years’ imprisonment and reduced them by one-third to 3 years’ imprisonment with one year to run consecutively. The total sentence on the two counts of indecent assault was 4 years’ imprisonment.

12.  For the 3^rd to the 5^th charges, the judge sentenced the applicant to 15 months, 12 months, and 6 months’ imprisonment respectively to run concurrently, but consecutively to the 4 years on the 1^st and 2^nd charges. The total sentence on the applicant was 5 years and 3 months’ imprisonments.

The Application

13.  The applicant sought leave to appeal against sentence, saying, in his written application, that the sentence was too heavy. He had not specified any other grounds. He said in court that he was remorseful and apologized to the girl and her family for what he did. He emphasized the difficulties faced by his own family in the Mainland and asked for a more lenient sentence so that he could return home as soon as possible to see his children whom he had not seen in the past 10 years.

14.  The applicant also referred to HKSAR v Chu Hey (unreported DCCC 1040/2010) and HKSAR v Lam Chi Yuk (unreported DCCC 348/2010) and said that the sentences in those cases were less severe. 

Discussion

15.  The victim in Chu Hey (supra) was a 36-year old woman although her IQ was only 65 and her social skills were equivalent to a normal person between 9 and 14. 

16.  In DCCC 348/ 2010, Lam Chi Yuk indecently assaulted his step daughter by touching her breasts and on one occasion, her private part for 1 or 2 seconds. The entire period of the indecent assault was no more than 10 seconds. According to the wife, the defendant’s character changed after a serious illness and his relationship with her also deteriorated.

17.  The psychologist confirmed what the wife said and took the view that with appropriate treatment and counseling, the defendant’s problem could be cured. Both the wife and the step-daughter put in mitigation letters, saying that they had forgiven the defendant, and were prepared and hoped to have him re-united with the family. It was in such circumstances that the judge decided to adopt a lenient starting point of 2½ years’ imprisonment.

18.  In the end we did not feel that those cases would assist us in considering the proper sentence for the applicant

19.  This was a very bad case of indecent assault as the daughter was only 9 at the material time. Whist there were only two charges of indecent assault, the applicant admitted to have molested the daughter on many occasions. It was made worse because the applicant had been trusted to take care of the daughter.

20.  We agreed with the sentiment expressed by the judge that children must be protected.

21.  On the other hand, in a child molesting case, the nature of the act and the extent of indecency are relevant on the question of sentence. We noted that the following facts in Kong Yun Chiu (supra) as appear at p 393D-H of the judgment:

“On the first occasion…he asked the victim to take a bath. She removed her clothing until she had only her knickers on. Whilst she was in the bath, the defendant came in, having taken off his clothing, except for his underpants, and touched her breasts and private parts and felt excited by that. He later watched a pornographic video showing sex acts. At that time, the victim came over to him; the defendant rubbed his penis through her trousers and his trousers, experiencing an erection. He later stripped the victim’s trousers and knickers to below her knees, took off his trousers and underwear and rubbed his penis on the outside of her private parts. He masturbated and ejaculated at that time.

The second incident…took place at a different flat, the family having moved. The victim was on her bed, almost asleep, with her night clothes on. The defendant came up and touched her under her nightdress; he touched her breasts and private parts through the underpants she was wearing at the time. He pulled down her underpants and touched her private parts which woke her up fully. The defendant pulled down his own trousers and underwear and rubbed his penis against her private parts and masturbated and ejaculated. The victim, who had seen the defendant take off his clothes, pull down her trousers and feel her private parts with his penis, was frightened and thought the defendant wanted to have sexual intercourse. She resisted him by pushing him and ran out to the living room.”

22.  Those fact led the Court of Appeal to comment at p 396 C-D: “The acts of indecency were themselves most distasteful, the case was one of a breach of trust, and there was an attempt by the applicant to contact the child no doubt with a view to persuading her not to report the matter.”

23.  Mr Andrew Cheng, for the respondent, also relied on HKSAR v Chan Ching Ho [2000] 3 HKLRD 476, in which the defendant was sentenced to an overall term of 5 years’ imprisonment on conviction after trial of 4 charges of indecent assault.

24.  Whilst it was important to take note of the Court of Appeal’s emphasis on the needs (i) to deter others, (ii) to mark the public abhorrence of such crimes, and (iii) to redress the grievances suffered by the victim, her relatives and friends, it was fair to say that the facts in Chan Ching Ho (supra) is also more serious when the defendant in that case “touched V’s private parts (charges 1 and 2), instructed her to massage his private parts having touched hers (charge 3), and had licked V’s private parts after having touched hers (charge 4). It is also worth noting that the victim was only 6 and that the sentences imposed on the defendant were 9 months on each of charges 1 and 2, 18 months on charge 3, and 2½ years on charge 4.

25.  Without in any way under-estimating the seriousness of what the applicant did, the facts of the case showed that the applicant, on two occasions, used his fingers to molest her vagina for about 5 minutes on the first occasion and molested her private parts as well as her breasts for a few minutes on the second occasion.

26.  The degree of indecency in Kong Yun Chiu (supra) and Chan Ching Ho (supra) was much worse and in our view, the sentence should reflect the difference. There was of course no suggestion of the applicant trying to persuade the girl not to report the matter as in Kong Yun Chiu. The applicant only had one previous conviction of breach of a condition of stay.

27.  The total sentence of 4 years’ imprisonment on the 1^st and 2^nd charges represented a starting point of 6 years, which was close to the maximum jurisdiction of the District Court and was in the upper half of the maximum 10-year sentence of the offence, and the total sentence of 63 months represented a global starting point of over 94 months, which exceeded the jurisdiction of the District Court.

28.  We were persuaded that both those starting points were manifestly excessive.

29.  We were satisfied that for the 1^st and 2^nd charges, a starting point of 3½ years would be adequate and it should be reduced to 2 years and 4 months to reflect the guilty plea. We took the view that of the sentences on the 1^st and 2^nd charges, 8 months should run consecutive, making a total sentence on those two charges one of 3 years’ imprisonment. The 3-year sentence should run consecutively to the total sentences of 15 months on the 3^rd to 5^th charges. The total sentence on the applicant should be 4 years and 3 months.

Conclusion

30.  We therefore granted leave to appeal against sentence and allowed the appeal to the extent indicated.