HKSAR v. CHAN HANG YUK

CACC 366/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 366 OF 2005

(ON APPEAL FROM HCCC NO. 23 of 2005)

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J U D G M E N T

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Stuart-Moore, (giving the judgment of the Court):

Background and facts

1.  On 22 August 2005, the applicant was convicted on a count of incest alleging that he had sexual intercourse with a girl under the age of 13 who was to his knowledge his daughter, contrary to section 47(1) of the Crimes Ordinance, Cap. 200.  This followed a trial before Deputy High Court Judge M Poon and a jury.  The applicant was sentenced on the same day to 10 years’ imprisonment against which he now seeks leave to appeal.  An additional application for leave to appeal against conviction was abandoned on 5 October 2006.

2.  The prosecution’s case was that on a day between 30 September 1998 and 1 December 1998, at a time when his daughter (PW1) was aged about ten or eleven, the applicant had sexual intercourse with her at the family home.

3.  Adopting in large measure the helpful summary of the evidence which Mr Zervos SC for the respondent has provided, the facts disclosed that the applicant is a Hong Kong resident who originally came from the Mainland.  He married Madam Mo Yuet-chuen and they had three children, the eldest being PW1 who was born on 20 October 1987.  In 1996 the applicant and his wife divorced and in April 1998 he arranged for his children to come to Hong Kong to live with him.

4.  The applicant began interfering with PW1 when she was in Primary Five during the month of October or November 1998.  PW1 said that, when the present offence occurred, she was by herself at home with the applicant.  She was doing her school revision when the applicant asked her to go to his bedroom to watch a pornographic video with him.  All of a sudden, the applicant embraced her and lay on top of her.  He removed her shorts and underpants and his underpants.  The applicant tried to have sexual intercourse with PW1 but, on his first attempt, he was unsuccessful.  Eventually, however, he was able to have intercourse with her.  PW1 felt that her private parts were swollen and that it was painful.  She shouted out and the applicant told her that he would do it slowly.  Afterwards PW1 noticed there was blood on her underpants.

5.  The next day, the applicant purchased a quantity of contraceptive pills for PW1 which were sufficient for use over a period of two months.  He told her not to tell anyone about what had happened.  He said that it was normal and that it happened in everyone’s home, just that no one would tell others.

6.  When PW1 was in Primary Six and was aged about 11 to 12 years old, the applicant purchased breast enlargement pills for her and told her that girls looked better after taking them.

7.  The applicant’s sexual abuse of PW1 did not come to light until 2004 when a teacher, Madam Wong Siu-yu (PW3) saw PW1 crying at a MTR station.  Eventually, PW1 related to PW3 and a social worker (PW5) what the applicant had done to her.

8.  The applicant was arrested by the police on 10 June 2004.  Under caution, he replied, ‘It’s impossible.  She simply hates me.’  Later in a video-recorded interview the applicant alleged that PW1 had made up the whole allegation.

9.  The applicant did not give evidence at trial and no evidence was called on his behalf.

Sentencing

10.  When sentencing, the judge said:

“… You gave your daughter a most nasty introduction to [the] sins of the flesh when she was just about 10 or 11.

She was most vulnerable at that age, and your act was wicked.  You abused and exploited your position as a father and made her succumb to such dominance.  You even wickedly misled her by telling her that all families did this.  Your behaviour was simply appalling and disgraceful.

As a father, you are under every responsibility to protect your daughter from harm.  Instead you exploited her.  You inflicted the harm on her yourself.

You went further than that.  You had no courage to face the music, but instead put her through the ordeal of testifying by fighting the case.

The damage you do to her in such circumstances is simply immeasurable in terms of time and effect, both psychically and psychologically. …

……

The mental torment and torture to her throughout the years is obvious.  In her evidence, she told us of depression, insomnia, and I am sure that this was just part of the whole picture of her suffering throughout the years.

That said, there is no question of increasing your sentence because of your choice to fight this case, but your choice has cost you the only real mitigation available on a plea of guilty.

Your counsel has not asked for mercy on your behalf and I am minded to show you none.” (Appeal bundle p. 230-231)

11.  In the course of other sentencing remarks, the judge referred to the applicant’s previous clear record and the fact that PW1, despite what had happened, had said that she cared for the applicant and was worried that he might have to go to prison.

The application

12.  Mr Francis Burkett, in a concise and characteristically realistic submission to the court, made the point that whatever the background of child abuse between late 1998 and mid-2004, the fact remained that the applicant’s sentence was for a single act of incest.  He accepted that there had, however, been a similar pattern of conduct which had continued thereafter, although to what extent it was hard to say, and that this had aggravated the offence from the point of view of sentence.  Mr Burkett submitted that in this light, and despite the aggravating features which the judge had itemised, a sentence of 10 years’ imprisonment was manifestly excessive.

13.  Mr Zervos laid emphasis on the way PW1 had been treated by the applicant at such a young age, submitting that while the sentence might be regarded as having been on the high side when contrasted with a number of other similar cases to which he most fairly referred us, it was not a justified criticism to suggest that it was manifestly excessive.  He pointed to the fact that the applicant had not used a condom and to the applicant’s awareness that it was possible that PW1 might become pregnant because he had later purchased contraceptive pills to prevent this.  Importantly, also, it was quite apparent from the description of the offence given by PW1 that she was not a willing party to it.

14.  The psychological harm done, particularly to a child victim of incest, is incalculable.  The judge plainly recognised this in her sentencing remarks.  In this specific case, we can derive some indication of this from the video interview with PW1 which formed part of her evidence.  As the judge, in her summing up, reminded the jury, PW1 had described mixed emotions towards the applicant when expressing the way she felt following the offence:

“… She described how she started to like him when he had to give up work to take care of three children; how she felt unsafe to be with him after joining him in Hong Kong; and how after the incident, she grew to dislike him.  She made no secret of the fact that any small discussion between them would invariably end up in quarrels.  She frankly admitted that they even had fights at home, weapons were used, and that she learned karate in order to be able to fight him.  She also told you that she refused to help him to do household chores; she did not get along with her younger brother and younger sister.  She explained that to do otherwise would give her a disgusting feeling of being his wife and she felt safe as long as she maintained a bad relationship with him.  She said that she deliberately ate a lot to put on weight to make her look unattractive and less appealing to him. …” (Appeal bundle p. 11)

15.  It was only with the greatest difficulty that PW1 was eventually able to inform the teacher and the social worker (PW3 and PW5) about what had really happened.  This was over five years later after she had been found crying at an MTR station in May 2004.

16.  The applicant has shown not the slightest remorse which, as the judge indicated, would have been the only basis for her to have reduced the sentence she considered appropriate.

Conclusion

17.  In all the circumstances, we are unable to find merit in this application.  Accordingly, leave is refused and the application is dismissed.