HKSAR v. CHUI CHUNG-HIN

HCMA 95/2018

[2018] HKCFI 1504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 95 OF 2018

(ON APPEAL FROM ESCC 3529 OF 2017)

________________

________________

________________

JUDGMENT

________________

1.  The Appellant appeals against a sentence of 12 months’ imprisonment passed on him in the Magistrates’ Court following his plea of guilty on three charges of indecent assault, contrary to section 122 of theCrimes Ordinance (Cap 200). That sentence of 12 months’ imprisonmentwas by way of consecutive terms of 4 months for each of the three offences. Those terms of 4 months were each arrived at by taking a starting point of 6 months and discounting it by a third because the Appellant pleaded guilty.

2.  The following grounds of appeal against sentence are contained in the Notice of Appeal Against Sentence signed by the Appellant’s solicitors:

“ 1. That it was wrong in principle for the deputy magistrate to order that the sentences of 4 months imprisonment imposed for each of the 3 offences be served wholly consecutively to one another, resulting in a sentence of 12 months imprisonment;

2. That in indicating he took into account the totality principle, the learned deputy Magistrate erred in then imposing wholly consecutive sentences.

3. That having regard to the unusual facts of this case [and even though the Appellant is over 21 years of age and these offencesare excepted offences] the deputy magistrate erred in not calling for pre-sentence reports before imposing sentence upon the Appellant.

4. That in all the circumstances of this case, the overall sentence of 12 months imprisonment imposed was too severe.”

3.   The circumstances of these offences are dealt with as follows in the Magistrate’s Statement of Findings:

“ 2. The Defendant was employed as a caretaker of TWGH Wong Chuk Hang Care & Attention Home (‘the Home’) in September 2016. The victims were two males namely X and Y aged 71 aged and [sic] 87 respectively.The Defendant has admitted the following facts.

3. The Home is an elderly home and under the management of Department of Health. X and Y were elderly people living at the Home and suffered from dementia and bedridden. Both X and Y could not express their views due to dementia.

4. On an unknown date in between 1^st July and 31^st August 2017,while the Defendant and his colleague were helping X to shower,the Defendant used his finger to flick X’s penis. His colleague told the Defendant to stop, and he did so.

5. On an unknown date in between 1^st September and 30^th November2017, while the Defendant and his colleague were helping X tochange diapers, the Defendant used his finger to flick X’s penisand to pinch X’s nipples.  His colleague told the Defendant to stop, and he did so.

6. On an unknown date in between 1^st and 31^st October 2017, while the Defendant and his colleague were helping Y to change diapers, the Defendant swinged Y’s private part once.  His colleague told him to stop, and he did so.

7. No injury was found on X and Y.  Upon caution, the Defendant admitted that he committed these offences out of fun.”

4.   As to the Appellant’s own circumstances, the following is said in the Magistrate’s Statement of Findings:

“ 8. The Defendant has a clear record.

9. In mitigation, a bundle of documents was submitted to the court,setting out his personal background in great details and including a psychiatric report.  The Defendant is now aged 25.  Before the offence, he was a young man of good character and harmonious family background.  He had previously a girl friendwho has emigrated out of Hong Kong.  He was dismissed from his job on 20^th November 2017.  He is remorseful of these offences.

10. As appears from the psychiatric report of Dr Ting Sik Chuen  dated 26^th February 2018, the Defendant had no psychiatric history.  He had voluntarily been attending some counselling service of prevention against sexual violence.  He did not sufferfrom any psychiatric disorder.  He is exclusively heterosexual and had normal sex life without any deviate sexual behavior on people.  In his opinion, the Defendant should continue to consult the counselling service, and the risk of re-offending is very low.

11. It is submitted that the Defendant did not commit these offences out of sex impulse or to harm the victims and that he did not appreciate the gravity of what he did.

12. The Defendant asked for a chance to continue with the voluntary counselling which means a non-custodial sentence.”

5.   Having the psychiatric report to which he referred, the choice of not sending for pre-sentencing reports is one which, in my judgment, was properly open to the Magistrate.

6.   If the total sentence is appropriate, it ought not to be interfered with merely because some other route by which to arrive at it can be considered preferable to wholly consecutive terms.  The Magistrate said that he had considered totality, and I do not feel able to say that he had not done so.

7.   The Appellant was in a position of trust.  Moreover, it was a position of trust in relation to highly vulnerable persons.  Even neglecting those persons would be serious.  What the Appellant did was worse than neglect.  There is not getting away from the fact that by his conduct he turned persons in his care into his victims.

8.   I do not see how an immediate custodial sentence can be avoided.  So the question becomes one of whether it is possible to reduce the term of imprisonment imposed by the Magistrate.

9.   Having acceded to the Appellant’s application for the admission of further evidence on appeal, I have before me further evidenceconsisting of: (i) a letter dated 29 May 2018 the Sexuality Zone: Supportive & Counseling Service on Sexual Behavior of Youth Caritas Youth and Community Service; and (ii) a psychological evaluation report dated 1 June 2018 signed by Dr Kristie Craigen who is one of the four persons named in the report as examiners.

10.   I find nothing in the letter that enables me to reduce this sentence.  That leaves the report.

11.   The report is a very lengthy one.  Immediately before the statement of truth, it is said that the results of the tests conducted indicate:

“ Hence, taken as a whole, test results indicate:

• Mr. Chui’s prognosis for long-term therapy is good because he appears to be experiencing a significant degree of emotional distress and he seems to have developed a willingness to think about his problems;

• Mr. Chui’s low scores on the CATS, VRAG and SORAG indicate that he is unlikely to commit violent or sexual offences;

• There is strong evidence to suggest that Mr. Chui’s avoidant personality style, emotional immaturity and social deficits significantly impaired his insight and judgement;

• Although his overall cognitive functioning is average, Mr. Chui has a relative deficit in processing speed which may have resulted in difficulties with social development, self-confidence and self-reliance.

12.   I have come to the conclusion that it is possible to make somereduction of sentence in recognition of the unusual circumstances and in the hope that some reduction would serve as encouragement to the Appellant to work towards his rehabilitation.

13.  All things considered, I allow the appeal to the extent of reducing the sentence from 12 months’ imprisonment to 9 months’ imprisonment.  Since the Magistrate arrived at a total of 12 months by three consecutive terms of 4 months each, I will make it a total of 9 months by three consecutive terms of 3 months each.