SECRETARY FOR JUSTICE v. CHIK KA HIN

[English Translation - 英譯本]

CAAR 2/2023, [2023] HKCA 1253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 2 OF 2023

(ON APPEAL FROM TMCC NO 201 OF 2023)

________________________

________________________

________________________

REASONS FOR JUDGMENT

________________________

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

Background

1.  The respondent pleaded guilty to two counts of “indecent assault” and was put on probation for 12 months by the trial magistrate (Mr Don So Man-lung, Principal Magistrate). The applicant was dissatisfied with the sentence on the grounds that it was wrong in principle and manifestly inadequate, and therefore made an application for review to the Court of Appeal pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong. After the formal hearing, we found that the application was made out and at the same time substituted the respondent’s original sentence with an overall sentence of 8 months’ imprisonment. These are our reasons.

Relevant facts of the case

2.  PW1, PW2 and the respondent were colleagues. The three of them were ambulancemen and ambulancewoman of the same ambulance depot.

3.  At 11:45 pm on 28 January 2023, after the three of them had dinner together, PW2 drove the tipsy PW1 back to the ambulance depot to take a rest. At that time, PW1 sat in the front passenger seat while the respondent sat behind her in the rear passenger seat. During the journey, PW1 felt that the respondent had repeatedly touched her breasts, bottom and private parts from behind with his left hand. (Charge 1)

4.  At 00:10 hours on 29 January, the three of them were back at the ambulance depot. PW1 went back to the women’s barracks and rested in an unlocked room, and then PW2 and the respondent left. In about 10 minutes, the respondent returned alone.  He kissed PW1 on her face and lips when she was sleeping on the bed. He also fondled her breasts and inserted his finger(s)  into her private parts for 30 seconds. PW1 woke up, yelled out and put up a resistance, scaring the respondent away. A report was then made to the Police. (Charge 2)

5.  The respondent said upon arrest and caution that he “fondled” (Charge 1)  and “harassed” (Charge 2)  PW1 only at the spur of the moment.

Background and mitigation

6.  At the time of the offence, the respondent was 29 years old, single, living with his 60 year-old father and working younger brother(s)  and sister(s). He had a clear record. After he had obtained a Higher Diploma from the Hong Kong Institute of Vocational Education, he was once in the employ of a surveying company for seven years until 2020, when he became an ambulanceman of the Fire Services Department. In mitigation, the defence emphasized that the respondent committed the crime only at the spur of the moment, and he pleaded guilty at the earliest opportunity. He would lose his job that paid him a monthly salary of 27,000 dollars and he offered his apology to PW1.

Relevant reports

7.  After the pleas of guilty, the trial magistrate remanded the respondent for 14 days for a psychological report and a background and probation suitability report.

8.  Both reports stated that the respondent was a shy introvert who preferred staying home to going out. However, it was also disclosed that the respondent had a stable girlfriend at the material time and they had relatively intimate body contacts.

9.  The psychologist took the view that the respondent felt insecure socially and he had no obvious signs of sexual perversion, but he might have insufficient self-control over sex. As the respondent’s chance of reoffending was at the lower end of the moderate risk range, he was recommended counselling to strengthen his social skills and self-control over sex.

10.  On the other hand, the probation officer quoted what the respondent said: At the night of the offence, PW1 had consumed a lot of strong alcoholic drink and she could not even sit upright in the car, and that was why he stretched his arm(s)  from behind to hold her upright, but he touched her breasts inadvertently, which made him feel sexually excited. After that, he fondled PW1 repeatedly. After he had left the women’s barracks, he returned alone with the original intention to lock his locker and did not intent to assault PW1. However, when he walked past the women’s barracks, he suddenly became evil-minded. The probation officer concluded that the respondent appeared to have genuine remorse. In addition, as no long-term counselling needs were identified, probation order was not a must and therefore not recommended for the respondent.

Original sentence

(Oral sentence)

11.  The trial magistrate noticed the difference in the conclusions of the two reports. He then sought views from the respondent’s duty lawyer. The duty lawyer recommended probation and the trial magistrate agreed. The trial magistrate said in order to ensure that the respondent would receive counselling service as recommended by the psychologist, he was sentenced to a probation order with relevant conditions for 12 months.

(Written statement of findings)

12.  The probation order was imposed on 16 February 2023. The applicant did not apply to the trial magistrate for a review pursuant to section 104 of the Magistrate Ordinance, Cap. 227, Laws of Hong Kong.In the same year, on the 9^th day of March, the applicant applied directly to the Court of Appeal for a review of sentence. The trial magistrate then gave his Reasons for Sentence five days later.

13.  First, the trial magistrate explained that he had sentenced the respondent to a probation order because he was a young man of good character, the contents of the relevant reports were positive, he would lose his job as an ambulanceman due to the present case and he had already been detained for 14 days.

14.  However, the trial magistrate subsequently pointed out that after reconsideration he found that he was “wrong indeed” as he “focused too much on rehabilitation (of the respondent)” and “overlooked” the factor of “appropriate punishment” for him in particular that the present case was “serious with aggravating factors”.

15.  The trial magistrate stated that in case of re-sentencing he would impose an immediate custodial sentence on the respondent as follows:

“6. I shall first deal with Charge 2, the more serious charge. In respect of the forced kisses, touching her breasts and in particular the act of putting finger(s)  into her private parts for as long as 30 seconds, the assault was deeply invasive and for a long duration, causing fairly great impact on the victim. I shall take 12 months as the starting point. As the defendant took advantage of the victim being drunk and unable to resist his assault, 2 months are added. Since the defendant committed the crime in the barracks where discipline should be observed, a further 2 months are added. In addition, the defendant’s act was premeditated as he returned and sneaked into the room to assault the victim after the witness (the driver)  had left. This aggravated the matter further, thus another 2 months are added, making a total of 18 months. The normal one-third discount should be given to the defendant for his guilty pleas, resulting in a sentence of 12 months. The sentence is reduced by 2 months for the defendant has lost his job as an ambulanceman which was hard to come by. The sentence is further reduced by 2 months for my error which led to a hearing of review of sentence, causing extra anxiety and so on to the defendant. Therefore, in respect of Charge 2, I shall substitute the original sentence with 8 months’ imprisonment. For Charge 1, the overall criminality is not as serious as Charge 2 despite the presence of the elements like assaulting the victim when she was drunk and touching her private parts, thus the sentence is 2 months’ imprisonment. Both sentences are to run concurrently and the overall prison term is 8 months.”

The present review

16.  The following are the three grounds of review and the key submissions advanced by the applicant.

(Ground 1: the facts of the present case were serious, proper weight should be given to the factors of deterrence and punishment)

17.  The facts of the present case were serious as the respondent assaulted his colleague twice on the same night and the second assault was invasive in nature.

18.  In addition, there were a number of aggravating factors in the present case:

(1)  The two offences in the case happened when PW1 was drunk.  If she was not nearly unconscious, she was in a sleeping condition (S for J v Lee Yun-kin [2017] 5 HKC 342, paragraph 42).

(2)  The crime took place in the women’s barracks, a quasi-domestic and private setting where PW1 should feel safe and comfortable. Moreover, unless she is now changed to other barracks or another working place, PW1 will be constantly reminded of her experience in the present case (HKSAR v Poon Kar Yue [2018] 6 HKC 146, paragraphs 30 to 32).

(3)  As the respondent waited and returned 10 minutes after he had left with PW2, the second assault was obviously premeditated.

(Ground 2: probation order was not suitable in the present case)

19.  Probation order is a non-custodial sentence with the primary aim of rehabilitation. Punishment and deterrence are of minor consideration (S for J v SWS [2020] 5 HKC 696, paragraph 46).

(Ground 3: the original sentence was wrong in principle and manifestly inadequate)

20.  Whether in the original sentence or in his consideration for re-sentencing, the trial magistrate was wrong in taking into account of the   fact that the respondent would lose his job as an ambulanceman. In respect of offences of gravity, the correct approach was not to regard that as a mitigating factor (Secretary for Justice v Ho Ken Wai Alex [2023] 4 HKC 538, paragraph 30; and R v Maclennan [1996] 4 HKC 507, page 514 D - E).

21.  When reconsidering the sentence, the trial magistrate was also wrong in determining that the sentences for the two offences should run concurrently before taking into account the totality principle. As the happening of the second offence increased the respondent’s culpability in the case as a whole, the two sentences should run partly consecutive (HKSAR v Ngai Yiu Chung [2011] 5 HKLRD 690, paragraphs 22 - 23).

The respondent’s reply

22.  The respondent had applied for legal aid but he was rejected in the end as he failed the means test. Finally, he elected to appear in person and dealt with this review for sentence on his own.

23.  The respondent stated in a letter dated 12 September 2023 that the close proximity in time of the two offences in the case showed that he indeed had committed the crime at the spur of the moment. He was deeply remorseful after the incident. He had strictly complied with the instructions of the probation officer to attend the relevant counselling group sessions since the sentence was imposed, and he was going to be assessed by the clinical psychologist. He knew that he would be sentenced to imprisonment but hoped that the court would take into account factors such as his remorse, determination to reform and having completed 8 months of the probation, and re-sentence him by imposing a community service order of 240 hours.

Discussion

24.  Undoubtedly, the facts of this case were serious. PW1 and the respondent were colleagues of the same disciplinary force. They trusted each other to a certain extent as there were certain dangers in their work somehow, such as carrying out duties in times of natural disaster, but trust was also cultivated in normal times. Similarly, the Fire Services Department as the employer would have certain expectations on the respondent that he would observe discipline, and would neither breach the trust among the colleagues, nor abuse the usage of the barracks, or damage the reputation of the department. This is also a kind of relation of trust. The respondent took advantage of PW1 while she was drunk to assault her indecently on two occasions, and the second assault even took place in the barracks,[1] the entry and usage of which were obviously restricted. He brought shame to the department. This is a breach of the trust placed in him by PW1 and the Fire Services Department. To describe the degree of indecency of the first assault, it would never be too much to say that PW1 was touched all over her body, whereas the second assault was utterly invasive. If PW1 had not woken up suddenly, no one knows how it would have ended.

25.  In conclusion, we are of the view that an immediate custodial sentence is the only suitable option for the two offences in the case, and the starting points adopted are 3 months and 18 months respectively. After giving a one-third discount for the respondent’s guilty pleas, the sentences are reduced to 2 months and 12 months, and there are no other reasons for further reduction. When considering the sentence, almost no weight should be given to the fact that the respondent would lose his job. As to the totality of sentence, we initially considered that only a term of 13 months could reflect the respondent’s overall culpability in the present case. However, having regard to the fact that the respondent has completed 8 months of the probation and the usual reduction given in a review for sentence, we will reduce the total term of imprisonment to 8 months.

Order

26.  We order that the respondent’s original sentence be set aside and be substituted by a sentence as stated in paragraph 25 above.

Translated by the Court Language Section of the Judiciary and vetted by Mr P Y Lo, Barrister-at-law.