THE QUEEN v. HUI YEE CHUN

HEADNOTE

                    The Court was satisfied that The Attorney General's Reference No. 1 of 1989 1 W.L.R. 1117 correctly sets out the factors to be considered when sentencing for incest. It was satisfied that the sentence should be in the vicinity of 8 years when the victim was aged 10 and that other aggravating factors which included offences over a lengthy period and the resulting pregnancy would have warranted a sentence of 9 years after trial. The Court was satisfied that the plea of guilty together with two lesser factors required discount of 2 years and it varied the sentence from one of 8 years to one of 7 years.

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced two counts of incest which were, at the hearing before Duffy J., referred to as sample counts. The first alleged that on a date unknown, in or about June 1986, at Room 1217, Sau Shan House, Cheung Shan Estate, Lei Muk Shu, New Territories, the applicant had sexual intercourse with HUI Wai-yan, a girl under the age of 13, who is, and was, to his knowledge his daughter. The second alleged that at the same address on a date unknown in January 1989, at the same place, he had sexual intercourse with the same girl. The applicant pleaded guilty to both charges and the following admitted facts were placed before the court.

3. The victim was born on 7th November 1976 and was the daughter of the defendant. In October 1989 she revealed first to her friend and then to a school social worker that she had had a miscarriage and that the father of the baby had been her own father. She gave a statement to the police saying that when she was 10, i.e. at the time of the first charge when her father had intercourse with her. This would have been in 1986. She said that the next occasion was in November 1988 and that there was a third occasion in January 1989 which resulted in her pregnancy and miscarriage in June of that year. The applicant after having been confronted with these allegations attempted to flee from Hong Kong but was stopped at the Lo Wu Immigration check, arrested and taken to the Tsuen Wan Police Station. After being cautioned, he expressed his remorse and said that he wanted to tell everything. He then confessed that he had sex with his daughter on seven or eight occasions. He said that on the first occasion he had mistaken her for his wife and that thereafter he had sex with her every three or four months, the last occasion being in January 1989. He was said to have expressed deep sorrow over his actions.

4. The trial judge when sentencing said:

"You have pleaded guilty to two counts of incest. You admitted to having sexual relations with your younger daughter from the age when she was only 10 years of age. She eventually became pregnant and the baby was naturally aborted. These of course are all very tragic cases, tragic not because of the circumstances in which the perpetrator finds himself, but because of the fact that what he has done has wrecked his family life and caused scars, both psychological and physical, not just to the victim but to the rest of the family, scars which may never be erased. The court has to mark its disapproval and the disapproval of the community for such behaviour. The court also has to endeavour to deter other men from behaving as you have done.

 

            You have pleaded guilty and I take that into account. You have at least saved your daughter from the added trauma of having to come to court to give evidence.

 

            You have a conviction in the mid-70s for a similar type of offence, that is an offence of having sexual intercourse with a girl under 16 years of age. It was put before me as a mitigating factor that your daughter's resemblance to that girl is one of the reasons why you committed this offence, I do not regard that as a mitigating factor.

 

            Had you not pleaded guilty I would have sent you to prison for nine years. Giving some consideration to your plea of guilty and being as merciful as I think I ought to be in the circumstances, I sentence you to imprisonment for a period of eight years."

 

5. Mr. Sarony who appears for the applicant today has urged a number of grounds of appeal. He first submits that the sentence was excessive because the trial judge failed to have sufficient regard to the applicant's exemplary work record and to the matters disclosed in the Probation Report. The judge had the Probation Report and had clearly considered it. There is nothing to support the submission that he did not give proper weight to the matters contained therein and to other background matters such as the exemplary work record of the applicant.

6. Mr. Sarony next urges that, apart from the pregnancy, the case lacked any of the other characteristics ordinarily regarded as aggravating such an offence. We find this submission difficult to understand. The principal aggravating feature, and it is a serious one, was that the girl was only ten years of age at the time when the applicant's conduct commenced. Her extreme youth is a grave aggravating factor.

7. Mr. Sarony also submits that the applicant's genuine and deep remorse has not been adequately reflected in the sentence. Courts when determining the discount to be given for remorse in cases such as this cannot help but have in mind that the situation for which the remorse is being expressed was not only one which was wholly within the defendant's power to avoid but was also one whose consequences he could with any thought have easily foreseen. Such a defendant has, nonetheless, casting aside all considerations of morality and parental responsibility, committed the offence.

8. It is suggested that the combination of circumstances which led to the offence in this particular case provide matters of real mitigation. We are unable to agree. This applicant faced a combination of circumstances which were not unlike those faced by a great number of families in Hong Kong. He succumbed to a temptation which a father should never have allowed himself to have entertained.

9. It is complained that the sentence places too much emphasis on deterrence and too little on the prospect of rehabilitation. We are quite unpersuaded that the deterrent factor was given too much weight. Offences such as this strike at the fabric of family life and it is the duty of the courts to impose sentences that both punish and deter.

10. Mr. Sarong has referred us to The Queen v. Wong Kwok-hi H.C. Case No.78 of 1987, and The Queen v. WONG Shu-sang H.C. Case No. 223 of 1986. He submits that, when the sentences passed in those cases are considered, it can be seen that the sentence imposed on the applicant was well above the proper range.

11. In the former case, the child was eleven when the incestuous conduct began, and there were then repeated acts over a period of six years which culminated in the attempted suicide of the girl. The father was 61 years of age at the time of sentence and was, after plea, ordered to be imprisoned for four years. We are not in possession of the full facts of this case but cannot help but observe that, on its face, the sentence appears to have been lenient in the extreme.

12. In the latter case, the girl was eleven at the outset of the conduct, and the father had intercourse with her on seven occasions over a period of two years. There was, however, no full penetration at any time as the girl was found upon examination to be virgo intacta. The father pleaded guilty and was sentenced to imprisonment for four years. Again we do not have the full facts of this case but again cannot help but observe that this appears to have been a relatively lenient sentence.

13. We have been referred to The Attorney General's Reference No. 1 of 1989 1 W.L.R. 1117 which at p.1123 indicates that:

"If the girl is not far snort of her thirteenth birthday and there are no particularly adverse or favourable features on a not guilty plea, a term of about six years on tile authorities would seem to be appropriate. It scarcely needs to be stated that the younger the girl when the sexual approach is started, the more likely it will be that the girl's will was overborne and accordingly the more serious would be the crime."

 

It then goes on to deal with other aggravating factors.

14. Accepting that six years would be a proper sentence for a girl not far snort of her thirteenth birthday, we are satisfied that a sentence in the vicinity of eight years would be proper where the child is aged only ten. Of the other aggravating factors, the ones that apply to the present case are that the intercourse took place over a long period but not, it is true, with great frequency, and that it resulted in pregnancy. We are satisfied that, after trial, an appropriate sentence would, as tile trial judge concluded, have been nine years.

15. The factors which would warrant a discount are, firstly, the plea of guilty. This the trial judge took into account. A plea is always of significance in cases of this nature as it obviates the need for the victim to come to court and suffer the trauma of giving evidence against her father. The second factor to which some weight should be given is the remorse which, we are satisfied, is genuinely felt by the applicant. The third factor, following the indication in The Attorney General's Reference, is "that there was a genuine affection on the part of the defendant rather than the intention to use the girl simply as an outlet for his sexual inclinations." While weight must be given to each factor we are satisfied that the first is the most significant. The proper discount would, in our view, have been two years.

16. The application for leave will, therefore, be allowed. It will be treated as the hearing of the appeal. The appeal will be allowed and the sentence will be varied to one of seven years.