HKSAR v. AKHTAR HUSSAIN

HCMA 711/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 711 OF 2012

(ON APPEAL FROM TMCC 3069/2012)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  On 7 March 2 013 I allowed the appellant's appeal against a sentence of 10 months imprisonment, set aside that sentence and substituted it with one of 6 months imprisonment. I indicated I would give my reasons later. These are they.

2.  This matter was first listed for hearing on 3 January 2013. The appellant sought an adjournment to enable him to explore the possibility of legal representation. He approached the Director of Legal Aid. Mr. David Ma of counsel was appointed to act in this matter, not so as to represent the appellant during his appeal but to assist the court in any way that may have proved to be necessary. In the event, the appellant continued with his appeal, unrepresented contending that the sentence was too long.

3.  The appellant had been convicted, on his own plea, of a single charge of indecent assault. The magistrate summarised the facts in these terms:

... the victim was inside a commercial unit, that she had purchased, conducting renovation work. Suddenly the appellant entered the unit and made a sign by placing his right middle finger into a circle made by his left first finger and thumb. The victim perceived that to be a sexual gesture. The appellant grabbed the victim's arms and squeezed her right breast from behind. He pressed onto her buttocks with the lower part of his body. The victim screamed and the appellant covered her mouth. She struggled with him for a few minutes and then escaped. She ran out of the building, came across the police and then identified the appellant, who was rushing out from the building, to them.

4.  After dealing with matters personal to the appellant he said:

I was of the view that the circumstances of the offence made it a grave one. Whilst the actual sexual contact did not place the offence at the more serious end of the scale of gravity, there were some seriously aggravating features. The appellant had entered as a trespasser a private commercial unit wherein he had proceeded to assault a lady who was alone at the time. It must have been a very frightening incident for the victim. Since the assault was preceded by sexual gesture, she must have been in fear of rape. Indeed when the appellant proceeded to cover her screaming mouth with his hand she may well have been in fear for her life. This was not a momentary incident. The victim struggled with the appellant for a few minutes before she escaped. I took the view that only immediate imprisonment was the appropriate sentence. I took a starting point of 15 months imprisonment and reduced sentence by one third to give credit for the guilty plea.

5.  In my judgment the magistrate overemphasised the matters he identified, correctly, as aggravating features. Whilst, obviously, it was a frightening experience for the woman concerned there simply was nothing before the magistrate, or before me, to indicate that she "must have been in fear of rape" or "may well have been in fear for her life".

6.  The appellant is 43 years old; is of clear criminal record; has resided in Hong Kong since 1987; is married with four children; his three younger children, all boys, are studying in special schools all being affected with either deafness or mental retardation; has been suffering from mental illness since 2000. A psychiatric report obtained before plea indicated that the appellant suffered from chronic schizophrenia for which he has been receiving effective treatment and in respect of which there was no indication of relapse.

7.  He had expressed remorse for his conduct. That was obvious , also, from his plea but the magistrate made no comment about the fact that the plea had spared the woman involved from having to relive the episode in court. That is a factor which is commonly taken into account in matters of this nature.

8.  This being an appeal from a magistrate it was necessary for me to determine what I regarded as the appropriate sentence - which I judged to be nine months imprisonment after trial. Allowing the discount for the plea of guilty resulted in a sentence of six months imprisonment.