HKSAR v. SEE TAK MAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.707
(Criminal)

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J U D G M E N T

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

1. On 14th October 1997, this Applicant pleaded guilty before Gall J. in the High Court to a charge of indecently assaulting a 12-year-old male on 16th January 1997, at a public toilet in Taikoo Shing. A sentence of 3 1/2 years was passed on 4th November 1997, following an adjournment for psychiatric and background reports.

2. Leave is now sought to appeal against sentence on three principal grounds:

1. the judge erred in adopting 5 years as a starting point in that he wrongly equated the said offence with non-consensual buggery;

2. the judge did not adequately take into account all matters which had been raised in mitigation; and

3. the judge failed adequately to take into account the discount which is normally given in sexual cases after a plea of guilty has been tendered.

This gives a summary of the grounds which were advanced and the effect of them.

3. The facts which were admitted disclosed a sordid story. The Applicant, who was 31 years old, picked up his young victim after a brief encounter in a lift at a shopping centre. The child had been left for some time by his mother while she had gone away to do some shopping. The Applicant then went to a public toilet in the shopping centre. The boy also went there and it was whilst they were in the toilet that the applicant took the boy to a cubicle. By this stage the boy was in fear. The Applicant then engaged in oral sex with the boy while both he and the victim were undressed. There were then further acts of indecency falling short of attempted buggery before the Applicant eventually ejaculated into the boy's mouth. The boy then left the cubicle. He washed his mouth and then, after the Applicant left the cubicle, he followed the Applicant until such time as he was able to notify a security guard about what had happened. The Applicant was then arrested and told the police in due course that the boy had agreed to taking off his clothes. He admitted what had happened, and it is right to say that the Applicant made no attempt to run away before police were called by the security guard.

4. The principal mitigation which was advanced on behalf of this Applicant, who is a well-educated man without any previous convictions, was that he had not planned this encounter. The Applicant believed that the boy was older than he in fact was, and that the boy appeared to consent to what had gone on. This was all against the background of the plea of guilty. On a more general front, there was nothing in the psychiatric report to indicate that this Applicant was a paedophile or a menace or danger to society.

5. The trial judge rightly dealt with the case on the basis that the victim did not consent to what happened to him. This kind of offence gives rise to great abhorrence on the part of the public who naturally look to the courts for protection of children from men like this Applicant, who seek to gratify themselves at the expense of innocent members of society over whom they take advantage.

6. We have been reminded by Miss Corrine Remedios in the course of her very eloquent address today of a number of leading cases. We have, however, not been able to derive much benefit from those cases to which we were referred. Many of the cases relate to dates before the amendments to the present Ordinance which raised the sentence for indecent assault to ten years. Other cases involve cases of offences of buggery. She has submitted in particular, however, that the judge erred in principle by passing a sentence with the starting point for an offence of consensual buggery in mind, and she takes the passage at p.31F in the transcript to illustrate the point, where the judge said:

"I take the case of R v Summers (1990) HKLR 756, to which I have already referred, to justify a starting point of three and half years' imprisonment for the consensual buggery of a 16-year-old boy by an older man, where the boy had some previous sexual experience. That is the starting point after trial. I equate the acts done by the accused in this case to be at least equal to the severity to -- in their nature to the severity of the acts of buggery where no violence or threats are used. In the case before me, I take the non-consensual nature of those acts and the youth of the boy to be aggravating factors which warrant a starting point in this case of a period of five years' imprisonment."

7. It seems that the judge was meaning by "severity" to refer to "gravity" and we think it was most unfortunate that he chose to make this analogy. If he was intending, as we think he was, to say that there are some indecent assaults which are more grave than some offences of consensual buggery, we feel bound to agree. However, this was not a case in which buggery or attempted buggery was alleged to have taken place. We do not feel that the judge should have drawn any comparisons of that kind. It was particularly unfortunate here because the prosecution had chosen not to proceed on a charge of buggery.

8. The judge also said at p.29 of the transcript:

"The accused stands convicted on his own plea of one of the most serious cases of indecent assault to have come before these courts in recent years."

This was a bad case, but we cannot agree with his assessment. No actual physical injury was done to the boy. The offence was an isolated incident and not part of a long series of indecent assaults on children. The Applicant was not in a position of trust towards the child.

9. Whilst it is not possible to say that there has been psychological damage to the victim, as permission was refused for such an examination to take place, that cannot be overlooked as a factor to be borne in mind. We can also take into account that there is an important punitive element in sentencing offenders of this kind when fully adult men take advantage of children. Not only must they be punished but others must be deterred from following a similar example although we have no evidence that this is in any sense a prevalent offence in Hong Kong.

10. The trial judge took a five year starting point which, for the reasons we have given, was, in our opinion, excessive and was arrived at for reasons that were erroneous. It therefore falls to this court to make its own assessment on the facts which were admitted and what was actually done by the Applicant to the victim. In the view of this court, the starting point should have been one of four years' imprisonment. The judge gave a substantial discount, but he gave no reasons why the Applicant should not receive credit for a full one-third reduction in sentence. In view of the fact that this was the Applicant's first offence, that the victim was spared the considerable ordeal of having to give evidence, and to give effect to the discount which was due to this Applicant, we believe that justice can be done by reducing the sentence by a little more than one-third.

11. Accordingly, we shall grant leave to appeal and, treating the hearing as the appeal, we reduce the sentence of 3 1/2 years to one of 2 1/2 years' imprisonment. To that extent the appeal is allowed.