ATTORNEY GENERAL v. HO YU PING

HEADNOTE

Indecent assault on girls - of a minor nature - Appellant a school teacher - Abuse of trust - Sentence

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

Application for Review No. 8 of 1993

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J U D G M E N T

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Hon Yang, CJ:

1. On 26 August 1993, we made no order in respect of the Attorney General's application for review of sentence and indicated that we would reduce our judgment into writing at a later stage. This we now do.

2. The respondent was convicted on his own plea of five charges of indecent assault on women contrary to Section 122 of the Crimes Ordinance, and sentenced to concurrent terms of imprisonment of six months on each charge.

3. The victims were pupils between 10 and 13 years of age at the Kwai Chung Government Primary School where the respondent was employed as a teacher. The offences were committed between September 1990 and July 1992. The indecent assaults were of a minor nature: these consisted of stroking of the armpits and breasts and, on one occasion, the hip. There were two occasions when he embraced or pressed his body against a girl. There was never any force or suggestive language used.

4. The trial judge described the respondent as a "40-year old former school teacher with no previous conviction and by all accounts a diligent, intelligent and (within his profession) a highly thought of man". He noted the respondent's pleas of guilty and obvious remorse, and observed: -

"Those guilty pleas are of particular importance in a case such as this involving children, because such pleas spare those children from the ordeal of giving evidence - such an ordeal being (I dare say in a case such as this) considerably worse than the ordeal of the assault itself. Those pleas must be given considerable credit because in the particular circumstances it must have been at least arguable whether or not the assaults were truly indecent, albeit that in my view they were."

5. The probation report called for by the judge spoke favourably of the respondent. It referred to his wife's illness which severely interfered with their close sexual relationship. In suppressing his sexual desire, he sought release in the indecent assaults he was found guilty of. He had been consulting a psychiatrist and had "regained a balance of life afterwards".

6. The psychiatric report stated that "the suppression of the respondent's normal sexual desire was channelled to be released through deviant acts", which themselves had the "unconscious function of being 'a cry for help'. The continuation of such acts would eventually lead to being caught and 'helped' at the end". The prognosis of his case was very good.

7. He had as a result of these offences lost his job and pension, and now practices herbal medicine as a living.

8. In his careful Reasons for Sentence, the judge considered a number of authorities. He noted the aggravating feature of a serious breach of trust on the part of the respondent, but viewed the acts themselves as being at the very lowest or the least serious end of the scale or range of such behaviour. He thought it "unfortunate" that, by virtue of Section 3 of the Criminal Procedure Ordinance, he was not permitted to impose a suspended sentence. Having ruled out as inappropriate the imposition of a fine, he took the view that the only sentence he could properly impose was one of imprisonment but, in all the circumstances, such a sentence should be relatively short.

9. Mr Cross, leading counsel for the Attorney General, argued six points. Firstly, the judge ought to have indicated the degree of discount he allowed following the guilty pleas. Secondly, the respondent being a teacher, the offences against his pupils were an abuse of the position of trust he held at the school. The third point was that these being separate and distinct offences, consecutive sentences should have been imposed. Fourthly, the judge should have kept a balance between mitigating factors and public interest. Fifthly, the judge ought to have given effect to the current maximum penalty for an offence contrary to Section 122 of the Crimes Ordinance, which was raised from five years' imprisonment to 10 years with effect from 12 July 1991: the first offence having been committed before that date and the others after. Lastly, the judge erred in imposing the same penalty on all five offences.

10. Dealing with Mr Cross's first point, it is clear from the judgment of Roberts, CJ, in The Queen v. WONG Ping-yu [1987] HKLR 785, at 787 E that it would be desirable for judges and magistrates to follow the practice of indicating the degree of discount which is allowed upon a plea of guilty.

11. Mr Cross's second argument was that where those in authority abuse the position of trust to the detriment of those for whom they are responsible, sentences must be imposed which adequately mark the gravity of the criminality. The trial judge had erred in relying up the "clang of the prison gates" cases such as R v. Bibi (1980) 2 Cr. App. R.(S.) 177.

12. In that case, the Lord Chief Justice stated (at pp 178 - 179) that many offenders can be dealt with equally justly and effectively by a sentence of six or nine months' imprisonment as by one of 18 months or three years. He had in mind not only the obvious case of the first offender for whom the prison sentence, however short, may be an adequate punishment and deterrent, but other types of case as well. He gave as examples the less serious types of factory or shopbreaking; the minor cases of sexual indecency; the petty frauds where small amounts of money are involved; the fringe participant in more serious crime: all these are cases where the shorter sentence would be appropriate.

13. However, the present case does not fall into this category; it is aggravated by that breach of trust which puts it into a more serious type of case: see The Queen v. TO Hak-kin, Crim. App. No. 341 of 1989; The Queen v. CHAN Sum-ho, Crim. App. No. 536 of 1989 (at p.2).

14. In R v. Cubitt (1989) 11 Cr. App. R.(S.) 380, the six years' imprisonment imposed on the appellant, a teacher at a primary school, for indecently assaulting a number of female pupils was reduced to four years. Cubitt had pleaded guilty to five counts of indecent assault. He was the deputy headmaster of a primary school, and the counts were specimen charges representing offences committed over a period of four years on girls aged nine to ten who attended the school. The indecent acts included touching the girls' genitals, oral sex and masturbation of the appellant by the girls. It was held on appeal that Cubitt was in a position of trust and the offences merited a substantial custodial sentence, although they were not themselves the worst of their kind.

15. The nature of the indecent assaults in Cubitt was clearly more serious than that in the present case. In other respects, however, the case is comparable to that before us.

16. Further to Mr Cross's submission, it might be said that, apart from a school teacher's position of dominance over his pupils, he is also in a position of trust vis-a-vis the school which employs him, as well as his pupils' parents who have entrusted the care and education of their children to him. It is the abuse of trust which marks the gravity of the offences here.

17. As to the third point, we note that the offences were indisputably separate and distinct, involving different victims and different occasions. These could not come within the "one-transaction rule". As such, subject to the totality principle, and to Section 82 of the District Court Ordinance, concurrent sentences were wrong in principle: vide The Attorney General v. LEE Ching-kwong, App. for Rev. No. 5 of 1987, at pp 3 - 4; The Attorney General v. CHEUNG Pit-Yiu [1989] 2 HKLR 12, 14. Further, where there is more than one offence of a similar nature committed at different times, it is right for the Court to award a higher sentence than if there had been only one offence: per Barker, JA, in The Queen v. TONG Hoi-fung [1988] 1 HKLR 610, 611 J; see also Macdougall, VP, in The Queen v. KWOK Chi-keung in App. for Rev. No. 5 of 1993, at p.4.

18. On the fourth point, we begin with Mr Cross's citation of the judgment of Scarman, LJ, in R v. Inwood (1974) 60 Cr. App. R. 70, where the learned judge said (at 72): -

"In the balance that the Court has to make between the mitigating factors and society's interests in marking its disapproval for this type of conduct, we come to the irresistible though unpalatable conclusion, that we must not yield to the mitigating factors."

19. In R v. Prime (1983) 54 Cr. App. R.(S.) 127, Lawton, LJ, said (at p.133):-

"There are four classical reasons for sentencing: retribution, deterrence, rehabilitation and prevention. The last two have no relevance in this case. Retribution is a word which in recent years has been out of favour with criminologists. In modern sentencing policy it means no more than this, that there are offences which are so grave that the only way that judges can demonstrate that society will not tolerate a particular kind of conduct is by passing a sentence which truly reflects the abhorrence which right-minded members of the public have of the offender's conduct. The Lord Chief Justice used the phrase 'public abhorrence' when sentencing the applicant. We are of the opinion that he was right to do so."

20. Again, in R v. YUEN Chi-mo [1973] HKLR 84, Huggins, J, stressed (at p.87) that the Court has to pay full regard to the nature of the offence committed and to its possible effects upon the public weal.

21. In re Applications for Review of Sentences [1972] HKLR 370 is another authority in a similar vein. There Leonard, J. said (at p.417) that the personality, youth or personal circumstances of the offender may pale into insignificance because of the magnitude or prevalence of the offence.

22. With respect we agree with the principles enunciated in all those authorities.

23. The fifth point may again be answered by repeating the citation of a passage in Mr Cross's written submissions, namely, R v. Lawrence (1980) 32 Aus. L. Rep., 72 where Moffitt, P, said (at p.110(30)): -

"It is well recognized that the fixing by the legislature of a maximum sentence for a particular crime provides a legislative view of the seriousness of the crime in question. A legislative policy so indicated, as with any other legislative policy should guide the court in the determination of the appropriate sentence to be imposed in a particular case. In order to give effect to this policy it will normally be necessary to reserve the maximum for the more serious cases of the crime in question with the less serious cases being dealt with by imposition of a less penalty which pays due regard to the seriousness of the class of crime, so indicated by the legislature. If there is a legislative amendment increasing the maximum sentence, this new view of the seriousness of the crime should be reflected in the sentence imposed."

24. In our judgment, the Court should keep a proper balance between the public interest in punishing the respondent for abusing his position of authority and trust by indecently interfering with small girls in his charge, and the regard we must have for his remorse and ready pleas of guilty, which obviated the inevitable trauma the girls would suffer in having to giving evidence in Court. We keep in mind also that had it not been for the pleas of guilty the prosecution would have been likely to have encountered difficulty in establishing the offences. These, however, were multiple offences committed over a long period of time.

25. On the facts of the present case we consider that the starting point for sentence should have been 18 months' imprisonment and that a discount of one third would have been appropriate. Although, we have come to the conclusion that the sentences are manifestly inadequate, we do not think that the public interest requires us to order that they be increased. The respondent was sentenced on 1 July this year and has completed a substantial part of his sentence. He is responding favourably to psychological treatment. We remind ourselves of what Fuad V-P said in delivering the judgment of this court in A.G. v. Chan Tak-king [1989] 2 HKLR 428 at 434:

"..... we do not think that the provisions of s.81B compel us to construe them as making it obligatory for the court to impose the sentence it considers should have been imposed at the trial or to dismiss the application."

26. Accordingly, we made no order.

( T L Yang )
Chief Justice