HKSAR v. KWAN HOI

CACC 415/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 415 OF 2002

(ON APPEAL FROM HCCC 120 OF 2002)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 9 July 2002, the Applicant was convicted of three sexual offences. This followed a trial in the Court of First Instance before Deputy Judge Wright and a jury. Following an adjournment for psychiatric and psychological reports about the Applicant, who was then aged about seventy-three, he was sentenced on 30 July 2002 to terms of imprisonment amounting in total to thirteen years.

2. The Applicant now seeks leave out of time to appeal against conviction and leave to appeal against his sentence.

Conviction

3. The Applicant has provided no sensible reason for being over four months late in filing his application relating to conviction. Plainly, there are no grounds for granting leave out of time unless some merit has been shown for such an appeal. In his written application, the Applicant merely stated that he "did not commit the offence", by which we shall assume he intended to refer to all the counts alleged against him. We have read the summing up and it is apparent that all the important factual issues in the trial were dealt with fully and fairly and that there were no misdirections in law.

4. The application for leave to appeal against conviction out of time is refused.

Sentence

5. The counts on which the Applicant received his lengthy sentence alleged buggery with a girl under twenty-one, contrary to section 118D of the Crimes Ordinance (counts 1 and 2), and unlawful sexual intercourse with a girl under the age of thirteen, contrary to section 123 of the Crimes Ordinance, Cap. 200 (count 3). The victim in the three counts was the same girl throughout. All the offences were committed between 1 September 1996 and 9 July 1998 at the Applicant's home at a time when the victim was aged between 3 and 5 years old. The Applicant was an immediate neighbour of the victim and her father.

6. Whilst the Applicant denied the allegations, the defence accepted that on three occasions he had touched the victim's sexual organs and that he had ejaculated onto her.

7. The three main prosecution witnesses were the victim, her father and the Government pathologist who examined the victim. The Applicant's statements to the police were also produced as part of the prosecution's case. The Applicant chose not to give or to call evidence.

8. When the Applicant was arrested he said: "We just played and felt". He later made a statement to the police in which he admitted knowing the victim and seeing her in his flat. More importantly, he agreed that he had indecently assaulted her. He said, somewhat preposterously, that the victim had made overt sexual advances to him. He had responded to these but his actions, according to him, had not involved him penetrating her.

9. The victim's father said that in 1998 he confronted the Applicant and accused him of raping his daughter. After initially denying it, the Applicant said that it could not be rape because his penis was only half-hard and he only inserted it several times before he ejaculated. The Applicant returned to the father's address the next day to offer him $300 by way of compensation. In his statement to the police, the Applicant acknowledged this had happened saying that the money was offered for having played with the victim.

10. The evidence-in-chief of the victim consisted of a video-tape which had been recorded some nine months before the trial. She said that the first occasion of intimate contact between herself and the Applicant occurred some two to four years prior to the recorded interview when she was in the lower level of kindergarten. She related how she was entrusted into the care of the Applicant at times when her father needed to go for medical treatment.

11. She was able to fix the first occasion as having occurred on a Saturday morning in the autumn of that year. The Applicant removed his pants and also her's. He held her on the sofa in his residence. She described how the Applicant performed buggery on her. She complained to the Applicant that it was painful and he told her, quietly but fiercely, not to make a noise. Afterwards, she noticed a white fluid around her private parts.

12. The victim said that the second occasion took place after Christmas but before the Lunar New Year, during her second term in the lower level of kindergarten. She was once again at the Applicant's address. She described how the Applicant removed the lower clothing of each of them before committing the act of buggery on her. She also noticed he had ejaculated.

13. The third occasion when sexual activity took place was, according to the victim, on a Sunday in February or March when she was again alone with the Applicant at his residence. She described how the Applicant placed a piece of cloth under both of them and had sexual intercourse with her. This felt very painful but she did not say anything to him as he had scolded her previously about making a noise. She said that the Applicant washed the cloth which she noticed had white fluid on it and that she had to wipe her private parts as they were wet from the fluid.

14. The Government pathologist who examined the victim expressed the opinion that her hymen had been ruptured, consistent with sexual intercourse having taken place. He was unable to make a finding as to any injury to the victim's anus because of the lapse of time.

15. In passing sentence, the judge referred to some of the facts which singled the case out as one with unusually grave aggravating factors before turning to his approach to an appropriate starting point. He said:

"The girl was between 3 and 5 years of age when you defiled her, little more than a toddler. Even now she is still less than 10.

Knowledge of the age of the child is a matter which is relevant to sentence in a matter such as this. You full well knew that she was in the lower level of kindergarten - you knew just how young she was yet this deterred you not at all.

You knew her age because you had come into contact with her as a result of your acquaintance with her father. He, like you, is of advanced years. When he experienced health problems he sought your help by entrusting his daughter to your care on various occasions whilst he went for treatment. You abused that trust. You abused his daughter.

Not content with using her to satisfy your perversions, you have displayed a total lack of remorse by claiming that it was she who had made overt sexual advances to you, that you had responded to her overtures.

I was asked to obtain psychiatric and psychological reports on you and a report on any effects that your conduct may have had on the girl.

I declined to obtain a report on her. I took the view that you had already made her relive her ordeal in court, albeit that she gave her evidence by way of closed circuit television, and that, on balance, it would not be in her overall interests to oblige her to go through it all yet again. It follows that there is no professional evidence before me of any long term effects which she may suffer. It may well be too early for that to be determined in any event. It would be unrealistic to suggest that there will be no effect at all. Whatever other consequences there may be of your conduct, the very least is that you stole this child's innocence.

The reports relating to you are entirely unremarkable. There is no suggestion of any psychiatric impairment. The only adverse comments passed by the psychologist relate to your continuing denial of having committed these offences.

Yours is debauched conduct of the gravest nature. Your depravity will fill every right-thinking member of society with revulsion.

You would have been around 68 or 70 at the time of these offences. You are presently 72 or 74 years old. Even if your age is a matter which the Executive later takes into account in determining your release date, it is not a matter which avails you in mitigation of the sentence to be passed on you.

You have not previously been convicted of any criminal conduct. However, previous good behaviour is hardly of any relevance in this type of offence. I shall simply bear it in mind when determining the starting points in respect of the sentences.

It is the duty of the court to protect young children and to assure their parents of their safety. A sufficiently heavy deterrent sentence is required for sexual offences of this nature against the extremely young. It must be made quite clear that anyone who is convicted of sexual abuse or exploitation of children of very tender years will face substantial custodial sentences, be they young or old, male or female, of clear record or otherwise.

I have had regard to the comments passed by variously constituted Courts of Appeal in R v Chan Chi Wah Crim. App. 559/1996, HKSAR v Hui Ka Sang [2000] 2 HKLRD 718, and HKSAR v Yee Yiu Sam Crim. App. 530/2001. One feature that is common to those reports is the comment that the fact that the victim in each instance was young was an aggravating feature - and that was an observation passed in respect of girls in their mid-teens.

In the circumstances of this matter I see no need to draw distinction between the acts which you performed on her. In my judgement the appropriate starting point for each charge is one of 12 years imprisonment.

This was no isolated incident - on three separate and distinct occasions, some months apart, you used this child. In principle the sentences would properly be ordered to be served consecutively to one another. However, I must impose such sentence as will reflect your criminality in its entirety, taking into account your individual circumstances and the fact that I am sentencing for a multiplicity of offences.

This will be achieved with an overall sentence of 13 years imprisonment.

On each of the charges you are to serve 12 years imprisonment. Charges 2 and 3 are to be served concurrently with one another but one year of those concurrent sentences is to be served consecutively to the sentence on Charge 1." (Appeal bundle pp. 41-44)

16. The judge had understandably requested that a psychiatric report should be prepared about the Applicant. However, as the judge remarked in the course of passing sentence, this provided little assistance. Dr Henry C.H. Yuen had found no signs of mental distress and he detected no psychotic or morbid depressive symptoms. The Applicant had merely maintained his innocence and denied any tendency towards paedophilia. A similar reaction is recorded in Dr Judy S.H. Hui's psychological report dated 29 July 2002 where she records being confronted by a total denial of the offences.

17. Mr Zervos, on behalf of the Respondent, has placed before us a considerable number of cases, including those to which the judge referred. These appear to indicate that the tariff for offences of the kind with which we are presently concerned, albeit those decisions were largely in relation to victims in their teenage years, is in the region of ten years' imprisonment for a single offence.

18. This was neither, of course, an isolated case nor was it one which concerned a relatively mature victim. There is no saying what the long term effects on such a young girl will be.

19. The present offences were committed upon an unusually young victim and for paedophile crimes of this sort a singularly severe sentence is generally required both as a safeguard to the community and as a deterrent to others. Whilst the Applicant has not previously offended in this way and he is now considerably advanced in years, he has shown no remorse at any stage for what he has done. The seriousness of the case outweighed the two factors to which we have referred which might otherwise have been regarded as mitigation.

20. Accordingly, the application in relation to sentence is dismissed.