ATTORNEY GENERAL v. WAI YAN SHUN

IN THE COURT OF APPEAL

Application for Review
1990, No. 17

BETWEEN

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JUDGMENT

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Sentence :  Indecent assault on females: MTR: guidelines

Silke, V.-P.:

1. This is the judgment of the court.

2. Wai Yan Shun - "the respondent" - aged 44, married with two young children, appeared for trial before Mr. D.M.B. Gill at South Kowloon Magistracy on an information alleging indecent assault on a female, an offence contrary to s.122(1) of the Crimes Ordinance, Cap. 200. The particulars were that he, on 11th September 1990, on an MTR train travelling from Tsimshatsui to Jordan indecently assaulted a 21-year old woman.

3. The respondent pleaded guilty and was sentenced to a fine of $4,000. This was his second similar offence he having been fined, in February 1989, $750 for indecently assaulting a 14-year old school girl at a charity concert held in a playground outside the Po Leung Kuk Siu Hon Sum Primary School. The facts of that case were before the trial magistrate.

4. The Crown sought to review that sentence but, on 22nd October 1990, the magistrate declined the application.

5. The Attorney General now applies, under the provisions of s.61A of the Criminal Procedure Ordinance and with leave, to this court for it to review the sentence. The grounds for the application are that it was manifestly inadequate and/or wrong in principle.

6. The facts were simple. The respondent used his private part to rub against the girl's buttocks. He was seen by an undercover police constable on the crowded train. The girl could not move away from the respondent and he kept up his assault during the journey which was a short one. The undercover police officer arrested him on reaching Jordan Road. He was taken to the Yaumati Police Station where he admitted under caution that he had committed the offence "due to his impulsiveness."

7. There was no evidence before the trial court that the girl had been unduly upset or that she had protested audibly, or in any other way, about the respondent's conduct.    

8. Nor, and this is unfortunate, were any statistics placed before the trial magistrate as to the prevalence of this offence or the nature of the sentences imposed on conviction.

9. The issue of prevalence is however properly before us as the magistrate himself made reference to it as coming from his own judicial knowledge.

10. The magistrate in his carefully considered Reasons for Sentence bore in mind the previous conviction, the facts of this instant case and he accepted the respondent's assertion that he was very remorseful - an assertion maintained and emphasised in the course of the subsequent Review application. He noted that the maximum sentence on indictment is one of 5 years' imprisonment and that his jurisdiction, on summary conviction, ran to 2 years' imprisonment or a fine of $10,000.

11. He expressed the view that the circumstances giving rise to the commission of the offence of indecent assault can vary considerably - ranging from the quick brush of a hand against the fully clothed anatomy of a victim in a well lit crowded environment to a situation little short of violent rape. With this we agree. He placed this instant offence as being "more serious than the most trivial examples" but not rising to the very serious end of the scale. With that, we again agree. Any assault of this type is an affront to the dignity of the female victim but, persistent and disgraceful as the respondent's conduct was here, it was not one of the graver forms which indecent assault can take.

12. The magistrate was fully aware that this type of conduct normally happens in crowded conveyances and by its very nature is difficult to discover and to prosecute. He was of the view that an offender who is caught must expect to be dealt with severely as a deterrent to himself and to others. The factor of the previous conviction for a similar offence made the respondent's conduct here all the more serious.

13. The magistrate considered whether or not he should impose a custodial sentence and, in consequence, whether he should call for reports before so doing. He decided not to call for reports. Mr. Plowman, who appears for the respondent in this court, has asked that, should we consider a custodial sentence to be the proper one, before imposing any such sentence we call for background reports both psychiatric and general. We shall consider that later.

14. It is to be noted that the Legislature has, in its wisdom, removed from the court a sentencing option, that of directing imprisonment but suspending its term upon conditions. This is an excepted offence.

15. The issue before us is should the sentence have been a fine or should it have been an immediate custodial one.

16. The factor of prevalence, as mentioned by the trial magistrate himself, has played an increasingly important role in the submissions made to us. Mr. Gill said that he had about 10 cases of a similar nature before him every week with the offenders normally having clear records. He stated that he normally fines them about half a month's income and went on to say:

"I have adopted no discernible pattern for subsequent offenders but I certainly do not discount a custodial sentence and have dealt with offenders in this way."

The fine of $4,000 here was in fact more than half the $6,700 monthly income of the respondent.

17. It is clear from what has been said that indecent assault on the MTR is prevalent.

18. The magistrate considered a recent Court of Appeal decision: The Attorney General v. Seabrook, Application for Review No.3 of 1990 (unreported) in which a fine of $5,000 after trial in respect of an indecent assault was not upset. He thought the circumstances there to be much more serious. With respect, Seabrook was an entirely different type of case and bore no real relation to the form and nature of this instant offence. Mr. Cross, who with Mr. Saw appears for the Attorney General, has urged upon us that by reliance upon Seabrook the learned magistrate led himself into error. Mr. Plowman urges us to the contrary that there was no reliance on Seabrook. We are of the view that the opinion the trial magistrate formed of Seabrook and of its relevance to the case before him did influence him in the decision to which he came. He did not have any other form of guideline to assist him.    

19. It is the Attorney General's submission that the facts here disclosed a "flagrant and repugnant" example of the offence of indecent assault. It certainly was, as is every offence of this nature, repugnant. But it was not, as we have earlier indicated, an example of the worst kind of offence.

20. We accept that where an offender is caught in the act then any discount for his plea is reduced. As was said in The Queen v. Lee Wai Man, Cr App 225 1990 (unreported) at p.3:

"The plea of guilty at first opportunity was a matter taken into consideration by Wong, J. but the fact that the applicant was caught red-handed takes something away from that point of mitigation."

21. But be that as it may, the most substantial mitigation here emerged from the respondent's plea in that the girl was not put through the ordeal of the giving of evidence, a matter always taken into account in sexual cases and which allows for a discount rather greater than in other criminal offences. That he was a previous offender adversely affects any such discount.

22. We do not however consider, and counsel generally accept, that the magistrate discounted from a custodial sentence to a fine in this instant case.

23. The correct method by which the court should approach the imposition of sentence upon a person with a previous conviction was succinctly set out in Queen [1981] 3 Cr App Rep (S) 245 at 246 in the judgment of the English Court of Appeal delivered by Kenneth Jones J. This helpfully encapsulates the approach which has been taken by these courts. He said:

"The proper way to look at the matter is to decide a sentence which is appropriate for the offence for which the prisoner is before the court. Then in deciding whether that sentence should be imposed or whether the court can extend properly some leniency to the prisoner, the court must have regard to those matters which tell in his favour, and equally to those matters which tell against him, in particular his record of previous convictions. Then matters have to be balanced up to decide whether the appropriate sentence to pass is one at the upper end of the bracket or somewhere lower down."

24. In Sargeant [1975] 60 Cr App R 74, Lawton, L.J., at p.77, set out the four classic principles which any sentencing court should have in mind. The first: retribution; the second, deterrence; the third, prevention; and the fourth, rehabilitation. Again, these basic principles are, and have been, followed by these courts in their approach to sentencing.

25. In this instant case, stemming from the prevalence of this type of offence and the difficulty in its detection, we consider the main sentencing element to be one of deterrence, that is deterrence not only to the offender but to others of a like mind. Involved in that is prevention. Further in our judgment we are entitled to bear in mind the public abhorrence of conduct of this nature taking place in the crowded environment of Hong Kong.

26. Mr. Cross has urged upon us the effectiveness of the "clang of the prison gate" approach which could in sufficient measure express the public disapproval of that which had been done and be a suitable means of bringing an offender to his senses (c.f. Smedley [1981] 3 Cr App Rep (S) 117 at 118). Certainly we accept that a short sharp sentence of imprisonment can, in circumstances such as this, act in the way suggested and, perhaps most important, also deter potential offenders (c.f. Hitchcock [1982] 4 Cr App Rep (S) 160).

27. Mr. Plowman has, rightly, drawn to our attention that it is important that an offender be sentenced for those offences proved against him and that any sentence should be commensurate with the facts of the particular offence which is before the court. He has also emphasised the public humiliation which has been suffered by the respondent from the fact of his appearances in court in relation to this matter on what are now three separate occasions. We have little doubt that, after the publicity he has received, and the known opprobrium which the public attaches to this type of offence, he would be very loath to offend again.

28. But that is not the end of the matter. Guidelines are asked for and, we consider, need to be given but it must be born in mind that the circumstances of this offence can vary infinitely. In our view, given the prevalence, for a first offence the "clang of the prison gates" should now be the normal sentencing option. A period of imprisonment between 14 and 28 days, depending on the place in the scale warranted by the facts would not be interfered with. For a second offence, sentence could well be between 2 to 6 months' imprisonment.

29. Fines are not being ruled out as a sentencing option. In the possibly rare case where the circumstances of the offence are such that the magistrate is satisfied that a fine is a proper punishment, then that fine must be geared to the ability of an offender to pay and inquiry must be made by the sentencer as to that.

30. In Review applications it is always for this court to give very careful consideration to the exercise of discretion by the sentencer and only where that exercise is manifestly wrong will the sentence be interfered with.

31. As was said, in The Attorney General v. Lau Chiu Tak & Another [1984] HKLR 23 we are more easily persuaded a sentence is manifestly excessive than we are persuaded that it is manifestly inadequate.

32. Turning how to this respondent. It is clear that the 1989 fine of $750 was not of sufficient gravity to deter him. We accept, though this may stem to an extent at least from his apprehension and from his three appearances in court, that he is remorseful. We are conscious that he has a supportive wife and a reasonable job. As we have said the offence he committed is prevalent and is one which it is the duty of the courts to deter by taking a serious view and reflecting it in the sentence passed. We bear in mind the general guidelines which we have earlier set out. We accept Mr. Cross' submission that the discretion of the trial magistrate was to an extent flawed by his being influenced by Seabrook. Without this he could well have, as he has apparently done in other cases of second offenders, imposed an immediate custodial sentence. In our judgment a sentence of imprisonment here would have been proper.

33. From the submissions of Mr. Cross it seems to us that, while he would wish this court to take the view that a fine was manifestly inadequate, the Attorney General by the bringing of this application is mainly seeking guidelines applicable to future offence of this nature and using this case to that end.

34. In all the circumstances of this offence and of the offender we agree that the sentence imposed was manifestly inadequate. We consider however that this particular respondent has been brought to his senses by everything that has happened to him and that he personally has been sufficiently deterred. In the light of all this we do not consider ourselves to be obliged either to impose the sentence we consider should have been imposed at trial or to dismiss the application: A.G. v. Chan Tak King [1989] 2 HKLR 428. From now on, offenders who contemplate such action must fully realise where their conduct will bring them.

35. Consequentially, the argument helpfully prepared for us in relation to the principles of a discount being given in review applications will not now be necessary though no doubt there will be ample opportunity in the future to bring them to our attention.