HKSAR v. FUNG KING TAK

CACC 645/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 645 OF 1999

(ON APPEAL FROM DCCC 882 OF 1999)

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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) :

1. On 7 December 1999, the applicant pleaded guilty in the District Court before Judge de Souza to five charges of indecent assault on a girl aged 14 ("the victim"). He was sentenced to concurrent terms of 20 months' imprisonment on all charges. The applicant now seeks leave to appeal against sentence.

2. At the time of the offences the applicant, who is deaf and dumb as was the victim, was working at the Lutheran School for the Deaf in Kwai Chung as a janitor. He doubled-up also as the bus attendant. To borrow the phrase used by the judge in his Reasons for Sentence, the responsibility of the applicant was "essentially that of a bus mother". He was there to take care of the children, to ensure that they were properly seated inside the bus and generally to look after them.

3. The judge, in his Reasons for Sentence, accepted from various letters and the information he gleaned from two medical reports, one from a clinical psychologist and the other from a psychiatrist, that the applicant was considered very helpful and thoughtful and was a much liked employee of the school.

4. The offences came to light as a result of a sexual attack on the victim on 27 May 1999 (the 5th and last charge admitted by the applicant). On that morning at about 6:35 a.m., as the victim was being taken by bus to school, the applicant approached her. She was the only child on the bus at that time. The applicant sat down next to her and began to touch her breasts over the school uniform before he put his hands under her school uniform and touched her breasts again. He then inserted his finger into her private parts. The applicant's nail on one of his fingers was particularly long and it caused the victim some discomfort. After other students boarded the bus, the applicant renewed the indecent assault on the victim by squeezing her breasts. Later in the day, the victim broke down during class sessions and she confided in her teacher as to what had occurred. The matter was eventually reported to the school principal and the police were then informed.

5. The judge accepted that the applicant fully and frankly admitted by sign language his guilt and wrongdoing, and that the applicant had expressed his apologies to the victim's mother when he was able to do so.

6. The remaining charges were committed between 7 and 24 May 1999. On each of those morning journeys, the applicant had inserted his hand under the victim's clothes. He had squeezed her breasts and then had inserted his finger into her private parts. When interviewed by the police, the applicant made a full confession.

7. The doctor who examined the victim found an abrasion on her inner thigh, consistent with her allegation that the applicant had scratched her with his nail.

8. The defence accepted that the offences were serious. In passing sentence, the judge said :

"Whether or not (the indecent assaults) have left (the victim) with any emotional scars is not a matter which is immediately apparent. I cannot but view the conduct of the defendant most seriously."

The judge then went on to say :

" Mr CHING, who represents the defendant, in his mitigation has submitted numerous letters which I have briefly referred to at the commencement of sentence. I have no doubt that the defendant has always been a responsible father, and that he has been held in high regard by his colleagues at the Lutheran School and by his fellow congregational members at the Lutheran Church. The former principal of the Lutheran School has also submitted a letter which Mr CHING read to this court. Everybody thinks most highly of him, even his fellow cycling enthusiasts. His daughter has expressed a great deal of concern and care for him through a letter written by Mr HUI Po-kin of the Hong Kong Federation of Youth Groups.

The defendant is aged 52, his wife is 42 and they have two children. From the two medical reports it is apparent that sexual relations between the defendant and his wife have not been particularly harmonious or happy in recent years. It is therefore easy to comprehend why the defendant does feel somewhat sexually frustrated through denial of sexual intercourse by his wife who no longer shares his interest."

The judge might well have gone on to say that while this might have been an explanation for the applicant's out-of-character behaviour, it was no mitigation whatsoever to a man who was entrusted with the care of children. He was there to protect the children from harm, not to expose them to conduct of this traumatic kind.

9. The facts as we have summarised them from the Reasons for Sentence demonstrate that the applicant saw the victim as a convenient outlet to satisfy his sexual urges. This can be gauged from the frequency of the indecent assaults leading up to his arrest.

10. The judge took into account all the mitigation which had been placed before him, including the material provided in the psychologist's report which indicated that the applicant was mildly retarded. The applicant was, however, fully conscious of the serious nature of the offences. Most importantly, the applicant's plea of guilty had spared the child the further trauma of having to testify. The judge bore in mind that the applicant was a man of previous good character.

11. The applicant's grounds of appeal come in the form of a plea for greater mercy to be shown to him. He is particularly concerned that his wife has been left as the sole breadwinner to support two children who are themselves still students.

12. It is plain that the judge had such considerations in mind. In our view, the judge was right to have determined that a custodial sentence could not be avoided even though the applicant was unlikely to re-offend. In such circumstances, he adopted a starting point of three years' imprisonment and taking the applicant's background into account, he discounted the sentence by 16 months which was more than generous.

13. We consider that three years' imprisonment was a perfectly proper starting point in the particular circumstances of this case, and that the sentence which was ultimately passed cannot be criticized. The application, therefore, is dismissed.