SECRETARY FOR JUSTICE v. WONG TSZ KIN

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

Application for Review
1998, No.8

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The respondent was convicted and sentenced on 30th June 1998. The Secretary for Justice now seeks to have the Court of Appeal review the sentence imposed.

2. The preliminary matter to be dealt with is an application which is made by Mr. Matthews, who appears today for the respondent, suggesting that the extension of time by the judge who granted leave was made without proper reason and was not a valid grant. Section 81A of the Criminal Procedure Ordinance reads:

"The Attorney General may, with the leave of the Court of Appeal, apply to the Court of Appeal that the review of any sentence passed by any court other than the Court of Appeal on the ground that the sentence is not authorized by law, is wrong in principle or is manifestly excessive or manifestly inadequate. An application under subsection (1) shall be made in writing signed by the Attorney General, be accompanied by the documents or copies of the documents specified in subsection 2(a) be filed with the Registrar within 21 days or such further time as the Court of Appeal may allow after the date on which the sentence was passed."

3. The sentence, as I have said, was passed on 30th June 1998. The application for leave was not made until Friday 17th July, some four days before the expiration of the 21 days within which the application had to be made. It is important to distinguish between the application for leave and the application itself. The application for leave is, in the section, not termed an application. The section simply states "with the leave of". The distinction between "leave" and "application" was clearly drawn in the case of Attorney General v. Tse Ka-wah, [1992] 1 HKCLR 103.

4. Nazareth V.-P. granted the application for leave on 20th July and ordered that the time for the filing of the application be extended by 14 days. This, in our view, was a measured exercise of the court's discretion to ensure that its grant of leave was not rendered nugatory by the effluxion of time. It was not, as has been argued by Mr. Matthews, an extension without proper reason. The judge, having decided that the sentence was one which should be reviewed, was right to make an order to ensure that the grant of leave would not be frustrated and thus to ensure that the application would, in due course, come on for hearing. There is, therefore, nothing which renders either the grant of leave or the extension nugatory or ineffective. This application must, therefore, proceed.

The Decision of the Court on the Application

5. The respondent pleaded guilty to two charges of indecent assault. The first alleged that he, on an unknown day in 1996, inside a room of Flat E, 10th Floor, Tientsin House, Tsuen Wan Centre, Tsuen Wan, indecently assaulted a girl Lau Yin-chu. The second alleged that he indecently assaulted the same girl on an unknown day in 1996, inside the bathroom of the same premises. He was, after having pleaded guilty and the judge having heard full mitigation, sentenced to 240 hours of community service. The Secretary for Justice now apples to this court to review that sentence.

6. The admitted facts were that the victim was born on 13th September 1988, which would have made her about 8 years of age at the time of the offences. The respondent's mother cared for the victim and other children and the respondent, who was about 22 years of age at the time of the offences, was the second son of her family. He was at that time studying tourism at the Hong Kong Polytechnic.

7. On the first of the two occasions, the respondent called the victim into his room, removed her shorts and underpants and fondled her genitalia. On the second occasion, he called her into the bathroom, sat her on the toilet bowl, placed his penis in her mouth and told her to suck it. He then ejaculated into her mouth. There was no force or coercion used on either occasion. It seems to the respondent's credit that a few months after the incident he moved out of his home premises to a dormitory at the Polytechnic so as to avoid seeing the victim further.

8. The trial judge called for probation, psychiatric and psychological reports and he clearly gave full attention to all of those reports. He said:

"Various reports show that he is a responsible person and has shown remorse towards the offences. He was described to be an independent, confident, mature, smart but selfish person. A community service order was recommend.

This is a bad case of indecent assault. The girl has to be protected. In particular, there is an element of breach of trust as the defendant took advantage of the position of the girl who was young and entrusted to the care of the defendant's mother. To that extent, a deterrent sentence has to be considered.

This court has to balance between the mitigations and the serious nature of the offences. On behalf of the defendant, a lot of mitigations were put forward. He has got a clear record and a sound academic background. The report shows that he had been under study pressure while his stress was hardly relieved as he has got communication problem with his family. During the incident, no force or coercion was administered, while the girl suffered no injury. The defendant made admissions to the police and pleaded guilty to save the girl from the ordeal of testifying in court, although special arrangement could be made.

The defendant had been detained for 14 days and showed remorse. What is more important is that both the psychological report and the psychiatric report show that there is no paedophilic tendency so the chance of recurrence is remote.

Having taken all this into account, despite the serious nature of the offences, I am going to treat this as an exceptional case. For the two offences of which the defendant was convicted, he will have to serve a community service order for the duration of 240 hours. It is hoped that through the structural service placement and the guidance of the probation officer the defendant is helped to observe regulations, to broaden his perspective and to improve his insight on moral standards.

The judge then went on to set out the particulars of the Community Service Order.

9. The Secretary for Justice submits that this sentence was unduly lenient and that it, to use the words of Lord Lane in Attorney General's Reference No. 4 of 1989,[1989] 1 Cr. App. R.(S) 517, fell "outside the range of sentences which the judge applying his mind to all relevant factors could reasonably consider appropriate". It was a very difficult sentencing problem. This court is not here to pass the sentence which it would have felt appropriate had it been sitting at first instance. It is called upon to interfere only if it is satisfied that the judge below was manifestly wrong in what he did. It certainly cannot be suggested that he failed to give full consideration to every aspect of this matter.

10. Mr. Matthews in his submission has detailed for us all of the mitigating circumstances which the judge took into account and he submits that these were such as to warrant the judge imposing the order which he did impose. What this court is being asked to say is that, in circumstances such as this, the only proper course was the imposition of an immediate custodial sentence. That, in effect, is to say that the judge should have given consideration only to the length of the sentence which he was called upon to impose.

11. We have found it far from easy to reach our decision in this matter. We have been greatly troubled by it. The trial judge clearly gave very full and careful consideration to all of the matters that were placed before him. He considered everything that was relevant to his decision and nothing that was not. Indecent assaults of this kind on children are, he properly observed, grave offences. The danger of psychological damage to the victims must be borne in mind. They can be psychologically crippled for life. The courts must be conscious of their duty to impose sentences that will in a real way protect children from sexual molestation. Courts must not overlook the difficulty of detection, mainly because of the understandable reluctance of child victims, to come forward and report what has occurred. It is particularly important that sentences demonstrate to those who are like minded that mitigating circumstances will count for little where an offender has gratified himself by sexually abusing a child.

12. Having given full weight to all of the mitigating circumstances we are nonetheless satisfied that this offence did call for a custodial sentence. The sentence after plea should have been in the vicinity of nine months to a year. Given, however, that this is a review in which we are replacing a non-custodial sentence with a custodial one, we are satisfied that it would be appropriate to impose an overall sentence of six months.

13. The application succeeds. The community service order is quashed. The really serious offence was Charge 2. On that charge the respondent is sentenced to imprisonment for six months. He is sentenced to imprisonment for three months on charge 1. The sentences are ordered to be concurrent.