HKSAR v. TIN SIU HUNG

CACC275/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.275 OF 2005

(ON APPEAL FROM DCCC 375 OF 2005)

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J U D G M E N T

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Burrell J (giving the judgment of the Court) :

1. On 27 May 2005 the applicant pleaded guilty to 4 offences in the District Court and was sentenced to a total of 4 years’ imprisonment by Her Honour Judge Chua.  He now seeks leave to appeal that sentence.

2. The offences to which he had pleaded guilty had been committed between November 2003 and December 2004.  The 4 offences were indecent assault contrary to section 122(1) of the Crimes Ordinance, Cap. 200, common assault and 2 offences of falsely pretending to be a public officer contrary to section 22 of the Summary Offences Ordinance, Cap. 228.

3. The offences had two common features.  In each case the applicant pretended to be a police officer investigating criminal offences and in each case he approached a young girl or girls (aged approximately between 7 and 12 years old) and, ostensibly in furtherance of a criminal investigation, took them into or towards a room in a Church complex.  In the 1^st case he took an 11-year-old girl into the room.  He told her she was suspected of having stolen something.  He then indecently assaulted her by fondling her upper body outside her clothes and by touching her under her skirt but outside her underpants.

4. The 2^nd offence occurred in July 2004.  On this occasion the applicant took a 12-year-old girl to a similar room on the same pretext, namely that she was suspected of theft.  Once inside the room she was told to bend over so as to be searched.  The girl started to shout and the applicant put his hand over her mouth.  The girl ran away.  This was the common assault charge.

5. In the 3^rd and 4^th charges there were no assaults but the incidents were similar.  In October 2004 he approached a 9-year-old girl and asked her to go with him to the Church Centre in connection with a missing person case.  When they got there the door was locked so they could not go inside and the girl left.

6. In December 2004 the applicant was being observed by the police.  He was seen behaving the same way, this time with two girls aged 7 and 10.  He was again pretending to be a police officer when the police intercepted and arrested him.

7. The applicant was 28 years old and had a clear record at the time of sentencing.

8. The judge was rightly very concerned about this case.  Initially, she adjourned sentence for a psychological report.  Ms Sarina Lam, a Clinical Psychologist prepared the report.  Ms Lam concluded that she could not yet ascertain whether he was suffering from “sexual deviance of any sort” and recommended further psychological assessment and, if necessary, treatment after trial.

9. When sentencing, the judge rightly noted the fear and distress caused to the young victims.  She treated the applicant as a “persistent offender”, a danger to young girls and a person whose “behaviour naturally repulsed all right thinking members of the public”.

10. For the indecent assault, which she acknowledged was not, of itself, the worst case of indecent assault to come before the courts she selected a starting point of 4 years’ imprisonment and reduced it to 32 months because of his plea of guilty.  For the common assault she selected a starting point of 12 months’ imprisonment, which is the maximum permitted by law, and reduced it to 8 months because of his plea.  For each of the offences contrary to section 22 of the Summary Offences Ordinance she selected 6 months’ imprisonment on each as a starting point, which again, is the maximum permitted by law, and reduced it to 4 months because of the plea of guilty.

11. She then made all sentences consecutive to each other making a total of 4 years.  She expressly considered the principle of totality stating “with the protection of children uppermost in mind and the length of the sentences on these charges each of these sentence will run consecutive to the previous sentence”.

12. Thus, three aspects of her sentences now call for consideration.  Firstly her choice of 4 years’ imprisonment as a starting point for the indecent assault; secondly, her selection of the maximum sentence as starting points on charges 2, 3 and 4; and thirdly, her decision to make all sentences consecutive.

13. We do not criticize for a moment the judge’s expressed concern and her obvious abhorrence for this type of offence.  It is plain that luring young girls into a closed room under the pretext of being a police officer, accusing them of a crime and then assaulting them, indecently or otherwise, whether by pretending to search them or otherwise, is a very serious matter.  The number of offences is an additional serious factor.

14. We have carefully considered the submissions made by Mr Petrus Chan for the applicant and by Mr Gavin Shiu for the respondent.

15. Mr Shiu concedes, as did the judge, that the indecent assault of itself was not the worst of its kind but he submitted it should be viewed in context.  All the worrying features of this case, he submitted, taken together justified the sentence that was imposed.

16. As far as the selection of the maximum sentences is concerned Mr Shiu submits that it was merited on the common assault charge once the sexual background is taken into account.  On charges 3 and 4 he argues that pretending to be a police officer so as to lure young girls into a room so as to indecently assault them is a very serious example of such an offence for which the maximum sentence, which is surprisingly low, is justified.

17. Finally, he notes that the judge correctly considered the principle of totality before making the sentences consecutive.

18. Mr Chan on the other hand has referred us to a number of authorities for comparative purposes.  In cases like these little is gleaned from comparisons but we have noted the cases he has cited.

19. He argued that the choice of maximum sentences for cases which, viewed individually, did not fall at the top end of the range and then ordering them to run consecutively resulted in a total sentence which was too long for a 28-year-old with a clear record.

20. We have not found this to be an easy case.  Indecent assault cases frequently give rise to difficult issues on sentencing.  In this particular indecency case we have decided that we cannot overlook, although in very frightening circumstances for the young girl, the fact that the indecency itself was confined to touching the girl over her dress and over her underpants.

21. In all the circumstances we have decided that we should grant leave.  Accordingly, we treat the hearing as the appeal.  We think a sentence of 3 years should have been selected as a starting point on the 1^st charge, which should then have been reduced to 2 years because of the plea.  We, therefore, quash the sentence of 2 years and 8 months’ imprisonment on this charge and in its place impose a sentence of 2 years.  We think that on this charge the sentence passed was manifestly excessive.

22. We think however that 12 months as a starting point for the common assault was correct.  We agree with Mr Shiu that although it was the maximum sentence it should be viewed in context.

23. The context was that it was committed in circumstances of a sexual nature.  The applicant pretended to be a police officer, he lured a girl to a private place, he told her to bend over so as to be searched and he then assaulted her by putting his hand over her mouth when she started to shout.  We do not criticize the sentence passed for this offence.

24. On charges 3 and 4 also, for similar reasons, we agree with the judge’s choice of the maximum sentence as a starting point and do not interfere.

25. The adjusted sentences therefore produce a total of 3 years and 4 months’ imprisonment if ordered to run consecutively.  We consider the judge’s approach to the principle of totality was correct and we make no criticism of her decision to order consecutive sentences.

26. The final result of our decision is therefore to substitute an overall sentence of 3 years and 4 months’ imprisonment.  The appeal is allowed to that extent.