THE QUEEN v. LI TUNG HING

IN THE HIGH COURT

                                                                                         1993, No.197
Magistracy Appeal

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J U D G M E N T

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Litton, J.A.:

1. Li Tung Hing was convicted on two charges of indecent assault on a female contrary to section 122(2) of the Crimes Ordinance, the female then being aged 13 years. Both offences occurred at Block B on the 6th floor of 95 Hennessy Road which was the appellant’s home.

2. The first offence occurred on 3 April 1992 and the second on 11 April 1992. For these offences the appellant was sentenced on his own plea to one month’s imprisonment on each offence to run consecutively making a total of two months.

3. This matter has an unfortunate history and the appellant has been subjected to much trauma and stress as a result of the way the case has proceeded.

4. He complains in this court that he has been ill used by the legal process and I have some sympathy with his complaint. These two charges go back to more than a year ago. The appellant was first convicted on his own plea in 1992 and sentenced to four months’ imprisonment. On his appeal against sentence the High Court concluded that the facts admitted by him did not support the charges and the convictions were set aside. On 15 January 1993 he came up again before the Magistrate at Kwun Tong Magistracy where again on his own plea he was convicted and fined $1,000 on each of the charges making a total of $2,000. He might by then have reasonably thought that the proceedings were concluded. But the Attorney General applied to the Magistrate to review his sentence and the review took place on 19 February this year. The Crown on the review submitted that the fines were manifestly inadequate and that the Magistrate had failed sufficiently to take into account an aggravating factor in the sentence. It was this. The young girl had run away from home, sought the protection of the appellant who assumed the status of god-father, a position of trust which the appellant had abused. The magistrate accepting that he had not sufficiently weighed that factor in the scales set aside his own sentence of $2,000 fines and substituted the terms of imprisonment now the subject of this appeal.

5. On the day that the Magistrate dealt with this matter he also allowed the appellant to be released on bail in the amount of $2,000, pending the appeal to this court.

6. The appellant is 46 years of age and for the last 15 years or so has had a clean record. He has been employed as a cleaner at the Grand Hyatt Hotel for some time and in a document dated 15 January 1992 from the Hotel it can be seen that effective from 1 January 1992 his basic salary was $5,170 per month. In addition, the appellant has been earning retirement benefits and other allowances. The appellant continues to this date employed as a cleaner at the Grand Hyatt and his effort appears to be appreciated by his employers.

7. On this appeal the powers of this court are wide. Under section 119(1)(d) of the Magistrates Ordinance Cap. 227 this court can confirm, reverse, or vary the Magistrate’s decision or make such other order in the matter as this court thinks just. This empowers me to look at the circumstances as they exist today and I am not confined to a consideration of the circumstances as they were before the Magistrate in February this year.

8. I have no doubt that in principle the Magistrate came to the right decision when he concluded upon the Crown’s application for review that his previous sentence of a total of $2,000 fine for these two offences was manifestly inadequate.

9. The appellant in relation to this young girl was in a position of dominance and had plainly abused his position of trust, in circumstances which were most unsavoury. The Magistrate therefore cannot be faulted for having acceded to the application to review his own previous sentence. The question however I ask myself is this: Having previously decided that the appropriate way of dealing with this appellant was to impose some punishment other than imprisonment, was the Magistrate right on the review to conclude that imprisonment was the only appropriate way to deal with him?

10. I have no doubt that the traumatic history of this matter, and the unsettling effect these proceedings have had on his life, would have a very considerable deterrent effect on him. There is a principle of sentencing in these courts called “the clang of the prison gate”. By this the courts mean that the fact of imprisonment itself would have such traumatic effect that a short sentence of imprisonment would be a powerful deterrent. Those sentences would, for example, be appropriate for someone middle aged who has led an impeccable life and has erred out of character. In the present case I feel that nothing much would be served by adding to the trauma which this appellant has already undergone. From the beginning he has admitted guilt and has shown contrition. In my judgment it would add nothing to deterrence to send this man back now to prison.

11. Having regard to the considerable powers vested in this court under s.119(1)(d) and in view of all the circumstances I feel that the community would gain nothing by having this man back in jail, with the probable consequence that he would lose his gainful employment; this would be imposing disproportionate punishment for something that has occurred well over a year ago.

12. The circumstances of this case are exceptional. An immediate custodial sentence for crimes of this kind would in general have been appropriate, but having regard to all the circumstances I exercise my powers under section 119(1)(d) on each of these two charges and substitute a fine of $2,500 for each charge making a total of $5,000 and give the appellant 14 days to pay the fine.