HKSAR v. CHEN CHING KEUNG

HCMA 1197/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1197 OF 1999

(ON APPEAL FROM ESCC 2216/1999)

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J U D G M E N T

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Background

1. The Appellant, Chen Ching-keung was tried before Mr Colin Mackintosh, Permanent Magistrate, sitting at Eastern Magistracy on three charges:

* Indecent assault, contrary to s.122(1) of the Crimes Ordinance, Cap. 200.

* Assault on Chan Man-yi (PW1) occasioning actual bodily harm, contrary to Common Law and punishable under s.39 of the Offences against the Person Ordinance, Cap. 212.

* Resisting a police officer in the due execution of his duty, contrary to s.36(b) of the Offences against the Person Ordinance, Cap. 212.

2. The trial started on 20 September 1999. It lasted many days. The Appellant gave evidence in his own defence. The evidence ended on 12 October 1999. Mr Mackintosh delivered his verdict on 22 October 1999. He found the Appellant guilty on all three charges and remanded him in custody for a psychiatric report.

3. On 12 November 1999, after considering the report (the Appellant was not suffering from any psychiatric illness) and hearing counsel in mitigation, Mr Mackintosh sentenced the Appellant to serve the following terms of imprisonment: for the indecent assault offence, 6 month's imprisonment, for the assault occasioning actual bodily harm offence, 12 month's imprisonment and for the resisting a police officer offence 3 month's imprisonment. He ordered that the Appellant serve these sentences consecutively, making a total of 21 month's imprisonment.

4. The Appellant is now 25, he was 24 at the time of the offences. Before conviction he worked as a computer engineer. He has one previous conviction for indecent assault, for which, on 22 July 1997, a Magistrate sitting at Eastern Magistracy conditionally discharged him and bound him over to be of good behavior in the sum of $2,000.

5. The Appellant appeals against both his conviction and sentences.

Facts

6. Briefly, the facts of the case are: The prosecution alleged that at about 4 p.m. on the 26 May 1999, the Appellant followed Chan Man-yi (PW1), a 14-year-old schoolgirl up the stairs of her tenement-block home in Canton Road, Yaumatei. Between the first and second floors, he lifted the back of her dress. She immediately turned and pushed him away. He ran downstairs. She followed, shouting for help. At the 1/F landing the Appellant turned back, approached her and punched her repeatedly to the head. The Appellant again fled, he was chased by PW1 who had by now attracted the attention of her father PW2) who was in the street. As the Appellant ran out of the front gateway into Canton Road, her father and another man (PW5) tried, but failed, to stop him. They gave chase and were immediately joined by two patrolling police officers (PWs 6 & 7). Eventually, after a chase through a number of streets, another police officer blocked the appellant's path. He tried to push past but was brought down. There was a struggle and he was arrested.

7. In his evidence, the Appellant agreed that he was in the vicinity at the time, but denied that he was the man who had followed the girl upstairs. He said he had been looking for a bonesetter whom he believed to have premises in the area. He had entered a building, though not the one where the girl lived, and was on the staircase when a man suddenly dashed down the stairs and attacked him before running outside. He walked down into the street to look for the man. Suddenly, he saw a group of people rushing towards him in a threatening manner. He looked away and was hit to the back of his head. He ran away, fearing he was about to be beaten up. He was chased for some time, but did not look back. Finally, he stumbled, exhausted by the exertion of the chase, into a policeman who blocked his path. He struggled because he was in pain having been pressed to the ground by that policeman.

Appeal against conviction

8. Mr Y C Yeung, counsel for the Appellant, argued ten grounds in support of his argument that that the Appellant's conviction on all three charges was unsafe and unsatisfactory.

First ground

9. It is alleged that Mr Mackintosh erred in failing to grant the Appellant's application for adjournment on two occasions: before the trial started, and just after PW1 gave evidence. It is said that as a result evidence of a DNA comparison between the Appellant's sample and that from the victim's clothing, and a certified translation of the transcript of the full record of a video-recorded interview between the Appellant and the police were not in evidence before him. It is alleged that he also erred in not granting the Appellant's application for review, which was again made for the purpose of adducing a DNA comparison and the full transcript and translation of the video-recorded interview in evidence.

10. No DNA sample had been taken from PW1, the complainant. It was said that DNA tests had been carried out on the Appellant as part of the post arrest procedure.

11. Mr Mackintosh dealt with the matter of the DNA test in his reasons for verdict; he said:

"After conviction and before sentence, the appellant asked for a review of the convictions. The main basis was that his shirt should be examined to see if DNA samples from the complainant were present on the sleeves from sweat left by her when she pushed him away; and similarly to see if such samples of his sweat could be found on her skirt. This matter had been raised on the first morning of the trial when an application for an adjournment was made. I rejected it at that point. No steps had been taken to have such an examination done, it would cause the adjournment of the trial for at least three months and it was entirely speculative in nature and did not fall within the 'exceptional circumstances' for adjournments of cases of this type laid down in practice direction PD 9.5. The examination of the material could produce no result useful to the defence: if it was positive, it would simply establish the prosecution case; if it showed other DNA or; more likely, no result, it would be neutral."

12. Practice Direction 9.5 deals, among other things, with the procedures for taking evidence from a vulnerable witness by way of live television link. Paragraph 5 of the Direction states that in order to avoid additional stress being suffered by a vulnerable witness there should be no postponement of the trial except in the most exceptional circumstances.

13. I entirely agree with Mr Mackintosh, there was no evidence in existence that could form the basis of this application. The matter was entirely speculative, based on unsupported hope.

14. As to the transcript of the video-recorded interview of the Appellant, the matter arose this way, the prosecution considered the Appellant's answers exculpatory and did not propose to place evidence of the interview before the court. The Chinese transcript ran to 162 pages and no English translation was available. The defence, although accepting that it was exculpatory, wanted it before the court as evidence of the Appellant's reaction when taxed with the accusation against him. Mr Mackintosh agreed that should be done. He had reservations however about adjourning to enable an English translation to be prepared and certified, he suggested that a summary be prepared. Mr Yeung (who also appeared for the Appellant at trial) agreed to make one. In the end an extract, found at Exhibit 11, dealing with the Appellant's account of the incident was placed in evidence by agreement.

15. Here, Mr Mackintosh acted perfectly properly. Out of fairness he was concerned to know the Appellant's reaction under enquiry. He was not concerned to read 162 pages of presumably repetitious conversation.

16. In speaking to counsel on this matter, Mr Mackintosh said:

"Can I just tell you, as a matter of practical experience, you know, if in a court in the United Kingdom you tried to produce 160 pages of interview, a judge would laugh at you, he would say, 'summarise it into 10 pages and no more.' And that can be done. Little quotations, little summaries, summaries of what the defendant denied, summaries of what the defendant accepted. It could all be done with the greatest of ease - well, a bit of time, but the greatest of ease and that's what should be done. And then you can agree a form of words. Counsel have got to talk to each other about these things. That's what you should be doing, that's how to manage it, manage the problem."

17. Mr Mackintosh is entirely correct; these matters can and should be summarised. There is nothing wrong in doing this, provided that the summary is agreed between prosecution and defence. No interest of justice is served by having repetitious and irrelevant material before the court. I encourage the practice and hope the day will soon come when judges and magistrates in Hong Kong insist on such summaries as a matter of course, as is the case in England.

18. This ground of appeal fails.

Second Ground

19. It is alleged that Mr Mackintosh erred in relying on the evidence of the identification parade at which PW1's father (PW2), who saw the Appellant after his arrest, accompanied her. It is said that he had to be reminded three times to sit down by the Chief Inspector conducting the parade.

20. It is also alleged that Mr Mackintosh failed to consider that at the identification parade there was no true identification, in that on the videotape of the parade PW2 is seen to look in all directions except that of the Appellant. PW2 avoids looking in any direction that PW1 looked to and PW 1 looks only in the direction of the Appellant.

21. Mr Mackintosh dealt with the issue this way, in his reasons for verdict he said:

"36. A major part of the case was taken up with the evidence concerning the identification parade held on the day following the incident. PW1 picked out the appellant as her attacker. The admissibility of the parade was challenged on the footing that the girl's identification was tainted: (a) by discussing the incident with her father between the original events and the parade, the father having chased a man and seen the appellant apprehended; and (b) by the conducting of the parade whilst the father was present: it was suggested that he must have prompted the girl at the parade even by his subconscious reaction when he recognised the appellant; it was further suggested that the father need not have been present but deliberately chose to do so in order to prompt the girl.

37. It is material to this aspect of the case that the conduct of the parade was in the hands of a chief inspector who was independent of the investigation and whose credibility was at no time called into question. The whole procedure including the preliminaries was video taped ... and the edited tape was viewed by me a number of times. I also had an edited transcript of the tape ... The chief inspector; who pointed out that a parent or guardian had to be present with a juvenile witness, said that he was aware of the father's involvement in the events and that it would have been preferable for the mother to have attended instead. It seemed from the evidence of PW3 that it would have been possible for her to have been there if the necessary arrangements had been made.

38. PW1 agreed that she knew that the man who had been chased by her father had been caught. She herself had not seen the suspect between the incident and the parade. She knew from her father that he was young and fit but only because her father had said that he was a fast runner. I was confident that that could have had no material effect on the result of the parade. There was no evidence of any detailed discussion of the description of the suspect, no hint of prompting or coaching by the father (indeed quite the opposite, their descriptions did not entirely coincide). The father had not approached the appellant closely after he had been arrested because he had fallen back in the chase and had returned to find PW1 as soon as the appellant was captured.

39. Ultimately, the defence conceded that it was not being suggested that PW2 had deliberately schooled or coached PW1 and they relied on the fact of his presence at the parade as giving some subconscious indication to her as to who to select. It was said that when the father entered the viewing room and saw the line up of 9 young men he must have looked at and recognised the appellant. Even though nothing was said, PW1 would have followed his eyes, realised who he was looking at and acted accordingly. The appellant even suggested in his evidence that he could see the silhouettes of PW's1 and 2 as they came in and that he could, through the one-way mirror glass, determine that this is exactly what had happened.

40. A careful viewing of the videotape showed that nothing of the sort had in fact taken place. PW2 was told to sit down and did so promptly - there was nothing whatsoever in the point taken about the Inspector telling him to sit down three times. PW1 also sat down promptly with her back to the parade whilst the paperwork was completed. PW2 did look occasionally at the line up but it would have been wholly impossible for PW1 to have seen who he was looking at. He said nothing, he gave no signal and he was, at all times, sitting adjacent to the chief inspector. When PW1 was asked to look at the parade, she walked quickly behind her father; along the line once, keeping her eyes on it, turned and immediately said, 'No. 8', which was the appellant. I was left in no doubt that she could not have been prompted or guided in any way whatsoever. It was an unhesitating and entirely spontaneous identification.

41. A complaint was made that the appellant was not able to comb his hair as he had asked: he was however able to smooth it down and it did not stand out from the rest of the line up. The appellant was given every opportunity to select, deselect and reselect various volunteers all of whom were broadly similar in age and appearance. He wearing entirely different clothing from the time of his arrest and it was not therefore an identification affected by clothing. In the end, I was left in no doubt that this parade was properly and fairly conducted and was entirely untainted by the presence of PW1's father. There were no grounds to exclude either in the exercise of my inherent jurisdiction or otherwise."

22. This is a most thorough and careful consideration of the issue and I cannot fault it.

23. This ground of appeal fails

Third Ground

24. It is alleged that Mr Mackintosh erred in failing to note that according to the descriptions given by the eyewitnesses, the culprit could not be the Appellant.

25. Again, Mr Mackintosh dealt with this issue. In his reasons for verdict he said:

"29. As to clothing, the appellant was wearing a dark-gray, long-sleeved shirt at the time of his arrest .... Descriptions of the clothing of the culprit by the civilian witnesses varied in certain respects. PW1.s initial description to PW4 was 'blue top and blue trousers'. Her description in court was a dark coloured T-shirt with collar and jeans. She was not asked specifically about the sleeve length though it is obviously to be inferred from the use of the expression 'T-shirt' that she meant short-sleeved. PW2 said that the man who ran out of his block was wearing a dark gray shirt and jeans. He was not asked specifically about the sleeves. PW5 said the man was wearing a blue short-sleeved top and blue trousers. PW's 6 and 7 insisted that the appellant's sleeves were rolled up to the elbow, clearly a factor material to the question of whether anyone could in such circumstances mistake the shirt for a T-shirt.

30. I accepted the evidence of the two police officers that the appellant's sleeves were rolled up. It was consistent with PW12's evidence of what he had seen of the appellant before the blood sample had been taken from him at hospital and with the fact that the sleeves were both neatly rolled when the item was bagged by PW8. Their evidence on the matter was natural and spontaneous, particularly PW7 whose answer was given in response to a question about handcuffs, and I was sure that they were being truthful. I rejected the appellant's account that he had rolled the sleeves to allow the doctor to take blood: he was most unlikely to have rolled them so neatly in all the circumstances pertaining at the time. My conclusion was also consistent with the photos in the newspaper ..., particularly the smaller one, where the state of the sleeves was similar to the state of the shirt as seized.

31. Thus the upper garment of the man could have been seen as short-sleeved by PW1 and it was not surprising for her to have described it as a collared T-shirt. I found her overall description of the style of the garment, whilst it differed from the appellant's shirt in some respects, was not so different as to undermine her evidence.

32. The description 'blue' used initially by PW1 and by PW5, was not so far removed from the gray of the shirt as to undermine their evidence or to lead to the possibility that this was a case of two different shirts with two different men. Clearly it was a discrepancy to be borne in mind when looking at the whole picture. A point was taken about 'blue trousers' not being consistent with jeans: I could find no merit in it.

33. A substantial issue arose as to the length of the assailant's hair and whether it coincided with that of the appellant. The appellant's hair at the material time can be seen in the small bundle of photographs ... and in the newspaper photographs ... The overall thrust of the witnesses' evidence was of a short haired man, but it was put in different ways. PW1 initially told PW4 that it was 'short hair'. She was never actually asked by the prosecutor in evidence about her assailant's physical description; but in cross-examination she (and her father) agreed with a suggestion that his hair was more or less crew cut' (emphasis added because the qualifying phrase got lost in submissions on the point). This meant 'rather short hair' (PW1) or 'slightly longer than an inch' (PW2). PW5's version was 'very short... a little longer than mine'. It was submitted that the hair description was entirely inconsistent with the appellant's hairstyle at the time.

34. I considered this point very carefully. Description of hair length is often a rather subjective matter: what is short to one will not be so to another. The witnesses here were broadly consistent with each other that the hair was short but were not specific as to how short. The appellant's hair was clearly not what is usually thought of as a crew cut but neither was it long hair. It is of course unrealistic to expect witnesses who find themselves in circumstances such as these to judge to a nicety the exact length of someone's hair. The real question which I had to determine was whether the descriptions given were such as to undermine the identification of the appellant in any way. I concluded that what they said was sufficiently close to the actual length of the appellant's hair at the time for there to be nothing in the point.

35. Issues were also raised as to the descriptions given of the assailant's age and height. These did not concern PW1 directly but arose firstly from PW2's use of the expression 'middle aged man' in his evidence: I accepted his explanation for it. PW5 said that the man was in his 20's. And whilst the civilians had said the man was 5' 7" or 8", the appellant was in fact 5' 10": I considered this point but found that there was nothing in the discrepancy The witnesses could not be expected to judge the height of a running man accurately."

26. As trier of fact it was for Mr Mackintosh, not I, to resolve discrepancies in the evidence. This he did and I cannot fault his reasoning.

27. This ground of appeal fails.

Fourth Ground

28. It is alleged that Mr Mackintosh erred in relying on the chain of evidence in the pursuit, as this was broken. No witness said that from the start to the end of the pursuit they had a continuous view of the person they were chasing. The witnesses all said that they lost sight of their quarry when turning corners. It is said that there were 8 corners turned and the pursuers were some 20 paces behind their quarry. The area is said to have many side lanes, staircases, entrances, obstacles, stalls, tanks and bins. PW6 and PW7, both police officers, said they overtook PW2 and PW5, the father and another civilian, in their pursuit downstairs from 870 Canton Road; and from then on they were ahead of the civilians in their chase. According to PW2 and PW5, there was no one between them and the person they were chasing. It is alleged that Mr Mackintosh failed to consider that it was highly likely that there were two different pursuits one done by PW2 together with PW5, the other by PW6 together with PW7.

29. Mr Mackintosh dealt with the matter this way in his reasons for verdict.

"44. I accepted her evidence that she followed her attacker down the stairs to the hallway and saw him run out. Her father was in position outside having been alerted. She saw, when she got outside, her father and PW5 chasing the same man. No-one else was running. The start of the chain was thus established. It was reinforced by the evidence of PW2 himself, PW5 and the two police officers. PW's 2 and 5 saw the man come out and he was the one they chased. PW's 6 and 7 saw the early part of the chase and joined in.

45. Thereafter; the line of observation of either PW2 and/or PW's 6 and 7 remained uninterrupted until the eventual apprehension except for the brief periods when corners were turned. I accepted that PW2 was between 10 and 20 paces behind the man. The policemen overtook him and can have been no further back. There was simply no opportunity for the man being chased to have disappeared and be substituted by the appellant without them realising. Furthermore, the appellant's own case was that he left the building he had been in and was almost still for a few seconds outside whilst he looked for the man and watched the 'big guys' rush towards him; there was even time for a blow to his head. If anything like this had happened, the chasing group would have seen that he was somebody different, not running and would have passed him by. And on any view, the appellant was engaged in the chase for most, if not all, of the way so the number of corners round which they went was irrelevant. The pursuers would have had to have lost the real culprit at the first corner because the second involved crossing a road.

46. Thus there was no shadow of a doubt that the chain between the exit from PW1's block and the apprehension of the appellant was forged. It provided strong support for PW1's identification."

30. Mr Mackintosh gave the matter full consideration. There is nothing in this ground of appeal, which also fails.

Fifth ground

31. It is alleged that Mr Mackintosh erred in failing to consider extensive circumstantial evidence consistent with the Appellant's innocence that could not admit any inference of the Appellant being guilty. That evidence being:

* When the Appellant saw the traffic policeman, he changed from very fast running to half-walking-half-running and he ran into the policeman.

* The Appellant immediately told the police that he had been assaulted by a civilian and denied the allegations made against him.

* The Appellant answered hundreds of questions with details in his interview with the police; all of them were consistent with the result of subsequent police investigation.

* The Appellant co-operated with the police by submitting himself to all types of testing, including DNA and contact fibre tests.

* The Appellant was desperate to have his DNA sample compared with PW1's clothing and to have his full record of interview before the court.

32. Although not specifically addressed in these terms, there can be no doubt from his comprehensive reasons for verdict that Mr Mackintosh was aware of these factors in the Appellant's favour. Clearly they did not draw him to the conclusion that the Appellant was innocent. From the evidence before him, as trier of fact, he was entitled not to draw that conclusion.

33. This ground of appeal fails.

Sixth ground

34. It is alleged that Mr Mackintosh erred in failing to consider that no prosecution witness testifying on the indecent assault and assault occasioning actual bodily harm charges, including PW1, identified the Appellant in court. As a result, he was deprived of a chance of PW1 confirming that he could not possibly be the culprit upon her closer inspection of him in court.

35. With respect, the Appellant did have such a chance; the question could have been put to her in cross-examination.

36. This ground of appeal fails.

Seventh ground

37. It is alleged that Mr Mackintosh erred in failing to note that there was a material irregularity in the trial in that PW1's evidence was subject to the influence of another person. It is said that while she was giving evidence through the CCTV system, the support person shook her head vigorously when a question was asked; PW1 then answered that question in the negative.

38. PW1 gave evidence from the studio via the live television link. The procedure is for her to be accompanied in the studio by a member of the court staff and a volunteer, known as a 'support person'. The witness sits at a desk facing the TV monitor the member of the court staff and the support person sit behind the witness, the witness has her back to both of them. If such an event had happened, there is no way that the witness could have seen the movement as she was facing the TV monitor and the support person is behind her. To say that she must have seen the movement - if there was movement - reflected in the monitor screen is speculative in the extreme.

39. This ground of appeal fails.

Eighth Ground

40. In respect of the indecent assault charge, It is alleged that Mr Mackintosh erred in failing to direct himself adequately, properly, or at all, that the contact between herself and the Appellant was either accidental, or not done with an indecent intent.

41. With respect, he did, at paragraph 50 of his reasons for verdict he said:

"I turn to the issue of whether PW1 was indecently assaulted on the stairs. It was obvious, I found, that whoever followed PW1 upstairs, was bent on attacking her. He was not a neighbour and he had no business in the building; and the close manner of following her; exhibited an intention to assault her. It was suggested that the movement of her dress may have been caused by her schoolbag, by items on the stairs, even by small animals. She did not accept these possibilities and a view of the photograph taken the same evening showed that there was nothing which could have caused the lifting of her skirt. Unless she had deliberately stepped over something, it was hard to see how an object could have achieved what she felt. It was suggested to her; and denied, that she fantasised about sex and was therefore making it up: I rejected this possibility. Her description was of being able to feel the lifting of her skirt for an appreciable time. There was no corroboration of her account of that - her distress and her subsequent complaint were not capable of being corroborative and the appellant's lies and flight did not inevitably lead to the conclusion that she was right about the lifting of the skirt. There was a minor difference between her account in evidence and her complaint to PW4 (whether she had turned to see the lifting or not) but I was sure that it did not undermine her testimony. I had no doubt that the skirt was lifted, that it was a deliberate and hostile act and that it was done in circumstances of indecency. It could only have been done for sexual purposes even if it was quickly interrupted. Thus it was an indecent assault."

42. This ground of appeal fails.

Ninth Ground

43. In respect of the resisting a police officer charge, It is alleged that Mr Mackintosh erred in failing to direct himself properly, adequately, or at all, on automatism in respect of the actus reus of the offence where there was substantial prosecution evidence pointing to the need of such a direction. Mr Yeung's argument being that his resisting was no more than him struggling while he was pressed on the ground. He argued that the movement of his limbs was consistent with automatic movements caused because he experienced pain while being pressed. The fact that the Appellant suffered injury, while no officer suffered injury is said to be consistent with the Appellant's movement being automatic.

44. At paragraph 52 of his reasons for verdict, Mr Mackintosh said:

"As to the charge of resisting a police officer in the execution of his duty, the fact, as I found it to be, that the appellant had not collapsed or fainted but had brushed the officer aside and had to be grabbed and still tried to get away, amounted in itself to resistance. The fact that after he was tripped, he continued to struggle also amounted to resistance. The struggle on the ground was not just a reaction to the pain of having fallen: it was a continued resistance by a man who knew he had been intercepted and detained by a uniformed police officer. The officer was plainly acting in the execution of his duty. Such injuries as the appellant had suffered were caused during this struggle."

45. He gave consideration to the question of whether the Appellant's struggle was involuntary and whether it was caused as a reaction to the pain he claimed to be in. He found that it was not.

46. This ground of appeal fails.

Tenth ground

47. It is alleged that Mr Mackintosh erred in failing to direct himself properly, adequately, or at all, on the issue of whether the Appellant had the intent to resist the police officers. The evidence was that he was running towards the policeman, could not stop in time, tripped and fell down.

48. This ground raises the same issue as that raised in the 9th ground. Mr Mackintosh considered the issue and decided it against the Appellant.

49. This ground of appeal likewise fails.

Additional issue

50. In his reasons for verdict, at para 49, Mr Mackintosh said this:

"... I was sure that the appellant was lying about his movements at the material time. The lies were deliberate and material to the issues. There could be no innocent reason for them, they could only be to avoid his guilt. In that way, it supported the identification by PW1 even though I was sure as to its correctness without such support. Furthermore, there was support to be found in the fact of the appellant's flight from the scene of the attack on PW1 for which there was no innocent explanation."

51. It would have been better if he had not said this, because it was not necessary. At law, the complainant's evidence of identification did not require corroboration.

52. A direction on lies is rarely required. The four situations where it usually is are set out in Burge [1996] 1 Cr. App. R. 163. The court there made it very clear that the direction is not needed in run of the mill cases. Those where the defence case is contradicted by the evidence of the prosecution witnesses in such a way as to make it necessary for the prosecution to say that, insofar as the two sides are in conflict, the defendant's account is untrue. Such was the situation in this case.

53. The Appellant's appeal against conviction is dismissed.

Appeal Against Sentence

54. A number of grounds of appeal against sentence were advanced; they fall into four broad categories.

First category

55. It is alleged that Mr Mackintosh erred in putting the Appellant in Siu Lam Psychiatric Centre for 21 days when there was no indication whatsoever that the Appellant was a mental patient. As a result, the Appellant suffered from having to stay with mental patients.

56. Frankly, I can't see how this can stand as a ground of appeal. Mr Mackintosh was rightly concerned about the Appellant's mental state. He had duty to both the Appellant and the community to see if the Appellant suffered from a mental illness. He could only do that by having the Appellant assessed at a psychiatric institution.

Second category

57. It is alleged that Mr Mackintosh erred in failing to allow the Appellant to challenge his previous conviction, contrary to the principle of audi alternum parte. It is also alleged that Mr Mackintosh erred in finding that the previous conviction made the present offence worse. It is also alleged that Mr Mackintosh failed to disclose what information he had about the earlier case and thereby deprived the Appellant of a chance of mitigating on that information. It is yet further alleged that Mr Mackintosh erred in finding that '..the offence had circumstances of aggravation which arose because it was committed by a determined offender, experienced in this type of offence' when there was no evidence of that.

58. As I have said earlier, the Appellant had one previous conviction for indecent assault for which he was conditionally discharged and bound over in July 1997. In his own mind, the Appellant appears to have treated that order as being an acquittal. The matter was gone into before he was sentenced. Mr Mackintosh called for the earlier trial file in order to check the earlier trial magistrate's notes of the sentence passed. He was fully aware of what order was made in 1997 and allowed Mr Yeung, his counsel, to address him, at length, on the issue. It can hardly be said that he 'failed to allow' the Appellant to challenge his criminal record. Neither can it be said that he withheld information from Mr Yeung, all that he looked at the earlier case file for was to check the accuracy of the criminal record sheet handed up to him.

59. The use that Mr Mackintosh made of this earlier offence was to remark that this was the second occasion the Appellant had targeted and indecently assaulted a young girl. That is no more than the truth. He also regarded the fact that the Appellant had an earlier conviction for indecent assault as an aggravating factor in this case. I cannot say that he was wrong to do so; the Appellant was not a first time offender.

60. The phrase that Mr Yeung complains of may be somewhat hyperbolic, but it is not inaccurate to describe a man with two convictions for indecent assault as a 'determined offender'. And just how many offences of this nature does a man have to commit before he can be described as 'experienced in this type of offence' ? Surely, two is sufficient?

Third category

61. It is alleged that Mr Mackintosh erred in finding that there was no mitigation when in fact mitigation was advanced, which he failed to take into consideration.

62. The answer to this is that Mr Mackintosh rejected the matters advanced in mitigation. He had every right to do so if he considered them unsupported by the evidence that he had heard in the course of a very lengthy trial, or, as he probably did, if he considered them fatuous. The phrase used by Mr Mackintosh '...the Appellant had no mitigation available to him...' means no more than that he rejected the mitigation submissions, not that he overlooked them.

Fourth category

63. It is alleged that Mr Mackintosh adopted too severe a starting point for each offence and failed to consider the totality principle. He also failed to note that the offences all occurred within a short period of time.

64. I do not agree, this was a cowardly attack committed by an adult man on a girl in her early teens who was alone on a staircase. The girl had the courage to resist the attack. The Appellant was not a first time offender. Although high, the sentences are not manifestly excessive. Each offence was a separate and distinct act. Albeit that each was committed within a short period of time after each other, there is no reason why consecutive sentences should not have been passed.

65. The Appellant's appeal against sentence is dismissed.