HKSAR v. CHAN CHUEN HIN

[English Translation – 英譯本]

HCMA 240/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 240 OF 2003

(ON APPEAL FROM TMCC NO. 617 OF 2003)

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JUDGMENT

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Introduction

1. The Appellant was charged with indecent assault on 19 February 2003 at Chak Yun House, Tin Chak Estate, Tin Shui Wai.  The victim was a girl aged 5 years and 10 months.

2. On 25 February 2003, the Appellant, through a duty lawyer, pleaded guilty to the charge and was sentenced to 16 months’ imprisonment.  He now appeals against both conviction and sentence.

3. In respect of the appeal against sentence, the Appellant was represented by Mr. Alex Ng, counsel assigned by the Legal Aid Department.  The Appellant acted in person in respect of the appeal against conviction.  After two hearings, I dismissed the appeal against conviction.  I allowed the appeal against sentence, set aside the sentence of 16 months’ imprisonment and imposed a sentence of 9 months’ imprisonment.  I now set out the reasons for the above decisions.

Summary of facts

4. On the afternoon of 19 February 2003, the victim (who was then 5 years and 10 months old), her 3-year-old sister and a boy aged 6 years arrived at the floor of the building on which the Appellant resided to look for their friend, but in vain.  They came across the Appellant at the lift lobby.  On the Appellant’s invitation, they went to his residence to watch television.  The Appellant gave them snacks and candies.  Afterwards, the Appellant held the victim in his arms and made her sit on his thighs.  Then he twice touched the victim’s private parts and anus, under the dress and pants that the victim was wearing.  After a while, the Appellant asked the children to leave his residence.  When the victim returned home, she told her mother what happened, and her mother reported the matter to the police.  The Appellant was subsequently arrested.  At the police interview, he admitted the offence in question and expressed remorse.  An identification parade was held, at which the victim identified the Appellant as the person who had assaulted her.

Grounds of appeal

Appeal against conviction

5. The Appellant failed to put forward any ground in support of the contention that the conviction was unsafe.  He submitted that, in touching the victim’s private parts and anus twice, he had never put his hand “under the dress and pants that the victim was wearing”.  He alleged that he touched the victim over her pants.  He could not possibly have admitted to that particular fact when he admitted the facts of the case.

6. Since the particulars of the admitted facts were being challenged, I adjourned the hearing so that I could obtain and go through the relevant transcript.

7. The relevant transcript recorded the following:

… then you sat by the side of the bed, and you placed the ‘victim’ on your thighs.  Then you put your hand under her clothes and pants and touched her anus and private parts twice.  Then you moved your hand backward and forward.  After a while, you asked the ‘victim’ and the two other kids to leave … Do you agree with the account of the events just now?

Defendant:        I agree.

8. When the hearing resumed, the Appellant still insisted that he had not put his hand under the victim’s pants.  He said he was an overseas Chinese from Indonesia and had limited ability in understanding Cantonese.

9. I do not find what the Appellant said credible.  When I read to him the above extract from the transcript and conversed with him in Cantonese, he showed clear understanding of what I said.

10. The above extract from the transcript indicates that the Appellant expressly agreed that he had put his hand under the victim’s pants and touched her anus and private parts twice.  His plea was neither vague nor ambiguous.  There is nothing to show that his conviction is unsafe.  The appeal against conviction is accordingly dismissed.

Appeal against sentence

11. Mr. Ng for the Appellant began his submissions by clearly saying that he agreed to the imposition of immediate custodial sentence on the Appellant.  He also agreed that the court should take into account the impact of the incident on the victim.  His complaint was that the sentence was manifestly excessive.  The grounds that he put forward were as follows:

(1)     Although the victim’s age (i.e. 5 years and 10 months) was an aggravating factor in the present case, the nature and degree of the Appellant’s offence were not on any view the most serious of their type, and therefore, as a matter of law, the magistrate had improperly adopted the maximum sentence that he could impose within his jurisdiction (i.e. 2 years’ imprisonment) as the starting point.

(2)     As a matter of law, the magistrate improperly held, in the absence of a sufficient factual basis, that the incident had caused considerable trauma to the victim.

(3)     The sentence of 16 months’ imprisonment is manifestly excessive.

Mr. Ng relied on the following authorities in support of his submissions:

(1)     HKSAR v. Wong Tsiu Ken, HCMA 736/1998;

(2)     HKSAR v. Hung Li Sing, HCMA 608/1998;

(3)     HKSAR v. Khan Mohammed, HCMA 447/2000; and

(4)     R v. Sato, Hiroyuki [1994] 1 HKCLR 119.

The Respondent’s response

12. According to the summary of facts as agreed by the Appellant, he held the victim in his arms and made her sit on his thighs.  Then he twice touched the victim’s private parts and anus, under the dress and pants that the victim was wearing.  Since every case of “indecent assault” involves a unique set of circumstances, there is no usual tariff for this type of offence (see HKSAR v Kwok Kau Kan [2000] 2 HKLRD 1).  In the present case, the Appellant, who is approaching 60 years of age, used his hand and directly touched the private parts and anus of a 5-year-old girl twice, and such conduct was very serious both in nature and in degree.

13. In considering sentence, the magistrate had very properly taken into account all relevant factors, including the impact of the incident on the victim.  (See HKSAR v See Tak Man [1998] 1 HKLRD 794 and HKSAR v Cheung Kwai Sang [2002] 3 HKC 589.)

14. The relevant social investigation report pointed out that, although the victim did not appear to be disturbed by the incident, she was obviously affected by the incident to some extent.  As the magistrate inferred, the victim did know that these “things that happened to her” were wrong.  Although the social investigation report was not submitted to the court for sentencing purposes, the report, not being a psychological report, did not have much relevance to sentencing.

15. The three major sentencing factors in respect of this type of offence are the need to deter others, the need to mark public abhorrence of such crime and the need to redress the grievance suffered by the victim and his/her relatives and friends. (See HKSAR v Chan Ching Ho [2000] 3 HKLRD 476.)

16. In the circumstances of the present case, the starting point of 2 years and the term of 16 months after giving one-third discount for the guilty plea cannot possibly be considered manifestly excessive.

Reasons for sentence

17. The magistrate’s reasons for sentence are as follows:

In mitigation, the defence pointed out that the defendant is approaching 60 years of age, that he has a clear record, and that he is divorced and living alone.  According to the relevant reports, he does not have any psychiatric problem and is not a sexual pervert towards children, and he only needs certain psychological counselling.  He pleaded guilty to the offence, and this obviated the need for the victim to testify against him in the court and hence the need for her to recall the unhappy incident.  The defendant is deeply remorseful for the offence and hopes the court will impose a lenient sentence.

As far as sentencing is concerned, the circumstances of the offence were in my view very serious.  The defendant was approaching 60, whereas the victim was barely over 5 years old.  There is no doubt that an adult is under a duty to protect young children from being hurt, the main reason being that young children are among those who are the most vulnerable and who do not know how to protect themselves.  Far from protecting the children, the defendant carried out the offence on them in accordance with a premeditated plan.  He enticed them with children’s favourite food such as candies and snacks, and having secured their trust, he started doing his bestial acts.

Although this court has not been presented with any report which indicates whether the victim has been traumatised by the incident, one can get a rough idea from the fact that, after she had been assaulted, the victim immediately returned home and told her mother about the incident.  The victim obviously did not consider the events that had happened to her to be proper conduct.  I believe that the negative effect that such unpleasant experiences created on a child with the ability to distinguish the right from the wrong would not easily be obliterated.  Therefore, the offence in question would, in my view, cause considerable trauma to the victim.

I consider that the defendant had received lenient treatment by being prosecuted in the magistracy.  In my view, the maximum period of imprisonment of 2 years which a magistrate has jurisdiction to impose cannot reflect the seriousness of this type of offence.

There are strong mitigating factors in the present case, namely that the defendant pleaded guilty to the offence and showed remorse and that the victim did not have to testify in court.  This notwithstanding, for the reasons set out above, I am of the view that the offence is question is indeed serious.  Having considered all mitigating factors, I adopt 2 years’ imprisonment as the starting point.  Apart from the one-third discount for the guilty plea, I do not see any reason that supports further discount in sentence.  Accordingly, the defendant is sentenced to 16 months’ imprisonment.

Ruling

18. I start by reviewing some authorities referred to at the hearing.  In Kwok Kau Kan, the defendant was convicted of 5 charges, although two of the convictions were quashed on appeal.  The remaining convictions concerned indecent assault on a girl aged between 12 and 13.  The 1^st and 2^nd offences were committed on the platform of a staircase, where the defendant touched the victim’s breasts over her clothes and gave her $50 afterwards.  In the second charge, the defendant also pressed and rubbed his private parts against the victim’s left buttock for a few seconds.  As for the 5^th offence, the victim was standing in front of the defendant, and he threw his arms around her waist from behind and touched her breasts.  He also touched her back, lifted her dress and touched her buttocks over her pants.  The victim twice moved her upper body forward by approximately 30 degrees and then straightened her body, during which time her buttocks came into contact with the defendant’s private parts and the defendant moved his lower body forward and backward.  This lasted a few minutes.

19. The Court of Appeal pointed out that an aggravating feature of the case lay in the exploitation of the young victim by means of money, and the fact that the victim consented to being assaulted was not a mitigating factor.  The offence was serious in that the 77-year-old defendant initially approached the victim in a friendly manner and later abused the victim’s trust toward him.  Further, the defendant had 3 similar records.   The Court of Appeal considered it imperative to impose a deterrent sentence.  The 5^th offence was more serious than the 1^st and 2^nd offences.  The Court of Appeal considered 3 years’ imprisonment an appropriate overall sentence for the 3 offences.  The Court imposed a sentence of 1-1/2 years’ imprisonment for each of the 1^st and 2^nd offences and a sentence of 2-1/2 years’ imprisonment for the 5^th offence.  Taking into account the totality principle and the fact that the offences were committed at different times, the Court ordered that the sentences for the 1^st and 2^nd offences were to run concurrently, and one year of the sentence for the 5^th offence was to run concurrently with the sentences for the 1^st and 2^nd offences.  Hence, the overall sentence was 3 years’ imprisonment.

20. In See Tak Man, the defendant, then aged 31, pleaded guilty to indecent assault on a 12-year-old boy inside a public toilet.  The defendant performed oral sex with the victim, carried out acts of indecent assault that just fell short of being buggery, and ejaculated inside the victim’s mouth.  The first instance judge adopted a starting point of 5 years’ imprisonment and reduced the term to 3-1/2 years.  The defendant had a clear record.  He and the victim did not know each other before the date of the offence.  There was nothing to show that the defendant was a paedophile or would pose danger to the society.  Taking into account that no actual bodily injury had been inflicted on the victim, that the offence was a single incident and that there was no relationship of “trust” between the defendant and the victim, the Court of Appeal held that the starting point of 5 years was excessive and in the end reduced the term of imprisonment from 3-1/2 years to 2-1/2 years.

21. The victim in Cheung Kwai Sang was a female foreigner of 20 odd years old who came to Hong Kong as a tourist.  She received foot massage at a health centre, in the course of which the defendant, who was 57 years old and who had a clear record, indecently assaulted the breasts and private parts of the victim.  The magistrate sentenced the defendant to 9 months’ imprisonment, and this sentence was not disturbed on appeal.

22. In Chan Ching Ho, the defendant faced 4 counts of indecent assault on his 6-year-old niece.  The 1^st and 2^nd counts stated that the defendant touched the victim’s sex organ.  The 3^rd count stated that, after touching her, the defendant instructed the victim to caress his penis.  The 4^th count stated that the defendant licked the victim’s private parts.  Having convicted the defendant of the offences, the District Court judge imposed the following sentences:

1^st and 2^nd offences: 9 months’ imprisonment for each;

3^rd offence: 18 months’ imprisonment;

4^th offence: 2 years’ imprisonment.  All sentences were to run consecutively.  The total sentence was 5 years’ imprisonment.

23. The Court of Appeal dismissed the defendant’s appeal.  The Court pointed out that the sentencing considerations were: (1) the need to deter others; (2) the need to mark public abhorrence of such crime; (3) the need to redress the grievance suffered by the victim and her relatives and friends.  The offences were committed at different times, and apart from the totality principle, there was no basis for ordering that the sentences were to run concurrently.  The Court also emphasized the need to protect children.  Having regard to the victim’s age, the defendant’s breach of trust and the successive acts of indecent assault on the victim over a period of time, the Court held that the sentences imposed by the District Court judge were not to be disturbed.

24. In Wong Tsiu Ken, the defendant, who was 68 years old, indecently assaulted a 9-year-old female neighbour.  He touched the victim’s back, breasts and private parts with his hands over her clothes.  After trial, he was sentenced to 6 months’ imprisonment.  He was married and had a clear record.  The Court of Appeal held that the sentence was on the high side but not manifestly excessive.

25. In Hung Li Sing, the defendant was convicted after trial of 3 offences, two of which were indecent assaults, and was sentenced to imprisonment for a total term of 6 months.  The defendant represented to the victims that he was a police officer and a probation officer.  He indecently assaulted the two victims on a staircase.  His left hand embraced one of the victims’ waist and touched her left buttock, and he put his other hand under the other victim’s school uniform and ran his hand from her stomach up to her right breast.  The victims’ ages were unknown, although the appellate judge described them as “young girls”.  The defendant was a married man aged 47 and worked in the civil service as an ambulanceman.  The conviction and sentence were upheld on appeal.

26. In Khan Mchammed, the defendant was convicted after trial of two counts of indecent assault and was sentenced to 6 months’ imprisonment.  The offences were committed inside a supermarket, where the defendant put his hands under the skirt of the victim, a girl aged 11, and touched her private parts.  The Court of Appeal held that the sentence was not manifestly excessive.

27. I first deal with the second ground of appeal.  It is true that there is no medical report by a psychologist or psychiatrist which states that the victim was psychologically hurt or suffered any sequela as a result of the incident.  However, in view of the age of the victim and the circumstances under which she was assaulted, there is nothing improper in holding, as the magistrate did, that the incident caused considerable trauma to the victim.

28. I now turn to the first ground of appeal.  The Appellant assaulted a girl who was merely 5 odd years old.  He came across her and the other children at the lift lobby, invited them to his residence, gave them candies, held the victim in his arms and made her sit on his thighs, and then assaulted her.  The circumstances of the offence were indeed very serious, and the Appellant’s conduct was very disgraceful.  Nevertheless, taking into account the submissions made on behalf of the prosecution and the defence as well as the authorities referred to above, the starting point of 2 years’ imprisonment is indeed manifestly excessive in the circumstances of the present case.  I consider 15 months to be an appropriate starting point.  Giving the usual one-third discount, the term is reduced to 10 months.  Since the Appellant’s guilty plea obviated the need for the young victim to testify in court, the term should be further reduced by one month to 9 months.  Accordingly, I allow the appeal against sentence, set aside the sentence of 16 months’ imprisonment and impose a sentence of 9 months’ imprisonment.