R. v. WONG KA CHEUNG

MAGISTRACY APPEAL NO.1447 OF 1994

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

____________

_________________

J U D G M E N T

_________________

1. The appellant was convicted after trial on one count of indecent assault. He was sentenced to 6 months' imprisonment and he appealed against his conviction and sentence.

2. The brief facts were that an 18 years old girl was in the lift when the appellant who was aged 27, indecently assaulted her by squeezing one of her breast. I dismissed the appeal against conviction but before deciding upon the appeal against sentence, at the request of Mr Luk who appears for the appellant, I called for probation, psychiatric and psychological reports. I should say that the magistrate, before imposing sentence, had enquired of the counsel then appearing for the appellant as to whether he was seeking reports before sentence was imposed and the magistrate was told that reports were not sought.

3. The reports I now have state that the appellant suffers from chronic schizophrenia, a problem which developed when he was under pressure as a student but which condition is now in remission. It is the view of the psychiatrist that the appellant is not in need of inpatient treatment and both the psychiatrist and the psychologist recommend that he receive some out-patient assistance at the Pamela Youde Nethersole Eastern Hospital. The probation officer's report which is very full and very helpful, deals in detail with his background and shows that he comes from a hardworking, unsophisticated family and that his parents and his four sisters have shown concern for him and are eager to assist in his rehabilitation.

4. His mental condition has resulted in him having difficulty in establishing good relations, both in the working environment and socially. He is a first offender and, from the reports, is a person in need of help. I do not criticise the magistrate for the sentence imposed. It was a case where the young girl must have been very scared and upset, although it has to be said that the assault itself was not the most serious of its kind. I do feel, however, that if the magistrate had had before him the information which I now have available from the reports, he would have taken a more compassionate stance. The probation office have indicated that should I feel it appropriate, they are prepared to help and I consider that the appellant should as a first offender, be given a chance.

5. The sentence of 6 months' imprisonment will therefore be set aside and the appellant is put on probation for a period of 18 months with special conditions :

(1) that he work and reside as directed by the probation officer;

(2) that he obey any curfew imposed by the probation officer; and

(3) that he receive such regular psychiatric treatment as is directed by the staff of the Pamela Youde Nethersole Eastern Hospital.