HKSAR v. YAU KIN WAI

CACC 398/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 398 OF 2003

(ON APPEAL FROM HCCC 40 OF 2003)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1. The Applicant, aged 25, pleaded guilty to a charge of indecent assault on a girl aged 14 (count 2) at the outset of his trial for false imprisonment and rape (counts 1 and 3). The named victim in all three counts was the same girl.

2. The trial before Lugar-Mawson J concluded on 3 September 2003 with the Applicant's acquittal on counts 1 and 3. The judge then proceeded to hear mitigation before sentencing the Applicant to three years and four months' imprisonment on count 2.

3. The Applicant now seeks leave to appeal against his sentence on two grounds.

4. It was firstly submitted by Mr Poll, on the Applicant's behalf that, as there were no "agreed facts", the judge appeared to have taken into account facts drawn from the trial which were irrelevant to sentence on count 2. Secondly, he argued that the starting point of five years, which the judge had adopted before reducing this by a third to reflect the plea of guilty, was manifestly excessive.

5. Before imposing sentence, counsel on both sides had addressed the judge about the proper method to proceed in relation to the facts which were to be taken as the basis of the plea. The following exchanges then took place:

"(Prosecuting counsel): My Lord, the position is that at the beginning of the trial a summary of facts relating to
	that count was prepared. It wasn't possible, of course, put on record..... The summary was along the lines of the girl's evidence. In other words, the prosecution case on the same count was that the indecent assault was accompanied by -- was without the girl's consenting to it. I am not quite sure at this stage what your Lordship requires me to do.

Court: What does the indecent assault relate to? The whole incident or just the oral sex, the fellatio?

(Prosecuting counsel): The assault would relate to everything up to the stage of and including the oral sex.

Court: Yes.

(Prosecuting counsel): The third count of rape, original third count of rape has to do with the actual intercourse, so that's the line of demarcation, so to speak.

Court: Just let me make a note. Well, I have heard the evidence just as much as the jury has. So the 2nd count
	relates to the oral sex. Your original facts were on the basis that it was non-consensual..... We are bound, I think, by the jury's verdict. I accept they didn't believe the -- they had doubts on the issue of consent..... Nevertheless, the act is admitted.

(Prosecuting counsel): What I am not sure whether the matter has been put to the defendant to accept certain
	facts, what I was thinking of was I can put the summary as originally drafted, because Mr Yuen can inform you that the defendant has agreed to certain parts of it and then your Lordship, having heard the evidence yourself, can make you(r) mind as to...

Court: I'd have to respect the verdict of the jury.

(Prosecuting counsel): Of course, yes..... Yes, I would expect that.

Court: They were not satisfied with the prosecution's claim that the girl was raped, therefore they had doubts on
	the issue of consent..... They must (have) equally had doubts on the issue of whether or not she was prevented from going on her way against her will in respect of the false imprisonment count, and that's how I would have to accept the matter.

(Prosecuting counsel): Yes, would your Lordship feel that would be the appropriate way to do it? For me to
	read into the record the original...

Court: Well, I don't really know that helps. We know the facts of the case. I know the facts of the case.

(Prosecuting counsel): Maybe I leave it in your hands entirely.

Court: Yes, what do you say, Mr Yuen?

(Defence counsel): My Lord, I would say that, in fact, it has been made very clear as to the defence position
	concerning the guilty plea, in respect of the original 2nd count, that is that of indecent assault.

Court: Well, I will tell you how I am going to deal with it in relation to the facts, Mr Yuen. As I said, I respect

the verdict of the jury. They were not satisfied on the issue of consent..... Therefore, I am going to have to accept that this young lady consented..... However, I am also bound by the law which says a person under 16 cannot give a valid consent..... Therefore I approach it on the basis that it was not forced on her against her will. I must, like the jury, have that same doubt. Then I approach it on the basis that a girl of less than 16 cannot give a valid consent. Even if she is (a) most enthusiastic participant, her consent is not valid..... As to what happened, we have heard it in graphic detail several times and I don't think it will get any better by repeating it..... That's the basis on which I will be basing my sentence.

(Defence counsel): Yes, I think, if that is the case, I have nothing further to say." (Appeal bundle pp.81-84)

6. The judge then went on to hear about the Applicant's criminal record involving a variety of offences, none of which was for anything resembling the present kind.

7. In mitigation, counsel for the defence briefly addressed the judge on a number of matters which had arisen in the evidence given at trial. Amongst these, he referred to the Applicant's belief that the victim was aged about 17 or 18 and that there was nothing to suggest the contrary. Counsel went on to say that, on the Applicant's account, everything he had done had been with the victim's consent. As such, he submitted, if this count had stood alone, it might well have been dealt with in the magistracy.

8. In passing sentence, the judge had the following to say:

"I can only sentence you on what you are charged with in the 2nd count in the original indictment, which is indecent assault upon (the victim) and which relates to the act of fellatio - oral sex - that (the victim) performed on you in your uncle's car in the water tunnel in the country park in the early morning of 11 July of last year.

Having said that, as I heard the evidence just as much as the jury did, there can be no doubt that you invited her into your car that morning, saw from her behaviour and the way she was dressed that she was easy prey and proceeded to take full advantage of her. You must have been fully aware that she was a very young girl. You must consciously have taken the risk that she was over 16 and not really cared whether she was not.

Regardless of who initiated that act of oral sex, there can be no doubt that that morning you, for your own sexual gratification, took advantage of the naivety, the stupidity and the waywardness of a 14-year-old girl and incited her to commit a sexual act, which if it is to be engaged in at all, should be engaged in by mature people of full age in conditions of complete privacy.

This is a very bad case of a mature man cynically taking advantage of a young, weak-willed teenager. It is, in fact, the worse case, short of rape, that I have seen of that." (Appeal bundle p. 86)

9. Dealing with the last remark of the judge, the facts at trial revealed, on the Applicant's account, that he had met the victim two days earlier at a karaoke lounge where they had danced together. The jury's verdict indicated that what occurred in the car had been done with the victim's consent. The offence was, therefore, by virtue of section 122(2) of the Crimes Ordinance, Cap. 200, only an indecent assault because "a person under the age of 16 cannot in law give any consent....".

10. On any view, therefore, this offence was not anywhere near as serious as an indecent assault on an underage girl who had not willingly consented to what had taken place. Furthermore, the victim was not so obviously underage that the Applicant must have known it.

11. Accordingly, we agree with Mr Poll's submission that this sentence was manifestly excessive. Nevertheless, the offence remained a serious one on account of the victim's age at the time of the offence, namely, fourteen years and ten months.

12. In our judgment, a proper sentence after trial would, in the circumstances of this case, have been in the region of twenty-one months' imprisonment, reduced to fourteen months to reflect the Applicant's timely plea of guilty.

13. Accordingly, we shall grant leave. Treating the hearing as the appeal, we shall allow the appeal and reduce the sentence from three years and four months to one of fourteen months' imprisonment.