HKSAR v. CHOW CHI MING

HCMA 1247/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1247 OF 2005

(ON APPEAL FROM KTCC 8081 OF 2005)

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J U D G M E N T

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1.  The appellant pleaded guilty to two charges of indecent assault in the Magistrate’s Court.  He was sentenced to six months imprisonment on each charge, the sentences were to run concurrently.  He now appeals against sentence.

2.  According the facts admitted by the appellant, on each occasion when the offence was committed, the appellant approached a 17-year-old girl, a student, who was on her way to school and suddenly he squeezed her breast.  On each occasion the girl was frightened.  The appellant was later arrested and identified by the victims. 

3.  Before sentencing the appellant who was at the time 71 years of age, the magistrate called for 2 psychiatric reports and a Probation Officer’s Report.  The Psychiatric Reports indicated that the appellant was a schizophrenic, but was not considered suitable for admission for in-patient treatment.

4.  In his reasons for sentence, the magistrate stated that it was clear from the reports that the appellant committed the offences with full understanding and intention.  He commented that the appellant showed no expression of remorse which was echoed in his Probation Officer’s Report.  He found little mitigating circumstances except the appellant’s plea of guilty.

5.  The appellant had a record of 2 counts of wounding in 1988 and 1 count of indecent assault in 2005 and has been sentenced to Siu Lam Psychiatric Centre before.  The latter indecent assault offence was committed by him only a few months before the present offences.  The magistrate said that he was informed that it was likely that the appellant would commit similar offences again and in his opinion, the appellant was a predator preying upon young girls who needed to be punished in a manner commensurate with his criminality in order to deter him from the commission of similar offences.  In other words, the magistrate considered that in the present case, a deterrent sentence was appropriate.  The magistrate took an overall starting point for the two offences of 9 months, discounting it by 1/3 for the appellant’s plea of guilty, he arrived at the 6 months concurrent sentences for each charge.

6.  The grounds of appeal can be summarised as follows:

(1)     The starting point of 9 months is too high;

(2)     It was wrong for the magistrate to consider the only factor in mitigation was the appellant’s plea of guilty;

(3)     He failed to consider the appellant’s old age; and

(4)     He failed to consider the mental condition of the appellant in relation to the question of diminished criminality or culpability.

7.  Mr Cheng, for the appellant, pursued this appeal on the grounds of appeal in the reverse order, taking the fourth ground first.  He referred me to the case of HKSAR v Chiu Peng Richard [2002] 1 HKC 401, and he submitted that the magistrate should have taken into consideration the overall mental condition of the appellant who had been suffering from a chronic psychiatric illness and to give a discount for his condition  would be a factor which would reduce his criminality in the present case.

8.  While I do not dispute that in some special circumstances the criminality of an offender may be reduced by reason of his mental condition, but in the present case, this does not apply because this case is completely different from the case of Chiu Peng.  In that case, the accused’s mental illness made him gullible and easily susceptible to persuasion by the perpetrator of the crime, reducing his responsibility for participating.  But in our case, we do not have such circumstances and in fact, the psychiatrist in his report considered the appellant a person who was fully of himself when he committed this offence and he had the full intention to commit the offence.  In my opinion, the case of Chiu Peng does not assist the appellant’s case.

9.  On the question of old age, I think, it is generally accepted that old age, unless extremely advance in age, is generally not a mitigating factor and in indecent assault, as in the case cited to me by counsel for the respondent, R v Alden and Wright [2001] 2 Cr App R(S) 401, where you have a case of indecent assault on young girls, old age is really not a mitigating factor.

10.  In the circumstances of the case, I agree with the magistrate that the appellant has shown no remorse, except by his own plea of guilty for which the magistrate has taken into account and given him 1/3 discount.

11.  As regards the first ground that the starting point of 9 months is too high, I have considered all the cases referred to me, especially the case of HKSAR v Li Shui Keung, HCMA 150/2002 (unreported), on which Mr Cheng had relied.  He submitted that the proper starting point in the present case should be 6 months and the sentence in this case should be an overall sentence of 4 months.

12.  In my opinion, in the circumstances of the present case, having regard to the fact that a deterrent sentence is warranted in view of the repeated ways in which the appellant committed the offences and his record, the sentence imposed by the magistrate cannot be regarded as, in any way, manifestly excessive or wrong in principle.  The appeal against sentence is dismissed.