HKSAR v. Chan Yiu Leung

Case No.CACC 113/2015

Court

Court of Appeal

Date19 Aug 2015

Judge—

Case Document

100%Judiciary

CACC 113/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 113 OF 2015

(ON APPEAL FROM HCCC NO. 505/2014)

____________

BETWEEN
	HKSAR	Respondent
	and
	CHAN Yiu Leung (陳耀良)	Applicant

____________

Before : Hon Lunn VP in Court

Date of applicant’s written submissions: 16 June 2015

Date of respondent’s written submissions: 30 June 2015

Date of Judgment: 19 August 2015

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JUDGMENT
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1.The applicant seeks leave to appeal against the sentence of 6 years and 8 months’ imprisonment imposed on him on 20 March 2015 by Toh J following his committal to the High Court for sentencing on his plea of guilty in the Magistracy on 9 December 2014 to a charge of incest with his daughter, Ms X, on 21 October 2013, contrary to section 47 of the Crimes Ordinance, Cap. 200.

The facts

2.The circumstances of the commission of the offence came to light when Ms X became pregnant, as became obvious to her mother in May 2014. As a result, a report was made to the police and the applicant was arrested. Ms X gave birth to her baby on 5 July 2014. Although, the applicant had denied having sexual intercourse with Ms X in a video recorded interview conducted with him under caution in May 2014, DNA examination confirmed that the applicant was the biological father of Ms X and her child. In pleading guilty, the applicant accepted that to be the case.

Reasons for sentence

3.In her reasons for sentence the judge noted that the applicant was aged 55 years and said that, although he had a criminal record, they were for minor offences.

4.Before imposing sentence on the applicant, the judge obtaining a ‘victim impact’ report compiled by a psychologist on Ms X. The judge noted that the psychologist, Ms Wu, reported that:[1]

“ …throughout the past few years X has a heavy sense of horror, worry and hopelessness and she did not dare tell her mother because her father had threatened that her mother would abandon her if she told her mother.”

5.The judge went on to note of Ms X that:[2]

“ …there are no prominent psychological disturbances at the moment identified, she’s not sure if other abuse-related in that may emerge in later life. She had recommended psychological intervention to X, but X at the moment is reluctant to receive any psychological follow-up.”

6.Having averted to the judgment of the court in HKSAR v Lin Kin Ho [3], the judge said that sentences for this offence “should both punish and deter.” Having noted that the maximum sentence for the offence was 14 years’ imprisonment, the judge said that “the normal range of sentences between 6 to 10 years imprisonment.”[4]

7.Of the aggravating factors in the commission of the offence the judge said:[5]

“ The aggravating factors in this case is that the defendant did not use a condom at the time of this offence, thus putting this young person at risk to any sexually transmitted diseases and pregnancy at her early age. And, furthermore, in aggravating this offence when he realised that his daughter might be pregnant, instead of seeking immediate medical attention for her, he selfishly suggested that she go to China to get an abortion. He did nothing about it until the mother of his daughter found out about it.”

8.The judge went on to say:[6]

“ This is a case where instead of protecting his daughter, he violates her and in breach of the trust between father and daughter. And the impact, actually - one of the impacts on X can be seen from the victim impact report where Miss Wu concluded that at this time the victim, Miss X, had no interest in developing any heterosexual relationship at the moment when she is at the age when it is important for her to be making social friendships with both males and females.”

Starting point for sentence

9.In stipulating the starting point taken for sentence, enhanced to reflect the aggravating circumstances of the commission of the offence, the judge said:[7]

“ Taking into account the past cases, the sentences that have been handed down, the starting point for this offence would be in the range of 8 to 9 years. So I would impose a starting point of 8-and-a-half years, increase it to 10 years for all the aggravating factors that I have enumerated just now.”

Discount

10.In affording the applicant a discount of one-third from that taken as the starting point for sentence, the judge had said that she did so, “Because the applicant had pleaded guilty and saved the time of the court and also the victim from coming to court to give evidence.”[8]

Sentence

11.In the result, the judge imposed a sentence of 6 years and 8 months’ imprisonment on the applicant.

Grounds of appeal against sentence

12.In the grounds of appeal against sentence advanced on behalf of the applicant, Ms Panesar submitted that the judge had erred in stipulating a starting point for sentence of 10 years’ imprisonment and failed to have regard to the fact that the applicant was convicted on one count only of incest with Ms X when she was aged 17 years and 2 months. Further, that there was no evidence of violence or threats towards Ms X.

13.Secondly, it was contended that the judge had failed to take into account properly that prior to the offence the applicant had given Ms X proper paternal affection and have done so in the absence of her mother. Also, that the applicant’s sister had committed suicide in consequence of the applicant’s incarceration for the offence. Then, the court was asked to note that the psychological report stated that “no significant emotional behavioural problems could be identified at the moment”.[9]

The respondent’s submissions

14.In her written submissions for the respondent, Ms Winnie Mok opposed the grant of leave to appeal against sentence, although she did concede that the judge’s stipulation of a starting point for sentence of 8½ years’ imprisonment, enhanced for the factors of aggravation in the commission of the offence by one and a half years’ imprisonment, resulting in a total of 10 years’ imprisonment “might be regarded as having been on the high side”. On the other hand, she submitted that it was not manifestly excessive. Rather, it was “within the range of the acceptable sentence for this type of offence.”

15.Ms Mok reminded the Court that the maximum sentence of 14 years’ imprisonment for an offence of incest by a man with a woman was fixed on 22 May 1998. Accordingly, she submitted that judgments of this Court addressing offences committed prior to that date had to be approached with caution.

A consideration of the submissions

16.It is to be noted that, prior to the change in the maximum sentence for incest by a man with a woman of imprisonment to 14 years’ imprisonment, the maximum sentence was 7 years’ imprisonment. Separate provision was made for the maximum sentence for incest by a man with a woman under the age of 13 years, namely life imprisonment. In 1998, provision was made for a maximum sentence of 20 years’ imprisonment for the offence committed by a man with a woman under the age of 16 years and of or above 13 years. Life imprisonment remains the maximum sentence for the offence committed by a man with a woman under the age of 13 years.[10]

17.In HKSAR v Lin Kin Hothis Court was concerned with an application for leave to appeal against sentence of 5 years’ imprisonment imposed in respect of the count of incest by a man with his 21-year-old daughter on 27 September 1997 in circumstances where sexual intercourse took place in “…very grave aggravating circumstances that made the offence equivalent to rape”. In refusing the application for leave, Power VP said:[11]

“ We are satisfied that the statement in the Second Edition of Sentencing in Hong Kong correctly sets out the position when it says:

“Such offences (incest) strike at the very fabric of family life. Sentences are required to both punish and deter. Depending upon the age of the victim, sentence has regularly run from imprisonment of between six and ten years. The offence will be aggravated if the intercourse occurred over a long period, if force is used, if pregnancy results of the victim is very young.” ”

18.That edition of the book was published in 1996. So it is clear, as is confirmed in the text by the reference to sentence depending upon the age of the victim, that the authors were encompassing in their statement as to the range of sentence imposed for the offence, sentences imposed in respect of women under the age of 13, for which offence the maximum penalty for incest by a man was life imprisonment.

19.Many of the authorities to which the Court has been referred by counsel concern cases involving young victims, in the range of 10 to 13 years of age, and are of little assistance to the Court. As noted earlier, a different maximum sentence is provided for those offences. The instant case concerns a victim who was 17 years and two months of age at the time of the single act of incest.

20.Notwithstanding the aggravating features in the commission of the offence, in particular that it led to not only the pregnancy of the victim but also to the delivery of her baby, I am satisfied that there are arguable grounds of appeal that the sentence imposed on the applicant was manifestly excessive.

Conclusion

21.Accordingly, I grant leave to appeal against sentence.