HKSAR v. L.C.H.

CACC 435/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 435 OF 2015

(ON APPEAL FROM DCCC 886 OF 2015)

------------------------

------------------------

________________

J U D G M E N T

________________

Hon McWalters JA (giving the judgment of the court):

1.On 15 December 2015 the appellant pleaded guilty in the District Court before by District Judge E Yip (“the judge”) to two charges of indecent assault on another person, a woman Ms X, who was a mentally incapacitated person, contrary to section 122(1) of the Crimes Ordinance, Cap 200. He was sentenced the same day to a total sentence of 3 years and 8 months’ imprisonment.

2.By way of a notice (Form XI) filed on 29 December 2015, the appellant sought leave to appeal against sentence.  Leave was granted by Lunn VP on 19 May 2016 in respect of ground 1 only of the appellant’s Perfected Grounds of Appeal Against Sentence.

3.At the hearing of the appeal we reserved our judgment which we said we would hand down at a later date and this we now do.

The Re-Amended Summary of Facts

4.In the Re-Amended Summary of Facts which was used for the purpose of the plea and sentence, the appellant admitted that he was employed as an instructor at an integrated vocational rehabilitation centre (“the Centre”), which provided employment opportunities and training for mentally retarded persons and mentally handicapped persons. 

5.Ms X suffered from mental retardation with a history of mood problem.  It was admitted by the appellant that the Government Psychiatrist considered Ms X to be a ‘mentally incapacitated person’ as that term is defined in the Crimes Ordinance, Cap 200 and in the Mental Health Ordinance, Cap 200. The appellant admitted that he knew or had reason to suspect that Ms X is a mentally incapacitated person.    

6.On 25 January 2015, Ms X told another instructor that she was sexually abused by the appellant.  This instructor reported her complaint to the manager of the Centre who then referred it to a registered social worker. Ultimately, the complaint was reported to the police. 

7.After being arrested by the police the appellant was interviewed under caution, during which he made the following admissions:

(a)   he had worked at the Centre for about 13 years as an instructor and had known Ms X for 8-9 years.  He had telephone conversations with her regularly;

(b)   he believed Ms X suffered from mental illness instead of mental retardation;

(c)   Ms X had given her consent to their sexual activities which were as follows:

(i)   Charge 2

The 1^st occasion in which they engaged in sexual activity took place on a day unknown between July 2014 and September 2014, when Ms X went to the appellant’s residence to talk about her personal problems.  There the appellant hugged and kissed Ms X as well as molesting her breast and private parts; he removed her upper clothes and she removed her pants.  He brought Ms X to his bed intending to have sexual intercourse with her, but did not penetrate her as he was unable to achieve an erection, though his penis did come into contact with her vagina.  He then masturbated himself to ejaculation.  No condom was used.

(ii)  Charge 4

The second occasion of sexual activity occurred in early January 2015, when Ms X called the appellant and they arranged to watch TV together at the appellant’s residence.  Whilst they were watching TV the appellant fondled her breast. Ms X then removed her own clothing and went to the appellant’s bed.  The appellant removed his own clothes intending to have sexual intercourse with her, but again failed to achieve an erection, though his penis did come into contact with her vagina.  Being unable to penetrate Ms X, the appellant masturbated himself to ejaculation.  No condom was used.

8.Ms X was born in October 1982 and so was of or around 32 years of age at the time of the offences.

The mitigation

9.Mr Lee, counsel for the appellant at the sentencing hearing, informed the judge that the appellant was aged 57, and was of clear record.  He was married and his wife worked during the day time.  He had two daughters, the elder of whom was studying abroad and the younger of whom lived at home and attended school in Hong Kong.  As a result of his misconduct the appellant was summarily dismissed from his employment at the Centre where he had worked for 13 years.  For some time he has been suffering from hypertension and diabetes.

10.Mr Lee submitted that the appellant was deeply remorseful, and had frankly confessed to the police that there were two incidents, even though, Ms X had complained to the police of only the one incident.  He also submitted that the chance of the appellant re-offending was very slim.

11.Mr Lee emphasized that the appellant was only an instructor at the Centre.  There were three instructors and each supervised about ten workers.  Mr Lee submitted that although the appellant supervised Ms X, in the sense of directing her how to work, that did not place the appellant in a relationship with Ms X similar to that of a teacher or mentor.

12.Mr Lee also submitted that the appellant and Ms X lived in close proximity to each other and it was Ms X who insisted in going to the appellant’s residence on both occasions.  Mr Lee sought to argue that, in these circumstances, there was no breach of trust involved in the appellant’s conduct because (i) the offences were not committed in the workplace to which trust was attributed; (ii) the appellant and Ms X were simply colleagues, socializing as friends outside of the workplace at the appellant’s residence; and (iii) an instructor was on a lower level of trust as compared to a teacher.  However, Mr Lee accepted that there was an element of breach of trust in his client’s conduct vis-à-vis Ms X’s family who had entrusted her care and well being to the Centre and the staff employed there.  He also conceded that, because of Ms X’s mental condition, there was an element of exploitation in the appellant’s conduct. 

13.Mr Lee also recognized that Ms X came to the appellant to seek advice from him and that the appellant took advantage of their close relationship. This he accepted was part of the appellant’s culpability.   

14.Mr Lee submitted that an appropriate starting point for each offence was between 2½ and 3 years’ imprisonment with the sentence for the second offence to be partially consecutive to the sentence for the first offence.

The Reasons for Sentence

15.The judge took into account the personal background of the appellant and the fact that the visits by Ms X to the appellant’s flat were initiated by her.

16.However, the judge rejected Mr Lee’s submission that the offences did not involve a breach of trust.  Ms X’s family had entrusted Ms X to the Centre’s staff and the appellant’s conduct was a serious breach of this trust. Furthermore, he saw no meaningful distinction between the two roles of teacher and instructor in terms of the level of trust reposed in the appellant by either Ms X or her family.  The appellant had, the judge said, “abused the trust reposed on him by [Ms X] and her family.”

17.The judge agreed with the concession of Mr Lee that the appellant had “exploited her lesser intelligence and life experience in the solitude of his residence.”

18.Having noted that the events the subject of the two charges had come to light because of the complaint by Ms X of “being sexually abused”, the judge determined, “that Ms X’s use of this language connoted her aversion to the sexual acts”. 

19.The judge also said that, apart from Ms X removing some of her clothes, she had remained passive throughout the two experiences.

20.Ms X declined to participate in the compilation of a victim impact report.  Her sister had explained that Ms X was “stressed out” and did not wish to talk about the matter.

21.The prosecutor referred the judge to the cases of Attorney General v Ho Yu Ping[1]and HKSAR v Chan Ching Ho^[2].  In the latter case, the Court of Appeal identified three “important sentencing considerations”, which it said were relevant to cases of the kind before it, namely cases of indecent assaults on children involving a breach of trust.  At page 482D‑E the Court of Appeal said:

“In short, we consider the Judge had recognized three important sentencing considerations in cases of this kind, namely the need to deter others; the need to mark the public abhorrence of such crimes and the need to redress the grievance suffered by the victim, her relatives and friends.”

22.Mr Lee referred the judge to a sentencing precedent of the judge himself, namely HKSAR v Lam Chung Fong[3].

23.Applying the sentencing considerations referred to by the Court of Appeal in HKSAR v Chan Ching Ho the judge determined that the appropriate starting point for the appellant’s case should be 5 years.  He said that he would have taken a much higher starting point for each charge if there had been penetration by the appellant with the attendant risks to the health of Ms X and of pregnancy.

24.On the issue of the totality of sentence, the judge quoted the following observations made by the Court of Appeal in HKSAR v Chan Ching Ho at page 482E-G:

“Here, the offences were entirely separate and distinct. There was no requirement on the part of the judge, subject to the principles of totality, to have made any of the sentences to run concurrently unless it had been alleged, which it was not, that two of the offences had been committed in the course of what is often referred to as a ‘single transaction’. (See: Attorney General and Cheung Pit-yiu (1989) 2 HKC 12). It does not help the Applicant that he chose more or less the same method to approach his victim in the commission of each offence. These remained separate and distinct offences, each deserving of separate punishment and, on this aspect, we reject Mr Chan’s argument to the contrary.”

25.The judge then ordered that four months of the sentence of imprisonment imposed in respect of Charge 4 was to be served consecutively to the sentence of 3 years and 4 months’ imprisonment imposed in respect of Charge 2. 

The ground of appeal

26.Mr HY Wong advanced the sole ground on which he was granted leave, namely that the “total starting point” of 5 years 6 months after trial and the total sentence of 3 years and 8 months’ imprisonment was manifestly excessive when compared to sentences imposed on other offenders in more serious circumstances.  

27.Mr Wong recognised that although sentencing cases may often be of very limited assistance to an appellate court they nevertheless could inform the court of sentences imposed for offences of a similar degree of seriousness so that the sentencing court did not fall into the error of imposing an inconsistent sentence.  He relied on comments made by the Court of Appeal to this effect in the case of HKSAR v Ng Ngok Wai[4]. 

28.He argued that the judge was wrong to rely on the case authorities of HKSAR v Chan Ching Hoand HKSAR v Ho Yu Ping as they concerned indecent assaults on children, rather than on a mentally incapacitated person. 

29.In HKSAR v Chan Ching Ho the victim was only 6 years of age and the court was necessarily concerned to protect children from sexual abuse.  Furthermore, the conduct of the offender was persistent, spreading over many weeks and the victim was the defendant’s niece.  For such serous conduct a total sentence of 5 years’ imprisonment after trial was upheld on appeal.

30.In HKSAR v Ho Yu Ping it was said that a starting point of 18 months’ imprisonment ought to have been taken in respect of five indecent assaults by a teacher on his female pupils aged between 10 and 13 years.  Mr Wong also referred to the case of HKSAR v See Tak Man[5]where the Court of Appeal said that 4 years’ imprisonment was the appropriate starting point for a single incident of a serious non-consensual indecent assault on a 12 year old boy.

31.Mr Wong submitted that the degree of seriousness of the appellant’s offences was closer to the case of The Queen v Man Ming Hing[6]and substantially less serious than those in HKSAR v Li Fat Sang[7] and HKSAR v Lau Chin Yu[8].

32.The case of HKSAR v Man Ming Hing concerned a defendant who pleaded guilty to two charges of attempted unlawful sexual intercourse with a defective, a woman who had been graded as moderately mentally deficient when she was in Castle Peak Hospital and was found to be ignorant of the nature and consequences of sexual intercourse and not mentally fit to consent to sexual intercourse.  The defendant knew the victim had received psychiatric treatment and suspected she was defective.  The magistrate sentencing the defendant adopted a starting point of 18 months which he then reduced to 12 months for the plea of guilty.

33.Bewley J said that the magistrate was right to take into account the need to protect persons unable to protect themselves. However, he still thought that the starting point of 18 months’ imprisonment was on the high side and the final sentence of 12 months a heavy one but, he said, it was “not such as to warrant the interference of this court.”

34.In the case of HKSAR v Li Fat Sang the offender had, a few years before the incident, been a watchman where the victim lived.  He followed the victim, who was a 12-year-old mildly mentally handicapped girl attending a special school and instructed her to follow him to his residence.  There, he indecently assaulted by fondling her breasts inside her clothes.  The offence was repeated on two further occasions.  He also threatened the girl that he would beat her up if she informed anyone of what had happened, and he slapped her on the neck after committing the 2^nd and 3^rd offences.  The defendant pleaded guilty.  The appeal against sentence of 3³/₄ years’ imprisonment imposed by the District Court judge was dismissed by the Court of Appeal which said that the starting point of 4 years adopted by the judge was manifestly too low and that anything less than 5 or even 6 years could not be considered reasonable and sufficiently indicative of the gravity of the case.

35.The case of HKSAR v Lau Chin Yu involved the indecent assault and rape of a 24 year old victim with mild grade mental retardation who fell within the definition of a “mentally incapacitated person”.  Both offences took place in the flat of the offender which was opposite to where the victim lived.  On one occasion the victim was playing a computer game in the defendant’s flat and on the other occasion she was asked by the defendant to go to his flat when she met the defendant at the lift lobby of their building.  The defendant pleaded guilty and the Court of Appeal upheld the trial judge’s starting point of 2 years’ imprisonment for the offence of indecent assault which involved fondling of the victim’s breasts and taking photographs of them.  In respect of the rape the trial judge had adopted a starting point of 10 years’ imprisonment but the Court of Appeal said that 7 years’ imprisonment should be the proper starting point.

36.Returning to the present case, Mr Wong stressed in his submissions that Ms X had only made a complaint in respect of the incident the subject of Charge 4 and that the police were wholly unaware of the incident that is the subject of Charge 2.  The police only became aware of this incident when the appellant volunteered information of it.  He submitted the appellant should be given a further discount for volunteering information in respect of an offence of which the police were unaware.

37.Mr Wong submitted that in the present case (i) the severity of Ms X’s mental incapacitation was unknown; (ii) the appellant had volunteered the information relating to Charge 2 which showed genuine remorse; (iii) Ms X appeared to consent; and (iv) it is the appellant’s first offence, and the chance of reoffending is minimal if not nil.

The respondent’s submissions

38.Ms Sabra Lo SPP (Ag), submitted on behalf of the respondent that without a tariff, the appropriate sentence in any one case of indecent assault must depend on the particular circumstances of the case, and therefore reference to sentences imposed in previous cases are only of limited assistance.  However, she accepted that previous sentencing cases can provide some sort of indication of the degree of seriousness with which the offence is treated by the courts.

39.In respect of the case of HKSAR vChan Ching Ho, Ms Lo submitted that that case and the appellant’s case both had an element of breach of trust, and the facts of the appellant’s case were comparable to, if not more serious than, that in Chan Ching Ho in that the appellant intended to have sexual intercourse with Ms X but failed.

40.Ms Lo also referred to the other cases cited by the appellant and submitted that the circumstances of the appellant’s case are comparable to HKSAR v Li Fat Sang.  Although there was some violence in that case the indecent assaults by the defendant were not as serious as those of this appellant.  Compared to what the Court of Appeal said was appropriate in that case, the sentences imposed on this appellant could not be said to be manifestly excessive.

41.Ms Lo said that the appellant’s conduct was far more serious than the conduct of the defendant in HKSAR v Lau Chin Yu.

42.Ms Lo submitted that the most significant aggravating factor in the present case was the element of breach of trust, which was reposed in the appellant as a member of staff of the Centre which was entrusted with the care of Ms X as she was mentally incapacitated.

43.She contended that it could not be right to say “the victim appeared to consent” as a mentally incapacitated person could not in law give any consent which would prevent an act being an assault for the purpose of the offence of indecent assault, pursuant to section 122(4) of the Crimes Ordinance, Cap 200.

44.As to the fact that the appellant had volunteered information which resulted in the laying of Charge 2, Ms Lo submitted that this was made known to the judge in mitigation and that it would not amount to any further discount (or a lower starting point) other than the usual 1/3 for his guilty plea.  She relied on the Court of Appeal decisions in HKSAR v Chu Kwok Chu[9] and HKSAR v Ma Ming[10]for the proposition that it did not constitute an arguable ground of appeal that an offender was not given any further discount in addition to the 1/3 for guilty plea.

45.Finally, the respondent submitted that the two offences were committed on two different occasions and could not be regarded as a “single transaction”; they were separate and distinct offences.  It was submitted that there was sufficient ground for the judge to impose a partly consecutive sentence.

46.The respondent concluded that the sentence imposed was neither wrong in principle nor manifestly excessive.

Discussion

47.A sentencing court dealing with a case of sexual assault on a mentally incapacitated person must start from the position that irrespective of the mature age of the victim and conduct by her which may suggest she consented to what was done to her, the acts of the offender are still unlawful and the mentally handicapped person is as much a victim as any other woman who does not suffer from a mental disability and may violently resist the indecent assaults inflicted upon her.

48.That this must be so stems from the fact that a mentally incapacitated person is deemed, by virtue of her mental incapacity, to be incapable of consenting to what is done to her.  In this respect the position of such persons is identical to the position of persons under the age of 16 years who, likewise, are by law[11] incapable of consenting to indecent assaults perpetrated upon them and to whom is extended the full protection of the criminal law.  Both types of victim have a special vulnerability; one by virtue of their age and the other by virtue of their disability.  However, it may be that children have a special position in the hearts of people for a number of reasons.  Perhaps it is because they lack the physical powers to resist the predations of adults; or because they possess an innocence that makes them easily manipulated and exploited by adults; or perhaps because in most of us there is an emotional connection which causes us to want to protect and care for them.  Those suffering from mental disability may not instinctively evoke within us the same level of sympathetic response but for the many of the same reasons they need the protection of the law.

49.Consequently we see no reason why a court, in sentencing an offender in respect of an indecent assault on a mentally incapacitated person should not have regard to the three considerations mentioned by the Court of Appeal in HKSAR v Chan Ching Ho.  These principles were adopted and elaborated upon more recently by the Court of Appeal in HKSAR v Tsang Chiu Tak.[12] But having regard to these sentencing principles does not mean that sentencing cases involving child victims of indecent assaults will have direct application to an indecent assault on an adult mentally incapacitated woman.

50.In modern societies measures are taken to attend to the needs of the mentally disabled so that they can live within the community and have as close to a normal life as their disability allows.  Long gone are the days when all such persons were shut away from society and institutionalized.

51.Organisations such as the Centre play a particularly important role in providing an opportunity for the mentally disabled to feel they are living a normal life and contributing meaningfully to society.  The value of the work that such organisations do cannot be emphasised enough.  Within such organisations the staff work sympathetically with their disabled colleagues to assist them in carrying out their duties.  As happens in every workplace, friendships between colleagues no doubt form.  Indeed, the closer supervision that may be required of mentally handicapped persons may more readily lead to workplace friendships forming.

52.However, the non-disabled staff of these workplaces must always be conscious of the special relationship that they have with their employer, with the relatives of their disabled colleagues and with their disabled colleagues themselves.  The Centre itself is a special place and is unlike a normal workplace because it employs, in its disabled employees, a workforce which needs special protection and whose care is entrusted to it by the employees’ relatives.  There is undoubtedly a relationship of trust between the Centre and the relatives of the mentally incapacitated employees.  Equally, undoubtedly, there is a relationship of trust between the Centre management and its staff to whom the management entrust the care of the disabled employees and between the staff and the relatives of the disabled employees.

53.Clearly, there is also a special relationship between the non-disabled staff and the disabled employees entrusted to their care.  By virtue of their daily duties they are in a special relationship with the disabled employees and they must not exploit that relationship.  Whether one describes it as a relationship of trust or a relationship of dominance is neither here nor there.  What is relevant is that by virtue of their position they are in a position where they can exercise control or influence over the disabled employees in their charge.

54.The conduct of this appellant breached the trust placed in him by his employer and the trust placed in him by Ms X’s relatives.  Furthermore, he exploited the special relationship which, through his employment, he enjoyed with Ms X.  All of these features of his conduct seriously aggravated his culpability for these offences.

55.Another aggravating feature is that at the time of these indecent assaults it was his intention to commit the more serious offence of having sexual intercourse with a mentally incapacitated person.  His conduct just fell short of sexual intercourse with Ms X.

56.The presence of these aggravating features place the appellant’s conduct at the more serious level of indecent assaults.  The maximum penalty for the offence is 10 years’ imprisonment, the same in fact for the offence of having sexual intercourse with a mentally incapacitated woman contrary to section 125(1) of the Crimes Ordinance, Cap 200.

57.The question now becomes, given that the maximum sentence is 10 years’ imprisonment, is a starting point of 5 years for these offences manifestly excessive?

58.Mr Wong seeks to argue that it is, and he does so by reference to other cases, yet recognizing that sentencing cases can provide only limited assistance to a sentencing court.  In respect of the offence of indecent assault the assistance is limited indeed.  From the various cases it is not possible to detect any real pattern of sentencing other than to say that in the broadest of terms the less serious cases attract starting points of 2 years’ imprisonment or less; the more serious cases 2‑5 years’ imprisonment and the most serious cases from 5 years’ imprisonment upwards. But the cases provide no meaningful assistance on where within these very broad ranges a particular case may fall.

59.What is present in this case is breach of trust and exploitation of a relationship and these features take it out of the less serious category of cases.  What is missing from this case is any violence or intimidation and any sexual conduct of a degrading or demeaning nature.  In our view, the absence of these features stop the appellant’s conduct from being elevated from the more serious case category into the most serious case category.

60.Unfortunately, what we do not have from the appeal bundle is any information on Ms X, what level of understanding she had as to what was taking place between her and the appellant and how affected she was and has been by all that took place.  She has declined to participate in a victim impact report as she was “stressed out” and did not want to talk about it.  At first glance, it is not clear to what extent the source of the stress is the indecent assaults as opposed to all that has taken place since she made her complaint.

61.However, it became apparent from the Judge’s Reasons for Sentence that he became aware of the reason for Ms X declining to participate in a victim impact report from a statement made by Ms X’s sister which was tendered to the court by the prosecutor at the end of the sentencing hearing.  Once that statement became available it was readily apparent that such distress as Ms X suffered arose after the investigation started and was generated from two particular sources, neither of which had anything to do with the appellant or the conduct underlying the charges.  The first source of her distress was that once her mother found out what had happened her “mother would blame her or those around her would know that she had been sexually assaulted.”  The second source of distress was the prospect of having to attend court and to testify to what happened.  Once that prospect disappeared Ms X returned to a normal emotional state.[13]

62.All that the sister said in her statement is consistent with what it is possible to ascertain from the Re-Amended Summary of Facts.  From that document we know that: (i) there was no complaint by Ms X after the first incident; (ii) in the first incident Ms X removed her pants; in the second incident they were watching TV together and when the appellant initiated sexual activity Ms X removed all her clothes and went to the appellant’s bed; and (iii) the second incident occurred in early January but Ms X made no complaint until 25 January.

63.Without more, it is difficult to know what to make of these facts.  They do not suggest that Ms X had no knowledge of what has happening nor do they suggest that Ms X found the appellant’s conduct greatly distressing.  Indeed, it is the appellant’s case that Ms X maintained friendship with him after the first incident and that it was she who wished to visit him at his flat on the occasion of the second incident.

64.The judge described Ms X as remaining passive throughout.  That is true insofar as Ms X did not initiate any of the sexual activity, but, we are satisfied, is not a completely accurate description of what occurred.  Nor can we agree with the judge’s conclusion that by her use of the words that she had been “sexually abused” by the appellant it was clear that Ms X had an aversion to the sexual acts.  The words “sexually abused” come from the following sentence in the Re-Amended Summary of Facts:

“[Ms X] told PW1 that she was sexually abused by the D.”

65.We take this statement not as an indication of the actual words employed by Ms X but as the effect of what she related to PW1.  In this respect it must be remembered that given the position of the appellant at the Centre, any sexual activity by him with a mentally incapacitated employed would, prima facie, be regarded as an abuse.  What Ms X actually said we do not know as we have not seen the statement of PW1 and the Re-Amended Summary of Facts on this issue is completely silent on this matter.  All we know is that Ms X said something to PW1 about the second incident but we do not know what her emotional state was and what prompted her to speak out.

66.Without a victim impact report it is difficult to gain any appreciation of Ms X’s understanding of, and reaction to, what took place.  In response to our concerns on these matters and the lack of information on the degree of Ms X’s mental incapacity Ms Lo read to us excerpts from two medical reports by the Government Psychiatrist which would have constituted his evidence had it been necessary for him to testify.  These were, of course, not before the trial judge.

67.The psychiatrist diagnosed her as suffering from mental retardation with history of mood problem.  In her childhood she suffered academic problems and left school at the age of 14.  She came to Hong Kong when she was 16 years of age and that was when she came to the attention of the mental health service.  She has attended sheltered workshops for training since the year 2000.  For some years she has had a stable boyfriend relationship but “she denied having intimate sexual relationship with him.”  In 2007 she had relationship problems with her boyfriend and that caused mood problems, temper tantrums, self-harm conduct and suicidal behaviour.  Since then she has been on anti-depressant medication.

68.All this new information has given us a better feel for this case and we are satisfied that the judge erred in the conclusion he reached in respect of the distress that Ms X suffered from the appellant’s conduct. 

69.That being so it now falls to us to sentence the appellant afresh.  We are of the view that, on the information available to us, a proper starting point for each of these two incidents is one of 3 years 6 months’ imprisonment.  In respect of the second incident that is the subject of Charge 4 the appellant is entitled to the usual one third discount making a final sentence of 28 months’ imprisonment.  In respect of the first incident that is the subject of Charge 2 we are of the view that the appellant should be afforded a greater discount for the fact that the police only became aware of this incident because the appellant voluntarily revealed this incident to them.  In respect of the first incident we impose a sentence of 25 months’ imprisonment.

70.The incidents are quite separate and so the sentences in respect of each could be ordered to be served wholly consecutively.  However, before making such an order we have to apply the totality principle and, standing back, determine what a just sentence would be for the overall culpability of this appellant.  We are of the view that a final sentence of 32 months’ imprisonment is a just sentence for this appellant’s culpability.  To achieve this we order that the second sentence take effect after the expiry of 4 months of the first sentence.

Conclusion

71.For these reasons we allow the appeal against sentence and in substitution for the sentences imposed by the trial judge we impose a sentence of 25 months’ imprisonment on Charge 2 and 28 months’ imprisonment on Charge 4.  Furthermore, we order that the sentence for Charge 4 take effect after the expiry of 4 months of the sentence imposed on Charge 2 and thereafter run concurrently with it.

Ms Sabra Lo SPP (Ag), of the Department of Justice, for the respondent

Mr Wong Hay Yiu, instructed by Tai, Tang & Chong, assigned by DLA, for the appellant