HKSAR v. Leung Ping Kuen

[EnglishTranslation – 英譯本]

CACC 74/2019

[2019] HKCA 972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 74 OF 2016

(ON APPEAL FROM HCCC 186/2018)

____________________

Between

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Before: Hon Cheung JA in Court

Date of Hearing: 15 August 2019

Date of Judgment: 15 August 2019

Date of Reasons for Judgment:  23 August 2019

REASONS FOR JUDGMENT

1.The applicant was convicted after trial before ST Poon J sitting with a jury of three charges, namely two counts of “indecent assault on another person” (Charges 1 and 3) and one count of “attempted unlawful sexual intercourse with a mentally incapacitated person” (Charge 2).  ST Poon J imposed on the applicant a term of four years’ imprisonment. The applicant applied for leave to appeal against the sentence. After the hearing, I dismissed his application.  Here are the reasons. 

I.   Background

2.1.The victim of the three charges, female X, was a mentally incapacitated person.  According to the educational psychologist’s report, she had a full scale intelligence quotient (“IQ”) of 50 and a percentile rank below 0.1, and she was classified as mildly intellectually disabled.  At the material time, she was aged 19 but her adaptive behaviour was equivalent to a child aged 6 years and 4 months, which was obviously below what ought to be expected of a person at her age.

2.2.It was alleged in the charges that on 15 October 2017, the applicant indecently assaulted X inside a lift in a public housing estate in Fanling, the New Territories, and subsequent to that he attempted to have sexual intercourse with her unlawfully and indecently assaulted her on a staircase.  On the day in question, while X was waiting for her mother at the said housing estate, the applicant approached X, spoke to her and asked to have sexual intercourse with her.  The applicant took her into a lift, touched or hit against X’s buttocks with his lower part having clothing in between (Charge 1).  After that, the applicant took X to the staircase of the 18^th floor, fondled X’s breasts, pulled down the waistband of her pants and took out his penis, attempting to have sex with her.  In the applicant’s video-recorded interview, he admitted having “groped” X’s lower parts with his penis.  He said, “Did thrust to her parts below, but did not penetrate” (Charge 2), and then he grasped X’s hand to touch his penis (Charge 3).  The forensic pathologist’s report revealed that there were three abrasions of about 0.5 cm x 0.3-0.5 cm on the surface of the inner side of X’s labia minora.  According to the medical evidence, although such abrasions were consistent with the result of sexual intercourse, they were also consistent with the private parts having been “groped” by a penis.

2.3.ST Poon J imposed the following sentences in respect of the charges:

Charge 1:  two years’ imprisonment;

Charge 2:  four years’ imprisonment;

Charge 3:  two years’ imprisonment.

The sentences in respect of the three charges were to be served concurrently, making it a total of four years’ imprisonment.

II.   Reasons for sentence

3.1.ST Poon J pointed out that as it could be seen from the CCTV footage that X obviously behaved in a way different from other normal 19-year-old young ladies.  She was all along under the applicant’s manipulation in the way she followed him to the lift of the housing estate.  The applicant was obviously taking advantage on her mental incapability to procure her into satisfying his own sexual gratification.  In X’s trauma report prepared by the clinical psychologist, it was pointed out that after the incident X felt unhappy and angry, she was afraid of seeing middle-aged and elderly men, and her emotion and sleep were affected, but some of these impacts would gradually improve as time went by.  ST Poon J found that the applicant ought to have been well aware of the consequences when he committed the offences, and that he had shown no remorse in the video-recorded interview or at trial.  In these kinds of cases, “advanced age” was no mitigating factor.  The court should protect mentally incapacitated people from harm.

3.2.The applicant was aged 79 at the time of committing the offence and 80 on the date of sentence.  He had two previous criminal convictions which were related to the offences of “assisting in the management of a massage establishment without a licence” in 1983 and “aiding and abetting the breach of condition of stay” in 2003.

III.   Grounds of appeal

4.The applicant claimed that on the day in question he could not go to Zhongshan for sightseeing as scheduled because of a typhoon and so he felt lonely and frustrated, and he did not notice that X was mildly intellectually disabled when he was talking with her; and that his penis had not gone into X’s private parts, thus indicating his great effort in controlling himself so as to maintain X’s hymen intact and thereby an illustration of his virtue and integrity.  Further, he was already of advanced age and not good in health.  It was his wish that the court would exercise the discretion to reduce his sentence so that he could reunite with his family and take care of his wife who was suffering from chronic depression and hypertension, thereby alleviating the burden of his daughter(s).  Also, he had read some books on psychology during the remand period and was now deeply remorseful, he had got rid of depression and managed to develop a good relationship with fellow inmates.  He submitted a letter for mitigation written by the priest appointed by the Correctional Services Department, in which he was described as friendly, hardworking, self-motivated, responsible and helpful and having the courage to face his own misdeeds.  In addition, he had worked seriously in prison and had had a good relationship with other prisoners.

IV.   My view

5.1.The Court of Appeal has reiterated in many recent cases that the sentencing principle involving sexual assault on a child may be applied to sexual assault on a mentally incapacitated person.  The sentencing principle in sexual assault on children is that the court has to protect innocent, trusting children and prevent these vulnerable persons from sexual assault which would cause them physical and psychological trauma.  In cases involving sexual assault on a child, it is necessary for the court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences are to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families, see HKSAR v Chan Ching-ho [2000] 3 HKLRD 476; HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 and HKSAR v L.C.H., CACC 435/2015. 

5.2.In L.C.H., the Court of Appeal pointed out that the facts of each case is different, the court therefore has not laid down any sentencing guideline on sexual assault on mentally incapacitated people, however, as it can be seen from the precedents of this nature, a starting point of two years’ imprisonment was adopted for sentence in cases having less serious facts, two to five years’ imprisonment in cases having relatively serious facts, and over five years’ imprisonment in cases of serious nature.  In L.C.H., the accused was an instructor of an institution serving mentally incapacitated and mentally retarded people, and he assaulted a 32-year-old mentally incapacitated woman of the institution.  He admitted two counts of indecent assault.  According to the facts of the case, the applicant said under caution that the said woman consented to have sex with him, and that he had tried to have sexual intercourse with her, but there was no penetration into the woman’s private parts because he could not achieve penile erection.  In the summary of the facts, it was also alleged that in respect of Charge 1, the said woman had by herself removed her pants, and in respect of Charge 2, when the accused began having sexual intercourse, she by herself took off her clothes and climbed onto the accused’s bed.  The Court of Appeal found a term of three and a half years’ imprisonment an appropriate starting point for each of the offences, and eventually a term of two years and eight months’ imprisonment was imposed.  The accused in the case was the victim’s instructor, and hence the sentence was aggravated by the accused’s breach of trust.

5.3.No breach of trust is involved in the present case.  However, I do not agree that in respect of Charge 2, the term of four years adopted by Poon J was not appropriate and a term similar to that in L.C.H., or even shorter, should be adopted.  This is because each case has its own distinctive facts. Although according to the law, it is not possible for a mentally incapacitated person to give consent to have sexual intercourse with the accused, one of the factors considered by the Court of Appeal in the sentence in L.C.H. was the woman’s own behaviour, which was consistent with taking into account whether the accused has sexually assaulted the victim by force in considering the sentence in these kinds of cases.  In the present case, X was completely passive and subject to the applicant’s manipulation and insult.  Moreover, two other counts of indecent assault are also involved in the present case, and therefore apart from considering if the sentence in respect of each of the charges is appropriate, I have to consider if the sentence in total was manifestly excessive as well, which means whether the sentence imposed by the court is excessive or has gone beyond the range appropriate for such offences.  Under such circumstances, even if the reasons for sentence after trial do not indicate any particular error, the Court of Appeal may still find the trial judge has erred in exercising his discretion in passing the sentence: R v Waddingham (1983) 5 Cr App R (S) 66 and R v Lo Yim Kai [1966] HLKR 414.  According to the facts of the present case, I do not think that the sentence of four years’ imprisonment in total is manifestly excessive.  In addition, ST Poon J’s ruling that the accused’s old age in this type of cases was not a mitigating factor was supported by authorities, see: HKSAR v CHOW Chi-ming, HCMA 1247/2005.

5.4.In light of the above reasons, the application was dismissed.

V.   Advice

6.The applicant is entitled to renew his application for leave to appeal before the Full Court of the Court of Appeal, nevertheless, I have to advise him of the following: In the event that his renewed application is eventually dismissed, the Court of Appeal shall have the power to order for loss of time in respect of the time that he has spent in custody.  In other words, he may have to serve a longer term of imprisonment.

The Applicant: in person, present.

Miss Lily Ho, Senior Public Prosecutor, of the Department of Justice, for the respondent.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.