HKSAR v. Wong Ying Ho

CACC000165/1999

CACC165/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 165 OF 1999

(ON APPEAL FROM DCCC 43 OF 1999)

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Coram: Hon. Stuart-Moore, V.-P., Leong & Wong, JJ.A.

Date of Hearing: 13 October 1999

Date of Judgment: 13 October 1999

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 4th March 1999, the Applicant, a doctor of medicine aged 29, was sentenced by Judge Hawkes in the District Court to 2 1/2 years' imprisonment for indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200, on a girl aged 8. The Applicant had earlier pleaded guilty to the offence. He now seeks leave to appeal against his sentence.

2. The facts of the case, as revealed by the Summary of Facts, can be simply stated. At about 12.30 p.m. on 12th September 1998, the victim (PW1) was taken by her mother (PW2) to the clinic in Wu Hong Road, Tuen Mun, for medical treatment in respect of PW1's back. Having examined PW1's back in the presence of PW2 and also PW1's younger brother, who came into the consultation room as well, the Applicant said that there was some inflammation on PW1's skin and told PW2 that he would prescribe some ointment for her daughter. At that stage, PW2 went on to tell the Applicant that there might be some problem with PW1's mental condition. The Applicant then told PW2 and PW1's brother to leave the consultation room because he wanted to talk to PW1 by herself. They left the room and waited outside, leaving PW1 on her own with the Applicant. The Applicant did not ask for or arrange for the presence of a nurse in his consultation room. Instead, he locked the door. The Applicant told PW1 to sit down on a chair and asked her some questions about her family. He then told her to lie down on the bed inside the consultation room and to take off her briefs. PW1, of course, did as she was told. She was facing the ceiling at that time. The Applicant then spread open PW1's private parts for several minutes. After that, he told her to lie on her stomach and to raise her buttocks. He then spread open her buttocks and felt PW1's anus for about one minute. PW1 was then told by the Applicant to put her briefs on again and to sit on the bed.

3. I will now quote from the Summary of Facts which was fully accepted on the Applicant's behalf. They continue as follows:

After that, the Defendant used his hand to cover both of PW1's eyes tightly and told her not to watch. PW1 was then told by him to touch his penis and to guess what it was without looking at it. Having touched it with her right hand for less than one minute PW1 felt that it was something very soft on the outside but slightly hard inside, cylindrical but slightly pointed, sticky and warm.

The Defendant then took out a towel with blue and white stripes from the cabinet inside the room and tied it over PW1's eyes. However, PW1 was still able to see through the gap of the towel with her right eye and saw the Defendant holding his penis. The Defendant then told PW1 to touch it. PW1 did as told. After PW1 had held it for a short while, the Defendant told her to lick it. Although PW1 did not want to lick it as she thought that it was dirty, had a stinking smell and was sticky, the Defendant forcibly placed it into her mouth. PW1 felt like vomiting.

After PW1 had the Defendant's penis in her mouth for less than one minute, the Defendant told her that since she already had it in her mouth, she might as well lick it. PW1 did as she was told. PW1 licked it for a short while and again felt the stinking smell. She also felt that the Defendant's penis trembled slightly .... and appeared to be slightly hard.

The Defendant then removed the towel from her eyes and told PW1 to rinse her mouth with the glass of water on his desk inside the Room. She did as told at the basin near the desk. She smelt her own hand without the Defendant being aware of it, and again noticed a stinking smell. However, she dared not wash her hand at the basin. The Defendant told her to sit down on the chair near the desk and again asked her questions about her parents and her younger brother.

While waiting outside the room with PW1's younger brother, PW2 saw an assistant clerical officer of the clinic trying to enter the room but failing to open the locked door of the room. Having waited for about ten minutes outside the room, PW2 went inside when the light outside the room was on and the door was unlocked. While PW2 was talking to the Defendant in respect of PW1's medical condition, PW1 went to the toilet outside the room, rinsed her mouth and washed her hands. When she came out from the toilet, PW2 asked her why her mouth was so wet. She told PW2 that she would talk to PW2 when they had gone out of the clinic. When arriving at the doorway of the clinic, PW1 related the incident to PW2, who immediately went back to the clinic together with PW1 and complained to one of the nurses there. The Defendant soon came out of the room and was then confronted with the incident by PW2. The Defendant denied it and alleged that it was PW1 who had locked the door of the room when he was examining her in the absence of any nurse.

Subsequently, PW2 accompanied PW1 to go to the Tuen Mun Hospital for medical examination. A report was made to the police there. When being examined by senior medical officer of the hospital (PW4), PW1 again related the incident. PW4 found PW1 to be free from any psychiatric problem."

4. This last fact was later confirmed by further psychiatric assessments on PW1, which were carried out in November and December 1998.

5. In due course, the Applicant was arrested by police and, having been cautioned, he admitted that he had locked the door of the room at the material time.

6. There is no question that in the court below the Applicant at all stages indicated remorse. As a result, the young victim has never had to face the prospect of giving evidence.

7. The judge in passing sentence took a starting point of four years' imprisonment and discounted this by a little more than the usual one-third. In his grounds of appeal, Mr. Macrae, S.C., on behalf of the Applicant, submitted that the starting point was manifestly excessive in the light of the judge's finding that this was an unpremeditated offence which was completely out of character. He also submitted the discount itself (37.5%) was insufficient in view of the early plea of guilty which had, in its turn, saved the victim from having to re-live the trauma of her ordeal at the hands of this Applicant which, as the judge had expressed it, "warranted an even greater discount than the normal one-third". He further submitted that the discount was insufficient, having regard to the fact that the judge accepted that the Applicant was genuinely remorseful, had a previous unblemished record, and that the extra-judicial punishment that would affect the Applicant's ability to practise as a doctor. These three factors, he submitted, should have given the Applicant a greater reduction in sentence than that which the judge actually gave if they were really taken into account over and above the early plea which had spared the young victim from having to go into the witness box.

8. We can say straightaway that none of these last three matters appear to this court to carry any weight. In particular, in an offence of this kind, the previous good character of an offender can only be of minor significance. The prime importance of character, in the context of a sexual offence, is where an offender has previously committed a serious sexual offence because this may aggravate the offence so far as sentencing is concerned.

9. Insofar as the Applicant's fall from grace is concerned, and what we have assumed will involve the consequent loss of his ability to practise as a doctor of medicine in Hong Kong, the judge rightly concluded that a serious view had to be taken of an indecent assault on a young girl in such circumstances as these. On any view it was, of course, a personal tragedy for the Applicant. However, it was inevitable, having brought this on himself and having violated his position of trust, that he would suffer hardship above and beyond the punishment imposed by the court.

10. We endorse what was said by Kempster J.A. in Attorney General v Chan Chi-yin and another, (1988) HKC 44 at 46:

"We would hesitate to give currency to the notion that an offender coming from a good and comfortable background is entitled to more favourable treatment by this court than one who has not enjoyed such advantages and, very often, is subject to much greater pressures. The culpability of a person coming from a good background may, indeed, be regarded as the greater, particularly if he is a person to whom others may look for an example."

11. Considerable trust and responsibility is placed upon the shoulders of those in the medical profession in their duty of care towards their patients. When a child is entrusted to a doctor for medical treatment, the duty to uphold the high standards of the medical profession which is cast upon any doctor is grotesquely violated when activity takes place of the kind with which this case is concerned. Clearly a sentence was needed which adequately marked the gravity of the Applicant's criminality. This had been rightly described by the trial judge as a gross breach of trust which marks this case out as an indecent assault of a very serious kind. The victim's mother, having perceived that her child had a possible mental problem, had, as any responsible parent would have done in a similar situation, entrusted her child to the doctor for medical examination. The Applicant took advantage of his trusted position to take the opportunity to satisfy his own depraved sexual impulses.

12. We have had cited to us a number of authorities dealing with indecent assault by school teachers on young students. The position of a medical practitioner is not dissimilar. Both hold a high position of trust so far as the children in their care are concerned. Parents are entitled to know, when they leave their children in professional hands, that the well-being of their children is, as far as possible, guaranteed. A child is just as much likely to be dominated by a doctor as by a school teacher, and we find it unrealistic for present purposes to draw any distinction between cases of indecent assault committed by school teachers as opposed to those committed by doctors.

13. Where this kind of breach of trust is involved, there is a natural sense of public outrage. Exemplary sentences are called for to deter such behaviour and to redress the grievance of victims, relatives and the public alike by imposing sentences that adequately reflect public abhorrence of crimes of this sort. This inevitably applies with particular emphasis when a special duty of care is owed by a professional person towards a child who has been placed in his care.

14. In the present case, the judge concluded not only that there had been a "gross breach of trust" but also that there was, so far as the victim is concerned, "no telling what long-term effects there might be". On this basis he took a starting point of four years. The Applicant had indulged in a number of indecent acts occupying about 10 minutes with the victim. In our view, his depravity was of such seriousness as to have justified a sentence in this range and we consider that it might well have been a higher starting point.

15. The application has no merit and it is dismissed.

Representation:

Mr. I. G. Cross, S.C., D.P.P. and Miss Denise F.S. Chan, S.G.C. for D.P.P./Respondent.

Mr. Andrew Macrae, S.C. instructed by Messrs. Johnson, Stokes & Master for Applicant.