Attorney General v. Lee Kui Man

IN THE COURT OF APPEAL

1997, No.3
Application for Review

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Coram: Hon. Power, Ag. C.J., Liu and Ching, JJ.A.

Date of hearing: 9 April 1997

Date of judgment: 9 April 1997

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. This is an Attorney General's application for review of sentence. The respondent, after trial before Judge Wilson on 14th February 1997, was convicted of two offences of indecent assault, contrary to s.122 of the Crimes Ordinance, and one offence of unlawful wounding, contrary to s.19 of the Offences Against the Person Ordinance. He was acquitted of the more serious s.17 offence of wounding with intent. On each of the indecent assaults the judge imposed a sentence of two weeks' imprisonment and on the unlawful wounding he imposed a sentence of three months' imprisonment. He ordered that all sentences to be served concurrently.

2. The facts revealed that at about 7:30 on the morning of 7th September 1996, the two victims were indecently assaulted while on their way to school at the New Method College. There can be no doubt that the respondent knew that they were school girls as both were in their school uniforms.

3. The victim of the first of the indecent assault charges and of the wounding was just 18 years old at the time. She was walking up the staircase towards the exit of the Mongkok MTR station when the respondent inserted his hand underneath her skirt and touched the area of her hip and buttocks from behind. He then move briskly past her. He immediately approached the second victim who was aged 17 years at the time, and committed a similar assault on her. When the first victim pursued the respondent and confronted him he grabbed her by the neck and dragged her to a staircase landing. He then punched her about the face and chest, touched her breast and pulled at her pants. By the time passers-by intervened the girl had suffered a severe assault. Her face was covered in blood and she was bruised. She was taken to hospital and the medical report indicates that she was injured in six places - the back of her head, the front of her chest, both knees, the upper lip, the side of her face and her nostrils. The injuries were bad enough to require hospitalization for one week. The judge, having seen the photograph of the injuries, described her face as being "generally a mess".

4. The applicant after the assault tried to flee but was restrained by passers-by. After being restrained he muttered something about having had too much to drink and tried to obtain his release by offering $20,000 to those restraining him.

5. The respondent's evidence was that he was a bit drunk and may have accidentally but not deliberately touched the girls. He agreed that he had punched one of them but said that he had not intended to injure her and had "lost his mind" at the time.

6. The judge described the acts of indecency as "two minor indecent assaults". As to the wounding he said:

"This was not pre-planned on his part but was a flair-up of frenzy and panic in the heat of the moment caused by drink, together with the thought that he might be going to be caught. I accept that he did not intend to injure the girl and at that point I am not sure that he had any indecent intent either, that the hitting of her breast and the pulling at her pants could have been part of his overall frenzy."

7. The judge stated when sentencing:

"My impression is that all these events which occurred within a few minutes that early morning were caused originally by your having had too much to drink in the course of the night before. The first two bottom-pinching matters are not the most serious of indecent assaults and I might have been able to say were some kind of drunken frolic, but with your record you cannot afford to get into trouble.

I accept that what happened after that was not premeditated but was caused by panic and again by drink, but the fact is that the punching of the girl all over, particularly her face, did happen and cannot be overlooked with your record.

I accept what has been said on your behalf that you, in effect, admitted the wounding matter at the start so that it was like a plea of guilty. The only matter that went to trial, really, was the malicious intent and grievous bodily harm.

On charges 1 and 4, you are sentenced to 2 weeks' imprisonment, concurrent on each. On charge 3, as amended, sentenced to 3 months' imprisonment, concurrent with the preview sentence."

8. We find the references to the indecent assaults as "some kind of drunken frolic" inappropriate. Whatever they may have been to the offender, they constituted for the victims and for the public at large inexcusable and grossly offensive behaviour. The wounding was a gravely serious offence. It was not the case of a person delivering a single blow in an endeavour to escape. What occurred might properly be termed "a bashing" and it took place after the applicant had dragged the girl up some stairs and subdued her. The sentence of three months, given the severity of the assault upon a school girl, was very well below the appropriate level of sentence. The sentences of 2 weeks on each of the indecent charges and the making of those sentences concurrent was also, we are satisfied, wrong. The effect of this was that no punishment at all was imposed in relation to the indecent assaults. Sentences for offences of this nature must not only punish the offender but must also contain a deterrent element. The approach which the judge adopted would have neither properly punished the offender nor would it have had any real deterrent effect. As Huggins J. said in R. v. Lui Wai Chun and Others [1946-1972] HKC 111 at 113:

"Courts must bear in mind that society has, in taken from the victims of crime and their relatives the satisfaction of personal vengeance transferred to the courts the duty of ensuring that punishments are not so lenient, that the victims or relatives will be tempted to take the law into their own hands. ................ The sentence must fit not only the offender but also the offence.

Whatever might have been appropriate had one of the offences of indecent assault stood alone the fact of the matter was that it did not. There were two offences of indecent assault and one serious wounding. The wounding consisted of a sustained attack in which, according to the findings of the judge, the respondent "rained" punches on the victim. His conduct was in no way excused by the fact that he had taken drink, nor was the wounding excused by the fact that it was not premeditated. Indeed, in the circumstances it could not have been otherwise. The court, when imposing sentences on offences such as these, must bear in mind its duty to protect women and girls by assessing a sentence which will have real deterrent effect. What might have been a drunken frolic for an offender was, when viewed by any right thinking member of the public, a distasteful and distressing affront to the dignity of the two young women assaulted. The wounding offence went well beyond anything that could be excused on the ground of a momentary loss of self control.

9. The sentences imposed were wholly inadequate. We turn to assess the sentences which, in the view of this court, should have been imposed. When assessing sentence for the wounding offence, we must give, as did the trial judge, credit for a preparedness to plead guilty from the outset. The trial judge gave no starting point but it would appear that he must have started at about 4 1/2 months. We are satisfied that the proper starting point would have been 18 months and that this can properly, because of preparedness to plead, be reduced to 12 months. As regards the indecent assaults, we are satisfied that three months would have been an appropriate sentence on each of those and that all of the sentences should have been made consecutive. This would make an overall period of imprisonment of 18 months.

10. We bear in mind, however, what was said in The Attorney General v. Wong Kwok-wai where the court held that a discount should be given where the respondent was very close to the end of sentence or where the sentence imposed upon review was greatly in excess of the original sentence. The circumstances here are unusual ones as the respondent has already served the sentence imposed but has, for other reasons, been in custody almost continuously since the commission of this offence. However that may be we have greatly increased the sentence and the respondent has had to suffer the strain of facing an application for review. In all of the circumstances we are satisfied that the sentence of 18 months can properly be reduced to one of 12 months. We do this by quashing the original sentences and by imposing a sentence of eight months on the wounding charge, two months on each of the indecent assault charges and by making all of those sentences consecutive. The application is allowed and the respondent is sentenced accordingly.

Representation:

Mr. I.G. Cross, Q.C. and Miss Alice Chan, C.C. (Crown Prosecutor) for the Applicant.

Mr. Selwyn Yu assigned by D.L.A. for the Respondent.