HKSAR v. Wong Kam Chiu

HCMA001155/2003

HCMA 1155/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1155 OF 2003

(ON APPEAL FROM STCC 990/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 24 March 2004

Date of Judgment: 24 March 2004

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J U D G M E N T

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1.This is an appeal against sentence. The Appellant had pleaded guilty to five charges of unlawful sexual intercourse with a girl under 16. He was sentenced to 3 months' imprisonment for each charge to run concurrently.

2.The admitted facts show that the Appellant in the month of February had sexual intercourse with the victim five times at his home. The victim was 14 years 11 months at the material time. The victim was later found to be pregnant and it was only then that she told her mother and the matter was reported to the police.

3.The Appellant had previous conviction but they are not similar. One could say that those convictions were of a relatively minor nature. He has been sentenced to Community Service Order previously.

4.The learned Magistrate in considering sentence had called for background report and an YOAP report and the YOAP recommended community service.

5.The Appellant is aged 24 and lives with a co-habitant and her two young daughters. He also had a sad upbringing and had been brought up by his godparents after his mother had deserted the family. He has a good relationship with his godparents and he has provided both financial and social support to his godfather who has a cardiac problem.

6.In mitigation, it was said on his behalf that the girl had looked mature and he thought she was older although he had failed to ask her age.

7.The learned Magistrate in considering sentence had referred to the case of HKSAR v. Lai Yip Sing HCMA 1104/2000 where the Appellant in that case had pleaded guilty to two charges of unlawful sexual intercourse with a girl of 14, he was found suitable for the Community Service Order and also Detention Centre, but he was sentenced to 3 months' imprisonment which was upheld on appeal.

8.In that case, as was pointed out the Appellant had actually asked the victim how old she was and the victim has told him she was 18. The circumstances of that case is that the Appellant in that case and the victim had met as the result of chatting over the telephone several times. It is an important consideration in cases of this nature that the court should consider a general deterrence by imposing custodial sentences to protect young girls from older men taking advantage of them.

9.Therefore, in this case the learned Magistrate had considered that a custodial sentence was necessary. She did consider Community Service but at the end rejected it because she felt that the Appellant's background did not meet with the profile. She considered that he did not have a clear record, although according to the cases, one does not need to have a clear record in order to enjoy the benefits of being given a Community Service Order because it could either be a clear record or a "light" record. As far as the stable family background is concerned, it would appear from the background report that he is living with his co-habitant. He has been working most of his life and although at the time of the sentencing the learned Magistrate was given a document which said he was only working for several days in a company. As far as a genuine remorse is concerned, the Appellant showed his genuine remorse by pleading guilty.

10.On appeal, Mr Tolliday Wright, who represents the Appellant, has submitted that the learned Magistrate should have considered the Community Service Order as recommended by the Young Offender Assessment Panel. He made a point that in the case of Lai Yip Shing, it does not appear that the court there had ordered a YOAP report. It is of course true that in this case, the panel had considered the background of the Appellant and at the end of the day had considered that he was suitable for a Community Service Order.

11.Mr Leung, for the Respondent, makes a point that the Appellant had already been given Community Service previously and therefore to be given a second chance would call for exceptional circumstances.

12.As for the Young Offender Assessment Panel, they were aware (see paragraph 2 at p. 20 of the appeal bundle) that the Appellant had twice infringed the law and was put on probation and Community Service Order respectively but still, at the end of the day, at paragraph 5 of their report, the panel was still of the opinion that a period of unpaid community work would be an appropriate option for him and so they recommended the Community Service Order.

13.It is a strong mitigating factor if the victim appears to be older than her true age and that mitigation was in fact urged upon the learned Magistrate at the time of sentencing. The learned Magistrate in fact mentioned this in her Reasons for Sentence, but seems to have considered that it paled into insignificance as a result of the case of Lai Yip Shing.

14.At the time of the mitigation, Mr Chan who had represented the Appellant in the earlier hearing had mentioned whether the learned Magistrate would like a chance to see the victim but that was not done.

15.It seems to me that in a case of this nature, if the court do not accept that mitigation, some enquiries should be made and perhaps evidence called and the court could then make an assessment as to the belief or otherwise of the Appellant as whether it is a genuine one. In this case, it was not done.

16.It appears from the facts that the victim willingly had sexual intercourse with the Appellant and the offences would not have come to light if she had not become pregnant.

17.Mr Leung makes the observation that the offences were aggravated by the fact that the Appellant possibly was not wearing condoms, well there is no evidence of that whether he was wearing condoms or not. So, I cannot take that into account.

18.At the end of the day, although three months for five charges of itself cannot be said to be manifestly excessive, I am not satisfied that the learned Magistrate had properly considered the YOAP report because as she was going through the suitability for CSO in the case of R v. Brown [1981] 3 Cr App R (S) 294 as to his clear record, stable family, etc. she did not make the distinction that his profile did fit most of the matters that were raised in R v. Brown.

19.In those circumstances, I did consider whether to suspend the sentence, but I do feel that in the circumstances where the panel has recommended that he should undertake the Community Service as it would assist the Appellant in rehabilitating himself, then I should accede to that. So, I therefore allow the appeal, the sentence of 3 months' imprisonment is quashed and the Appellant is sentenced to a Community Service as recommended by the panel and he is to serve a duration of 120 hours.

Representation:

Mr David Leung Cheuk Yin, SGC of the Department of Justice for the Respondent

Mr David Tolliday-Wright, instructed by Messrs Paul Chan & Co., for the Appellant