Case Document

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CACC000001/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.1 OF 1997

(ON APPEAL FROM HIGH COURT CASE NO. 63 OF 1996)

__________________

Between
	HKSAR	Respondent

	AND

	CHAN CHI HOU	Applicant

___________________

Coram :Hon Chan, CJHC, Mayo, J.A. and Wong, J.

Date of Hearing : 30 December 1997

Date of Judgment : 13 January 1998

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J U D G M E N T

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Chan, CJHC :

1. The applicant was convicted after trial before a jury in the High Court of two counts of indecent assault. He was sentenced to 6 years imprisonment on each count. The trial judge ordered that 1 year of the second sentence is to be served consecutively with the first sentence. The applicant now seeks leave to appeal against sentence.

2. The modus operandi in the two offences was the same. The victims were young school girls at the age of 10 and 15 respectively who lived in the same Housing Estate. They were returning home after school. The applicant went to that housing estate armed with a metal ruler and a cord. In each case, he followed the victim into a lift. When she was getting out, he grabbed her from behind and dragged her to a staircase. There he threatened the victim with the metal ruler. He told the victim to take off all her clothes and to cover her head with such clothes. The applicant then sexually assaulted her by fondling her breasts and private parts. He also forced the victim to perform oral sex.

3. The applicant was 18 years old at the time of the offences. He had a clear record. He was a student studying Form 7. He came from an ordinary family living in the Sau Mau Ping area.

4. The trial judge indicated that had the applicant been an adult at the time of the offences, a starting point of 9 years imprisonment would have been adopted. Having considered the applicant's age, clear record and family background, the judge sentenced him to a total of 7 years imprisonment which he broke down into 6 years for each offence with 1 year of the second sentence to run consecutively to the sentence on the first.

5. Counsel for the applicant submitted that the total sentence imposed on the applicant is manifestly excessive and wrong in principle. He argued that the trial judge was wrong to adopt a starting point of 9 years for what the applicant had done in these two offences. Counsel referred to the case of Lai Kwan Tin, unreported, Cr.App.No.256 of 1995 and submitted that in that case, for an indecent assault similar to those in the present case, the Court of Appeal reduced the sentence to one of 3 years. It was also pointed out that the victims in the present case did not suffer any injury. The trial judge had not given sufficient consideration to the applicant's age and his clear record. Counsel submitted that it was also doubtful whether the judge had been influenced by the two other counts of which the applicant was acquitted.

6. With respect, we do not think that the case of Lai Kwan Tin is of any assistance to us. There, an employer was found guilty of indecently assaulting his Filipina maid by forcing her to perform oral sex after she had massaged him and by attempting to have sexual intercourse with her. We need only say that the facts of that case were significantly different. As counsel for the HKSAR said, factual comparisons for the purpose of sentencing are usually unhelpful.

7. These were no ordinary indecent assaults. As the trial judge correctly pointed out, these were two grave attacks on young girls. They were premeditated and planned. The applicant deliberately went to that housing estate, apparently to look for easy and vulnerable targets. He was equipped with a metal ruler which he had actually used to threaten the victims. Some degree of violence was also used. The victims were young school girls. They were stripped and subjected to sexual indignities. The applicant ordered them to cover their heads so that they would not be able to recognise him.

8. The maximum penalty for indecent assault is 10 years imprisonment. There is no tariff for this type of offence because of the often significantly different circumstances in each case. However, we would emphasise that young girls must be protected. Parents are entitled to expect that their girls would go to school happily and return home safely. It is the duty of the court to protect these young children and to assure their parents of their safety. A sufficiently heavy deterrent sentence is required for sexual offences of this nature against young girls. It may not be easy to think of the worst type of indecent assault to justify the maximum penalty. While the circumstances in the present case were extremely serious, it would seem that a starting point of 9 years is on the high side. Having said that, we think that the circumstances of these offences are sufficiently serious and aggravating as to call for a starting point of at least 7 and possibly 8 years.

9. The trial judge had in effect given 3 years discount for the applicant's age, clear record and family background. We think this is more than generous. Time and again, this court has remarked that youth and previous good behaviour are of minor relevance in this type of offence. We take the view that a discount of 1 or 2 years would be more than sufficient for such mitigating factors in the present case.

10. The two offences in this case are of course separate and distinct. As a matter of principle, there should be no reason why the whole or a significant part of the sentence for one offence should not be served consecutively with the sentence for the other, except for the totality principle. The trial judge had already taken that into consideration. What he did was that he first arrived at what he considered as the appropriate total sentence for the two offences and then worked out the break down for each offence. We see nothing wrong in this approach. It is clear that he had not taken into consideration the two counts of which the applicant had been acquitted. If he had, he would not have imposed only 7 years. Taking into consideration all the circumstances of this case, including the aggravating factors and the mitigation, we think that an appellate court would not interfere with a total sentence of 8 years. It would seem therefore that the applicant's total sentence is already on the low side. We do not propose to increase it. Sentencing is a matter of discretion for the trial judge and an appellate court would normally be slow to interfere with a sentence unless it is wrong in principle or manifestly excessive or inadequate. This is not the case here. It is quite clear that the application is totally without merit. We have no hesitation in refusing it.