The Queen v. Chuk Chi Kai

CACC000373/1985

IN THE COURT OF APPEAL

BETWEEN

________

Coram: Roberts, C.J., McMullin, V.-P. & Silke, J.A.

Date of Hearing: 15th October 1985

Date of Judgment: 15th October 1985

___________

JUDGMENT

___________

Silke, J.A.:

1. The Applicant pleaded guilty at committal proceedings and was committed for sentence on four counts of false imprisonment and six counts of indecent assault.

2. The series started on the 13th of April 1985, the same day on which he had been released from prison having served a sentence of 14 years' imprisonment for precisely the same form of offence. All the persons concerned in the present offences were young girls, the youngest being nine the eldest twelve. All were detained by force for periods ranging from three days to six hours. All had multiple indecencies and indeed acts of gross indecency perpetrated upon them. Most of them when medically examined had bruises or abrasions or both. In addition to the sentence which he had just completed for convictions on nine counts of indecent assault and nine counts of unlawful detention, the Applicant also had, going back to 1963, been convicted on six previous occasions of indecent assault on females.

3. The Trial Judge had before before him a psychologist's report which contained a very guarded prognosis. He also was aware of the Applicant's background circumstances which we accept as being tragic ones. He is now 50. He had been married in 1958, had children, but in 1963 he suffered some form of fever and convulsions which left him sexually impotent in relation to adult women, an affliction with which he cannot cope. His wife divorced him in 1974 because of his convictions in relation to young girls, and his children went with his wife. There has been no contact between himself and his family since then.

4. The sentences against which the Applicant seeks leave to appeal amounted, in total, to 24 years' imprisonment, the Judge had dealt with each set of charges separately, treating the first set, that is those starting on the 13th of April and continuing until the release of the girl on the 16th of April, as being the most serious and he imposed consecutive sentence in respect of each set.

5. The main point made by Mr. Mullick, who appeared for the Applicant both here and below, is that the Judge stated that he considered a life sentence would be the most appropriate sentence: that he was not able to impose such sentence because of the maximum sentences provided for offences of indecent assault and false imprisonment; therefore, says Mr. Mullick, the Judge must be bound by the general principles relating to determinate sentences and cannot, in effect, impose a life sentence by the back-door. In ordinary cases, and this is not an ordinary case, the pleas of guilty, the personal circumstances of the offender and the principle that an accused should not be sentenced on the basis of his previous record, are matters which bear upon the quantum of the sentence to be imposed.

6. Here the primary object is and must be the protection of children in a community which places a very high value upon its children, and in particular upon the safety of its daughters. The Judge could not possibly have ignored the previous history of this Applicant and the fact that these offences started immediately upon his release from imprisonment.

7. He did have in mind that, in the future, if the personalty disorder from which the Applicant suffers did improve, this would no doubt be brought to the attention of the Long-term Prisoners Review Board which, considers determinate sentences as well as sentences of life imprisonment. But 24 years, while a heavy sentence, is clearly one which was and is necessary for the protection of the public. In those circumstances we do not feel that we can in any way interfere with that sentence and the application is refused.

Representation:

Lugar-Mawson, Esq. for Crown/Respondent.

John Mullick, Esq. (D.L.A.) for Applicant.