HKSAR v. Man Yu Hin William Morissette

HCMA 675/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 675 OF 2005

(ON APPEAL FROM KCCC 1006 OF 2005)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 2 November 2005

Date of Judgment: 2 November 2005

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J U D G M E N T

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1.This Appellant, who is a man of previous good character in his late 20s, was convicted after trial before Peter Law, Esq. in the Magistrate’s Court at Kowloon City on a charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200.  The Magistrate sentenced him to one year’s imprisonment.  He now appeals against that sentence. 

2.The circumstances of the offence were as follows.  The Appellant was an English teacher at the school of which the victim, a girl of 14, was a pupil.  She was not in his class, but he coached her in the recitation of English poetry as an extracurricular activity.  So the relationship was one of teacher and student.

3.On the day of the offence, which was committed at the school, he took her into a room where, in the course of coaching her in the recitation of English poetry, he touched her face.  The coaching session was interrupted for about half an hour while he attended a conference with other members of the teaching staff. 

4.After the conference, he went to the playground to fetch the victim.  He took her to another room, closed the door and used a table to block the door to prevent others from entering the room.  He then grasped her hand, used his hands to cover her face, clutched her, kissed her ear and licked her ear.

5.She pushed him away.  As she was leaving the room he blocked her way, apologised and said that her English name was the same as his ex-girlfriend’s name. 

6.As to the Appellant’s background and the mitigation put forward on his behalf, the Magistrate said this in his Reasons for Sentence: 

“The Defendant aged 28, married with a 3 years old daughter.  He had a clear record.  He was suspended from work pending trial and received only half pay.  It was submitted that he was out of character and the kissing and licking only lasted for 1-2 seconds; the part of PW1’s body involved was not that as sensitive as breast or private part.  This conviction would be a tremendous impact on his career as a professional teacher.  The Defendant pleaded for mercy as prison would separate him and his daughter.  He had already suffered a lot pending trial.”

7.The Magistrate then turned to explain why he passed the sentence which he did, saying this:

“Before I pass sentence, I have considered the facts, mitigation and the reports.  There is no usual sentencing tariff since the circumstances of each offence could vary considerably.  The 3 paramount considerations were deterrence, public abhorrence of such offence and the need to redress the grievance suffered by the victim and her family (HKSAR v. CHAN Chuen Hin MA 240/2003).  It was a very serious case; it was done at school (which I considered as the 2^nd safest place apart from home), in the course of teaching by a teacher to an under aged student.  It was not only the victim who suffered the grievance, but that impact also, to certain degree, would extend to other students who came to know their teacher did that to their schoolmate.  Furthermore, that practising session had spilt into 2 parts and the Defendant had a cooling period; he still did that which suggested that it was not done out of a sudden impulse.  Taking into account of all the circumstances plus the fact that it was a breach of trust of very serious nature.  I took the starting point at 12 months.  I could not think of any justification for any discount.”

8.Upon careful consideration of all the circumstances, the view I have formed is as follows.  There were aspects of this case which made it worse than most of the cases of indecent assault which come before the courts.  It is particularly serious that the relationship between the Appellant and the victim was one of teacher and student.  The Magistrate took this particularly serious aspect of this case fully into account.  On the other hand, it has to be recognised that the Appellant’s physical acts were considerably less disgusting than those of many if not most of the persons coming before the courts on charges of indecent assault.  I feel driven to the conclusion that this fact has not been sufficiently reflected in the sentence which the Magistrate passed on the Appellant.  A sentence of imprisonment is unavoidable, but a sentence of one year’s imprisonment is manifestly excessive.

9.In all the circumstances, I regard it as appropriate to allow this appeal to extent of reducing the sentence to nine months’ imprisonment.

10.Accordingly, the appeal is allowed to that extent.

Appellant in person

Mr Harish Melwaney, SGC of Department of Justice, for the Respondent