R. v. Le Ngoc Trung

CACC000106/1995

IN THE COURT OF APPEAL

1995, No.106
(Criminal)

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Coram: Hon. Yang, C.J., Power, V.-P. & Mortimer, J.A.

Date of hearing: 23 May 1995

Date of judgment: 23 May 1995

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant pleaded guilty to one count of indecent assault. This count is particularized as follows: that he on 6th July 1994, inside the Art Room on the 1st floor of Block E, Teaching Centre 1, Section 8, Whitehead Detention Centre, Shatin, indecently assaulted Nguyen Thi Thu, a girl under the age of 16 years. He was then sentenced to imprisonment for three years.

2. The facts disclosed that he was an artist and an art teacher and that, because of suspicious circumstances, other teachers went to the classroom and discovered him partially naked with the young woman, in what can be described as compromising circumstances. Under caution shortly afterwards he said that he had partially undressed the girl and himself, that he had ejaculated and that he had digitally penetrated her vagina with her consent.

3. The trial judge when sentencing said:

"The fact, nevertheless, remains that the victim was one of his pupils. Miss Draycott (who appeared before the judge and appears before us again today) has emphasized the issue concerning the age of this girl and has explained why it makes parents particularly of young children tend to depress the ages of their children.

The over-riding consideration must be that at that particular time, the defendant was in charge of pupils who were under his control, and before entering into any relationship, I think it was incumbent upon this defendant in his capacity as teacher to make sure that whatever relationship he was going to enter into with any of his pupils was not criminal. There is no suggestion that this victim was a girl who was leading a life which might have thrown herself open to criticism or suspicion of any nature.

Courts take such offences as serious and the fact that the maximum sentence for such offences was recently enhanced is another indication of the gravity with which such offences are looked upon. My starting point would have been one of six years' imprisonment, which I consider reflects not only the gravity of the offence, but also the concern of the public to such offences.

I take into account his plea of guilty, his remorse which has obviated the necessity for a trial, and also the circumstances in which the offence was committed. Giving him full credit for all that, I am sentencing him to three years' imprisonment."

4. Miss Draycott suggests that the judge was wrong to have taken a starting point as high as six years and that, even though he substantially reduced it to three years, the sentence was inordinately severe. She points out that the applicant was very much affected by the harshness of life in the detention centre, that his wife had already been resettled to the Philippines, that there was no force or coercion and that the girl was at all times a willing participant. It seems clear also that she was very mature for her age.

5. We think two matters are of particular importance, neither of which is contested by the Crown - firstly that the applicant asked the girl of her age and she told him that she was at a marriageable age on one occasion and also that she was sixteen. It is also not contested that she was being encouraged by her parents, who had not got refugee status, to find somebody in the camp to whom she could attach herself, who might be able to take her to a new country. These are mitigating circumstances of some moment. We bear in mind, on the other hand, that he was a teacher who had a duty towards his pupils and that he was already a married man. That having said that we think that the judge was wrong not only in his starting point but also in the sentence of three years which he imposed. We are satisfied that the circumstances of this case would best be served by allowing the application for leave to appeal, treating the hearing of the application as the hearing of the appeal and ordering that the sentence be varied to one which will allow the immediately release of the applicant.

Representation:

Ms. C. Draycott assigned by D.L.A. for the Applicant.

Mr. I.C. McWalters S.A.C.P. (Crown Prosecutor) for the Respondent.