The Queen v. Chan Sum Ho

CACC000536/1989

Headnote

Appropriate sentence for a prison employee who, in breach of a trust, indecently assaulted inmates. Refusal to give any credit for loss of pension and benefits.

BETWEEN

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Coram: Sir Ti Liang Yang, C.J., Power & Macdougall, JJ.A.

Date of Hearing: 3 July 1990

Date of Judgment: 3 July 1990

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JUDGMENT

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Power, J.A.:

1. The applicant originally faced nine charges of indecent assault. The prosecution proceeded upon charges 4 to 9 only and the applicant pleaded not guilty thereto. After trial he was found guilty of charges 5 and 6. The victim of these charges was a 20-year-old woman named CHAN Bo-wan. He was acquitted on charge 4 which also related to CHAN Bo-wan, and charges 7, 8 and 9 which related to a woman named Miranda Tansley. Judge Moylan accepted that the acts complained of in relation to those charges took place but was not satisfied that the Crown had negatived consent.

2. The circumstances of the offences were very grave indeed. The applicant was a supervisor/instructor at Tai Tam Gap Women's Correctional Institution. The two complainants were inmates.

3. The facts found by the trial judge as to the offences which, of course, relate only to CHAN Bo-wan are as follows:

"PW1 was not hesitant in giving her evidence and she impressed me as telling the whole truth to her recollection. She says that the first time the accused indecently assaulted her was around mid-January this year (she had been admitted into the Centre on 29th September 1988). On the first occasion he approached her from her side and touched her breast and then squeezed it. She retreated and he went away. Less than half a month later she was hanging up clothes when the accused approached her and squeezed her breast as before. She was scared and frightened, stopped short and moved first to one side and then retreated and walked away from him. Over the following days, he came, she says, everyday and squeezed her: although by her conduct she indicated she did not consent to what the accused was doing, she did not say anything. The most serious incident she related was one when the accused told her to go from the room in which a female officer of Correctional Services Department was supervising the inmates in the washing detail to another room when there was no one else (the 'boiler room'). The accused followed her in and approaching her from behind, put his arms around her and his hands on her breasts and kissed her on the face. She tried to break loose from him. He lowered one of his hands and touched her on her 'lower part'. She then succeeded in breaking away. This time, she said, he had gone 'too far'."

4. The trial judge when sentencing made the following observations:

"The most heinous matter of aggravation is that accused made use of his position as an instructor in a prison to interfere in an indecent way with those who were subject to his case and who were subject of Reports to be made by him. For the offences of which he is convicted, the complainant must have been dressed and there is no suggestion that he disarranged her clothes. However so each was a nasty offence especially, the second one when he went further and touched her 'lower parts' even if through her clothing. These actions were part of a serious of acts (Counsel agreed that this should be 'a series of acts') that occurred over a period of months and it seems to be appropriate that the two sentences should be consecutive for it was a serious of acts (Again counsel agreed that this should read 'a serious act') of a similar nature and not one act continued for a period of time. On Count 5, I order that he be sentenced to imprisonment for period of ten months. For the sixth Count, imprisonment for period of twenty months, making a total of thirty months' imprisonment."

5. Reasons for Sentence with two serious mistakes therein should never have reached this court. Sufficient care should have been exercised to ensure that these mistakes were corrected making it plain that the judge was, in one case, referring to "a series of acts" and in the other "a serious act".

6. The first ground argued by Mr. McCoy for the applicant is that the sentences were in all the circumstances manifestly excessive. We will return later and deal with that ground.

7. The second ground is that the learned judge erred in principle in passing consecutive sentences. We are not satisfied that this is so. They were separate acts committed on different dates which, in our view, merited. consecutive sentences. Further we see no merit in the suggestion that the sentences should have been made partly consecutive and partly concurrent. We are satisfied that the approach of the learned judge in imposing sentences wholly consecutive, one to the other, was a proper one.

8. The third ground was that the learned judge "wrongly took into account for the purpose of sentencing, other offences for which the applicant had been acquitted, as amounting to 'a series of acts'". The trial judge having just acquitted the applicant on 4 other charges proceeded with, cannot but have been aware that he was sentencing for only two offences.

9. It is suggested that he was wrong to place these two offences in the context of the whole of the evidence of PWl. We are by no means persuaded that it would necessarily have been wrong for him so to do. However, this is not of any real moment as we are satisfied that the sentence of 30 months, given the gross abuse of trust by the applicant, would have been an appropriate overall sentence for the two offences considered in isolation from his other conduct and we, therefore, decline to interfere upon this ground.

10. It is also suggested in the grounds that the learned judge should have taken a probation report prior to sentencing. This was not done. However, we now have a probation report and it does not advance the case for the applicant to any material degree.

11. We are conscious of the substantial monetary loss that the applicant and his family will suffer. He loses his lump sum gratuity and his monthly pension. This loss will certainly impose a grave financial burden upon the family. We feel it not inappropriate to remark that it seems unfortunate that the authority concerned has felt constrained to order forfeiture of all of the benefits earned by the applicant but we are, nonetheless, satisfied that a prison sentence commensurate to the seriousness of the offences was required to be imposed.

12. We return to the first ground which was that the overall sentence was excessive. The offences merited immediate custodial sentences. When we consider all of the circumstances we are satisfied that the period was an appropriate one in each case and that the judge properly ordered that the sentences be consecutive.

13. The application for leave to appeal against sentences are therefore refused.

Representation:

Mr. A.A. Bruce (Crown Prosecutor) for the Respondent.

Mr. G.J.X. McCoy (M/s Clifford Yeung & Co.) for the Applicant.