HKSAR v. Chan Chi Ho

HCMA 288/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 288 OF 2006

(ON APPEAL FROM ESCC NO. 974 OF 2006)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 13 June 2006

Date of Judgment: 13 June 2006

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J U D G M E N T

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1.The Appellant pleaded guilty to one charge of behaving in a disorderly manner in a public place and he was sentenced to 2 months’ imprisonment.  He appeals against that sentence.

2.The facts were that in the afternoon of 15 February, a girl was going home after school and she was on an escalator and the Appellant was seen by a witness, to be putting his mobile phone under the victim’s skirt and so the witness, very properly and courageously, went up and stopped the Appellant.  Before the police’s arrival, the Appellant was seen pressing the buttons of his mobile phone and subsequently when the police arrived and examined the phone, no picture of PW1 was found.  Under caution, the Appellant admitted he was trying to photograph up PW1, the victim’s skirt.

3.The victim in this case is a school girl aged 14.  The learned Magistrate in sentencing the Appellant was aware of the fact that in the past, Community Service Order was imposed.  But on the other hand, as an experienced Principal Magistrate in Eastern Magistracy, he was also concerned about the problems of this type of offence, and he was of the view that Community Service Order so far has not served to deter others from committing these offences.  So, in view of that, the learned Magistrate then adopted a starting point of 3 months’ imprisonment and in view of the Defendant’s plea and clear record, he reduced the sentence to 2 months and he found that there were no special circumstances to warrant suspending the sentence.

4.Counsel representing the Appellant in the court below did inform the learned Magistrate that the Appellant is aged 31 and intended to be married in November this year and that he has a clear record and had been co-operative with the police.

5.Ms Jorge on behalf of the Appellant submitted that the learned Magistrate has failed to give sufficient weigh to the previous good character of the Appellant and his plea of guilty and that he has failed to consider other sentencing options.

6.It is clear from the cases submitted by Ms Jorge that previously for offences of this nature, 2 weeks’ imprisonment are imposed on pleas of guilty and also sometimes a Community Service Order is imposed.  Ms Jorge did point out that in those cases where 2 weeks’ imprisonment were imposed that some of the facts do appear more serious and that there was a certain degree of planning as in the case of HKSAR v Yu King Man HCMA 808 of 2004, and Ms Jorge submitted that there is no such aggravating factors here in this case.

7.I am concerned in this case that the victim is aged 14 and was in uniform on her way home.  Young girls particularly school girls have to be protected from being preyed upon by men for their own selfish pleasure.  Young girls particularly have to be protected in streets and in public areas in Hong Kong, particularly with the easy availability of mobile phones with cameras attached, this kind of offence is undoubtedly on the rise and detection is often very difficult, because much depends on witnesses who have the courage to stand up and protect there innocent girl as the witness in this case did.

8.So, I have to look at this type of case more seriously and having considered whether a Community Service Order is appropriate I find that it is not appropriate in this case.  The aggravating factor in this case is a very serious one and it thus calls for a term of imprisonment, but are the facts so serious that it calls for a 2 months’ imprisonment which is a substantial increase from the normal sentences of 2 weeks.

9.This court has to declare to the community that the courts are willing and ready to protect the young people in Hong Kong and I consider a custodial sentence is appropriate but not one of 2 months’ imprisonment after plea.  I consider that the fact that the victim was in uniform and the Defendant was taking advantage of that fact, that an appropriate starting point would be 6 weeks’ imprisonment and because of his plea, the sentence would be reduced to one of 4 weeks.

10.I did consider whether the sentence should be suspended in this case and I can see no special circumstances or exceptional circumstances in this case to warrant a suspension and so the appeal is allowed, the sentence of 2 months’ imprisonment is set aside and the Appellant is sentenced to 4 weeks’ imprisonment.

Mr Paul Ho, Senior Government Counsel, for the Respondent

Ms Louisa JORGE, instructed by Messrs Peter Cheung &Co., for the Appellant