HKSAR v. Kam Wing Yin

CACC 515/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 515 OF 2005

(ON APPEAL FROM DCCC NO. 669 of 2005)

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BETWEEN

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Before:   Hon Stuart-Moore VP and Stock JA

Date of Hearing: 23 June 2006

Date of Judgment: 14 July 2006

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background and facts

1.This is an application for leave to appeal against a sentence of 20 months’ imprisonment imposed in the District Court on 29 November 2005 by Judge M Yuen in respect of three charges of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200.  There were two young female victims who went to the applicant’s home for piano lessons.  The applicant, who pleaded guilty to all the charges, was working at the material time as a part-time piano teacher.  He was 20 years old when he committed the offences but he was 21 by the time he was sentenced.

2.The last offence (charge 3), the indecent assault on a 9-year-old girl (W), led to the discovery of the two earlier offences (charges 1 and 2) on a 5-year-old girl (C).  Dealing firstly, therefore, with the 3^rd charge, the judge set out the facts in her Reasons for Sentence as follows:

“On 23/4/05 at about 10.30am one of the girls W, aged 9, was accompanied by her domestic helper to the defendant’s home for the purpose of taking piano lessons.  The helper waited in the living room while W went into the defendant’s bedroom where the piano lesson was to be given.

After W entered the defendant’s bedroom, the defendant told W to close the door of the room while the defendant closed the curtains of his bedroom.  The defendant then requested W to lie down on the piano stool and close her eyes.

W did as told.  The defendant then lifted her upper garment and touched her body including her chest and her abdomen.  The defendant also pulled down the pants and underpants of W and touched her private parts with his hands.  After touching the girl’s private parts with his hands for some time, the defendant proceeded to use a hard object to insert it into the private parts of the girl.

At this juncture the defendant’s mobile phone rang.  W opened her eyes and saw the defendant putting a wooden drumstick onto the piano.  The defendant then told W he needed to fetch a friend from downstairs and the defendant left the room.

The defendant returned not long afterwards and gave W piano lessons until 11.30am.” (Appeal bundle pp. 11-12)

The applicant had been teaching W since the previous year’s school summer vacation.

3.After W had told her mother what had happened, W’s mother found redness to her daughter’s private parts and immediately confronted the applicant on the telephone.  He apologized and promised it would not happen again.

4.The matter was reported to the police.  When the applicant was arrested, he admitted responsibility, saying that he was very remorseful and would not do it again.

5.A medical examination was carried out two days after the offence which revealed reddening of W’s private parts and congestion caused by dilated blood vessels.  Blood traces were also found.  On a second examination on 29 April 2005, some six days after the offence, the forensic pathologist was still able to detect dilated blood vessels in the affected area although the bleeding had stopped.

6.During the investigation into the offence (charge 3), police discovered that the applicant was responsible for two earlier indecent assaults on a girl referred to as C, aged only 5.  These offences followed a similar pattern to the indecent assault on W.

7.C lived near the applicant and had been attending piano lessons since November 2004.  When her mother stopped accompanying C to her lessons, the family’s helper took over this duty and waited in the dining room while C had her lessons in the bedroom while the door was kept closed.  The offences occurred on separate days between 1 November and 31 December 2004.

8.On the first occasion (charge 1) the applicant asked C to close her eyes while he touched her private parts with his hands for “a couple of minutes”.

9.On the second occasion (charge 2), C was asked to lie down on the piano stool.  When she did so, the applicant touched her private parts.

10.C felt frightened by these events and eventually, towards the end of December 2004, she told her mother what had happened.  C’s mother then stopped sending C for lessons with the applicant but she did not report the matter fearing that C might be adversely affected if she had to give evidence in court.

Expert reports

11.The judge had been given a number of reports prior to passing sentence.  The combined effect of these reports showed that at the age of six the applicant was diagnosed to have an “attention-deficit” disorder and a “conduct problem” and had stopped his follow-up treatment in 2002 when he was 18.

12.The reports included two from psychiatrists.

13.Dr Lui reported that the applicant had said he had acted in the way alleged against him “simply out of curiosity”.  The applicant said that he derived no sexual excitement out of what he did and he said that he had given no thought to his victims.  Dr Lui stated that the applicant “may be quite incapable of empathy” because he may be “unaware of the feelings of other people”.

14.Dr Leung’s report stated that the applicant was aware he was breaking the law, but he “could not appreciate the problem from the [moral] point of view”.

15.Both psychiatrists indicated that hospital in-patient treatment was not indicated but that “follow-up” psychiatric treatment was recommended.

16.The judge was also provided with reports from two clinical psychologists.

17.Ms Candy N K Hui gave a detailed account in her report which covered many aspects of the applicant’s personality.  Amongst other things, she stated that the applicant had been to six schools, including one for children with learning difficulties.  The applicant had been receiving psychiatric help since the age of six and the complaints about him, received from the schools he attended, included “inattention, restlessness, fights, truan[cy] and disrespect to teachers”.  The applicant had also been in continual conflict with his parents.  Nevertheless, when he left school, the applicant was able to pass his Grade VIII piano examination.  The applicant claimed to have no sexual experience and stated that he did not know it was illegal to touch a child’s private parts when they had not said or done anything to stop him.  The applicant’s explanation for his conduct (as it had been to Dr Lui) was that he had acted out of curiosity.  He also added that he wanted to see if the girls had the same response that he had seen mentioned in pornographic stories he had read.  Ms Hui’s report continued with the applicant’s assertion that he had never thought about the feelings of the victims and that it was only after his arrest that the applicant had come to realise his actions were wrong.  In the cognitive assessment she carried out, the applicant’s intellectual functioning was within the range of low average intelligence but Ms Hui said that:

“… together with the clinical impression, his cognitive functioning should fall between low average and borderline intelligence.  Scores of sub-tests measuring his verbal comprehension, conceptual thinking, social judgment, concentration and attention are clearly below average.”

Ms Hui recommended that the applicant should receive “psychotherapy focusing on improving social skills, victim empathy, sexual understanding and relapse prevention skills”.

18.In the report of Dr Alexander C Lo, dated 10 July 2005, provided to the judge in the court below by the defence, the applicant’s intelligence assessment was described as “borderline, low average, or marginal but not to the level of mentally retarded”.

Sentencing

19.When sentencing, the judge first reviewed the facts of the case.  She then referred to a number of other sentencing decisions in cases which bore some similarities to this one.  With reference to the reports she had been given and to the applicant’s conduct towards the children he had indecently assaulted, the judge said:

“18. The defendant certainly has no problem in appreciating the acts he engaged in were assaults on the 2 girls of tender age, though the defendant may possibly have a difficulty to appreciate fully the moral value to be attached to his acts. The fact that the defendant had to engage in those acts in private, in his room with the door closed and with the curtain drawn, showed clearly the fact that the defendant fully appreciated those acts ought not be done in public. The poking of a wooden stick into the private areas of a 9 years [old] girl is a deviant act that could have caused physical injury to the 9 years old, not to mention the possible psychological damage that could have been brought upon those 2 girls of tender age.

19. From the defendant’s own psychologist assessment the defendant was said to be hyperactive, attention seeking, impulsive with learning disorder. The government psychologist felt the defendant’s intelligence level, and his cognitive functioning and social judgment may fall below average. It is quite amazing and inexplicable (para 6 of the government psychologist report) that the defendant had told the psychologist that he has started to show interest in sex when he was a Form 4 student and that he read pornographic newspaper with his classmates and discussed sex with them. Yet the defendant claimed the molestation of the 2 girls with the touching of their private parts and the poking into the private part[s] with a wooden drum stick had no sex connotation to his acts.

20. The defendant has a clear record. Yet the acts committed by the defendant were acts of gross breach of trust in his capacity as a piano teacher of the 2 girls of tender age. The acts could damage substantially the trust and confidence these 2 girls had on the adults around them, and a possible psychological inhibition to their sexual development in the course of their growing up. The acts straddled over a period of 5 to 6 months, as opposed to a single spontaneous act.”

20.The judge adopted a starting point of 18 months’ imprisonment on charges 1 and 2 and a starting point of 3 years on the 3^rd charge although, originally, she had hoped to make a Training Centre order.  This hope had been rendered impossible once the applicant reached the age of 21.  The judge continued by saying:

“26. Bearing in mind the defendant’s low level of intelligence, his reduced capability in appreciating the evil he had done to the 2 students of his, the agony suffered by the defendant’s parents, I do further reduce the intended terms to that of the following:-

Charge 1: 9 months’ imprisonment

Charge 2: 9 months’ imprisonment

Charge 3: 1½ years’ imprisonment

27. Taking totality into consideration, I order the terms for charges (1) and (2) to be served concurrently.  In respect of the 3^rd charge, 7 months out of the 1½-year term to be served concurrently with the 1^st and 2^nd charges, leaving a balance of 11 months to be served consecutively.  The total period is that of 20 months’ imprisonment.”

The application

21.Mr Paul Tse, who also represented the applicant in the court below, submitted that the judge had taken starting points which were manifestly excessive on all of the charges and that an inadequate discount had been given to the applicant.

22.We need only to say in relation to each of these grounds that they were misconceived.  The starting points taken for these offences were low and the discounting by 50 per cent of each sentence and the way in which the judge dealt with totality was, with respect, remarkably generous.

23.This is plainly a case which gives rise to a considerable concern for the safety of children.  The judge, in her sentencing remarks, seemed at one stage to have recognised this in the passage we have cited already, by referring to the applicant’s appreciation, whatever his level of intelligence, that what he was doing “ought not to be done in public”.  The leniency of the sentence, however, seems to have been passed on the judge’s acceptance of the applicant’s claim that what he did to the two young girls had “no sex connotation” and because of his “reduced capability in appreciating the evil he had done” to them.

24.We think, with respect, that the judge lost sight of the gravity of the offences despite apparently finding the applicant’s account to the psychologist “quite amazing and inexplicable” when, by the applicant’s own admission, he had begun to show an interest in sexual matters when he had reached the Form 4 stage in his education.  By then, he was, on his own account, reading pornographic material and discussing sex with his classmates.  In spite of these observations on the part of the judge, she appears to have regarded these indecent assaults as deserving punishment on a lower scale than would normally be the situation where there has been interference with children in circumstances such as these.

25.While in one sense, the applicant’s low level of intelligence could be looked upon as a factor which reduced his culpability insofar as this provided some explanation as to why he chose to engage in these acts of depravity on children, the root cause of the problem, on the face of it, is one which is likely to persist.  This dangerous element in the applicant’s personality makes this a particularly difficult case in which to determine a proper sentence.  Furthermore, all the evidence, whatever the applicant’s level of intelligence, pointed to a full awareness on his part that his actions were both morally and legally wrong.

26.Mr David Leung, for the respondent, in a carefully considered written submission served well in advance of these proceedings, argued that the overall sentence of 20 months was so low that this court should now consider exercising its powers under section 83I of the Criminal Procedure Ordinance, Cap. 221, to increase the sentence.  In saying this, he pointed to the ages of the two girls who were the victims of these assaults, the position of trust which the applicant held towards these children, the applicant’s appreciation, judged by his own actions, that what he was doing was wrong and the absence of true remorse on the applicant’s part as revealed by the various reports which were before the judge.

27.The applicant’s inability to empathise with his victims, gave us particular concern at the proper way to deal with the applicant.  In this regard, we observed that none of the expert reports gave any real indication about the likelihood of the applicant re-offending when he is released.  On the face of it, there seemed to be a high chance of a recurrence.  We considered, therefore, that before proceeding on this premise we needed to know whether we had rightly concluded on the evidence before the court below that the applicant represented a real danger to children in the future.  Indeed, we were somewhat surprised to find that none of the four experts who had made statements had been called to testify earlier.  It seems that once the judge had taken the view that the applicant had low intelligence, her approach was that the sentence should be heavily reduced to take this into account.  However, the protection of the public in a case of this kind, whatever sympathy there may be for an offender’s problems, is a consideration of paramount importance.

28.With this in mind, we requested Ms Candy N K Hui and Dr Lui to assist us and we are grateful to them both for their attendance in these proceedings at short notice.  As it turned out, arising from a fresh development in the treatment of the applicant at Siu Lam, what each of the experts had to say merely confirmed the seriousness of the case.

29.Ms Hui informed us that the applicant had now admitted he was attracted to female children.  This occurred in May during individual as well as group ‘treatment’ sessions.  The applicant told her that he had started to have this interest from the age of fourteen or fifteen.  Ms Hui described the applicant’s confession to his sexual deviancy as “significant treatment progress” because he had not before admitted his “special interest in female children”.  She did not think that the applicant was unaware of his problem because he had given a different account to her earlier when he was still denying that he had a special interest in young girls.

30.Ms Hui went on to say that she highly recommended group format therapy and supervision after discharge from prison although she said that “generally the treatment response is moderate”.  She also informed us that the disorder from which the applicant suffers is “very difficult to cure totally”.  However, with supervision and with self-motivation, there is a high chance that the applicant could “reduce his sexual re-offending rate”.

31.Ms Hui stated that with a sentence of 20 months, there could be no compulsory supervision of the applicant after his discharge from prison.  This is so because under the Post-Release Supervision of Prisoners Ordinance, Cap. 475, and the Regulations to which section 23 makes reference, the Post-Release Supervision Board only has power to make an order for the early release of a prisoner under supervision in a case where the sentence of imprisonment is for 2 years or more and at least two thirds of that sentence has been served.  The supervision will, in such circumstances, be for a period of time equivalent to the final part of the sentence after the prisoner has been released.  Ms Hui’s point in this regard was that, whilst a prisoner may have a good response while in prison to the counselling he is given, experience shows that, without supervision, once prisoners gain their freedom, the response rate to counselling sessions is very low.

32.Dr Lui described the applicant as able to understand right from wrong but he added that this was not simply a case of sexual offending.  It had to be seen against a very disturbed background.  Because of a defect in the development of the applicant’s personality, Dr Lui explained that the applicant did not care about what is right or wrong.  His lack of feelings for others is not related to his intelligence but to other aspects of his personality such as his inability to feel guilt.  Thus, in doing what the applicant did, “he has no regard for social norms”.

33.Dr Lui described the applicant as having an antisocial personality disorder or psychopathic disorder, the core features of which are an inability to feel for others and a disregard for social norms, moral values or obligations.  In this regard, Dr Lui expressed himself as “very pessimistic about treating a personality disorder of this nature”.  Experience, he said, reveals that the applicant’s condition is very difficult to cure.  He added that the best that could be done would be life-long supervision if that were possible because such people represent a danger to the community.  When asked if this danger might manifest itself in violence, he replied that this would not necessarily be so.  He also informed us that the ‘treatment’ in cases such as these takes the form of counselling.  Medication, the effect of which is sometimes referred to as “chemical castration”, was a topic which lay outside his field of his expertise.

34.Mr Tse, when asked if he wished to make any further submissions and in particular whether he wished to address the possibility of an increase in sentence, suggested that the court might, in order to deal with the concerns of the expert witnesses, consider making a lengthy probation order coupled with supervision.  The applicant is presently, we were informed, due to be released on 8 November 2006.

Absence of a sexual offenders’ register

35.Before we set out our conclusions, we should indicate that we consider this case to have highlighted a lacuna in the criminal justice system in Hong Kong.

36.Paedophiles such as this applicant represent an ongoing danger to children whenever they are at liberty in the community.  There is in Hong Kong unlike, for example, the United Kingdom, no system in place to record in any formal way those who have been convicted of offences of the kind now before us.  It follows, therefore, that when, in due course, the applicant is released from prison, he will be subject to no restrictions to prevent him from once again working with children.

37.We raised with Mr David Leung our concerns about the absence of a formal register to record the names of paedophile offenders.  In doing so, we discovered, in addition, that none of the detail which has emerged from this case could in normal circumstances be ascertained even from the applicant’s own criminal record as the format makes no allowance to file such information.

38.In the result, if in the future the applicant chooses again to advertise his services as a teacher of music, there is no means by which parents will be forewarned of the risk to which they might be exposing their children should they decide to use him as a tutor; and if there is a repetition on the part of the applicant of such conduct in future, the court dealing with the applicant will be left unaware of what has transpired in these proceedings.

39.As to the last of these concerns, Mr Leung indicated that such comments as the court might make about the applicant in this case could be referred to in subsequent proceedings if a reference to the appeal number was logged in the applicant’s criminal record kept on the police computer.  He undertook to try to ensure that this was done, not just in this case but on a more general basis, by having an additional space set aside for the retention of potentially important information in the police file.  As a stop-gap measure, we strongly recommend that the kind of information which has emerged in this case should be stored so that in future the detail can readily be accessed.  In the present case, no more than the criminal appeal number needs to be recorded so that the information contained in this judgment will easily become available.

40.We also recommend that consideration be given to the establishment in Hong Kong of a register in which those convicted of paedophile crimes are recorded on a formal basis and prevented, so far as it is practicable to do so, from working in close proximity to children.

Conclusion

41.We are in no doubt that the application for leave to appeal against sentence should be dismissed.  However, we consider that the proper sentence, in overall terms, for these offences should have been 5 years’ imprisonment after trial.  Having taken this view we shall, invoking our powers under section 83I of the Criminal Procedure Ordinance, Cap. 221, reflect the appropriate sentence that should have been imposed by retaining the starting points set by the judge on each of the charges on which, as a matter of principle, there will be no more than the usual one third discount for the pleas of guilty, and by making the resulting terms of imprisonment partly consecutive in one case and wholly consecutive in the other.

42.Accordingly, the 18-month starting points on charges 1 and 2 will be reduced in each case to 12 months.  We shall order that 4 months of the sentence on charge 2 will be served consecutively.  The starting point of 3 years on the 3^rd charge will be reduced to 2 years but we order that this will run consecutively to the sentences on charges 1 and 2, making 3 years and 4 months in all.

43.We should say, lastly, that in coming to the conclusion that the applicant’s sentence should, in overall terms, be doubled we were not influenced to raise the length of his incarceration by the hope that, once his sentence exceeded two years, he might be made the subject of supervision on his release.  It would plainly be wrong, with such a purpose in mind, to increase a sentence beyond the level which the crimes properly deserved.

Mr David Leung, SGC, of the Department of Justice, for the Respondent.

Mr Tse Tak Yan, Paul, instructed by Messrs Ng and Lam, assigned by Director of Legal Aid, for the Applicant.