Ip Ka Wa v. The Queen

CACC001081/1978

Coram: Trainor, J.

Date of Judgment: 1st December, 1978.

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JUDGMENT

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1. The appellant in this case was sentenced to six months' imprisonment for an indecent assault on a little girl of 4 ½ years. Against that sentence he now appeals.

2. The facts very briefly are that on the 3rd October of this year the mother of the small girl returned to her home and in it she found her daughter and the appellant who, apparently, lived close-by and, it would appear, was if not a frequent visitor to this home at least visited it from time to time. When the mother went in she found that the appellant was squatting down behind the 4 ½ year old girl and from behind he was fondling her genital area; in other words he had his arms around from behind, and his hands were inside her thighs but outside her slacks. The mother also saw that the appellant had his trousers unzipped and his penis was exposed. Those were the facts that led to the accused being charged.

3. The learned magistrate in dealing with this case sought assistance from the reports of a psychiatrist and a probation officer. The report of the psychiatrist showed that in every respect the appellant was a perfectly normal boy of 20 years of age and that he was not in need of psychiatric treatment. The psychiatrist dealing with what was alleged against the appellant said:

"His offence represents psychologically understandable but socially forbidden attempts in heterosexual exploration."

4. The probation officer's report recommended that the appellant be made subject to a probation order and that he be ordered to undergo psychiatric treatment. The learned magistrate found, and in my opinion perfectly correctly, that this was not a case that warranted psychiatric treatment; he is a person who mentally is perfectly normal. It is against that that one must assess the penalty that should be imposed. He is a young man aged 20, at a rather difficult period in his life living, as I understand it, in very sheltered circumstances. What he did was absolutely reprehensible but it was or could be considered in the light of the observation of the psychiatrist as being heterosexual exploration. What he did does show or indicate perhaps some consideration for this little girl in that (a) her clothes were not removed and (b) his exposure was from behind and probably not visible to this little girl. It is one of those extremely difficult cases for which to assess a proper penalty.

5. I am satisfied from the record of this case and the appellant's behaviour from the beginning that it is an offence that he is most unlikely ever to commit again and I have also in my mind the decisions in the cases cited. In the learned magistrate's assessment of penalty he said that he considered that the Court of Appeal had indicated that this type of case is one that invariably warrants a term of imprisonment. In my opinion this type of case almost invariably does warrant it but there are exceptions and I think this is one of the exceptions. I think this boy was activated by an urge that he was unable or only half-heartedly tried to control but it is something that will not happen again.

6. In the circumstances I consider that putting him on probation for one year as suggested by the probation officer will properly meet the case.

Representation:

Mr. D. Sparrow (Raymond Tang & Co.) for appellant.

Mr. Alderdice, c.c. for Respondent/Crown.