HKSAR v. Li Fat Sang

[English Translation – 英譯本]
CACC 480/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 480 OF 1997

(ON APPEAL FROM DCCC NO. 355 OF 1997)

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BETWEEN

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Coram: Hon Chan CJHC and Leong JA in Court

Date of Hearing: 26 February 1998

Date of Delivery of Judgment: 26 February 1998

JUDGMENT

Hon Chan CJHC (delivering the judgment of the Court):

1. The applicant pleaded guilty in the District Court to 3 counts of indecently assaulting a mentally handicapped person, contrary to section 122(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. He was sentenced to 3- years’ imprisonment on each count, with the sentences to run concurrently. He now seeks leave to appeal against sentence.

2. The victim was a girl who was only 12 years and 10 months of age at the material time. She was mildly mentally handicapped and was attending a special school. A few years before the incidents in question, the applicant had worked as a watchman in the building where the victim lived. On 2 September last year, the applicant trailed the victim after school and later instructed her to follow him to his residence in a building in Tokwawan. He indecently assaulted her inside his residence by fondling her breasts inside her clothes. He indecently assaulted the girl again on 25 September and 10 October by the same modus operandi. He even threatened to beat her if she informed anyone of what happened. He also slapped her on her neck after committing the offence on the second and third occasions.

3. The girl’s mother, alerted by people in the neighbourhood, found out what happened upon questioning the girl. About two months later, the applicant was arrested when the mother and the girl saw the applicant in a restaurant and called the police. Under caution, the applicant alleged that the girl was a prostitute. Subsequently, at the police station, he admitted having indecently assaulted the girl on several occasions.

4. The judge took the view that the offences were serious as the applicant’s act of abusing a mentally handicapped girl just fell short of a breach of trust and the offences were premeditated. For each count, the judge adopted a starting point of 4 years and reduced the term to 3- years on account of the applicant’s guilty plea. The sentences were ordered to run concurrently.

5. Mr. Wong, counsel for the applicant, submitted several grounds of appeal against sentence. He said that the victim did not put up any struggle during the incidents and the applicant never made any threat to her in the course of molesting her. Furthermore, the applicant could have molested her further but he did not do so. Counsel further argued that the judge was wrong to say that the applicant was in breach of trust. Although he used to be a watchman in the building where the girl lived, he left the post several years before he committed the offence, and therefore what he did could not be regarded as a breach of trust. For these reasons, counsel submitted that a starting point of 4 years was too high. He further submitted that the sentence of 3- years’ imprisonment imposed on the applicant is manifestly excessive because the judge failed to have sufficient regard to his guilty plea and give him a one-third discount in line with the precedents.

6. On the submission that the girl had not struggled during the incidents and did not feel distraught afterwards, we consider this understandable, given the intelligence level and age of the girl. That the applicant had not threatened the victim prior to the indecent assaults and that he did not carry the molesting any further during the incidents cannot, in our judgment, constitute a mitigating factor. If anything, such conduct would only have constituted an aggravating factor and resulted in more offences being charged against the applicant. As to the absence of evidence to show that the girl had suffered psychologically or physically as a result, we take the view that, by reason of her mental handicap and tender age, she was unable to appreciate the gravity of such acts of molestation. As the summary of facts pointed out, she was unable to resist assaults or protect herself, and it was precisely for the purpose of protecting these vulnerable children that the relevant law was enacted. The law reflects the abhorrence of the community at large of such behaviour.

7. The applicant is now aged 62. Although he had for a few years not been a watchman in the building where the girl lived at the material time, it was through this job that he became acquainted with the girl. As Mr. Macleod, counsel for the respondent, pointed out, it enabled the applicant to gain the trust of the girl more easily and gave him the chance to get near her. It also explained why the applicant had picked on the girl and why she was willing to follow him. Although the judge’s comment during sentencing that the applicant’s behaviour verged on a breach of trust might not be completely accurate, the judge was, in our view, merely emphasizing that this was an aggravating factor. We do not find it improper.

8. Undeniably, indecent assault is by itself a very serious offence. And there are other aggravating factors in the present case. The girl, being mentally handicapped, was unable to protect herself, and she was not yet 13 years old at the material time. These made the applicant’s acts all the more unforgivable. The applicant repeatedly molested the girl and uttered threatening words to her as well as slapped her afterwards. As the judge pointed out, the fact that the applicant had trailed the girl prior to committing the offences indicated that the offences were planned to a certain extent. These are all aggravating factors. In our view, the starting point of 4 years as adopted by the judge was manifestly too low.

9. Counsel has cited some authorities. In R. v. Leung Kwong [1993] 2 HKCLR 224 (CA), there were a number of mitigating factors, and that case was obviously very different from the present case. Besides, the victim in that case, though suffering from mental illness, had consented to having sexual intercourse with the defendant. The facts of another case, R. v. Man Ming Hing [1993] 2 HKC 522 were also quite distinct from those of the present case. Furthermore, the maximum penalty for the offence in Leung Kwong and Man Ming Hing was 5 years imprisonment whereas that of the present case is 10 years. As for the case of R. v. Wong Chuen & Anr. Crim. App. No. 242 of 1995, it is also distinguishable from the case before us in terms of the nature of the offence and facts. Taking into account the facts of the present case, we think that a starting point of anything less than 5 or even 6 years cannot be considered reasonable and sufficiently indicative of the gravity of the case.

10. It has been the usual practice of the court to give a one-third discount to the sentence of a defendant who pleaded guilty at an early opportunity for it showed that the defendant was remorseful and the plea served to save time and costs. If, having considered the facts of a particular case, the judge decides not to give a one-third discount, he should clearly explain his decision. In sexual offences, a defendant who has pleaded guilty may receive more than the usual one-third discount because the plea has saved time and costs and, most importantly, has obviated the need for the victim to give evidence in court and recall the traumatic experience.

11. If a starting point of 5 or even 6 years had been adopted in the present case, the sentence of 3- years’ imprisonment imposed by the judge would actually have shown that he had properly taken into account the applicant’s guilty plea as a mitigating factor. However, the applicant had said both under caution and to the probation officer that the victim was of a casual personality and often presented herself to adults as sexually appealing. He also said that the girl was a prostitute. We do not think the background of the victim is of much relevance to the present case. And despite the applicant’s assertion, there was no evidence to show that the girl was the sort of person that the applicant described her as. We take this as an indication that the applicant has shown only limited remorse for his wrongful acts. However, in light of the circumstances of the case and the applicant’s guilty plea, which saved time and costs and obviated the need for the victim to testify in court, we are satisfied that the sentence of 3- years’ imprisonment is neither manifestly wrong nor excessive. The application for leave to appeal is therefore refused.

Mr. Newman Wong, assigned by the Legal Aid Department, for the Applicant

Mr. Harry Macleod, Deputy Director of Public Prosecutions and Mr. Stanley Chan, Senior Government Counsel for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor