HKSAR v. Chan Kam Wing

[English Translation -英譯本]

HCMA 1107/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1107OF 2005

(ON APPEAL FROM KCCC 4885 OF 2005)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court

Date of Hearing: 18 January 2006

Date of Judgment: 18 January 2006

Date of Delivery of Written Judgment: 24 January 2006

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J U D G M E N T

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1.The Appellant was convicted after trial by the magistrate of one count of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong, and he was sentenced to 15 months’ imprisonment.  He appealed against sentence.  After hearing, I allowed the appeal, set aside the sentence of 15 months’ imprisonment, and sentenced the Appellant to 4 months’ imprisonment.  I now set out reasons for my judgment.

The facts

2.The victim is a girl aged 10.  At the material time, she was playing with her younger brother in the corridor outside her home.  The Appellant went out from his residence with a dog.  When he returned, the victim and her younger brother played with the dog in the corridor.  Then the Appellant suddenly “lifted” up the victim from behind, moving his right hand to her waist and touching her breasts through her clothes for a few times.  The victim resisted, and the Appellant said, “It doesn’t matter.  We are neighbours”, and he commented on her breasts, “Wow, yours are quite large / very large”.  Then the Appellant put his arm across the shoulders of the victim, who pushed away his arm.  Later on, the victim complained to her mother about the Appellant’s acts.

Ground of appeal

3.In essence, the ground of appeal put forward by Mr. Chan, Counsel for the Appellant, was that the sentence was manifestly excessive.  He submitted that the incident, which was not premeditated, lasted a very short period of time; the Appellant touched the victim’s breasts through her clothes; he had never committed the same type of offence before; and there were no other aggravating factors in the present case.

The respondent’s reply

4.Miss Mickey Fung, Government Counsel for the Respondent, submitted that, in the circumstances of the present case, the term of 15 months was only slightly on the high side and not manifestly excessive.

Judgment

5.There are no sentencing guidelines for the offence of indecent assault / sexual abuse on children.  The judge has to determine an appropriate sentence in light of the circumstances of the particular case.

6.The sentencing factors which the judge has to take into account are: (1) the need to deter others from committing the same type of offence; (2) the need to mark public abhorrence of such offences; and (3) the need to redress the grievance suffered by the victim, her family and friends.  The court has to protect children (see HKSAR v. Chan Ching Ho, CACC 549/1999).

7.In HKSAR v. YHY, CACC 351/2003, the Court of Appeal, referring to another case Secretary for Justice v. HKL, HTY, CAAR 2/2004, said:

… In cases involving underage children being indecently assaulted by their elders or relatives, an immediate custodial sentence will usually be imposed.  Such a sentence aims to convey a simple and clear message: the court needs to protect underage children from sexual abuse and the trauma that ensues … (Paragraph 3)

8.The Appellant is 60 years old and he has indecently assaulted a girl aged 10.  Even if he does not have any similar “conviction record”, an immediate custodial sentence is inevitable.  The question is whether the term of 15 months is manifestly excessive.

9.At the hearing, I considered the following decided cases:

(a) In HKSAR v. Wong Tsiu Ken, HCMA 736/1998, the defendant, aged 68, indecently assaulted a neighbour aged 9.  Using both hands, he touched the girl’s back, chest and private parts through her clothes.  He was sentenced to 6 months’ imprisonment after trial.  He was married with a clear record.  The appellate court took the view that the term of 6 months was slightly on the high side but not manifestly excessive.

(b) In HKSAR v. Hung Li Sing, HCMA 608/1998, the defendant was convicted after trial of three charges, two of which were indecent assault.  He was sentenced to a total of 6 months’ imprisonment.  The defendant, claiming to be a police officer and a probation officer, indecently assaulted the two victims at the staircase.  He put his right hand around one of the victims’ waist and then touched her left buttock, and he put his hand under the school uniform of the other victim and touched her from the abdomen up to the right breast.  No mention had been made of their ages, although the appellate judge described them as young girls.  The defendant was aged 47 and married, and worked for the Government as an ambulanceman.  The appellate court affirmed the sentence.

(c) In HKSAR v. Khan Mchammed, HCMA 447/2000, the defendant was convicted after trial of two counts of indecent assault and was sentenced to 6 months’ imprisonment.  The offence was committed inside a supermarket, where the defendant slipped his hand under the skirt of the victim, a girl aged 11, and touched her private parts.  The appellate court held that the term of 6 months was not manifestly excessive. 

10.The circumstances of the present offence were, in my view, not more serious than those of the aforesaid cases.  The term of 15 months is manifestly excessive and the appropriate term is 4 months.  Therefore, I allow the appeal and sentence the Appellant to 4 months’ imprisonment.

Ms. Mickey Fung, Government Counsel, for the HKSAR

Mr. Chan Siu Ming, instructed by Chong, So & Company on assignment by the Legal Aid Department, for the Defendant

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