HKSAR v. Leung Chi Kei

HCMA801/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 801 OF 2008

(ON APPEAL FROM ESCC 902 OF 2008)

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BETWEEN

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Before : Deputy High Court Judge Longley in Court

Date of Hearing : 3 March 2009

Date of Judgment : 3 March 2009

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J U D G M E N T

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1.This is an appeal against the sentence of 15 months’ imprisonment imposed on the appellant following his conviction after trial of the offence of indecent assault.

2.The appellant has instructed his counsel to abandon his appeal against conviction which is accordingly dismissed.

3.The appellant, then aged 25, was charged with indecently assaulted Miss Cheng Yi Na, who was also aged 25, at the office of the company for which he worked on the 27^th floor of Windsor House, Causeway Bay, during the late evening of 18 September 2007.

4.The appellant had known Miss Cheng for about a year.  They had previously gone out with a group of friends but on the evening in question the appellant had asked her out on her own.  They went to a restaurant in Paterson Street, Causeway Bay, where between them they consumed two bottles of wine.  It is clear from a photograph taken of Miss Cheng during a meal that even at that stage she was feeling the effects of alcohol.  On her own evidence she was “slightly drunk”.  Following the meal the appellant asked her to accompany him to his office as he said that he had some work to complete, and that after that they would decide to where they would go on.

5.It is obvious from the CCTV film taken in the lift on their way up the 27^th floor of Windsor House that the alcohol Miss Cheng had consumed was beginning to take its toll.  She slid to the floor and after being helped to her feet by the appellant, they embraced.

6.They entered the appellant’s office.  Miss Cheng sat on a chair while the appellant went through some papers.  Miss Cheng then vomited into a rubbish bin.  The appellant fetched a glass of water for her and sat beside her.  He embraced her by putting his arms around her and kissing her.  She tried to push him away but he persisted.  In the struggle she fell face down on the floor.  The appellant took advantage of the situation by embracing her from behind and then pulling down the top of her dress and brassiere and fondling her breasts. 

7.She shouted for help.  The appellant continued the assault by pulling Miss Cheng’s underpants up and to one side and putting his penis in contact with her private parts.  The magistrate found that he was trying to put his penis into her vagina.  She pushed him away and he then stopped the assault.  She then made a 999 call.  In the meantime the security guard, who had been summoned by two other members of staff who were still working in the office and who had heard what was going on, arrived.  The appellant told them that Miss Cheng was drunk.  

8.When she was later examined by doctor she was found to have red marks on the front of her chest, on both sides of her neck, on both knees and bruising on her right hand and abrasion on her right little finger.

9.When considering sentence the magistrate referred to the view of the probation officer that the appellant’s remorse for the offence was only superficial.  The magistrate understandably took the view that by virtue of the fact that he had pleaded not guilty and attempted to put the blame on Miss Cheng that he felt no remorse. 

10.The probation report before the magistrate indicated that although he had been before a court previously in 2002 and sentenced to rehabilitation centre he had, since his release, studied for and gained a degree from Hong Kong University.  He had joined an insurance company and was spoken highly of by his employers. 

11.The magistrate was informed that the appellant had been a filial son who had supported his family since his father’s death and helped his uncle who was very sick financially and otherwise. 

12.The magistrate correctly commented that there was no sentencing tariff for indecent assault and that each case had to be decided on its facts.  He said that in sentencing for this sort of offence the court had to take into account :

(1)  the need to deter others;

(2)  the need to mark the public abhorrence of such offences; and

(3)  to redress the grievance suffered by the victim, her relatives and her friends.

13.In so far as the facts in this case is concerned the magistrate said :

“      … The facts, as found by me, indicate that the Appellant attempted to rape PW1, though I bear in mind that he was convicted of indecent assault only.  I am of the view that the gravity of the offence of which the Appellant was convicted falls at the very high end of the scale of this kind of offence.

I am obliged to send a clear message to the society that deterrent sentence would be passed on offenders who abuse their relationship or friendship with the victim in sexual attack.”

14.I agree with these comments.  Although the appellant had himself been drinking and may have been encouraged by the reaction of Miss Cheng when he embraced her in the lift, his conduct when they reached his office went far beyond what was acceptable.  He sought to take advantage of the situation when Miss Cheng was vulnerable because of her intoxication.  He persisted in his conduct for some time despite the fact she was struggling and making it clear to him that his attentions were unwelcome. 

15.The offence clearly merited a significant term of imprisonment.

16.There is only one matter that causes me some concern.  While it is perfectly proper for a judge or magistrate to comment that a defendant who had pleaded not guilty could not claim in mitigation that he had spared the victim the ordeal of giving evidence in the case, the words used by the magistrate appear to suggest that the conduct of the defence was a feature of aggravation. 

17.When dealing with sentence he commented on the fact that Miss Cheng had been “subjected to cross-examination of her previous model career in category III films and pornography magazine.”  He went on :

“… I find that line of cross-examination was intended to cause embarrassment on her rather than to resolve the real issue raised at trial.”

This comment came after the magistrate said that he was obliged to send a clear message to the society that deterrent sentence would be passed on offenders who abuse their relationship or friendship with the victim in sexual attack.

18.As I say it is unfortunate that he gave the impression that he may have regarded this as a factor relevant to the determination of the appropriate starting point when the only relevant matter should be the nature of the offence rather than the conduct of the defence at trial.  The sentence was otherwise perfectly proper. 

19.For that reason alone I am prepared to allow the appeal to the limited extent that I reduce the appellant’s sentence by 3 months.

20.I substitute for the sentence of 15 months’ imprisonment a sentence of 12 months’ imprisonment.

Miss Agnes Chan, SPP of Department of Justice, for HKSAR

Mr Kelvin Chan, instructed by Messrs Ma Tang & Co., for the Appellant