HKSAR v. Mak Chun Man

CACC86/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 86 OF 2009

(ON APPEAL FROM DCCC NO. 1 OF 2009)

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BETWEEN

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Before : Hon Yeung JA and Saw J in Court

Date of Hearing : 3 September 2009

Date of Judgment : 3 September 2009

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J U D G M E N T

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Hon Saw J (giving the judgment of the Court):

1.On 9 February 2009, the applicant pleaded guilty to two counts of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap.200 (“Counts 1 and 2”). On that day he was remanded in custody and the judge, Deputy District Judge W.C. Li requested that he be provided with :

(1) psychiatric reports;

(2) a psychologist’s report; and

(3) a probation officer’s background report.

2.On 23 February 2009, having obtained those reports, the judge sentenced the applicant to be imprisoned for 2 years on Count 1 and 4 years on Count 2. The judge ordered that 1 year of the sentence on Count 1 be served consecutively to the sentence on Count 2. Thus the total sentence was one of 5 years’ imprisonment.

3.This is his application for leave to appeal his sentences.

4.The summary of facts admitted by the applicant revealed that on 4 December 2008 at about 12:45 p.m. a young woman was on her way to her office at Grand Millennium Plaza, Queen’s Road Central. She entered the lift of that building and was followed by the applicant. There was no other person present. The applicant attempted to engage her in conversation. He asked for her telephone number and invited her for a meal. The young woman ignored him and moved towards the lift door and away from the applicant. The applicant moved to a position behind her and as she was leaving the lift, he placed his hand inside her dress and touched her on the thigh. The victim pushed his hand away, left the lift, and made a report to the police. This was Count 1.

5.The following day at about 4 p.m. a schoolgirl aged 15 was returning to her home at No.60 Robinson Road in Central. When she took the escalator from Caine Road to Robinson Road, she noticed the applicant standing near to her. As she entered the lift at No.60 Robinson Road, so did the applicant. Inside the lift, the applicant moved closer to her and asked her for her telephone number. She refused and told the applicant to stay away. When the lift reached the 7^th floor she alighted. The applicant followed her and as she opened the door to her home he forced his way into it. She attempted to get away from him but to no avail. The applicant placed his hand over her mouth to prevent her crying out. He unzipped her school dress from behind and inserted his hand inside the dress touching her breasts. The victim continued to struggle and eventually managed to pull off the applicant’s eyeglasses and slapped his face. She eventually succeeded in pushing the applicant away and made her escape. She sought assistance from a neighbour. A report was made to the police. The victim was treated at the Queen Mary Hospital for bruises and abrasions that she suffered in the struggle with the applicant. This was Count 2.

6.These were both serious offences. They involved the applicant attacking young women in circumstances in which they were attacked, they were at the most vulnerable.

7.The judge was alerted to the fact that the applicant had spent the better part of the last 6 years in custody for repeatedly committing offences of indecent assault and the like.

8.The applicant’s criminal record and the information contained in the various reports obtained revealed that since early 2002 and probably before that the applicant had been a sexual predator.

9.On 24 January 2002, he was placed on probation for an offence of indecent assault. Within a matter of months he was in breach of that order and on 24 July of that year was sentenced to be detained in a Training Centre, having been again convicted of indecent assault. Thereafter a disturbing pattern emerges. On each occasion that the applicant was released from custody he re-offended within a very short time. On all but one of these occasions he committed yet again an indecent assault upon a woman. He was last released from the Training Centre in November 2008, shortly before he committed these offences.

10.The judge took a starting point for sentence of 3 years for Count 1 and 6 years for Count 2. Giving the applicant the usual discount to for his pleas of guilty, he was sentenced to be imprisonment for 2 years on Count 1 and 4 years on Count 2.

This application

11.On behalf of the applicant Mr Wong Po Wing takes no issue with the starting point for Count 2. It is accepted that this was a very serious indecent assault and that a starting point of 6 years cannot properly be criticized. Issue is taken with the starting point of 3 years for Count 1 and the decision to order that 1 year of that sentence be consecutive to the sentence on Count 2.

12.It is said on the applicant’s behalf that the judge placed too much emphasis on the need to protect the public from the applicant and in so doing has fallen into error.

13.To evaluate these grounds we must advert to the content of the various reports which were before the judge.

14.It emerges from the reports of the two psychiatrists, both visiting psychiatrists at the Siu Lam Psychiatric Centre, that the applicant has a long history of sexual deviancy.

15.Despite intervention by both psychiatrists and psychologists, he continues to re-offend almost immediately after his release from custody.

16.Both psychiatrists and the psychologist consider that there is a high risk that he will re-offend. He has been institutionalized almost continuously since July 2002 and in that time has been counselled and treated but apparently to no avail.

17.The applicant is now almost 23 years of age.

18.He is, according to the psychologist’s assessment, functioning at borderline range of intelligence but is able to differentiate between right and wrong.

The sentence

19.In the normal course of events it can properly be said that the act of indecency in Count 1 was not the most serious of its kind. However it is to be remembered that the fact that the offence was committed inside the lift of a building is of itself an aggravating factor. It is apparent that the applicant had followed his victim into the lift with the express intention of indecently assaulting her. The starting point for sentence of 3 years was in the circumstances entirely appropriate.

20.Mr Wong submits that there were mitigating factors, one of which was his remorse. We observe that Dr Liu, one of the psychiatrists, was of the opinion that the applicant had no remorse or empathy for the victims of his attacks.

21.Mr Wong also submits that these attacks were not dissimilar to assaults on public transport. We do not agree.

22.It is said on the applicant’s behalf that the judge imposed a sentence of “preventive detention” upon the applicant which was disproportionate to the criminality of his conduct. We do not agree.

23.In both of these cases it is apparent that the applicant had followed the victims with the intention of assaulting them. They were, in both cases, alone and vulnerable. In both cases they were unable to call for or obtain assistance.

24.The offences were separate in time and place. The victims in each case were targeted by the applicant. The offences were committed shortly after his release from custody for the very same or similar offences.

25.To order that 1 year of the sentence on Count 1 to be consecutive to the sentence on Count 2 was entirely proper.

26.The resultant sentence of 5 years’ imprisonment cannot be criticized.

27.The application is refused.

Ms Mary Sin, SADPP of the Department of Justice, for the Respondent

Mr Wong Po Wing, instructed by Messrs Benjamin Au & Billy Chan, assigned by the Director of Legal Aid, for the Applicant