R. v. Chui Wai Man

CACC000731/1995

IN THE COURT OF APPEAL

1995, No.731
(Criminal)

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Coram: Yang, C.J., Bokhary, J.A. and Sears, J. in Court

Date of Hearing: 9 May 1996

Date of Judgment: 9 May 1996

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J U D G M E N T

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Bokhary, J.A.:

1. This is an application for leave to appeal against sentence.

2. The applicant is a man in his late 30's. His previous brushes with the law had to do with gambling. And they are insignificant for present purposes. For what he now seeks to appeal against is a total sentence of six years' imprisonment passed on him by Stuart-Moore J on three counts of incest.

3. That sentence, which was passed on October 19 last year, is made up of a term of four years consecutive to two terms of two years each.

4. The applicant pleaded guilty after the voire dire but, mercifully, before the time came for his daughter to face the ordeal of going into the witness-box and recounting what he had done to her.

5. But for the fact that he had thus spared her from that ordeal, the judge would have sentenced him to 10 years' imprisonment. For that is the overall starting point which the judge took.

6. Now, the first argument advanced on the applicant's behalf is that that was too high a starting point.

7. We reject that argument. As the judge observed after the facts agreed by the defence had been outlined by the prosecution, the charges to which the applicant had pleaded guilty were "in a very real sense ... specimen charges of a great number of offences". For those admitted facts include this statement:

" Shortly after [the victim's] 14th birthday in July 1993, the defendant began a series of nocturnal approaches towards her. He started with a stealthy kiss but within days, he had graduated to full penetrative sexual intercourse with her. The child submitted to the defendant's advances and these acts of intercourse continued until October 1994 at an average frequency of three or four times a week."

8. The three instances of incest the subject-matter of the counts to which the applicant pleaded guilty took place in the family home in July 1993, November 1993 and October 1994.

9. So much for the first argument.

10. Turning to the second argument advanced on the applicant's behalf, it runs thus. The judge failed to give the applicant sufficient credit for his pleas of guilty and other mitigating factors in the case. In particular, the judge was wrong to conclude, as he did, that the applicant had no affection for the victim.

11. That is how the second argument runs.

12. The judge only dealt with the question of affection because the applicant's then counsel had pressed upon him certain statements made by the victim to social workers that she believed that the applicant had affection for her. It may be a good thing that she believes that. Really, however, parental affection and incest are impossible to reconcile one with the other.

13. In truth, this unfortunate girl has been reduced by the applicant's conduct towards her to a depressed and even suicidal state let alone a confused one.

14. We have had pressed upon us on the applicant's behalf a letter which she wrote on the 3rd of this month asking for mercy for him. It may be a good thing that she has found it possible to forgive him. But her forgiveness does not undo what he has done.

15. What she needs to know is that she is totally blameless for anything which the applicant has done to her and for anything which has befallen him as a result.

16. As to credit for the guilty pleas and for other mitigating factors, the answer is two-fold. First, there is no real mitigating factor apart from the guilty pleas. Secondly, the credit given for those pleas took the form of a 40 per cent discount. And that is sufficient even bearing in mind the extra generous discount given for pleas which spare the victims of sexual offences from having to go into the witness-box and recounting what they had endured.

17. The second argument advanced on behalf of the applicant also fails.

18. As for the third argument advanced on his behalf, it is the general one that in all the circumstances his sentence is manifestly excessive. Without the first two arguments there is nothing in the third one.

19. There is no reason to interfere with this sentence, severe though it may be. In all the circumstances, it was within the range of sentences appropriate to the situation. Accordingly, leave to appeal against that sentence is refused.

Representation:

Mr Graham Harris (instructed by M/s Bobby Tse & Co) for the Applicant

Mr William Lam (of the Attorney General's Chambers) for the Respondent