HKSAR v. Tsang Ue Sum

CACC32/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 32 OF 2010

(ON APPEAL FROM HCCC NO. 239 OF 2009)

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Before: Hon Stock VP and Lunn J in Court

Date of Hearing: 16 December 2010

Date of Judgment: 16 December 2010

Date of Reasons for Judgment: 23 December 2010

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REASONS FOR JUDGMENT

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

1.The applicant sought leave to appeal against a sentence of two years and three months’ imprisonment imposed upon him on 4 January 2010 by Deputy Judge Longley in the Court of First Instance following his conviction after trial by a jury of the alternative offence of the indecent assault of Ms Chan Wing Hung on 1 September 2008, contrary to section 122(1) of the Crimes Ordinance, Cap. 200. By their verdict the jury had acquitted the applicant of the attempted rape of Ms Chan. We dismissed the application and said that we would give our reasons for so doing in due course. That we do now.

Reasons for sentence

2.At the time of the commission of the offence the applicant was 23 years of age, whereas Ms Chan was aged 20 years.  There was no dispute that they had met on an Internet chat site at about 5 to 6 p.m. on 1 September 2008, and that at 6:45 p.m. that day Ms Chan visited the applicant’s home to inspect his collection of 2,000 video disks, to determine whether or not a particular disk sought by Ms Chan was amongst them.  At 7:10 p.m., shortly after she had left the applicant’s premises, Ms Chan made a “999” call in which she made a complaint of indecent assault. 

3.Acknowledging that the applicant had been acquitted of the offence of attempted rape, the judge went on to observe that the basis of that verdict was not clear, namely whether the jury were not satisfied that the applicant’s acts “... went beyond acts preparatory to committing the offence” or that they had “… doubts as to certain parts of Ms Chan’s testimony”.  In consequence, he stated that he proposed to proceed on the basis most favourable to the applicant, namely on the latter basis. 

4.The judge noted that the applicant accepted in his evidence that he had lain on top of the applicant on a bed in his home kissing her, exposing, touching and kissing her breasts whilst touching her private parts underneath her underpants.  He determined that the applicant did “... force her onto the second bed and continue(d) to sexually molest her when it was abundantly clear from her distress that she was not consenting.”  In particular, he noted that the applicant desisted only in the face of the “vehemence” of her reaction, her yelling and distressed breathing.  Further, he noted that the swelling to Ms Chan’s scalp had been caused when she bumped her head during the applicant’s attack. 

5.Having noted that the applicant was of previous good character, a hard-working employee of a bank and a member of the Civil Aid Services the judge stated that he discounted by three months the starting point that he had identified of 2½ years’ imprisonment. 

Grounds of appeal against sentence

6.On behalf of the applicant, Mr McGowan submitted that the sentence of imprisonment imposed on the applicant was manifestly excessive.  He took issue with the judge’s determination that Ms Chan “was not a girl of great sophistication”.  He suggested that she had stood up to extensive cross-examination, which undermined such a finding.  Further, he submitted that, although the judge had found that the applicant’s sexual advances toward Ms Chan “may have been triggered” by her reference to him of her discovery of “Category 3” (Adult ) movies amongst his video disk collection, the judge did not give sufficient weight to such evidence in determining the appropriate sentence.  Mr McGowan pointed to Ms Chan’s agreement in cross-examination that in raising that issue she might have “led on” the applicant. 

7.Although Mr McGowan acknowledged that there was no “tariff” sentence for the offence of indecent assault and that sentencing in such cases was “largely fact driven”, nevertheless he invited the court to note that a differently constituted division of this court in HKSAR v Kong Yun Chiu [2007] 4 HKC 391 had referred to several other decisions of this Court in allowing an appeal in respect of sentences of imprisonment imposed on that appellant for two counts of indecent assault on his niece, when she was 8 and subsequently 11-12 years of age.  He suggested that the circumstances of the commission of the offence by the applicant were far less serious than the circumstances of the commission of the indecent assault in HKSAR v Leung Chi Kei (HCMA 801of 2008, 3 March 2009 — unreported), in which Deputy Judge Longley had allowed an appeal against a sentence of 15 months’ imprisonment and substituted a sentence of 12 months’ imprisonment.  Similarly, he submitted that the circumstances of the commission of one of the multiple offences, for which sentence was imposed by Deputy District Judge A. Yim in HKSAR v Lo Cheuk Hung (DCCC 363 of 2010, 9 June 2010 — unreported), were much more serious than those of the applicant, albeit that the judge had taken the same starting point of 30 months’ imprisonment. 

A consideration of the submissions

8.Whilst it may have been imprudent for Ms Chan to have visited the home of a man of such short acquaintanceship, and to have remained there when they were obviously alone, and whilst she might have inadvertently “led on” the applicant by raising the subject of his possession of adult movies in his video disk collection, by its verdict the jury clearly determined that the applicant persisted in sexual advances notwithstanding the fact that it was made abundantly and repeatedly clear to him by Ms Chan that she wished him to desist.  We are satisfied that no other element of “perceived consent” or “perceived encouragement” by the victim to any advance by the applicant is relevant to sentence. 

9.In our judgment, the judge was correct to identify the culpability of the applicant as lying not only in the very intimate nature of the sexual advances with which he persisted but also in the fact that he used force to do so and did not desist until Ms Chan had become very obviously distressed by her sobbing and her difficulties in breathing.  The applicant had pushed Ms Chan onto the bed as she sought to leave his premises, where she received an injury to her head from bumping against a metal rail.  He succeeded in pulling her underpants down to her knees, despite her struggle to prevent that happening.  It is to be noted that in his out-of-court statement to the police he, he used the term “pushed” repeatedly to describe how he had manoeuvred the victim to and onto the bed, having embraced her waist from behind soon after her arrival as she inspected his video discs. 

10.Sentencing for offences of this nature is a particularly fact sensitive exercise and covers a wide range of conduct.  The maximum sentence is 10 years’ imprisonment.  In those circumstances, references to sentences imposed in other cases are usually of very little assistance to this court.  In Kong Yun Chiu, this court was concerned with “a marked disparity in sentences for offences of gross indecency with children, in some cases where the facts have been relatively alike.”  That was a reference to decisions of this court.  In the result, some of the sentences imposed in those cases were described as “remarkably low” and it was observed that such offences “call for substantial terms of imprisonment” (Page 395H). 

11.In the case of Leung Chi Kei the sentence of 15 months’ imprisonment imposed upon that appellant, who was convicted after trial of an offence of indecent assault, was too low.  The history of his relationship with the victim was quite different from this appellant and his victim : they had known each other for about a year.  He took advantage of the fact that his victim had become drunk after consuming wine at a dinner enjoyed by the two of them.  After they had gone to his place of work, he ignored her resistance to his embraces and, after she had fallen to the floor in the ensuing struggle, he pulled down her dress and brassiere and fondled her breasts, pulled her underpants to one side and placed his penis in contact with her private parts.  The apt description by the magistrate, accepted as appropriate by the single judge, of the circumstances of the commission of the offence as falling at the “very high end of the scale” of an indecent assault, was not properly reflected in the sentence imposed. 

12.In Lo Cheuk Hung, the judge imposed a total sentence of 28 months’ imprisonment on a 31 years old man after he pleaded guilty to eight charges, four of indecent assault against four girls and three of making child pornography in respect of two of those girls and a third girl.  The girls ranged in age from 12 to 15 years and had come to know the defendant through the Internet or, in one case, by answering an advertisement for a photographic model. 

13.In our judgment, the starting point taken for sentence, to which Mr McGowan drew the court’s attention, of 30 months’ imprisonment in respect of an indecent assault upon the youngest girl, aged 12 years and 10 months, was significantly too low.  She had been lured through the Internet by the defendant to act as a photographic model and when she met the defendant in a hotel room had been given $200.  When she refused to remove her brassiere the defendant removed it for her, as he did her underpants.  Whilst taking photographs of her while she was nude the defendant fondled and sucked her breasts and nipples.  Subsequently, whilst he too was naked, the defendant lay on top of her on a bed and, although she tried to push him away and told him to desist, he inserted his fingers into her vagina, bringing his erect penis into contact with her private parts. 

14.In the result, the approach to sentence taken in Leung Chi Kei, in the appellate jurisdiction of the Court of First Instance, and in Lo Cheuk Hung, in the District Court, is of no assistance to this court. 

15.Having conducted a trial of some six days and having heard evidence from Ms Chan over no less than four of those days, the judge was very well-placed to have the appropriate “feel” of the case and thereby to determine the culpability of the applicant and to reflect that in the sentence imposed upon him. 

16.In the result, we were satisfied that the sentence imposed on the applicant was entirely appropriate.  Accordingly, we refused the application for leave to appeal against sentence.

MrIra Lui, SPP of the Department of Justice, for HKSAR

Mr James H.M. McGowan, instructed by Messrs Lam Fung & Co., for the Applicant