HKSAR v. Adam William Townsend

HCMA 141/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 141 OF 2014

(ON APPEAL FROM ESCC 3974 OF 2013)

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J U D G M E N T

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1.The appellant appeared before a Magistrate, Mr Simon Wong, sitting at the Eastern Magistrates Court. He entered a plea of guilty and admitted the facts of a single offence of indecent assault contrary to section 122(1) of the Crimes Ordinance.

2.The learned Magistrate sentenced the defendant to 3 months imprisonment having, as he said, considered the seriousness of the case and the defendant’s personal circumstances.  In his written reasons he explained he took a starting point of 4½ months, reduced to 3 months for the plea of guilty.

3.Very briefly what happened is this.  Prior to the assault the appellant, the victim, and the female friend of the defendant had consumed a large amount of alcohol at a hotel bar, another bar, and then back at the friend’s flat, the scene of the assault.

4.The victim laid down on a sofa bed in the lounge and the friend retired to her bedroom.  At about 5 am the victim was awakened because the appellant had moved her underwear down to her knees and inserted a finger into her vagina.  At first she did not protest, believing it to be her female lover.  However when she realised it was the appellant, she told him to desist, which he did immediately.  She also told him to leave, which he also did immediately.

5.The appellant has one minor conviction relating to possession of dangerous drugs which attracted a fine some 5 years ago.  For the purpose of this appeal, I disregard that.  Mr Harris now appears on behalf of the appellant.

6.Throughout, the appellant has maintained the position that while he does not dispute the facts of the act of intimacy, he did so believing the victim was consenting.  His plea of guilty is based on an acceptance that he was reckless in forming this belief.

7.In support of this, he says that the conversation was friendly prior to this and involved an element of mild flirtation.  Also he accepts that drink played a very large part and he would not have so behaved had he not been inebriated.  Mr Harris very realistically acknowledges this to be an explanation but not an excuse, the intoxication being self induced.

8.Mr Harris takes issue with the learned Magistrate for not interrupting the defence counsel in the court below, therefore giving the impression of agreement or acceptance of matters advanced. Nor did the very experienced prosecuting counsel interrupt or seek to rectify anything advanced by Mr Hemmings in the Magistrates Court.

9.Mr Harris also criticises the Magistrate for not considering any non-custodial sentencing option.  I do know also that in this regard, the defence counsel did not assist by suggesting any specific disposal.  Mr Harris invited me to consider a Community Service report, whilst accepting it would not be an indication of an offer of such a disposal.  He also submits this to be a rehearing and that I should sentence the case as I view it and not feel bound by the accepted test whether the sentence was manifestly excessive or wrong in principle.

10.Ms Lam, on behalf of the prosecution, submits basically that the sentence is correct, given all the facts.

11.The view that I take is that by any standards, this was a serious and intimate act of indecent assault.  It involved pulling down the underwear of the victim and an act of penetration of the vagina.  The victim, as we know, was in a drunken condition as was the appellant.  The appellant has pleaded guilty on the basis of being reckless as to whether the victim consented and that how is how I approach the issue, although I do say that this appears to me to be a very reckless act of indecency indeed.  I accept also that drunkenness played a very large part in what took place.

12.I also accept, as did the learned Magistrate, that it is unlikely that the appellant will re-offend in this way, so any such a deterrent sentence will be aimed at others, not at the appellant.  I accept there was a degree of banter and flirtation which may well have led the appellant to interpret matters to be other than they were.  Also it is to the appellant’s credit he desisted immediately when he was told to desist and left immediately when told to leave the flat by the victim.

13.I have read and considered the letters of support and noted that his fiancée is here today to support him in this difficult time.  However, I have to say that I reject the notion of calling for a Community Service report as I find this simply too serious to warrant such a course.

14.I am firmly of the opinion that a custodial sentence has to be imposed, given the seriousness and intimate nature of the assault, and that the learned Magistrate’s sentence with a starting point of 4½ months, reduced to 3 months, cannot be faulted.

15.Therefore, I dismiss the appeal and confirm the sentence.

Ms Winnie Lam Tak-wing, SADPP (Ag.) of the Department of Justice, for the respondent

Mr Graham Harris SC, leading Mr David Cheung, instructed by Or & Partners, for the appellant