The applicant was convicted after trial before ST Poon J sitting with a jury of three charges, namely two counts of “indecent assault on another person” (Charges 1 and 3) and one count of “attempted unlawful sexual intercourse with a mentally incapacitated person” (Charge 2).  ST Poon J imposed on the applicant a term of four years’ imprisonment. The applicant applied for leave to appeal against the sentence.  After the hearing, I dismissed his application.  Here are the reasons.
申請人經高等法院原訟法庭法官潘兆童會同陪審團審訊後被裁定三項控罪罪名成立，即兩項「猥褻侵犯另一人」罪（控罪一及三）及一項「企圖與精神上無行為能力的人非法性交」罪（控罪二）。潘法官判申請人四年監禁，申請人就刑期提出上訴許可申請。聆訊後，本席駁回申請，理由如下。

Background
案件背景

1The victim of the three charges, female X, was a mentally incapacitated person.  According to the educational psychologist’s report, she had a full scale intelligence quotient (“IQ”) of 50 and a percentile rank below 0.1, and she was classified as mildly intellectually disabled.  At the material time, she was aged 19 but her adaptive behaviour was equivalent to a child aged 6 years and 4 months, which was obviously below what ought to be expected of a person at her age.
1三項控罪的受害人女子X是一名屬於精神上無行為能力的人，根據教育心理學家的報告，她的整體智商為50，等級低於0.1百分位數，被界定為輕度智力障礙。案發時她19 歲，但適應行為顯著低於其年齡應有行為期望，只有六歲四個月小孩的程度。

It was alleged in the charges that on 15 October 2017, the applicant indecently assaulted X inside a lift in a public housing estate in Fanling, the New Territories, and subsequent to that he attempted to have sexual intercourse with her unlawfully and indecently assaulted her on a staircase.  On the day in question, while X was waiting for her mother at the said housing estate, the applicant approached X, spoke to her and asked to have sexual intercourse with her.  The applicant took her into a lift, touched or hit against X’s buttocks with his lower part having clothing in between (Charge 1).  After that, the applicant took X to the staircase of the 18th floor, fondled X’s breasts, pulled down the waistband of her pants and took out his penis, attempting to have sex with her.  In the applicant’s video-recorded interview, he admitted having “groped” X’s lower parts with his penis.  He said, “Did thrust to her parts below, but did not penetrate” (Charge 2), and then he grasped X’s hand to touch his penis (Charge 3).  The forensic pathologist’s report revealed that there were three abrasions of about 0.5 cm x 0.3-0.5 cm on the surface of the inner side of X’s labia minora.  According to the medical evidence, although such abrasions were consistent with the result of sexual intercourse, they were also consistent with the private parts having been “groped” by a penis.
控罪指申請人於2017年10月15日，在新界粉嶺一屋邨的升降機內猥褻侵犯X，然後在梯間企圖與她非法性交及猥褻侵犯她。案發當日X在該屋邨等待母親，申請人與X搭訕，要求與她性交。申請人帶她進入升降機，以其下體隔着衣物觸碰或撞向X的臀部（控罪一）。然後申請人將X帶往18 樓梯間，撫摸X的胸部、拉下X的褲頭及抽出自己的陽具，企圖與她性交。根據申請人的錄影會面記錄，他承認他用陽具去「撩」X的下體。他說：「都係插過佢下面嗰度，但係冇插入去」（控罪二），申請人接着抓住X的手觸摸他的陽具（控罪三）。法醫的報告顯示，X的小陰唇內側表面有三處約0.5 厘米 x 0.3至0.5厘米的擦傷。根據醫學證據，這擦傷與曾經發生性行為脗合，但亦脗合以陽具「撩」下陰的行為。

ST Poon J imposed the following sentences in respect of the charges:
潘法官就各項控罪判刑如下：

Charge 1:  two years’ imprisonment;
控罪一：監禁兩年；

Charge 2:  four years’ imprisonment;
控罪二：監禁四年；

Charge 3:  two years’ imprisonment.
控罪三：監禁兩年

The sentences in respect of the three charges were to be served concurrently, making it a total of four years’ imprisonment.
三項控罪同期執行，總刑期為四年。

II.Reasons for sentence
II.判刑理由

1ST Poon J pointed out that as it could be seen from the CCTV footage that X obviously behaved in a way different from other normal 19-year-old young ladies.  She was all along under the applicant’s manipulation in the way she followed him to the lift of the housing estate.  The applicant was obviously taking advantage on her mental incapability to procure her into satisfying his own sexual gratification.  In X’s trauma report prepared by the clinical psychologist, it was pointed out that after the incident X felt unhappy and angry, she was afraid of seeing middle-aged and elderly men, and her emotion and sleep were affected, but some of these impacts would gradually improve as time went by.  ST Poon J found that the applicant ought to have been well aware of the consequences when he committed the offences, and that he had shown no remorse in the video-recorded interview or at trial.  In these kinds of cases, “advanced age” was no mitigating factor.  The court should protect mentally incapacitated people from harm.
1潘法官指出，從閉路電視錄影片段可見，X的舉止明顯與平常的19歲少女不同，她跟隨申請人到屋邨升降機路途上一直受申請人擺布，申請人顯然利用X的心智缺陷誘使對方滿足自己性慾。臨床心理學家撰寫X的創傷報告指出X在事件後感到不快和憤怒，害怕見到中年和老年的男性，情緒和睡眠皆受影響，但部分情況會隨時間逐漸好轉。潘法官認為，申請人犯案時理應清楚後果，而其錄影會面及審訊中的表現都顯示他並沒有悔意。在這類案件中「年老」並不構成減刑因素。法庭應保護無精神行為能力的人免受傷害。

The applicant was aged 79 at the time of committing the offence and 80 on the date of sentence.  He had two previous criminal convictions which were related to the offences of “assisting in the management of a massage establishment without a licence” in 1983 and “aiding and abetting the breach of condition of stay” in 2003.
申請人犯案時是79歲，判刑當日年逾80歲。申請人有兩次刑事定罪紀錄：於1983年干犯「協助管理無牌按摩院」罪及於2003年干犯「協助及教唆違反逗留條件」罪。

III.Grounds of appeal
III.上訴理由

The applicant claimed that on the day in question he could not go to Zhongshan for sightseeing as scheduled because of a typhoon and so he felt lonely and frustrated, and he did not notice that X was mildly intellectually disabled when he was talking with her; and that his penis had not gone into X’s private parts, thus indicating his great effort in controlling himself so as to maintain X’s hymen intact and thereby an illustration of his virtue and integrity.  Further, he was already of advanced age and not good in health.  It was his wish that the court would exercise the discretion to reduce his sentence so that he could reunite with his family and take care of his wife who was suffering from chronic depression and hypertension, thereby alleviating the burden of his daughter(s).  Also, he had read some books on psychology during the remand period and was now deeply remorseful, he had got rid of depression and managed to develop a good relationship with fellow inmates.  He submitted a letter for mitigation written by the priest appointed by the Correctional Services Department, in which he was described as friendly, hardworking, self-motivated, responsible and helpful and having the courage to face his own misdeeds.  In addition, he had worked seriously in prison and had had a good relationship with other prisoners.
申請人稱在案發當日因受颱風影響未能如期前往中山旅行，故此寂寞苦惱，他與X攀談時並未發現她有輕度弱智的情況；他的陽具沒有進入X的私處，這表示他已盡量克制維持X的處女膜完整，是品德及人格的表現；再者他年紀老邁、體弱多病，盼望法庭酌情減刑，讓他與家人團聚，照顧長期罹患抑鬱症及高血壓的妻子，減輕女兒的負擔；他亦於拘押期間閱讀心理學書籍，已深感後悔，消除了抑鬱並與囚友建立良好關係。他提交懲教署委任的司鐸的求情信說申請人為人友善、勤奮、上進、有責任感、樂於幫助囚友及勇於面對自己的犯錯。另外，他在獄內工作認真，與其他更生人士的關係也良好。

IV.My view
IV.本席的意見

1The Court of Appeal has reiterated in many recent cases that the sentencing principle involving sexual assault on a child may be applied to sexual assault on a mentally incapacitated person.  The sentencing principle in sexual assault on children is that the court has to protect innocent, trusting children and prevent these vulnerable persons from sexual assault which would cause them physical and psychological trauma.  In cases involving sexual assault on a child, it is necessary for the court to adopt deterrent sentences to deter others from committing similar offences.  Such deterrent sentences are to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families, see HKSAR v Chan Ching-ho [2000] 3 HKLRD 476; HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 and HKSAR v L.C.H., CACC 435/2015.
1上訴法庭在多宗案件指出，涉及性侵犯未成年兒童的量刑原則適用於性侵犯精神上無行為能力的人士。性侵犯兒童案件的量刑原則是法庭必須保護無辜及容易信賴別人的兒童，避免這些易受傷害的人士被人性侵犯，以致身體及精神受到創傷。在涉及性侵犯兒童的案件，法庭有需要採取具阻嚇性的刑期來防止其他人士干犯這類罪行。這些具阻嚇性的刑期是表達公眾對這些罪行的厭惡及為受害者及其家人伸冤，見HKSAR v CHAN Ching-ho [2000] 3 HKLRD 476；香港特別行政區訴曾昭德 [2013] 1 HKLRD 422及HKSAR v L.C.H. CACC 435/2015。

In L.C.H., the Court of Appeal pointed out that the facts of each case is different, the court therefore has not laid down any sentencing guideline on sexual assault on mentally incapacitated people, however, as it can be seen from the precedents of this nature, a starting point of two years’ imprisonment was adopted for sentence in cases having less serious facts, two to five years’ imprisonment in cases having relatively serious facts, and over five years’ imprisonment in cases of serious nature.  In L.C.H., the accused was an instructor of an institution serving mentally incapacitated and mentally retarded people, and he assaulted a 32-year-old mentally incapacitated woman of the institution.  He admitted two counts of indecent assault.  According to the facts of the case, the applicant said under caution that the said woman consented to have sex with him, and that he had tried to have sexual intercourse with her, but there was no penetration into the woman’s private parts because he could not achieve penile erection.  In the summary of the facts, it was also alleged that in respect of Charge 1, the said woman had by herself removed her pants, and in respect of Charge 2, when the accused began having sexual intercourse, she by herself took off her clothes and climbed onto the accused’s bed.  The Court of Appeal found a term of three and a half years’ imprisonment an appropriate starting point for each of the offences, and eventually a term of two years and eight months’ imprisonment was imposed.  The accused in the case was the victim’s instructor, and hence the sentence was aggravated by the accused’s breach of trust.
在L.C.H.一案，上訴法庭指出由於每宗案情不同，所以法庭沒有就性侵犯精神上無行為能力的人士案件給予量刑指引，但從這類案例可見案情比較輕微的案件的量刑起點是兩年監禁，案情比較嚴重的案件的量刑起點是兩至五年監禁，而案情嚴重的案件的量刑起點是五年以上監禁。在L.C.H.一案，被告人是一間服務弱智及智障人士的院舍導師，他侵犯該院舍的一名32歲精神上無行為能力的女子。他承認兩項「猥褻侵犯」罪。案情顯示申請人在警誡下稱在該名女子同意下與他進行性行為，他曾嘗試與該女子性交，但由於陽具未能勃起，故此沒有進入該女子的私處。該案的事實撮要亦指在第一項控罪，該女子自己脫下褲子，在第二項控罪，當被告人開始性行為時，該女子自己脫去身上所穿的衣服及爬上被告人的床。上訴法庭判每一項控罪的量刑起點應為三年半監禁，最終刑期定為兩年八個月監禁。該案的被告人是受害人的導師，故此該案其中加刑的理由是被告人違反誠信。

No breach of trust is involved in the present case.  However, I do not agree that in respect of Charge 2, the term of four years adopted by Poon J was not appropriate and a term similar to that in L.C.H., or even shorter, should be adopted.  This is because each case has its own distinctive facts. Although according to the law, it is not possible for a mentally incapacitated person to give consent to have sexual intercourse with the accused, one of the factors considered by the Court of Appeal in the sentence in L.C.H. was the woman’s own behaviour, which was consistent with taking into account whether the accused has sexually assaulted the victim by force in considering the sentence in these kinds of cases.  In the present case, X was completely passive and subject to the applicant’s manipulation and insult.  Moreover, two other counts of indecent assault are also involved in the present case, and therefore apart from considering if the sentence in respect of each of the charges is appropriate, I have to consider if the sentence in total was manifestly excessive as well, which means whether the sentence imposed by the court is excessive or has gone beyond the range appropriate for such offences.  Under such circumstances, even if the reasons for sentence after trial do not indicate any particular error, the Court of Appeal may still find the trial judge has erred in exercising his discretion in passing the sentence: R v Waddingham (1983) 5 Cr App R (S) 66 and R v Lo Yim Kai [1966] HLKR 414.  According to the facts of the present case, I do not think that the sentence of four years’ imprisonment in total is manifestly excessive.  In addition, ST Poon J’s ruling that the accused’s old age in this type of cases was not a mitigating factor was supported by authorities, see: HKSAR v CHOW Chi-ming, HCMA 1247/2005.
本案不存有違反誠信的情況。但本席不認同就第二項控罪潘法官採用四年監禁刑期是不適當的，反而需要採用與L.C.H.一案相若的刑期，甚至是更輕的刑期。這是因為每宗案件的案情不同。雖然法律視無精神行為能力的人不可能同意與被告人發生性行為,但上訴法庭在L.C.H.量刑的其中一個考慮是該女子的行為，這亦是符合這類案件被告人是否強行侵犯受害人的量刑考慮因素。本案的X完全是被動，受申請人擺布凌辱。另外，本案涉及其他兩項「猥褻侵犯」罪，故此本席除了需要考慮個別刑期是否適當外，還要考慮整體刑期是否明顯過重，這是指法庭所判處的刑罰偏重或超出該類型罪行判處適當刑罰的範圍。在此情況下，即使原審的判刑理由未能顯示它有特定的錯誤，上訴法庭仍可以裁定原審法官錯誤行使其量刑酌情決定權：R v Waddingham (1983) 5 Cr App R (S) 66及R v Lo Yim Kai [1966] HLKR 414。根據本案案情本席不認為四年監禁的總刑期是明顯過重。另外，潘法官裁定被告人的年紀在這類案件不是求情理由亦是有案例支持，見：HKSAR v CHOW Chi-ming（周志明）HCMA 1247/2005。

In light of the above reasons, the application was dismissed.
基於上述理由，本席駁回申請。

V.Advice
V.忠告

The applicant is entitled to renew his application for leave to appeal before the Full Court of the Court of Appeal, nevertheless, I have to advise him of the following: In the event that his renewed application is eventually dismissed, the Court of Appeal shall have the power to order for loss of time in respect of the time that he has spent in custody.  In other words, he may have to serve a longer term of imprisonment.
申請人是有權利向三名法官組成的上訴法庭重新提出其上訴許可申請，但本席需要忠告申請人，若果他的申請最終被上訴法庭駁回，上訴法庭有權命令他在羈留期間的部分時間不當作刑期的一部分。換句話說，他可能需要服更長的刑期。

The Applicant: in person, present.
答辯人：由律政司高級檢控官何眉語代表。

Miss Lily Ho, Senior Public Prosecutor, of the Department of Justice, for the respondent.
申請人：無律師代表，親自出庭應訊。