HKSAR v. Cheung Man Wai
Read the full judgment text of CACC 138/2014 on BabelCite. This Court of Appeal judgment.
1. The applicant was charged with three offences:
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[ENGLISH TRANSLATION - 英譯本] IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 138 OF 2014 (ON APPEAL FROM HCCC NO 474 OF 2013) ________________________ BETWEEN
________________________ Before: Hon Yuen JA, Poon and D Pang JJ in Court Date of Hearing: 13 February 2015 Date of Judgment (application for leave to appeal against conviction): 13 February 2015 Date of Reasons for Judgment (application for leave to appeal against conviction) and Judgment (application for leave to appeal against sentence): 10 March 2015 Reasons for Judgment (application for leave to appeal against conviction) Hon Poon J (giving the Reasons for Judgment (application for leave to appeal against conviction) and Judgment (application for leave to appeal against sentence) for the Court): Introduction 1.The applicant was charged with three offences:
2.In summary, the Prosecution alleged that on the 3rd day of January, 2013, outside Buddhist Tai Kwong Chi Hong College (“College”) at Chui Yi Street, Tai Po, New Territories, Hong Kong, after robbing a girl (“X”) of a mobile phone, a wallet, cash of $160 Hong Kong currency, one Hong Kong Identity Card, one student card, one medical card, one personal octopus card and some photographs, the applicant took X to a secluded hillside nearby and assaulted her sexually and physically. X was a Form 3 student of only 14 years and 8 months old at the time of incident. 3.The applicant denied all the charges. He did not dispute that X had been robbed, assaulted sexually and physically but he asserted that X had misidentified him as the culprit. 4.The case was tried in the Court of First Instance before High Court Judge Andrew Chan (the trial Judge) and a jury. 5.On the 5th of March, 2014, the jury found the applicant guilty of all three charges. On the 8th of April, 2014, the trial Judge sentenced the applicant to an imprisonment of four years for the first offence, ten years for the second offence and two and a half years for the third offence. Three years in respect of the first offence were to run consecutively to the ten years’ imprisonment in respect of the second offence; and two years in respect of the third offence were to run consecutively to the ten years’ imprisonment in respect of the second offence, making a total of 15 years’ imprisonment. 6.On the 23rd of April, 2014, the applicant filed application for leave to appeal against conviction. He was denied legal aid and acted in person for the application for leave to appeal against conviction. 7.On the 29th of July, 2014, the applicant filed application for leave to appeal out of time against sentence. Mr Y. K. Tze, James was assigned by the Legal Aid Department as counsel representing the applicant. Prosecution Case (I) The Course of the incident 8.X’s evidence can be summarised as follows. 9.At around 7:15 on the night in question, X was on her way alone to her paternal grandmother’s. When she was passing a secondary school, she saw a man walking in her direction. The man was wearing a red cap, a black-white-grey striped jacket, a pair of light blue jeans and white clogs. The man was the applicant. The applicant suddenly grabbed her by the neck from behind with his left arm saying that it was a robbery and he had a knife in his hand. After robbing X of the aforementioned items, the applicant kept grabbing X and took her to a gazebo by the side of a pond after walking through a park. While they were there, the applicant smoked and talked with X at the same time for as long as 20 minutes. Among other things, he said that he had a son and he only resorted to robbery because of financial difficulties. During the time, he threatened X that he would give her a cut on the neck if she shouted for help. But he also said that he could not bear to give a cut on her face and kill her. After saying that, the applicant took X to walk through an alley before eventually reaching a secluded hillside in the vicinity of Tai Ping Industrial Centre. There and then, the applicant dragged X to a staircase forcefully and ferociously. X was very scared. She resisted in vain. The applicant once demanded X to raise her head and gave him a cheerful smile. The applicant remarked that X was quite pretty and cute. He would not bear to give her a cut on the face. 10.The applicant then took X to a path in the hillside and ordered X to take off her clothes, socks and shoes. When X resisted, the applicant immediately hit her head once. X had no choice but to obey. She was crying while taking off her clothes. She was very scared and begged the applicant not to kill her, rape her or sexually assault her. The applicant then ordered X to squat down, spread her legs and use her finger to masturbate before him. When X refused, the applicant immediately hit her head two, three times, kicked her back and hit her shoulders. X had no choice but to obey after having been beaten up. After X had masturbated, the applicant wrapped his finger with X’s clothes and worked it in and out of X’s vagina and anus. He further molested X’s breasts over the clothes and asked X how large were her breasts. 11.After having sexually assaulted X, the applicant pulled her hair and banged her head against the railings in the hillside. X fell onto the ground because her head was hurting. The applicant pulled X’s hair again and banged her head against the concrete barrier and the ground. He then went on to kick X causing her to fall down into a gully nearby. X’s head was very painful. She thought of pretending to faint but the applicant said he would drown her in mud if she did not respond. So X had to get up. Shortly afterwards, the applicant allowed X to leave. X testified that the duration of her being kept in the hillside and the course of the assault lasted for 40 to 45 minutes. She was only allowed to leave after another 10 minutes. X made a complaint to her mother about the ordeal when she returned home and called the police for assistance. (II) Examination findings of X’s forensic medical report 12.Upon agreement made by both the Defence and the Prosecution, the forensic medical report of X was admitted into evidence. The particulars are as follows[1]:
13.On 9th January 2013, the physical examination conducted on X by a gynaecologist was unremarkable. (III) The applicant had appeared in the vicinity of the robbery scene 14.The defence admitted that at around 5:15 pm on the 3rd of January 2013, the applicant did appear in the food court at Fu Hang Estate, Tai Po. At that time, he was wearing a black-white-grey striped top, a pair of blue jeans and a black and white cap with a red brim[2]. The defence also admitted to the content of a video clip provided by “Mans Auto Repair Shop”（猛士專業汽車美容護理公司）. The shop was across the crime scene where X was robbed. The video clip recorded the situation outside the shop between 1900 hours and 1930 hours on the 3rd of January 2013. A man in black-white-grey striped top was seen walking past a secondary school in the video. He was the applicant[3]. 15.The defence further admitted that a photo was provided by the police for X’s identification on the 7th of January 2013. The photo was retrieved from the aforementioned video clip[4] and the defence admitted that the man in the photo was the applicant. (IV) The arrest of the applicant 16.At 7:10 pm on the 31st of May 2013, the police arrived at the residence of the applicant in Kwai Chung and arrested the applicant. At the time, the applicant was at home together with three women and a child. Under caution, the applicant said, “on that day I did rob her of her phone and wallet before taking her to a hill. But I had no idea of what I had done because I was short-circuited that day.” The applicant was then taken to the police station for investigation. (V) X recognised the applicant 17.On the 4th of June 2013, X positively identified the applicant as the culprit[5] in an identification parade conducted in Tai Po Police Station. Defence Case 18.The applicant elected not to give evidence. His defence was that X had mistaken him for the culprit. As regards the verbal admission he made on the night of the arrest, the applicant asserted that he was drunk and did not have a clear mind at that time. He was coerced into signing his name on the police notebook. In addition, the admission made under caution was fabricated by the police officer. 19.The applicant called Dr Wong Suk Kwan to testify for him. Dr Wong conducted a physical examination on the applicant on the 31st of May 2013. She testified in evidence that no superficial injuries or marks were found on the applicant. His heart, lungs, chest and abdomen were normal. His blood alcohol content was 18.7. According to normal standard, blood alcohol content between 10.9 and 21.7 would have an impact on a man’s ability to react. Dr Wong pointed out that the applicant was sober at the time. He was coherent and did not have a strong smell of alcohol. Issue 20.In the original trial, the issue was whether the applicant was the man described by X who had robbed her, sexually and physically assaulted her. Verdict 21.The jury found the applicant guilty of the offence of robbery by 5 to 2 and they found the applicant guilty of the offence of indecent assault and the offence of assault occasioning actual bodily harm unanimously. Reasons for Sentence 22.On the 5th of March 2014, the trial Judge ordered a clinical psychological assessment report in respect of X. At the same time, he pointed out that the facts of the case were extremely vile. He intended to impose the maximum penalty, that is, ten years’ imprisonment, on the applicant and he invited the defence counsel to make submission in this regard. On the 1st of April 2014, the trial Judge heard further submission on mitigation. The defence counsel submitted that X did not require any psychological counselling treatment quoting the psychological assessment report. 23.During sentencing on the 8th of April 2014, the trial Judge pointed out that the applicant was thirty six years old with fifteen criminal convictions of which one was for robbery, several for theft and four for wounding/assault. There was also one criminal conviction of attempted rape in 1996. The victim of the case was only 13 years old. The trial Judge considered that the applicant was an extremely violent and dangerous person. 24.In respect of the offence of robbery, the trial Judge pointed out that no weapon was used in committing the crime. He therefore followed the sentencing guidelines laid down by the Court of Appeal and sentenced the applicant to four years’ imprisonment. 25.In respect of the offence of indecent assault, he considered that the facts of the case were very serious. X was forced to perform acts that seriously hurt her dignity. What the applicant did made no difference from rape or unlawful buggery. He pointed out that the sentence must have a deterrent effect and also to show the abhorrence of members of the public to crimes of this nature and also to redress the grievance suffered by X and her family. He therefore imposed the maximum penalty of ten years’ imprisonment on the applicant for this offence. 26.Lastly, since the acts committed in the offence of assault had not caused severe permanent physical injuries to X, the trial judge therefore sentenced the applicant to two years and six months’ imprisonment. As aforementioned, he had taken into consideration the totality principle and ordered part of the sentences to be served concurrently making a total of fifteen years’ imprisonment. Grounds of appeal (against conviction) 27.As regards conviction, the applicant failed to set out any grounds of appeal in his notice to appeal. 28.The Vice President of the Court of Appeal issued a written direction on the 24th of October 2014 asking the applicant to file written submission to the Court in 28 days before this hearing. But the applicant had not complied with the direction. 29.It was not until the 13th of February 2015 that the applicant submitted a 5-page written submission to this Court in the process of the hearing setting out eighteen grounds of appeal therein, inter alia, allegations of incompetence on the part of his defence counsel at trial and unfair handling of the case by the trial judge. When this Court asked the applicant why did he not conduct his appeal in accordance with the written direction issued by the Court earlier but rather submitted a written submission only in the process of the hearing, he was unable to give a satisfactory answer. Regardless, this Court still had to give an opportunity for the applicant to present his grounds of appeal to this Court. In that case, adjournment of the hearing would become inevitable. This Court therefore explained the situation to the applicant and gave him a warning: if his appeal is dismissed eventually by virtue of S83W of the Criminal Procedure Ordinance[6], the Court might direct that the time during which he is in custody pending the determination of his appeal shall not be reckoned as part of the term of any sentence to which he is for the time being subject because his action has wasted the time and resources of the Court. This Court therefore adjourned the hearing briefly for the applicant to consider thoroughly. When the Court resumed, the applicant submitted to this Court that he would abandon his application for leave to appeal against conviction. This Court then explained to him that once the application was abandoned, he would be unable to re-apply for leave to appeal against conviction. The applicant indicated that he understood. 30.Since the applicant abandoned the application himself, this Court refused his application for leave to appeal against conviction. Grounds of appeal (against sentence) 31.The applicant asked for extension of time for issuing the notice of application for leave to appeal on 29 July 2014. In other words, his application was two and a half months out-of-time. Mr Tze, counsel for the applicant, only applied for leave to appeal out-of-time against sentence in respect of the second offence. He advanced three grounds of appeal:
Discussion 32.There is no sentencing tariff or guidelines for the offence of indecent assault. The facts of individual cases must be taken into account in considering the appropriate punishment. 33.The maximum penalty for the offence of indecent assault is ten years’ imprisonment. In other words, the trial judge had imposed the maximum penalty under the law on the applicant. The maximum penalty prescribed by the law was only reserved for the worst possible example of the offence concerned (see para 17[7] of the judgement of The Attorney General v Dominic Cheung Kai Man, Application for Review No. 1 of 1987 (unreported) dated 2 April 1987). Therefore, the issue for discussion of this Court is whether the facts in this case are the worst possible example of the offence of indecent assault. 34.One of the aggravating features in this case is that victim X was only a girl. This Court has repeatedly emphasized in similar cases that sexual assault on children is a serious offence. The Court must impose a severe punishment on the offenders based on the actual situation of the case. 35.In HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 422, this Court (differently constituted) had pointed out the sentencing principles[8] for offences of sexual assault on children as follows:
36.Recently, the Hon Yeung VP of the Court of Appeal in HKSAR v Tsang Chiu Yu [2012] 3 HKLRD 561 emphasised that: “50. In our view, in considering the appropriate sentence, the interest of the society at large is a factor of paramount importance (see our observations in paragraph 23 of the judgment in HKSAR v Cheung Kwok Yip Peter [2013] (sic) 3 HKC 470).” The interest of the society emphasized by the Hon Yeung VP refers to the Court’s duty to protect the public[9] when imposing sentence on sexual offenders against children. 37.In his submission, Mr Edmond Lee, Senior Public Prosecutor of the Department of Justice representing the Respondent, pointed out that there were multiple features in this case that enhances the culpability of the offender:
38.Although this Court is of the view that the facts of this case were indeed extremely vile, they were still a littlebit short of falling into the category of the worst example. This Court is concerned with the following two aspects. 39.First, although the applicant was sentenced to four and a half years’ imprisonment for attempting to rape a girl of 13 years old with another two men in 1996, it should not be given too much weight in sentencing since he was only 18 years old at the time. In addition, that case happened seventeen years apart from this case. We would have considered otherwise if the applicant has more recent and more previous convictions[10] for sexually assaulting girls,because such previous convictions indicate D’s recidivism and that previous sentences have had no deterrent effect on him. In order to protect the public, the Court must impose a more severe punishment. (See para 23 of HKSAR v Cheung Kwok Yip Peter [2010] 3 HKC 470). 40.Second, although the modus operandi of the applicant was extremely vile, it did not involve other inappropriate behaviour such as taking photos or videos of the offence he committed[11]. 41.This Court is of the view that the appropriate sentence is nine years instead of the maximum ten years. 42.In order to avoid unnecessary misunderstanding, this Court must emphasise that although there are two mitigating factors in this case, namely the applicant does not have any recent similar conviction or performed other inappropriate behaviour, it does not mean that the Court cannot impose the maximum ten years’ imprisonment on defendants in other caseswithsimilar circumstances. The sentencing all depends on the actual facts of the case. If the facts of the case are extremely vile, the Court can still impose the maximum penalty on the defendant in the absence of similar previous or other inappropriate behaviour. 43.This Court also has to point out that although this Court is of the view that the appropriate sentence for the second offence is nine years, we are only saying that the culpability of the applicant is not asserious as to warrant the maximum penalty. His modus operandi was still extremely vile. He also does not appear to have a scintilla of remorse. This Court seriously condemns the applicant. 44.As regards the total term of imprisonment, Mr Tze, the counsel submitted that since all three offences were committed at the same time and the second and third offence happened in the same place, under the totality principle, fifteen years’ imprisonment is manifestly excessive. 45.This Court does not agree with Mr Tze. This Court is of the view that trial judge’s handling of the total term of imprisonment is correct. Conclusion 46.For the above reasons, this Court grants the applicant’s application for leave to appeal out-of-time against sentence and treating the hearing of the application as the appeal. Appeal allowed and the sentence for the second offence is reduced to nine years making a total imprisonment of fourteen years.
Mr Edmond Lee, SADPP of the Department of Justice for the Respondent Mr Y.K.Tze, James, instructed by Chan & Co., S H, assigned by Director of Legal Aid for the Applicant (appeal against sentence) Applicant,acting in person (appeal against conviction) Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law. [1] Refer to the admitted facts (prosecution exhibit P15). [2] Refer to para.9 of the admitted facts (prosecution exhibit P15). [3] Refer to para.11 of the admitted facts (prosecution exhibit P15). [4] Refer to para.12 of the admitted facts (prosecution exhibit P15). [5] Refer to para.13 of the admitted facts (prosecution exhibit P15). [6] Cap 221, Laws of Hong Kong [7] Reasons for Judgment of the Court of Appeal were given by Cons VP. [8] Reasons for judgment of the Court of Appeal were given by Hon Cheung JA. [9] “the court’s duty to protect the public” in para 23 of the reasons for judgment given by the Hon Stock VP of the Court of Appeal in HKSAR v Cheung Kwok Yip Peter [2013] (sic) 3 HKC 470. [10] Similar to the defendant in HKSAR v Cheung Kwok Yip Peter. [11] See sentencing principle in para 9(9) of HKSAR v Tsang Chiu Tak. |
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