HKSAR v. Azad Mohammad Farhan

CACC 253/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 253 OF 2015 (ON APPEAL FROM HCCC NO. 464 OF 2014) ____________ BETWEEN   HKSAR Respondent
	and
	AZAD MOHAMMAD FARHAN	Applicant

____________

Before: Hon Lunn VP in Court

Date of Submissions:	The Applicant - 10 December 2015;
	The Respondent - 28 December 2015
Date of Judgment: 26 April 2016

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JUDGMENT

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1.The applicant seeks leave to appeal against the sentence of 5 years and 4 months’ imprisonment imposed on him by Yau J on 21 July 2015, following his conviction on his plea of guilty to a count of rape of Ms X on 1 June 2013, contrary to section 118(1) of the Crimes Ordinance, Cap. 200. The parties have indicated to the Court that they consent to the matters being dealt with on the papers.

The facts

2.In his reasons for sentence, the judge noted of the facts accepted by the applicant in tendering his plea of guilty that the victim was a 22-year-old visitor to Hong Kong from the Mainland who was staying with a girlfriend in a guesthouse in Chungking Mansions in Tsim Sha Tsui.  At about 11:10 p.m., having had a shower in a communal bathroom she returned to their room, after which her girlfriend went to take a shower, leaving the door to the room closed but not locked.  Of the events that then unfolded, the judge said:

“ The accused suddenly opened the door and entered the room and said, “Can we make friends”.  The victim asked him to leave.  The accused locked the door.  The victim was terrified.  She did not know the defendant and had never seen him before.  She told the accused, in English, that she was scared and again asked the accused to leave.  The accused said that he wanted to see the victim’s body.  The victim was frightened and asked the accused if he would leave if she allowed him a quick glance, hoping that that would be the end to the matter.

The accused however said, ‘If you cry out, I will...” and then did a throat-cutting gesture with his right hand, whilst patting his trouser pocket with his other hand.  The victim thought that the accused might have a knife with him and would kill her if she shouted or tried to resist.  The accused pulled off her towel and kissed her two breasts once.  The victim started to cry but dared not resist or shout for help.

The accused signalled her to remove her knickers, again making a throat-cutting gesture.  He pulled her knickers to one side and licked the victim’s vagina. He took out his penis, wiped it on the victim’s towel and grabbed the victim’s head, sticking his erect penis into the victim’s mouth, in and out for seven to eight seconds.  The victim felt sick and humiliated.

The accused held her hand to make her touch his penis.  The accused then pulled the victim onto one side of the bed and pressed his penis into the victim’s vagina, thrusting up and down for about 20 seconds.  He did not use a condom.  The victim did not know if the accused had ejaculated.  The victim was very terrified and was suffering great pain so she tried to get rid of the accused by saying that her friend would return to the room soon.  The accused put his shorts back on and left.

Later, the victim and her friend made a report to the police.”

3.The judge went on to note that an examination of the victim revealed that the inner lining of the vagina, the labia minora, had been damaged and split.  Further, he said that DNA analysis of the high and low vaginal and vulval swabs showed “that there was semen and sperm of which the donor was the accused.”

4.The applicant was arrested, having been seen to be behaving suspiciously on CCTV coverage of the building.  He was a resident of another block of that building.  In a video recorded interview conducted of the applicant by police officers, the applicant admitted having gone into the room, asserting that he did so by mistake.  He claimed that the victim had encouraged the sexual familiarity that ensued and initiated sexual intercourse.  On 3 June 2013, the applicant was identified by the victim on an identification parade.

5.Of the applicant, the judge noted that he was 28 years of age and that, having come to Hong Kong in 2008, he had claimed asylum, which claimed he had recently withdrawn.  Also, he noted that he had five previous criminal convictions.  They were for offences of: 

(i)   possession of dangerous drugs, of which he was convicted in September 2009 and fined $1,000;

(ii)   theft, which he was convicted in February 2012 and sentenced to 16 months’ imprisonment;

(iii)   rape;

(iv)   non-consensual buggery; and

(v)   robbery.

For the latter three offences, of which he was convicted after trial on 13 May 2015, he was sentenced to 18 years’ imprisonment, 15 years’ imprisonment and 4 years’ imprisonment respectively, all of which sentences of imprisonment were ordered to be served concurrently.

6.The judge noted that it had been submitted to him that the total sentence of 18 years’ imprisonment imposed on the applicant on 13 May 2015 for the offences of rape, non-consensual buggery and robbery was “manifestly excessive and unjust”.  In mitigation counsel had informed the judge that the applicant was appealing both conviction and sentence in respect of those offences.[1]  Furthermore, the judge noted that it had been submitted that, to reflect the totality and achieve justice, he ought to order the sentence of imprisonment which he imposed to be served concurrently with the sentence of 18 years’ imprisonment.

7.Of the circumstances of the commission of the offence, the judge said that, having intruded into the victim’s bedroom, the applicant had refused to leave.  Of the sequence of ensuing events, the judge said:

“ He threatened the victim with the gesture of throat-cutting and even hinted that he had a weapon in his trousers pocket. This is a serious aggravating factor.

The room, despite being inside a guesthouse, was in all senses the castle of the victim at that time and was supposed to be her sanctuary, safe from intrusion of outsiders. The accused, however, intruded into her castle and raped her. Although the victim had not been restrained and the accused had not used violence and had not used or displayed any weapon, he threatened to use violence by making a gesture of throat-cutting and patting on his trousers pocket to indicate that he had a weapon.

The victim actually suffered injury to the lips of her vagina and bled. This no doubt was caused by the sexual intercourse which the accused carried out without the consent of the victim.

While there is no evidence that the accused had ejaculated, the case is further aggravated by the accused not using a condom during the rape.  It is fortunate that the victim has not got pregnant or infected with any disease, but this by no means mitigates the gravity of the offence.”

Starting point for sentence

8.In the result, the judge stipulated a starting point to sentence of 8 years’ imprisonment.

Discount of sentence

9.Stating that he reflected the applicant’s plea of guilty, the judge sentenced the applicant to 5 years and 4 months’ imprisonment.

Totality of sentence

10.In approaching the issue of the appropriate totality of sentence to be imposed on the applicant, the judge said:

“ The case for which the accused is now serving time happened in 2011 while the present case happened in 2013. They are no doubt separate and distinct cases. The sentences should, theoretically, run one after the other.”

11.Of the submission that the sentences imposed in respect of the earlier convictions of rape, non-consensual buggery and robbery were manifestly excessive, the judge said:

“ Whether the sentence passed on the accused in the first case is manifestly excessive or unjust is not the question for this court to consider. It is clearly a question for the Court of Appeal if the accused takes it to appeal.”

12.In the result, the judge said:

“ Having said that, in all fairness to the accused, the court does have to take the totality principle into account although, in doing so, the court does not have to form any view in relation to whether the sentence passed on the accused in the first case is proper or otherwise. Having done so, the court orders 2 years of the sentence of the present case to run concurrently with the sentence in HCCC 44/2014.”

Grounds of appeal against sentence

13.In her ground of appeal against sentence, Ms Panesar conceded in terms that the sentence of 5 years and 4 months’ imprisonment imposed by the judge on the applicant, “in itself is entirely correct.”  However, she submitted that the judge erred in ordering that 3 years and 4 months of that sentence of imprisonment be served consecutively to the sentence of 18 years’ imprisonment imposed on the applicant in the earlier case, HCCC 44/2014.  Further, she contended that the judge “failed to consider whether the totality was correct in all the circumstances of the HCCC 44 of 2014 and HCCC 464 of 2014 and the mitigation and the applicant’s relatively young age.”

The respondent’s submissions

14.For the respondent, Mr Daryanani opposed the granted leave to appeal against sentences. He pointed out that the offences the subject of the indictment in HCCC 44/2014 occurred on 15 September 2011, whereas the offence the subject of the count of rape in the indictment in HCCC 464/2014 occurred on 15 June 2013.  Moreover, the two victims were two different females.  He submitted that the judge had regard to the issue of totality and that his determination to order that two years of the sentence of 5 years and 4 months’ imprisonment he imposed on the applicant was to be served concurrently to the existing sentence of 18 years’ imprisonment was not manifestly excessive or wrong in principle.

A consideration of the submission

15.Having regard to the effect of the judge’s order that two years of the sentence he imposed on the applicant in respect of his conviction for rape was that more than 60% of the sentence he imposed was ordered to be served consecutively to an existing sentence of 18 years’ imprisonment for other offences, and in all the circumstances, in my judgment the grounds of appeal, the nub of which is that that in so doing the judge fell into error, are reasonably arguable.

Conclusion

16.Accordingly, I grant the applicant leave to appeal against sentence.

(Michael Lunn) Vice President

Mr Prakash L Daryanani, SPP, of the Department of Justice, for the respondent

Ms Mahinder M. Panesar, instructed by George Chan & Co, assigned by Director of Legal Aid, for the applicant