HKSAR v. Keita Ali

CACC 419/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 419OF 2015

(ON APPEAL FROM HCCC NO. 327 of 2015)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.Having allowed the appellant’s appeal and quashed his conviction on 18 November 2015 for the attempted rape of Madam X on 9 January 2015, we substituted a verdict of indecent assault, contrary to section 122 of the Crimes Ordinance, Cap. 200. Having received the submissions of counsel and considered the available psychiatric and psychological reports on the appellant we imposed a sentence of 4 years’ imprisonment on him for his conviction for the offence of indecent assault. In addition, pursuant to section 109C(1)(a) of the Criminal Procedure Ordinance, we ordered that the sentence of 2 weeks’ imprisonment imposed on the appellant on 28 February 2014 and suspended for two years, shall take effect and be served consecutively to the sentence of 4 years’ imprisonment. We said that we would give the reasons for sentence in due course. That, we do now.

2.The offence occurred at about 9 p.m. on 9 January 2015 in the rear lane which connected Mok Cheong Street and Sung Wong Toi Road in Kowloon City.  The appellant, then 26 years of age, attacked and indecently assaulted Madam X, then aged 63 years, a married woman with adult children.  She was there to collect discarded cardboard boxes.  Thinking that the appellant was about to urinate in the lane, she had told him in Cantonese to go elsewhere.  The appellant, a Guinean, responded in a language which she did not understand.  Then, he grabbed her neck and she fell backwards onto the ground.  He smothered her screams with his hand and forced a plastic bag into her mouth.  Next, he pulled a plastic bag over her head.  She was frightened and resisted.  She felt that she was suffocating and her strength ebbed away.  Then, he pulled down the waistband of her trousers and the two undergarments she was wearing, namely pyjamas and underpants.  He slapped her genitals three or four times.  The appellant desisted in his attack when interrupted by the arrival of Mr Chung Wah On, who entered the rear lane through the rear door of the adjacent supermarket premises in which he worked.  The appellant remained at the scene and was arrested by police officers.

The appellant’s background

3.The appellant was born in Guinea and came to Hong Kong with his family in 2005.  Subsequently, his family migrated to the United States of America.  The appellant was educated in Hong Kong and had been married to a Hong Kong resident.  However, they had separated and he no longer saw her.

Criminal record

4.The appellant was convicted of two charges of indecent assault and on 20 December 2012 was sentenced to 14 days’ imprisonment on each charge, which sentences were ordered to be served concurrently.  At our request, we were provided with the facts of the case.  At 04:00 hours on 25 September 2012 as two young women walked towards him the appellant raised both his arms horizontally and swept one hand across the left breast of one of the young women whilst his other hand brushed across the abdomen of the other young woman as she tried to avoid him.  His appeal against conviction was dismissed.[1]  On 28 February 2014, the appellant had been sentenced to 2 weeks’ imprisonment suspended for 24 months, for an offence of common assault.  Finally, on 4 November 2014, he had been sentenced to 7 days’ imprisonment for the offence of theft.

Psychiatric and psychological reports

5.The two psychiatric reports available to the judge from Dr Oliver Chan and Dr SH Lui, dated 26 and 23 October 2015 respectively, are available to this Court, as is an updated report from Dr SH Lui, dated 28 February 2017, and a psychological report from Ms Daisy HM Yeung, dated 6 March 2017.

6.In his report, Dr Oliver Chan said that the appellant had reported that for many years he had images of ghosts in his head.  Nevertheless, in his opinion the appellant was not suffering from any formal psychiatric disorder.

7.In both his reports, Dr SH Lui expressed the opinion that the appellant was not suffering from mental illness.  Having been invited by the Court to address the issue specifically, he said “there is no suggestion of autism.”

8.Ms Yeung said that she had counselled the appellant in late 2016 for interpersonal problems he had in prison.  In her latest consultation, the appellant reported that those issues have been resolved.  She said that the appellant did not show any signs “…suggestive of intellectual deficit”.  On the other hand, she noted that the appellant’s “guarded presentation” made it not possible to conduct a “thorough psychological assessment.”  Nevertheless, she expressed the opinion that the appellant “displayed paranoid tendency” and that he was “… also impulsive, with a propensity to act without carefully deliberating the consequences of his behaviour.”

9.Ms Yeung said that there was no evidence that the appellant was suffering from any kind of psychopathology.  Further, it was her opinion that “…he is not psychotic; though being rather paranoid, his paranoid tendency does not reach a delusional level.”  Further, she said “he does not have any pervasive deficit in social communication, which is a hallmark symptom of autistic spectrum disorder.”  In the result, she said that the appellant “…has some personality problems but not any diagnosable psychopathology.”

Submissions on behalf of the appellant

10.In his submissions on behalf of the appellant, Mr Egan drew the attention of the Court to the judgment of this Court in The Attorney General v Lee Kui Man.[2]  In that case, the respondent to the Attorney‑General’s application for review of sentence had been convicted after trial of one charge of wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212, and two charges of indecent assault, contrary to section 122 of the Crimes Ordinance.  The victims were too schoolgirls aged 17 and 18 years, who were making their way to school in school uniform.  The assault occurred as the two girls made their way up the staircase of an exit of Mongkok MTR station.  The respondent put his hand up the skirt of the first victim and touched her hip and buttocks.  Then, he committed a similar assault on the second victim.  When the first victim confronted him, the respondent dragged her by the neck to a staircase where he punched her face and chest, touched her breast and pulled at her underpants.  Fortunately, passers-by intervened and, although the respondent attempted to flee, he was restrained.  The first victim was hospitalised for one week.

11.The judge described the acts of indecency as “two minor indecent assaults.”  Of the wounding, the judge accepted that it was not pre-planned and that it was a “flare-up of frenzy and panic in the heat of the moment caused by drink.”  Further, he said that he was not sure “that he had any indecent intent either, that the hitting of her breasts and pulling at her pants could have been part of the overall frenzy.”

12.In the judgment of the Court, Power Ag CJ said:[3]

“ There were two offences of indecent assault and one serious wounding. The wounding consisted of a sustained attack in which, according to the findings of the judge, the respondent “rained” punches on the victim. His conduct was in no way excused by the fact that he had taken drink, nor was the wounding excused by the fact that it was not premeditated. Indeed, in the circumstances it could not have been otherwise. The court, when imposing sentences on offences such as these, must bear in mind its duty to protect women and girls by assessing a sentence which will have real deterrent effect. What might have been a drunken frolic for an offender was, when viewed by any right thinking member of the public, a distasteful and distressing affront to the dignity of the two young women assaulted. The wounding offence went well beyond anything that could be excused on the ground of a momentary loss of self control.” [Italics added.]

13.This Court quashed the sentences of 2 weeks’ imprisonment imposed in respect of the two indecent assault charges and 3 months’ imprisonment imposed in respect of the wounding charge, which sentences had been ordered to be served concurrently.  In their place, noting that the respondent had been willing to plead guilty to the wounding charge, in the alternative to the charge of wounding with intent contrary to section 17 of the Ordinance on which he stood trial, this Court said that the appropriate sentence for the wounding charge was 12 months’ imprisonment and 3 months’ imprisonment for each of the indecent assault charges, which sentences of imprisonment should have been ordered to be served consecutively.  Accordingly, the total sentence should have been 18 months’ imprisonment.  Having regard to the fact that the application was for a review of sentence, which sentences the respondent had served, this Court imposed sentences of 2 months’ imprisonment on each of the indecent assault charges and 8 months’ imprisonment on the wounding charge, ordering that those sentences be served consecutively.

14.In discharge of his duty to the Court, Mr Egan also drew our attention to the judgment of this Court in the Secretary for Justice v Lau Yun Leung.[4]  He conceded that two of the factors in aggravation of the offence of attempted rape described in the judgment of Stuart-Moore VP were relevant to consideration of the appellant’s culpability for the offence of indecent assault, namely violence used above that which was necessary to carry out his purpose and the time and place at which the attack took place.

15.In that case the victim of the attempted rape, a 19-year-old girl, had been attacked at about 2:30 a.m. when she returned to her home in Sai Kung.  The respondent pulled her head down and kneed her in the face four or five times and then dragged her into some nearby thick grass where he squeezed her breasts and pulled her jeans and underpants down to her knees.  By chance, police officers intervened as the respondent was punching the victim’s head.  His trousers were open and unzipped.  Of the lasting effect on the victim, Stuart-Moore VP said:[5]

“ …this will obviously have been a terrifying event that she is unlikely to forget for the rest of her life. It is hard to imagine, realistically, that she will ever be able to go out at night again on her own without being concerned for her safety having regard to the traumatic effect this event must inevitably have had upon her.”

A consideration of the submissions

16.It is readily apparent that the circumstances of the commission of indecent assaults in The Attorney General v Lee Kui Man were quite different from the conduct of the appellant.  There, the acts of indecency were touching the buttocks of the two victims outside their underpants, which the judge described as “bottom pinching”.  As noted earlier, the judge stated that he was not sure that the touching of the breasts of one of the girls and pulling at the pants in the course of a struggle was done with indecent intent.  By contrast, the appellant had suffocated Madam X causing petechiae in her eyelids and causing her to lose strength in her resistance.  Then, having pulled her trousers and undergarments down he slapped her private parts three or four times.

17.As this Court noted in its judgment in HKSAR v Tsang Ue Sum [6], to which Ms Catherine Ko drew our attention:

“ …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 very little assistance to this Court.”

18.The appellant’s attack on Madam X was a cowardly attack in a public place by a young man on a relatively frail older woman, who weighed about 39 kilogrammes and stood only 131 cm in height.  Understandably, she testified that she was frightened.  It is to be noted that in sentencing the appellant at his trial, having had the benefit of receiving her testimony, the judge said of Madam X:[7]

“ …she can be described as fragile person who was on welfare and collected unwanted cardboard boxes. But after this incident, I understand from PW 2 that she no longer would return to the supermarket to collect boxes. Perhaps it is understandable as what she was made to go through that evening must have been a real trial for her.”

19.Of the injuries to Madam X, it has been noted that it was Dr Foo’s opinion that the erythema over two areas at the front of the middle neck together with subconjunctival haemorrhages of both eyes and bleeding spots over the inner lining of the lower eyelids indicated “…a significant amount and duration of sustained blunt force being applied to the neck region.”  Also, he said that the “… finding of reddish bruising circumferentially around the hymenal ring could have been produced by blunt force trauma.”

20.The appellant used his advantage of male strength to stuff a plastic bag into her mouth and pulled another one over her head before pulling down Madam X’s trousers and undergarments.  Obviously that level of violence was over and above that which was required to overcome her resistance.  Then, he subjected her to the indignity and humiliation of having her private parts slapped several times.  That was a serious indecent assault.

21.In common with the trial judge, we were concerned about the appellant’s mental state.  It is to be remembered, that following the attack, and having been told that the police were being summoned, the appellant chose to remain at the scene.  However, although it was Ms Yeung’s opinion that the appellant displayed a paranoid tendency and has some personality problems, nevertheless she said that the appellant did not have any diagnosable psychopathology.  On the other hand, she said that the appellant was impulsive and had “…a propensity to act without carefully deliberating the consequences of his behaviour.”

22.The defence case that the appellant believed that in some way Madam X was responsible for the disappearance of his bag is consistent with paranoia.  Similarly, the appellant’s attack on Madam X could be viewed as impulsive and without consideration of the consequences.

Conclusion

23.In the result, having regard to the violence visited on Madam X and the serious nature of the indecent assault, but also taking into account his paranoid tendency and his impulsive behavior, we were satisfied that the appropriate sentence to be imposed on the appellant was 4 years’ imprisonment, which order we made.

Suspended sentence

24.Finally, it is to be noted that the appellant committed the offence of indecent assault on 9 January 2015, in the middle of the two‑year period of suspension of the sentence of 2 weeks’ imprisonment imposed on 28 February 2014 for the offence of common assault.  Section 109C of the Criminal Procedure Ordinance, Cap. 221(1) provides, inter alia, that if an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence, a court with power to deal with the matter:

“ … shall consider his case and deal with him by one of the following methods—

(a) the court may order that the suspended sentence shall take effect with the original term unaltered;

(b) it may order that the sentence shall take effect with the substitution of a greater or lesser term for the original term;

(c) it may by order vary the original order under section 109B(1) by substituting for the period specified therein a period expiring not later than 3 years from the date of the variation; or

(d) it may make no order with respect to the suspended sentence,

and a court shall make an order under paragraph (a) of this subsection unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence, and where it is of that opinion the court shall state its reasons.”  [Italics added.]

25.In dealing with the appellant’s criminal record and antecedent statement, counsel for the prosecution informed the judge that the appellant had been sentenced on 28 February 2014 to 14 days’ imprisonment suspended for two years.  However, he did not draw the judge’s attention specifically to the fact that the offence of which the appellant had been convicted by the jury had been committed during the operational period of the suspended sentence of imprisonment.  That matter was not addressed in mitigation or in the judge’s reasons for sentence.

26.Given the judge’s oversight, and the fact that this Court is dealing with sentencing afresh, it falls to this Court to address the matter.  Mr Egan made no specific submissions in this regard.  In the judgment of this Court in R v Li Kim Wai [8], Huggins JA said of the approach to be taken by the courts to section 109C:

“ We think it is important that suspended sentences should be activated where the law so requires, otherwise suspended sentences lose all their effectiveness. The whole purpose behind the suspended sentence is that a defendant shall know that if he commits a further offence he will go to prison on an activated sentence, save in exceptional circumstances, and those exceptional circumstances will rarely occur.”

27.In that case, the sentencing judge had declined to activate the suspended sentence of imprisonment on the basis that the offence for which that sentence had been imposed was for taking a conveyance without authority, whereas the subsequent offence was dissimilar, being an offence of obtaining property by deception or theft.[9]  In ordering that the suspended sentence be activated, Huggins JA said “…mere dissimilarity between offences does not make it unjust.”

28.In Secretary for Justice v Chan Ka Wah, [10]thisCourt granted an application for review of sentence and increased to 5 years’ imprisonment the sentence of 3 years’ imprisonment imposed on the respondent by the judge for his conviction after trial of unlawfully trafficking in 18.11 grammes of heroin.  Also, the Court ordered that a suspended sentence of 6 months’ imprisonment imposed for an offence of shoplifting, which the judge had ordered to be activated but to be served concurrently to the other sentence, be served consecutively to that sentence.  In doing so, Yeung JA, as Yeung VP was then, said “…the length of the sentence for the fresh offence is not an exceptional circumstance.” [11]

Conclusion

29.In the result, we were satisfied that it was appropriate, pursuant to section 109C(1)(a) of the Criminal Procedure Ordinance to order that the sentence of 2 weeks’ imprisonment imposed on the appellant on 28 February 2014 shall take effect and be served consecutively to the sentence of 4 years’ imprisonment imposed in respect of the appellant’s conviction of indecent assault.  Accordingly, we made that order.

Ms Catherine Ko, SADPP, of Department of Justice, for the respondent

Mr Kevin B. Egan, instructed by Haldanes, assigned by the Director of Legal Aid, for the appellant

[1] HKSAR v Keita Ali (HCMA 61/2013; unreported, 30 April 2013).

[2] The Attorney General v Lee Kui Man [1997] HKLRD 576.

[3] The Attorney General v Lee Kui Man, page 579 D-F.

[4] Secretary for Justice v Lau Yun Leung [1999] 4 HKC 1.

[5] Secretary for Justice v Lau Yun Leung, page 9 G-H.

[6] HKSAR v Tsang Ue Sum (CACC 32/2010; unreported, 23 December 2010).

[7] Appeal Bundle, page 41 P-R.

[8] R v Li Kim Wai [1980] HKLR 833, at 834.

[9] It is not apparent from the judgment which of the two offences was committed in breach of the suspended sentence.

[10] Secretary for Justice v Chan Ka Wah [2008] 4 HKC 532.

[11] Secretary for Justice v Chan Ka Wah,paragraph 27.