HKSAR v. Cheung Tsz-hong

HCCC 379/2017
HCCC 380/2017
(Heard together)

[2018] HKCFI 2156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 379 & 380 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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The defendant, Cheung Tsz-hong, faced eight counts arising out of two incidents involving X and Y in December 2016.

In relation to X, Count 1, indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200. Count 2, rape, contrary to section 118(1) of Cap 200. In relation to Y, Count 3, false imprisonment, contrary to common law and punishable under section 101(I) of the Criminal Procedure Ordinance, Cap 221. Count 4, assault occasioning bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212. Counts 5 to 7, the rape, contrary to section 118(1) of Cap 200 and Count 8, robbery, contrary to sections 10(1) and (2) of the Theft Ordinance, Cap 210.

The defendant pleaded not guilty to all eight counts initially and the jury was duly empanelled after a hold of voir dire and rule the various mixed statements made by the defendant under caution or verbally and by way of video-recorded interviews were admissible, save part of the video-recorded interviews were rejected. After Mr Michael Arthur, for the prosecution, opened his case and after Admitted Facts and various exhibits were dealt with, Y began her evidence on Thursday, 19 July.

On the first date of her evidence, Y described how she was lured or tricked by the defendant to go the defendant’s home in Lung Mun Oasis, how she was kept prisoner by the defendant and how she was assaulted and raped three times by the defendant while she was kept prisoner. On 20 July, before Y resumed her evidence, defendant’s counsel Mr Geoffrey Chang indicated to me that the defendant wished to speak to him. I was eventually informed in due course that the defendant would plead guilty to Counts 1 to 7 and the prosecution would then request Count 8 to be left on court file. The defendant then pleaded guilty to Counts 1 to 7 in the presence of the jury. The case was then adjourned until Tuesday 24 July for the prosecution to prepare the Admitted Facts.

On 24 July, I was informed by Mr Chang that the defendant refused to admit any of the facts and wanted to plead not guilty. An inquiry was held and I refused to allow the defendant to reverse his plea after considering the reasons he advanced, ruling that the pleas he had entered were unequivocal. I then directed the jury to return the verdict of guilty unanimously on Counts 1 to 7. The jury convicted the defendant of those seven counts as directed.

For the purpose of sentencing, the prosecution prepared and read out a Summary of Facts. Basically referring to the Admitted Facts to what was said in the depositions and by Y in court. The defendant refused to admit any of the Summary of Facts, including those matters already admitted under section 65C of the Criminal Procedure Ordinance, Chapter 221.

The defendant was given a chance to indicate which part of the Summary of Facts he disputed and whether there was a need to hold a Newton inquiry, the defendant refused to say anything. Even though the defendant refused to admit to any of the Summary of Facts read out, I am of the view that on the basis of the following, the defendant had pleaded his guilt in respect of Counts 1 to 7:

(1) The prosecution had already outlined this case, according to the deposition in his opening which was interpreted to the defendant at dockside;

(2) Some facts were already admitted implicating the defendant;

(3) Y had given her evidence as to what had happened to her after she was lured to go to the defendant’s home and kept against her will for four days; and

(4) The defendant’s unequivocal plea of guilty to Counts 1 to 7.

So for the purpose of sentencing, although the Summary of Facts were read in court in view of the defendant’s refusal to admit to any part of it, I will only take into account the following facts in sentencing the defendant.

Facts in relation to Y

I will deal with the four counts involving Y first. Y has already given evidence on those four counts. The defendant did not know Y before the incident. He befriended Y via social media, Facebook.

On 14 December, the defendant lured Y to come out to meet him on the pretext that he would like her to have dinner with his maternal grandmother who was about to leave Hong Kong. After Y met up with the defendant, defendant lured Y to go to his home and then to his bedroom. There, the defendant looped a plastic strap around Y’s neck and pulled hard. Y struggled and freed herself of the strap but she fell and hit against a cabinet inside the room. The defendant pressed Y on the sofa and threatened her with a knife in front of her face. At the time the defendant used one hand to grab Y’s mouth and the other to point a knife at her, telling her he would kill her should she make any noise. Y was tied up and her mouth was taped.

The defendant unfastened Y later at Y’s request. The defendant started to talk to Y but later accused Y of being insincere and slapped her face. He tied her hands up again. The defendant placed the blade of the knife against Y’s thighs and moved in a slashing movement without breaking Y’s skin. The defendant did the same with the knife to Y’s face, saying that he wanted to slash her face. The defendant then said that was not exciting enough and heated the blade of the knife and a lighter respectively, to scorch Y’s thigh, that is Count 4.

The defendant then forced Y to watch a film via YouTube about a person being killed slowly by the use of a plastic strap being closed notch by notch around the neck. The defendant told that he would kill her in the same fashion and Y was told not to cry. Otherwise, for each drop of tears shed, she would have to swallow a mouthful of his saliva. Later, the defendant told Y that since he had been falsely accused of having committed a rape, and that no one believed him, he would take the revenge on Y. Defendant then unfastened Y and forced her to remove all her clothes at knife point. The defendant removed his own clothes and had sexual intercourse with Y against her will, that is Count 5. The defendant was not wearing a condom at the time.

Although the defendant ejaculated outside Y, Y was afraid of unwanted pregnancy and asked to have a shower. The defendant agreed and took her to the toilet without turning on any lights. When Y asked why the defendant told her that police was looking for him, the defendant then gave Y some clothes to wear. Y was not allowed to leave. Y was aware that the defendant’s father returned and was inside the flat when she heard some sound outside the room. The defendant, having told her earlier that his father worked as a night shift taxi driver. She asked the defendant to allow her to go to the toilet, thinking that the defendant’s father will save her. However, before the defendant allowed her to go to the toilet, he told her not to play tricks, asking her whether the defendant’s father would help her or not.

When Y saw the defendant’s father, she mouthed “help” silently to the defendant’s father after greeting him “Uncle”. The defendant’s father said loudly, “What’s the matter, what happened?” and the defendant immediately blocked his father and told Y to go inside the toilet. Y could hear the defendant speaking to his father but could not hear the contents. When she came out, the defendant again blocked his father and told her to go into the room right away. For days, the defendant kept Y inside his bedroom and only allowed her to go to the toilet. That is Count 3.

On 16 December, the defendant hugged and kissed Y indicating that he wanted to have sex. Y said “No” but the defendant squeezed her face and mouth and told her not to play tricks. The defendant then removed Y’s clothes and his own clothes. He then had sexual intercourse with Y against her will and without using a condom, that is Count 6.

Y was still not allowed to leave. The defendant even asked Y that should the police barge in, he would kill Y first before killing himself.

On 17 December in the early hours, after the defendant received a couple of calls, the defendant told Y that the calls were from his parents and that they have told him to leave the flat as it was unsafe for him to stay any longer because a lot of people were looking for him. Y asked the defendant what he had told his own father about her. The defendant replied saying that he had told his father Y had absconded from a court hearing and was staying there as she was his girlfriend. The defendant also told Y that he would repeat the same version even if Y had managed to leave.

Later in the afternoon of 17 December, the defendant requested sex for a last time before they left. Y again said “no” and the defendant gestured to hit her and said to her with gritted teeth not to play tricks. The defendant removed Y’s clothing and had sexual intercourse with her against her will for the third time, that is Count 7.

Y also explained to this court that she was anxious to have a shower every time after the defendant have raped her as she was afraid of falling pregnant as a result adding that she could not face it, should that happen.

From the Admitted Facts, it was admitted that Y’s mother reported Y missing on 15 December. On 17 December Y was examined by Dr Cheung Hiu-ni, a forensic pathologist and various injuries were found on her jaw, neck, arms, wrist, finger, thighs and legs. In particular, on her left thigh. Y identified the photograph showing the scorched wound on her left thigh inflicted by the defendant. I was also provided with a recent photograph, showing the scars on Y’s thighs.

Again from the Admitted Facts, it was admitted that when the police searched the defendant’s bedroom on 18 December, white plastic cable ties and a piece of brown adhesive tape were among other items seized. Y confirmed that the plastic straps used by the defendant to loop around her neck and to tie her hands up were similar to the plastic cable tie found by the police and adduced as exhibit. The tape that was used to tape over her mouth was also similar to one produced in court.

Facts in relation to X

I will deal with facts in relation to X. X had not yet given evidence in court when the defendant pleaded guilty to the two counts, Counts 1 and 2, involving her. However, what had happened to her was in the deposition and outlined by Mr Arthur in his opening speech to the jury. The defendant clearly and unequivocally admitted that on 10 December 2016, at his home at Lung Mun Oasis, he indecently assaulted X, that is Count 1 and raped X, that is Count 2.

The Admitted Facts shows that X was photographed by the woman police officer and five photographs depicting her injuries were produced in evidence. That is Exhibit 52. X was examined by Dr Foo Ka-chung, a forensic pathologist and recent injuries were found on her neck. Vaginal swabs were taken from her and later analysis confirm that the defendant’s DNA was present in the swab. When the police searched the defendant’s bedroom on 11 December 2016, eight pieces of sex toys of various sizes and shapes were among other items seized by the police.

Even though the defendant did not admit to any facts in relation to X, bearing in mind that by the time the defendant tendered his unequivocal plea of guilty on having indecently assaulted X and having raped her at his home on 10 December, the prosecution had already outlined this case against the defendant in accordance with the deposition which had been served on the defendant. Part of the Admitted Facts were already read out and interpreted to the defendant including injuries suffered by X and DNA of the defendant being found on the vaginal swab taken from X, and bearing in mind, the defendant had the benefit of legal advice. I find that the only irresistible inference to be drawn in all the circumstance is that the defendant admitted having indecently assaulted X and raped her against her will as described in the deposition and outlined by Mr Arthur.

For the purpose of sentencing the defendant in relation to X, the facts I take into account are that X did not know the defendant but was lured into the defendant’s home on 10 December. There, the defendant looped a plastic strap around her neck and threatened her with a sharp object. The defendant used a sex toy on X against her will. The defendant forced X to perform oral sex on him against her will before having sexual intercourse with X, again, without her consent and without using a condom.

The impact report on X

To protect the privacy of X I will not relate too much of the report on her. Sufficed to say that at first, she told Mr Mak, the clinical psychologist who interviewed her that she was doing ok but after further exploration, it is reviewed being sexually assaulted had negative impact on her. She felt she was “contaminate” and she was afraid of being taken advantage by men.

The impact report on Y

Again, to protect the privacy of Y I will not relate too much of the report on her either. Now Y suffers from emotional problem and post-traumatic stress responses to the offences. Her daily functioning had been significantly disrupted and she is less able to enjoy normal day-to-day activities. Her self-image is negatively affected. She have become socially withdrawn and she feels insecure which affects her interpersonal relationship. She is upset whenever she look at the scars on her thighs. She suffers from both depressive and anxiety symptoms.

The antecedent of the defendant

The defendant was born in April 1990, so he is now 28. He is single and used to live in a flat in Lung Mun Oasis, the scene of these crimes. He is the only son of his parents. He studied up to Form 4 and work as salesman and warehouse attendant. He also operated a telephone accessory shop but it was closed in 2015. Since then, the defendant worked as a casual warehouse attendant and offer phone repair services as a self-employed person.

The defendant is not a man of clear record. He has six previous convictions. Two thefts, three unlawful sexual intercourse with girls under 16, one indecent assault and one possession of equipment fit for the intake of dangerous drugs.

I have ascertained from Mr Arthur the facts of these convictions. The two thefts involved the defendant stealing bicycles belonging to others. The three unlawful sexual intercourse case with girls under 16 and one indecent assault involve three girls, all under 16 on three occasions. In one of the three occasions, the girl in question not only had sexual intercourse with the defendant but she also performed oral sex on the defendant, that is why there was also the offence of indecent assault. It is to be noted that all these sexual offences took place at the defendant’s home at Lung Mun Oasis and the defendant also came to know one of the girls via Facebook.

For the possession of equipment fit for the intake of dangerous drug, it was the defendant’s mother who had made a report to police after she found some glass bottles and tubes inside their home at Lung Mun Oasis. When the defendant went there, one ‘Ice’ bottle was found and later analysis show that the bottle contained 0.7 millilitre of a liquid containing traces of methamphetamine.

Now, it should be noted the defendant had also pleaded guilty to an offence of inhaling a dangerous drug ‘Ice’ in the other case and which I will sentence in a moment.

Psychiatric report on the defendant

The defendant was interviewed by Dr Oliver Chan, visiting psychiatrist of the Siu Lam Psychiatric centre. The background of the defendant disclosed that he had a long history of abusing illicit drugs, primarily methamphetamine. The defendant presented a history of reported perceptual disturbance in the visual and auditory form and he believe some disturbances was related to his ongoing drug abuse. However, such disturbances continued after he was incarcerated.

The defendant was not worried about them in any event, but was more concerned about interpersonal problems with other inmates. The defendant was adamant that his sexual intercourse with the two girls were consensual, this is the two girls in the present case. He insisted that he was not involved in any false imprisonment. He said he attempted to change his plea after hearing the evidence of one of the prosecution witnesses and thought that his chance of winning the case was slim. He felt that he had been misled by his lawyer and there was procedural injustice. Dr Chan was of the opinion that while the defendant might have adjustment issues in prison, he did not suffer from any psychiatric disorder.

The psychologist report

The defendant was interviewed by Ms Sherry Im, clinical psychologist of the Correctional Services Department. There is a fairly detailed report on him and I will just refer to conclusion and the recommendation which sums up the report.

According to Ms Im, the defendant is a reoffender of sex crime and a first offender of violent crime. He was also a methamphetamine abuser suffering from psychotic symptoms. Personality wise, he is immature, carefree, self-centred and anti-social. He was sexually promiscuous and pre-occupied especially for with the heavy consumption of methamphetamine. He habitually engage in casual sex to gratify his sexual and intimacy needs.

Regarding the offences, there was genuine concern over his escalation of offence nature with the use of violence and signs of sexual sadism. Given the defendant’s recurring sexual offences with increasing severity and high risk of sexual reoffending, prolonged psychological treatment on a substance abuse problem, sexual offences and anti-social personality is strongly recommended to prevent reoffending.

I will also mention here that as with Dr Chan, the defendant also denied having committed the offences to Ms Im. I will also mention here that Ms Im’s assessment of the defendant’s reoffending was in view of his sexual offending history, negative social influence, intimacy deficit, sexual preoccupation, signs of sexual sadism, methamphetamine abuse, lack of concern for others and anti-social personality, risk of violence recidivism is moderate but sexual recidivism is high.

Mitigation

In mitigation, Mr Cheung asked this court to consider concurring sentence for all the offences defendant have pleaded guilty to as there was only a short period between the two incidents. He also asked this court to consider giving the defendant a greater discount when X did not have to give evidence and Y, while having started her evidence, was not subject to cross-examination.

Authorities

Mr Arthur, for the prosecution, refer to the sentencing guidelines for rape set by the English Court of Appeal in the case of Billam and Millberry. He also referred to the case of the Secretary for Justice v Tseung Mang Ka which involved to review the sentence for a defendant who robbed and raped two prostitutes on two occasions. The defence also referred to Billam and Millberry. Mr Cheung also submitted two local cases, that is the HKSAR v Kwan Chun Chung and HKSAR v Chan Lai Sing & Lai Kwan Shing.

In the case Billam, the Court of Appeal in England considered a total of 17 appeals involving either rape or attempted rape in associated offences. The Court of Appeal set down guidelines with 5 years to the rape by an adult without any aggravating or mitigating factors going up the scale to 8 years, 15 years and life imprisonment depending on the seriousness of the offence. The Court of Appeal also set out the following factors as aggravations:

(1) Violence used over and about the force necessary to commit the rape;

(2) Weapon used to frighten or wound the victim;

(3) The rape was repeated;

(4) The rape was carefully planned;

(5) The defendant had previous convictions of rape or other violent or sexual nature;

(6) The victim was subjected to further sexual indignities or perversions;

(7) The victim was either very young or old and;

(8) The mental or physical effect of the rape on the victim.

Where these aggravating features are present, the sentence should substantially higher that the figure suggested as the starting point.

In Hong Kong, the Court of Appeal had held that while Billam provided useful guidelines to some aggravating features in a rape, the guidelines as to the starting point were not necessarily appropriate. The courts in Hong Kong were entitled to take into account local conditions and not follow the Billam guidelines on sentence and this is the case of the Secretary for Justice v Lau Yun Leung and the Secretary for Justice v Singh Sukhmander. Now after Billam, the Court of Appeal in England, in an appeal involving three different appellants, that is the Millberry case, revisited the sentencing practice for offence of rape. The guideline in Billam remains appropriate with particular attention paid to relationship and acquaintance rape and male rape. The Court of Appeal accepted the proposals of the sentencing advisory panel that court should consider three dimensions whenever a sentence for rape is imposed: that is the degree of harm to the victim, the level of probability of the offender and the level or risk posed by the offender to the society.

For a single offence of rape on an adult, victim by a single offender manifesting none of the features identified below, the five years remain an appropriate starting point after trial. Where any of the following features is present, a starting of eight years is warranted. These are the features:

(1) The rape is committed by two or more offenders acting together;

(2) The offender is in a position of responsibility towards the victim;

(3) The offender adopts the victim and holds the victim captive;

(4) Rape of a child or a victim who is especially vulnerable because of physical frailty, mental impairment or disorder or learning disability;

(5) Racially aggravated rape and other cases where the victim had been targeted because of his or her membership of a vulnerable minority. For example, homophobic rape;

(6) Repeated rape in the course of one attack including cases where the same victim have been both vaginally and anally raped and;

(7) Raped by a man who is knowingly suffering from a life threatening sexually transmittable disease whether or not he had told the victim of his condition or whether or not this disease was actually transmitted.

A 15 year and upward starting point is for a campaign of rape where the offender had repeatedly raped the same victim over a course of time, as well as for those involving multiple victims. The panel also agrees that a life sentence will not be inappropriate where the offender had manifested perverted or psychopathic tendencies or gross personality disorder and where he is likely, if at large, to remain a danger to women for an indefinite time.

Now as for the Hong Kong authorities cited to me, I am of the view that the facts of Tseung Mang Ka that the defendant had gone to rob and rape two prostitutes on two different occasions are so different from the facts in this case that I do not find the sentence imposed in that case of assistance to me. In Kwan Chun Chung, the defendant pleaded guilty to five counts of offences including false imprisonment, indecent assault, rape, attempt to cause grievous bodily harm and possession of firearm without a license.

X worked in a nightclub, went to stay at the premises supplied by the defendant on account of it being rent free. After X arrived at the premises she was falsely imprisoned for two nights during which time she was tied up, had an electric gun applied to shock various parts of her body and raped. The trial judge adopted a starting point of an overall starting point of 14 years with individual starting point of 5 years for false imprisonment, 1 year for indecent assault, 9 years for the rape, 2 years for the attempted wounding charge and 3 years for the possession of firearm. The defendant was given the full one-third discount, so the final sentence was 9 years and 7 months with a starting point of 14 years. That was a High Court case.

In the case of Chan Lai Sing & Lai Kwan Shing, this is an appeal to the Court of Appeal. The victim was a 14 year old virgin. She was accosted by a group and was taken to a place where she was assaulted and raped and indecently assaulted by D1 and D2. D1 was convicted of false imprisonment, assault occasioning actual bodily harm and rape and was sentenced to 18 months, 6 months and 10 years respectively. D1 was also convicted of another rape of the same victim and was sentenced to 9 years.

D2 was convicted of one of the two rapes and he was sentenced to 9 years’ imprisonment. And for the indecent assault, D2 was convicted as he forced the victim to perform oral sex on him and D1 was convicted on basis being a party to the act by his presence and conduct. So they were each sentenced to 3 years on this count. D1 was given a final sentence of 12 years and D2, 9 years.

The Court of Appeal found that it was a very bad case. The worse they have encountered. D1 was 17 years old at the time of the offence and he took a lead role. Now, it should be noted that the Court of Appeal commented that the overall sentence imposed on D1 for the sexual offences were on the low side. His appeal against sentence was dismissed. As for D2, he was aged 14½ at the time of the offences and not the leader of the pack, the majority of the Court of Appeal reduced his sentence by one more year.

One member of the Court of Appeal was of the view that a greater discount should be afforded in view of the defendant’s young age. So clearly, what the Court of Appeal have said about young offender of a serious crime had no application in the present case, as the defendant was already 26 years old when he committed these offences. I will bear these cases in mind when I consider the appropriate sentence in relation to this defendant.

Now apart from the authorities submitted by Mr Arthur and Mr Cheung, there is another aggravating feature in the present case which was not mentioned in Billam or Millberry, and that is the defendant’s failure to use a condom during the rape, thus subjecting the victim to the risk of sexually transmitted disease and pregnancy. We have two cases in Hong Kong about that, one is HKSAR v Chung Chi Wing and the second is HKSAR v Chan Sau Man.

Penalties for these offences

For indecent assault, a person convicted of this offence on indictment is liable to imprisonment for 10 years. Rape, a man who rapes a woman shall be liable on conviction on indictment to imprisonment for life. False imprisonment, under section 101(I) of Cap 221, a person convicted of an indictable offence for which no penalties provided by any ordinance, he shall be liable to imprisonment for 7 years and a fine, so for false imprisonment, it will be 7 years. The offence of assault occasioning actual bodily harm, a person is liable to imprisonment for 3 years for this offence.

Consideration of the sentence

This is an appalling case. The defendant preyed on women and lured them into his home before subjecting them to physical violence and mental anguish then sexually assaulting the women for his own sexual gratification. The defendant adopted the same method of subduing his victims, X and Y, by looping a plastic cable or tie or strap around their neck suddenly and pulling hard. No doubt, such an act would have caused great fear to the victims as demonstrated by Y. The defendant also used a sharp object or a knife to threaten the victims. Both victims were trapped in the defendant’s home and under threat, they have no choice but was sexually assaulted by the defendant against their will.

In considering the appropriate sentence to be imposed in relation to the sexual offences, I bear in mind that there is a need to deter others, a need to mark the public abhorrence and the need to re-address the grievances suffered by the victims. I also bear in mind that a starting point reflects appropriate sentence for a first offender. For the particular category and type of offence, absent aggravating and mitigating features after trial.

The starting point for Counts 1 and 2

In the case of X, for the indecent assault, I am of the view that a proper starting point is 2½ for this category of offence. There are aggravating features. The victim was lured to the defendant’s home, violence in the form of looping a plastic strap around her neck in strangling her was used, a sharp object was used to threaten her, she was tied up before she was subjected to the indignity of having a sex toy placed near her private parts, she was forced to perform oral sex of the defendant. With these aggravating factors, the appropriate starting point is enhanced by 1½ years to 4 years.

As for the rape of X, a starting point for this category of rape is one of 7 years in my view. There are aggravating factors. Again, X was lured to the defendant’s home, violence was used on her, she was threatened with a sharp object and put to fear, she was forced to perform oral sex on the defendant and suffered indignity of having the sex toy placed near private parts before she was raped. The raped was committed without the use of a condom, thus exposing X to risk of pregnancy and sexually transmitted diseases. I am of the view that a proper enhanced starting point is one of 9 years.

The starting point for Counts 3 to 7

In the case of Y, what the defendant did to her was even more serious that what had happened to X. From the evidence of Y, the defendant knew full well that he was a wanted person for an allegation of rape when he lured Y to his home. The very same case he was alleged to have raped a woman earlier and committed those offences on Y. He knew the police was looking for him. He even told Y that he would kill Y first before killing himself should the police barge in to his home. The way the defendant treated Y indicate that he is a sadistic person who derived pleasure in torturing and inflicting pain on another person including forcibly having sexual intercourse with that person while putting that person in fear.

For Count 3, the false imprisonment. I am of the view that a proper starting point for this category offence is one of 3 years. The aggravating factors present are that victim Y was lured to the defendant’s home and kept there for a period of four days. She was subjected to physical violence and was subjected to stress, which caused her to fear for her life. With these aggravating factors, the 3 year starting point is enhanced by 2 years to one of 5 years.

As for the offence of assault occasioning actual bodily harm, I would adopt a starting point of 12 months for this category of offence. The aggravating feature included the sadistic application of pain onto Y when the defendant deliberately heated the blade of a knife and a lighter scorched Y’s thighs. The wounds could still be seen when Y was examined by the forensic pathologist and two obvious scars still remain on Y’s thigh. I will enhance this 12 months starting point by 18 months, making an enhanced starting point of 2 years and 6 months.

As for the three counts of rape, again, I will adopt a starting point of 7 years for this category of offence. The aggravating features included the following: Commission of the rapes on Y shortly after defendant had sexually assaulted another person, X, and knew that he was wanted by the police. He lured Y into his home and subjected Y to the violence and fear I have already outlined, before raping her and the rape was repeated when Y was being kept prisoner by the defendant and without the use of a condom. I am of the view that with these aggravating features, a proper starting point for each rape is one of 15 years.

The overall starting point for Counts 1 to 2 and Counts 3 to 7

I am of course aware that in setting out the individual enhanced starting point for each count, there is a certain degree of repetition of the same aggravating factors. So in order to do justice, I think it is fairer to consider an overall starting point in relation to the offences against X and Y. For the offences committed by the defendant against X, I am of the view that an overall starting point of 9 years is appropriate. For the offences committed by the defendant against Y, I am of the view that an overall starting point of 15 years is appropriate.

As the defendant is not a first offender, having committed sexual offences against others before, I am of the view that a further enhancement of 1 year is appropriate which I will add onto the 15 years’ overall starting point involving Y. Therefore, the enhanced starting point now would be 16 years. So the final overall starting point for Counts 1 to 2 is 9 years and for Counts 3 to 7, 16 years.

I will now consider the reduction of sentence. I now have to consider whether there is any mitigating factor to reduce the final overall starting point. The most obvious mitigating factor here is that the defendant pleaded guilty to the seven counts. The fact that the defendant had pleaded guilty clearly does not indicate any form of remorse, as he had tried, unsuccessfully, to reverse his guilty plea. Nevertheless, the defendant is still entitled to some discount for his guilty plea.

According to the guidelines set down in the case of Ngo Van Nam, for cases to be heard in the Court of First Instance, the stage to afford a full one-third discount from the starting point is at the committal. If the indication to plead guilty is made after committal, up to the fixing of trial date by the listing judge, the appropriate discount is 25 per cent from the starting point. However, after trial dates have been fixed and before the first day of trial, the appropriate discount for an indication of plea of guilty lies between 25 per cent and 20 per cent from the starting point. The Court of Appeal had also made it clear the sentencing judge would have regard to the time at which the indication was given and all other relevant circumstances.

The first time the defendant indicating he wished to plead guilty was on Friday, 20 July 2018. The trial, in fact, started on previous Friday, 13 July. The case could not proceed because the defendant refused to give instructions to his legal representatives and wanted the Legal Aid Department to provide him with other legal representatives. Upon learning that the Legal Aid Department would not accede to his request, and that the court would not adjourn the case for him to seek alternative legal representation, the defendant then agreed to have the same legal team. And due to the lack of instructions, I then had to adjourn the matter to Monday, 16 July for the defendant’s legal team to take instructions.

On Monday and Tuesday, that is 16 and 17 July, I conducted a voir dire to determine the admissibility of certain statements made by the defendant under caution. At the end of the voir dire, I ruled all the statements given by the defendant under caution were admissible, save that some parts of the video-recorded interview had been redacted as I mentioned.

Then on Wednesday, 18 July, a jury was empanelled and the trial proper started. I have already related what happened after Y had given most of her evidence-in-chief including the defendant’s plea of guilty, his attempt to have his guilty plea reversed and his refusal to admit to any facts and so on.

So bearing all these in mind, I am of the view that the discount to be given to the defendant upon his guilty plea should not be much more than 10 per cent, even though Y had not finished giving her evidence and even though X was not called to give evidence.

So for Counts 1 to 2 from the overall starting point of 9 years, I will give the defendant a reduction of 1 year, which is a discount of slightly more than 11 per cent. For Counts 3 to 7, from the overall starting point of 16 years, I will give the defendant a discount of 2 years, which again represent a discount slightly more than 12 per cent. Apart from the defendant’s guilty plea, I do not see any other grounds to further reduce the sentence. So to achieve this aim of imposing a total of 8 years for Counts 1 to 2, and a total of 14 years for Counts 3 to 7, I will impose the sentence as follow.

Count 1, 3 years. Count 2, 8 years. Both sentences to run concurrently, making a total of 8 years.

In respect of Y, Count 3, 3½ years. Count 4, 2 years. Count 5, 14 years. Count 6, 14 years, Count 7, 14 years. All sentences to run concurrently, making a total of 14 years.

Totality

I have to consider the totality principle and justice in two lots of sentences to arrive at a fair and just overall sentence. I do not agree with Mr Chang that since both incidents occurred within a few days, I should consider concurrent sentences for all seven counts. As I have already indicated, I considered it an aggravating factor that the defendant went on to commit such serious crimes when he had committed the offence on X and knew full well that the police were looking for him. I am of the view that a total overall sentence of 18 years would be appropriate in all the circumstances to reflect the criminal culpability of the defendant and serve as deterrent to others and assuage the grievances felt by both victims.

So, to achieve this aim, I order that the 14 years imposed for Counts 3, 4, 5, 6 and 7 to run at the expiration of 4 years of the 8 years imposed on Counts 1 to 2, making a total of 18 years’ imprisonment.

(Proceedings from 4.18 pm to 4.19 pm not required)

Now, for 380/2017, the defendant, Cheung Tsz-hong, pleaded guilty to one count of inhaling a dangerous drug, contrary to section 8(1)(b) and (2) of the Dangerous Drugs Ordinance, Chapter 134, before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

Summary of Facts

The facts admitted by the defendant disclose that on or about 14th day of December 2016 at his home at Flat B, 4th Floor, Block 16, Lung Mun Oasis, Tuen Mun, the defendant used a dangerous drug inhaling device to inhale methamphetamine hydrochloride, commonly known as ‘Ice’.

Background and mitigation

The defendant was born in April 1990, so he is now 28 years of age. He was born in the mainland and came to Hong Kong when he was about 1. The defendant has six previous convictions, two of theft, two of unlawful sexual intercourse with a girl under 16, one of indecent assault and one of possession of equipment fit and intended for the intake of dangerous drugs. On the authority of the R v Wong Chi Nuen, it is correct to refer to cases of possession of dangerous drugs when considering appropriate sentence for the offence of inhaling dangerous drugs, as both offences are similar in nature. And in the case of Mok Cho Tik, the Court of Appeal held that the starting point for mere possession of a quantity of dangerous drug which a bona fide user would normally have in his possession should be in the range of 12 to 18 months. If the defendant is a persistent offender, he could expect a higher starting point.

Having considered the facts of this case, I am of the view that a proper starting point is one of 12 months. Although the defendant had one previous drug related conviction, I will not enhance the starting point of 12 months. The defendant pleaded guilty to the offence at the earliest available opportunity, I will give him the usual one-third discount.

So for the offence of inhaling a dangerous drug, the defendant is sentenced to 8 months’ imprisonment and for this 8 months’ imprisonment, I order it to run concurrently with the 18 years imposed in the case of 379/2017. So totally 18 years.