HKSAR v. Chan Chun Man

CACC 216/2017

[2019] HKCA 516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 216 OF 2017

(ON APPEAL FROM HCCC NO 87 OF 2016)

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court) :

1.Before Andrew Chan J and a jury, the applicant was convicted after trial of one count of ‘aggravated burglary’ (Count 1) and one count of ‘rape’ (Count 5).[1] He was sentenced to the respective terms of 6 and 8 years’ imprisonment, and the total sentence of 11 years.  He seeks leave to appeal against that sentence.[2]

The Charges

2.The indictment in the case contained five charges.

3.Both Count 1 and Count 2 alleged aggravated burglary.  They were laid as alternative charges in that the ulterior intent named in Count 1 was to inflict X, the female victim, with grievous bodily harm whereas the ulterior intent in Count 2 was rape.  These charges pertained to the applicant’s unauthorised entry into X’s flat on 15 October 2015, at a time when X was not at home.

4.Later on the same evening, X returned to her flat where, from the early hours of 16 October 2015 to the next morning, she was allegedly raped (Count 3), indecently assaulted (Count 4) and raped again (Count 5) by the applicant, in that sequence.

5.As said, the applicant was convicted only of Count 1 and Count 5.  In relation to Count 4, of which the applicant was acquitted, X was allegedly forced to perform fellatio on him.

The Facts

6.In his reasons for sentence, Andrew Chan J (‘the Judge’) explained the background as well as the events which immediately preceded the case as follows.  It covered how Count 1, the aggravated burglary, was committed :[3]

“ The evidence showed that the Defendant and the Complainant X met because they worked in the same place in 2007. They became friends afterwards. In April 2014, their relationship further developed and they became boyfriend and girlfriend. But their romantic relationship did not last long. In August 2015, their relationship began to have problems. X believed that the Defendant had flirtatious relationships with other female friends and so asked for a breakup of their relationship.

Although X asked for a breakup of their relationship, the Defendant refused to accept. X described her relationship with the Defendant as entangled from August 2015 to 15October 2015. The two of them not only kept coming together but also had intimate behaviour. Evidence not in dispute showed that from the night on 13October 2015 to early hours on 14October 2015, X no longer wanted to continue having the entangled relationship with the Defendant. X also made use of an excuse to get her younger male cousin to come to her home because X did not wish to remain alone at her home with the Defendant. She wanted her cousin to speak to the Defendant clearly that their relationship had already come to an end. The three of them then from the night of 13^th towards the early hours of 14^th, left X’s home and went to a nearby restaurant to have late-night snacks. And X’s cousin also persuaded the Defendant not to find X any more.

Nevertheless, it seemed that the persuasion that night did not have any effect at all. When X returned home at around 11pm of 15October 2015, although she found something unusual situations at the kitchen, she did not pay much attention to it. X went to take a bath and to change her clothes as usual. She then tidied up the things at home. What actually happened was that the Defendant at an earlier time of the night entered X's home prior to X arriving home. He used duplicate keys for X's home after arriving at X's home and illegally went inside. After going inside X's home, the Defendant hid inside the wardrobe of X's younger brother and waited patiently for the return of X. According to what the Defendant had told the police after his arrest, the purpose for his entering X's home without permission is to discuss how to fix the relationship between X and him. He further told the police that if X refused to get back together with him, he would use the cutter that he brought along to kill X. After killing X, he would kill himself as well in order to perish together with X.

Actually, when X was tidying up inside his younger brother's room and opened the wardrobe of his brother, the Defendant suddenly sprang out and covered the mouth of X. Then, he locked her up inside the brother's room.  This incident led up to the series of events for the night from X being imprisoned at home to finally X being raped.”

7.As regards the circumstances in which Count 5, the rape, came about, one goes back to the Judge’s summing up for a more detailed description of what happened, based on X’s evidence :[4]

“ Upon waking up, it was already daylight. X saw that the Defendant was also awake. The two of them got dressed. X said she wanted to go to the toilet and to drink some water. X also wanted to seize the chance to rush out of the main door. The Defendant permitted X to go out. After X had gone to the toilet, she seized the chance to rush to the main door, but before she reached the door, the Defendant saw [her] and immediately pulled X back into the living room. During this period of time, X struggled. X knew the Defendant wanted to pull her back into the room. She did not want [this] because once [they were] inside the room, [she] would be locked up by the Defendant. But in the end X was not as strong as the Defendant. Then, she was pulled by the Defendant into her own room.

After entering the room, based on what X said, the Defendant threw her onto her bed. X at that time intended to push the Defendant away with force and wanted to rush out, but the Defendant pressed [himself] on top of her. Even if X was moving her hands and legs, it was very confusing at the time, so the two of them fell onto the bed—fell onto the floor, rolled onto the floor. Afterwards, the Defendant threw X back onto the bed and then squeezed her neck with his hand. It was [done] with much force, causing X to feel suffocated. X said at this time she did struggle with her hands. Then she pulled the Defendant's upper garment, pulled his upper garment, then the Defendant released his hand.

Afterwards, X hit the Defendant's face with her fist. She hit him twice. The Defendant also slapped X twice. X said at that time the Defendant's eyes were very fierce. Afterwards, based on what X said, the Defendant seemed to have turned into another person and suddenly said sorry and said he loved X very much. This sent a chill to X's heart and she was in terror. Because [she] saw the change in attitude in the Defendant, then X thought— comforted the Defendant and said, ‘How about we leave together, go to work together.’

During this period of time, the Defendant had once wanted to take X's mobile phone for a look. X said after breaking up with the Defendant, she had also changed her mobile phone's password, so she gave the Defendant a fake password. When the Defendant knew, when the Defendant knew this mobile phone password was fake, he was very angry. He then took a cutter out of the pocket of the pair of long trousers which were placed on the ground. [He] held the cutter with one hand and stroked X's face and back with the other hand. X sense that the Defendant wanted to hurt her at the time, so [she] comforted the Defendant with soft words. The Defendant then put away the cutter. He demanded to have sexual behaviour once more. This time, as X said, the Defendant did not use a condom and forced the sexual intercourse directly. At that time, X was unwilling.

After finishing, as X could not leave her residence, that was why she further comforted the Defendant and said [they] would marry and get back together in the future. [She] also said things likes both parties had to go to work. When the Defendant heard these words about getting back together and getting married, his emotions calmed. In the end, [he] also left with X.

Afterwards, X said she had gone to examine her injuries.  Photograph B shows the injury caused by the Defendant's clamping her on the bed that day because the Defendant's fingers were very strong and so clamped her to such an extent—clamped her.  The injuries on the neck and the ear(s) were also left behind because of the Defendant's squeezing her [neck] …….”

8.That, we are satisfied, is the full version of events which the jury accepted.  It is different in every important aspect to what the applicant said to exculpate himself in evidence: what made X tear at his clothes, why he hit and squeezed X on the neck and for what purpose did he take out his cutter.[5] It is difficult to see how the jury would have convicted the applicant on Count 5 had they disbelieved X on any of those matters.

9.Although there was disagreement on the total number of times of sexual intercourse that had taken place (X said two, the applicant said three), the above-mentioned details were commonly accepted as those which surrounded the last sexual act between the two, so there is no dispute as to which particular instance of sexual intercourse Count 5 was based upon.

10.It was common ground that the applicant did wear a condom during the preceding one, or two, instance or instances of sexual intercourse, at the specific request of X, at least insofar as the first occasion was concerned.[6] It was common ground that the applicant did not consult X before proceeding in an unprotected manner during Count 5.

11.It should also be mentioned that, despite the parties’ disagreement on the details and circumstances regarding their subsequent ingestion during the rest of the evening, the applicant’s own case was that he had taken some aphrodisiac pills before sneaking into X’s home and hiding in her brother’s wardrobe.[7]

The Sentence

(Count 1)

12.With respect to Count 1, these are the first things that the Judge said.  He found the offence to be premeditated for the following reasons :[8]

“ From what the Defendant told the police describing how he entered illegally X’s home, it can be seen that this was carried out with premeditation. The Defendant apparently knew when X would return home. He then arrived at X’s home earlier than she did. He hid himself inside the wardrobe of X’s younger brother and waited patiently there in order not to be seen by X when she opened the door.”

13.Next, the Judge dealt with the presence and intended use of the applicant’s cutter, and why he thought it was not out of the latter’s kindness that X escaped actual or physical injury :[9]

“ I’m also satisfied that the Defendant intentionally brought the cutter involved in this case to X’s home. It was absolutely not a coincident that the Defendant brought it along due to convenience of work. Even though the Defendant talked about the cutter being distributed by the company and given to him for his use in work, I totally could not see why the cutter could not be left at the shop after work, inside the display cabinet where he worked or inside the staff locker room.

In this case, the only fortunate thing is that the Defendant did not actually use the cutter to cause serious bodily injury to X.  Nevertheless, it was not due to the kindness of the Defendant but out of X’s determination to protect her own life by deciding to adopt a relatively soft approach in an attempt to comfort the Defendant, causing him not to take aggressive actions or even take X’s life.”

14.Turning to such guidance as was available on sentence, the Judge observed :[10]

“ Aggravated burglary is a very serious offence. This can be seen from the maximum sentence of life sentence. Regarding this charge, there were not a lot of past cases. There is one relatively similar case HKSAR v Chan Li Fat [2010] 5 HKC 341. Of course, I notice that the defendant in Chan Li Fat basically was a repeated offender of extremely serious offences and had previous convictions. However, the indications and statements made by the Court of Appeal in that case has a certain degree of reference value.

In Chan Li Fat, after the defendant in that case has illegally entered victim's home, he used a knife to threaten the woman living there and even tied up the victim.  After tying up the victim, he ransacked the place.  Finally, he went so far as to demand the victim to disclose the password of her ATM card. In view of the fact that the defendant in Chan Li Fat had (previous records of) 16 counts of robbery, 2 counts of aggravated burglary, 2 counts of burglary as well as other sexual assault offences, the Court of Appeal eventually considered it appropriate to adopt a starting point of 10 years of immediate imprisonment for each charge.  What was discussed above is related to aggravated burglary.  Regarding the charge of ordinary burglary, the Court of Appeal has also given its sentencing guidelines.  Where there were no other special circumstances to increase the severity of the case, the proper starting point for illegal trespassing into people’s homes to commit burglary there is immediate imprisonment for 3 years.”

15.Referring once again to the background and circumstances of the case, and highlighting the need to protect one party of a failed relationship from the obsessive other, the Judge explained why he considered a 6-year term would be appropriate for Count 1 :[11]

“ Of course, I notice that the Defendant in this case is a first-time offender and has no criminal record. Nevertheless, as I said earlier, he made a series of arrangements to trespass on X’s home after making meticulous calculations. Moreover, when he entered X’s home, he also carried a 16cm long cutter. The purpose of course was to cause serious injury to X. Although he is a first-time offender and did not actually cause serious injury to X, what he did was very serious indeed. In case X refused to get back together with the Defendant, it could be envisioned from his admissions to the police that he would disregard everything and use the cutter he brought along with him.

The Court notices that many of the sexual assault offences dealt with in the High Court in recent years were related to couples after breaking up. One party had caused serious injury to the other party. This trend should definitely not be encouraged. A lot of times in these cases, we even heard that mitigating party used their previous intimate relationship as a reason for mitigation. I would like to make clear here that their previous intimate relationship for those couples already separated must never be used by the offender as excuses in his or her mitigation. Nowadays, due to the advancement and diversification of communication channels as well as in spite of the determination of one party to terminate their relationship, it is very difficult to avoid the effort made by the other party to get connected. In light of the perseverance and in case of encountering anything against one’s wishes, one party would make use of every available method to threaten the other party by releasing some intimate photos on the Web, distributing these photos among close friends or by using violence against the other party. These are things that the Court find absolutely impossible to accept. I believe that they are not tolerable by the community at large, either.

As regards the 1st Charge, in view of what was said above, especially the Defendant's meticulous calculations, the nature of the weapon carried by the Defendant and the possible injury that could be caused by the weapon, coupled with the intention harboured by the Defendant upon his illegal entry of X's home and at the same time the frightening experience unleashed upon X by the Defendant, I am satisfied that the appropriate starting point for sentencing ought to be imprisonment for 6 years with immediate effect.  If the Defendant had used the cutter during that night, used the cutter to hurt X, the starting point for sentencing would have increased substantially.  I would like to reiterate that this term of imprisonment for 6 years with immediate effect is in relation to the 1^st Charge only.  I have not taken into consideration the facts relating to the 5^th Charge at all.”

(Count 5)

16.Recounting some of the features of the assault, the Judge concluded straightaway that this was a “particularly bad case of rape” :[12]

“ Evidence also indicated that closer to dawn, X hoped to escape from the imprisonment imposed by the Defendant. She then indicated her wish to go to the toilet and to drink water. Her real intention of course was to make use of the opportunity to dash out from the main door. But unfortunately, prior to her reaching the main door, she was swiftly caught and pulled back by the Defendant to the living room. After that, the Defendant even pulled X into her own room. Despite X’s struggle, she was thrown by the Defendant into bed. The Defendant even used his hands to squeeze X on her neck in such a way that it made her suffocate. Afterwards, when the Defendant wanted to take X’s mobile phone and check phone messages but because X gave him a false password, the Defendant again took the cutter out from the pocket of his pants to threaten X with the intention to threaten to hurt X. Then the Defendant even went further to sexually assault X again with the use of force. And during this process, the Defendant did not adopt any safety precautions.

The facts indicated that this was a particularly bad case of rape.  Prior to the Defendant raping X, as I said just now, he had used violence against X and displayed the cutter to make threats.  He then forced X to have sexual intercourse with him without safety precautions.  It could be seen from the photographs and the medical reports produced in court that X’s suffered quite a number of injuries on her body in the form of bruises or abrasions.  There were injuries on her neck, her legs as well as her arms.  As I said a moment ago, during the process of raping X, the Defendant did not adopt any safety precautions. Another aggravating factor in the present case is the Defendant’s confession made to the police that before he went to X’s home, he had taken aphrodisiacs. Such actions by the Defendant fully and adequately demonstrated that the commission of the rape charge by him was a premeditated event.  It is absolutely beyond my comprehension why someone could have hurt a woman he used to love deeply in such a way.”

17.He pointed out the lasting psychological impact it may have on X :[13]

“ After the Defendant was found guilty, I postponed the sentencing until today because of getting X’s psychological report. I do not intend to dwell on the details in the report because that will create greater harm to X. Nevertheless, this incident, without a doubt, had left X with indelible and lifelong psychological effects. Although X had tried very hard to forget these unhappy events, whatever happened that night still continuously resurfaced in her mind.”

18.Adding to those factors the applicant’s lack of remorse, and the absence of any mitigating factor in the case, the Judge sentenced the applicant to 8 years’ imprisonment on Count 5 :[14]

“ Having considered all the aggravating factors and the effects on the victim, I am of the view that the appropriate starting point for sentencing with regard to the 5^th Charge is immediate imprisonment for 8 years. The Defendant was convicted after trial. I do not see there are any mitigating factors. Actually, during the trial process, nor did I see a modicum of remorse or compassion shown by the Defendant towards X when she had to painfully testify to her sufferings in court. Basically, there does not exist any mitigating factors in the present case at all.”

(Overall Sentence)

19.Finally, taking into account the totality principle, the Judge sentenced the applicant to a composite term of 11 years’ imprisonment by way of the following orders :[15]

“ Actually, the commission of the 1^st Charge and the 5^th Charge by the Defendant had no direct relationship. Both were totally independent charges. I therefore need only consider the totality of the term of imprisonment. Having considered the (Defendant’s) culpability in the whole case, I am satisfied that 3 years of imprisonment under the sentence with regard to the 1^st Charge should run consecutively with the 8 years of imprisonment under the sentence with regard to the 5^th Charge.

Accordingly, with regard to the two charges of which the Defendant were found guilty, the Defendant is sentenced to a term of imprisonment for 11 years with immediate effect.”

Grounds of Appeal

20.Mr John Reading SC, who acted on behalf of the applicant here but not at trial, has put forward four grounds of appeal.

21.It is his complaint in the first three grounds of appeal that the sentences in question were either manifestly excessive (Ground 1 and Ground 2 re the respective sentences on Count 1 and Count 5) or wrong in principle (Ground 3 re the ordering of the sentences on Count 1 and Count 5 to be partly consecutive).

22.Under Ground 4, Mr Reading complains that the Judge ought to but did not take into account X’s view that, because of their past relationship, the applicant should be afforded some leniency in sentence.

Discussion

23.We do not think the Judge was wrong in passing a sentence of 6 years in relation to Count 1.

24.He was entitled to take a dim view on what the applicant admitted under caution.[16]  There were repeated references to “dying” or “perishing” together (攬住一齊死、同歸於盡).[17] Specifically, there were admissions that the applicant would kill X and then himself if he failed to win X back,[18] that the cutter was the weapon with which the applicant would carry out the killing[19] and that killing X and himself was the reason why the applicant had brought the cutter to the flat.[20]

25.There is nothing to indicate that the jury had not based their verdict on the full extent of those admissions which, of course, included the lesser objective of maiming as opposed to murdering X.  Indeed, with the exception of these admissions, we fail to see any evidence, direct or circumstantial, which could prove the ulterior intent of causing grievous bodily harm as opposed to rape.

26.The Judge was also correct to reject, as we do Mr Reading’s like contention, that Count 1 was not as serious as it might have been had the applicant failed to put down his cutter.  As the Judge pointed out, the applicant was not to be credited with this turn of events.  Rather, it was the pacifying tactic of X, which included the promises of marriage, that placated the applicant and saved her from a more tragic ending.  That was the stated position of the Judge, a position to which counsel in mitigation could provide no good answer.[21]

27.We are not persuaded that the Judge’s reference to HKSAR v Chan Li Fat was misguided.[22]  It is both debatable, and irrelevant, whether that constituted a more serious case of aggravated burglary.  The mere fact that in considering the offence in isolation, ie disregarding the other atrocities Chan committed during his house-breaking (see paragraph 31 of that judgment), the Court of Appeal had identified 10 years as the appropriate starting point of sentence for the charge of aggravated burglary clearly indicates the gravity with which this offence must be regarded.  The fact that Chan had a fairly staggering past criminal record may be a contributing factor (the judgment was unspecific on this point) but it is not a factor that could go all the way to explain the loftiness of that starting point.

28.We are fully aware that, unlike Chan, the applicant was a first offender.  But given all the circumstances of the case, and bearing in mind the maximum penalty for aggravated burglary, which is life imprisonment, we are not persuaded that the 6-year sentence on Count 1 is manifestly excessive.

29.Neither do we think the 8-year term on Count 5 is open to criticism.

30.We do not agree with Mr Reading that, because there were similar past incidents, the applicant’s pre-taking of aphrodisiac pills and non-wearing of a condom would become less of an aggravating factor or factors.

31.If anything, the pill-taking only goes to show how intent the applicant was to procure sexual relations with X when, not an evening before, X had resorted to the help of her cousin to talk sense to the applicant, as well as refusing to spend the night alone with him.  This unregarding doggedness is alarmingly consistent with the latter’s admission that should X refuse to leave her new boyfriend, he would “first take possession of her body” (首先佔據佢嘅身體) and, if that still did not work, turn the cutter on her and then himself.[23]  We fail to see how that was not a particularly disturbing feature in this case.

32.The applicant’s act of going unprotected was equally atrocious.  It was not what X wanted, plus her wishes must be clear to the applicant who, in connection with the acquitted Count 3, was specifically asked by X to wear a condom.  The applicant’s action is not made less grave by the fact that there were previous incident or incidents of unprotected sex (there was a dispute on the number).  On the last of these occasions at least, the applicant’s intention was admittedly to impregnate X so that X would return to him and not go to her new boyfriend.  It resulted in setting X off to purchase her ‘morning after pills’.[24]  These points we have canvassed during the hearing to no rejoinder from leading counsel.

33.Mr Reading has prayed in aid a number of authorities, not least the case of R v Millberry & Others.[25] He relies on the passage of the judgment which deals with the types or scenarios of rape which merit an 8-year starting point.[26]  This, however, is of little or no assistance to the applicant.  It was stated in Millberry that, in England at least, the general approach and sentencing structure as previously expounded in R v Billam[27] should remain substantially unchanged and, if Billam is anything to go by, breaking into or otherwise gaining access to the victim’s home where the offence was committed is an aggravating factor which would bring the starting point to beyond 5 years.[28]  In our experience, it is certainly so in Hong Kong.

34.Given all the above, and the violence that was incidental to the rape (whether a link can immediately be established between the two, it seems to us clear that X would not have given in had she not been hit, strangled and threatened with a cutter), we would say that the 8-year term on Count 5 was, to borrow the words of the respondent, not a day too long.  This is notwithstanding the fact that the applicant was a first offender with no previous conviction.

35.The rationale behind taking on board a victim’s plea for leniency on behalf of a defendant is now firmly established.  It shows the offence to have an attenuated impact on the victim.  Less frequently, it may be that, if a defendant is more heavily punished, the result would add to the distress and concern suffered by the victim.  See HKSAR v Wong Siu Kwan,[29] citing R v Hayes,[30] at paragraph 25 of its judgment.  In most, if not all, the reported cases, there would be a letter authored by the victim as part of formal mitigation.

36.As we pointed out during the hearing, the situation with X was entirely different.  What she did (and we only have a two-page cross-examination on the topic to go by) was to refuse to sign her witness statement at the police station, spoke to the applicant’s brother on the phone overnight, brought along a solicitor to the station on the following day and either sought to change her evidence or asked if the applicant could have a discount in sentence (it is not at all clear).[31]  It could even be that the solicitor was instructed by the applicant’s brother, albeit at X’s suggestion.[32]

37.In any event, X had fully explained her action to have been borne out by the ambivalence between wanting justice for herself, on the one hand, and the guilt of personally putting behind bars a person whom she had known for a long-time, on the other.[33]  This is not the same as “partial forgiveness” as leading counsel puts it.  Aptly, the psychologist who prepared X’s impact report described her situation as follows (with emphasis added) :[34]

“ 3. From the client’s report …… [s]he also blamed herself to have reported to police, possibly leading to the offender’s serious imprisonment. Gradually, she was able to externalize the responsibility to the offender and stopped blaming herself. At the same time, she felt very horrified with what the offender had done to her …….”

38.The complaint that the Judge had failed to take into account X, the victim’s view on sentence is not made out.

39.This leaves Mr Reading’s only remaining ground on totality.

40.Although we are not with him that the sentences on Count 1 and Count 5 should run wholly concurrently, we do think there is a substantial overlap between the two offences at least in terms of what the applicant wanted to achieve in letting himself into the flat: win X back, or take her physically and then kill her and himself.  Viewed this way, the total sentence of 11 years’ imprisonment is manifestly excessive.  Rather, a composite term of 9½ years’ imprisonment would be just desserts for the applicant’s overall criminality.

Disposal

41.We grant the applicant leave to appeal against his sentence and, treating the hearing of the application as the appeal proper, allow his appeal.

42.The respective terms of 6 and 8 years’ imprisonment on Count 1 and Count 5 should stand, plus 1 year and 6 months of the sentence on Count 1 is to run consecutively to the sentence on Count 5, thus giving rise to a new composite sentence of 9 years and 6 months’ imprisonment.  The applicant’s appeal is allowed to that extent.

Mr John Reading, SC, instructed by M/s Huen & Cheung, for the Applicant

Mr Franco Kuan, SADPP(Ag) of Department of Justice, for the Respondent