HKSAR v. Cheung Tze Hong

CACC 261/2018

[2019] HKCA 1238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 261 OF 2018

(ON APPEAL FROM HCCC NO 379 OF 2017)

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Before: Hon Zervos JA in Court

Date of Hearing:  5 November 2019

Date of Judgment:  5 November 2019

Date of Reasons for Judgment: 13 November 2019

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R E A S O N S   F O R   J U D G M E N T

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1.The applicant stood trial before Barnes J (the judge) and a jury in relation to various offences relating to two separate incidents of serious sexual assault against two women, X and Y. The offences alleged against the applicant were indecent assault of X on 10 December 2016 (Count 1); rape of X on 10 December 2016 (Count 2); false imprisonment of Y from 14 to 17 December 2016 (Count 3); assault occasioning actual bodily harm of Y on 14 December 2016 (Count 4); rape of Y on 15 December 2016 (Count 5); rape of Y on 16 December 2016 (Count 6); rape of Y on 17 December 2016 (Count 7); and robbery of Y on 14 December 2016 (Count 8).[1]

2.During the course of the trial, the applicant pleaded guilty to Counts 1 to 7 on 20 July 2018 and, after unsuccessfully reversing his pleas, the judge sentenced him to a total term of 18 years’ imprisonment on 20 August 2018.  He applied for leave to appeal against his conviction and sentence.[2] At the conclusion of the leave hearing, I refused leave on the grounds advanced against conviction and sentence.  However, the respondent conceded there was a reasonably arguable ground on Counts 1 and 2 and I granted leave on an amended ground against conviction only.  These are my reasons for so doing.

The guilty pleas

3.Prior to the commencement of his trial, the applicant on 4 May 2018 applied to sever the counts relating to the two incidents which was refused by the judge.  At the commencement of the trial on 13 July 2018, the applicant pleaded not guilty to all eight counts.  As the applicant had challenged the admissibility of his out-of-court statements, the judge held a voir dire on 16 and 17 July 2018.  She ruled the out-of-court statements admissible, subject to some minor redactions. 

4.On Wednesday, 18 July 2018, after a jury had been empanelled, the prosecuting counsel presented his opening address and submitted to the jury a Trial Bundle and a set of Admitted Facts which were read onto the record.[3] The next day, Thursday, 19 July 2018, the prosecution called Y as its first witness who testified about the events relating to Counts 3 to 8.  She was to continue with her evidence on Friday, 20 July 2018, but defence counsel requested some time to take instructions from the applicant which the judge allowed.  When the proceedings were resumed it was requested that the applicant be re-arraigned.  In the presence of the jury, the counts were read out to the applicant and he formally entered pleas of guilty to Counts 1 to 7, and a plea of not guilty to Count 8, which was left on the court file and marked not to be proceeded with without leave of the court.  It would appear there had been a plea bargain which resulted in the acceptance by the prosecution of guilty pleas to Counts 1 to 7 in exchange for not proceeding with Count 8.  The case was adjourned to Tuesday, 24 July 2018, in order for the prosecution to prepare a Summary of Facts.[4] 

The reversal of the guilty pleas

5.On the adjourned day, defence counsel informed the judge that the applicant refused to admit any of the facts and wanted to change his pleas to not guilty.  The judge conducted an inquiry into the matter and refused to allow the applicant to reverse his pleas after considering the reasons he advanced, ruling that the pleas he had entered were unequivocal. As the applicant was in the charge of the jury, the judge directed them to convict the applicant on Counts 1 to 7, which they duly did by finding him guilty of those counts.[5]

6.When defence counsel first raised with the judge that the applicant wished to change his pleas, he explained that the applicant would not agree the facts.[6] The judge pointed out that a Newton hearing could be held for her to determine whether the facts in issue were proved or not.[7]  It was then that the judge mentioned that challenging the facts could have a bearing on the discount that the applicant would receive for his guilty pleas.  She also mentioned that because the applicant had pleaded guilty late in the proceedings, after Y had commenced her evidence, the discount he would receive for his guilty pleas would be less than 20%.[8] 

7.The judge stood the case down to allow defence counsel to discuss the matter with the applicant.  On his return, defence counsel made a formal application for the applicant to reverse his pleas.  He said the basis of the application was that the applicant was confused at the time when he pleaded guilty; that the applicant did not appreciate after pleading guilty he could not appeal his conviction; that the applicant felt he had no chance in the trial because of the court’s order for an up-to-date photograph of the injuries to Y’s thigh which would depict “certain permanent disabilities”; and that he had given the applicant erroneous advice that by pleading guilty he did he would still receive a 20% discount to his sentence.[9]

8.It is to be noted that the applicant had sought to reverse his pleas before the judge mentioned the percentage discount for his late pleas.

9.The applicant gave evidence in support of his application to reverse his pleas.  He said that before the trial had commenced he was told by his counsel that he would receive a 25% discount to his sentence if he pleaded guilty and that after the trial had begun the discount would be reduced to 20%.  He said that he was misled by his counsel. He next said that he did not know that if he had pleaded guilty he could not appeal against his conviction.  It would seem that the finality of his pleas of guilty would have been obvious to the applicant.  In any event, the applicant had a list of prior criminal offences from 2008 to 2018, and given his familiarity with the criminal justice system he would have appreciated the consequences of pleading guilty.[10] They were the only two grounds that the applicant raised in support of his application to reverse his guilty pleas.[11]

10.The judge in a detailed ruling rejected the application by the applicant to reverse his guilty pleas to Counts 1 to 7.  She ruled that his pleas were unequivocal and the two reasons advanced by him to reverse his pleas were untenable.[12]

The factual basis of the guilty pleas

11.After the judge had given her ruling, the applicant refused to agree any of the prosecution facts, notwithstanding a set of Admitted Facts had been agreed and read out in open court before the jury, and the judge had offered to conduct a Newton hearing on any of the factual matters he wished to dispute. 

12.Prosecuting counsel submitted to the judge a Summary of Facts which he noted contained matters that were part of the Admitted Facts.[13] The Admitted Facts were extensive and addressed the incidents in relation to both X and Y.  In respect of X, the photographs of her injuries were produced as well as a forensic pathologist’s report who had examined her.  Also produced was CCTV footage, depicting X entering and leaving the building where the applicant resided at the relevant time.  It was an admitted fact that the applicant’s DNA was present in vaginal swabs taken from X.  In respect of Y, the photographs of her injuries were produced as well as a forensic pathologist’s report of the injuries that she sustained.  Also produced was CCTV footage at the building where the applicant resided and at a restaurant, depicting the applicant together with Y, at the relevant time.  It was an admitted fact that police seized various items from the applicant’s residence on 11 December 2016, such as a variety of sex toys and packets of condoms, and on 18 December 2016, such as white plastic cable ties, adhesive tape, scissors, a long fruit knife and other items.[14]

13.The judge explained to the applicant that she would treat the Summary of Facts as the case against him.[15] After the facts were read out onto the record, the judge gave the applicant yet a further opportunity to challenge any of the facts but he refused.[16]

14.In her very comprehensive reasons for sentence, the judge explained that for the purpose of sentencing, she would take into account the facts that she had set out in relation to X and Y.[17]

The sentencing of the applicant

15.In sentencing the applicant, the judge noted that besides his guilty pleas there was no other meaningful mitigation advanced on his behalf.  As a result of the circumstances and lateness of his pleas, the judge gave the applicant a 10% discount to his sentences. 

16.In respect of the offences involving X, the judge adopted a starting point of 4 years’ imprisonment on Count 1, and 9 years’ imprisonment on Count 2.  She stated:

“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 on 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 in 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.” [18]

17.For Counts 1 and 2, the judge adopted an overall starting point of 9 years’ imprisonment which she reduced for the applicant’s guilty pleas to 8 years’ imprisonment.

18.In respect of the offences involving Y, the judge adopted a starting point of 5 years’ imprisonment on Count 3, 2 years and 6 months’ imprisonment on Count 4, and 15 years’ imprisonment on each of Counts 5, 6 and 7.  She stated:

“In the case of Y, what the defendant did to her was even more serious than 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 into 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.”[19]

19.For Counts 3 to 7, the judge adopted an overall starting point of 15 years’ imprisonment which she enhanced by 1 year to 16 years’ imprisonment because he was a repeat offender.  She then reduced the sentence to 14 years’ imprisonment for the applicant’s guilty pleas.

20.Taking into account the totality principle, the judge made 4 years’ imprisonment of the overall sentence on Counts 1 and 2 consecutive to the overall sentence of 14 years’ imprisonment on Counts 3 to 7, resulting in a total sentence of 18 years’ imprisonment.[20] 

The leave application against conviction and sentence

21.The applicant advanced two grounds of appeal against conviction and one ground of appeal against sentence. 

22.In respect of the conviction appeal, the grounds are as follows:

“1. The learned Judge erred in law in refusing the Applicant’s application to reverse plea and/or failing to exercise her discretion in allowing the Applicant to reverse his plea.

2.  The Applicant’s conviction was unsafe and unsatisfactory, alternatively, there is material irregularity at trial, in that even upon the Applicant’s own plea of guilty on Counts 1 to 7, the learned judge erred in law in proceeding to sentencing and convicting the Applicant in the absence of any facts admitted by the Applicant or proof of facts in support of all the counts.”

23.In respect of the sentence appeal, the ground is as follows:

“1. The total sentence of 18 years for Counts 1 to 7 were in all circumstances manifestly excessive, in particular the learned Judge erred in finding that the Appellant committed the rapes on Y ‘shortly after [he] was wanted by the police’ and took it as an aggravating factor in sentencing.”

The conviction appeal

24.In my view, the judge correctly ruled that the applicant’s pleas of guilty were unequivocal.  She properly conducted an inquiry into the matter, during the course of which she received evidence from the applicant.  She was clearly guided by the relevant legal principles as enunciated in HKSAR v Chan Chi-ho Lincoln (2018) 21 HKCFAR 588; HKSAR v Shum Wan-foon (2014) 17 HKCFAR 303; and HKSAR v Wong Chi-yuk [2000] 3 HKLRD 125.

25.The two reasons advanced by the applicant provided no basis to reverse his guilty pleas.  The first reason that the applicant was given erroneous advice by his counsel on the percentage discount he could receive on entering his guilty pleas at that stage of the proceedings, was not in the context of this case a sufficient factor to vitiate the intent of the applicant in tendering his guilty pleas.  It was not a matter that went to the heart of his decision to plead guilty.  See R v Saik [2004] EWCA Crim 2936, at paragraphs 46 – 59. 

26.The second reason that the applicant did not know that he could not appeal his conviction upon pleading guilty, was without merit.  First, it would not have gone to the heart of his decision to plead guilty.  Secondly, he would have appreciated the consequences of a guilty plea in light of his previous brushes with the law.  Thirdly, as a matter of law a defendant can appeal a conviction as he had sought to do in this application.

27.These two reasons did not render the applicant’s guilty pleas to Counts 1 to 7 nullities.

28.Mr Ira Lui, for the respondent, pointed out that it was reasonably arguable that the guilty pleas on Counts 1 and 2 might be rendered nullities by the fact that there was insufficient evidence before the judge to enable her to properly convict the applicant.  He referred to HKSAR v Chan Wing-hong, unreported, CACC 622/2002, 4 July 2003 (Chinese judgment with English translation prepared by the respondent), as authority for this proposition.  In that case, the defendant faced one count of assault with intent to rob and one count of wounding with intent.  Following a voir dire, he proposed to plead guilty to the first count on condition that the second count was not proceeded with.  The proposal was accepted by the prosecution. Following his plea of guilty, no jury was empanelled and the case was adjourned pending preparation of the Summary of Facts.  At the resumed hearing, the defendant discharged his counsel and applied for a reversal of plea on the ground that he had not pleaded guilty as an exercise of free will.  The judge disallowed the application.  The defendant refused to admit the Summary of Facts, and accordingly the prosecution called the victim to testify and adduced other evidence in order to address the matter.

29.The Court of Appeal in Chan Wing-hong quashed the conviction and ordered a retrial.  In doing so, the Court observed that where a defendant refuses to admit any facts or facts sufficient to prove all essential elements of offence, the trial court cannot convict the defendant solely on the basis of his plea.[21]

30.Ms Pauline Leung, for the applicant, at the leave hearing, accepted that no issue could be taken against the convictions on Counts 3 to 7, as there was evidence before the court, consisting of the Admitted Facts and the testimony of Y, on which to convict the applicant for those counts.

31.In light of Chan Wing-hong and the issue of the factual basis for conviction on Counts 1 and 2, there seems to be a reasonably arguable ground of appeal against conviction in respect of those counts.  This will obviously require a thorough consideration by the Court of Appeal of the circumstances leading to the conviction of those counts as well as the nature and application of appropriate legal principles in such circumstances.

The sentence appeal

32.The essential complaint about the sentence was that it was manifestly excessive.  It was conceded by Ms Leung at the leave hearing that based on the facts found by the judge there was no basis for complaint about the individual and overall sentences on the counts or the consecutiveness of 4 years. 

33.The judge applied the relevant sentencing authorities for the rape offences of R v Billam (1986) 82 Cr App R 347; R v Millberry & others [2003] 1 WLR 546; and HKSAR v Chan Wai Tung, unreported, CACC 121/2013, 22 May 2014, at paragraphs 33 to 36.  There were numerous aggravating factors that elevated the offending to a high level of seriousness.  The impact on the victims both physically and psychologically, particularly Y, has been traumatic and severe.[22]

34.On the basis of the facts and circumstances found by the judge in relation to the two sets of offences, there is no basis to question the sentences imposed on the applicant.  This was properly acknowledged by Ms Leung at the leave hearing.  Any issue of sentence would only arise as a consequence if the ground of appeal against the conviction on Counts 1 and 2 were to succeed.

35.The ground of appeal against sentence is not reasonably arguable.

Conclusion

36.I did not find the grounds of appeal against conviction, as framed, to be reasonably arguable.  Nor did I find the ground of appeal against sentence to be reasonably arguable.  I therefore refused leave to appeal on those grounds.  However, I did find the following ground reasonably arguable and granted leave to the applicant to appeal his conviction on Counts 1 and 2 on the basis that the applicant’s guilty pleas on those counts were a nullity because of the insufficient or inadequate factual basis on which to convict the applicant for those counts.

37.As a consequence, the applicant amended his perfected grounds of appeal against conviction.  It is on the basis of the following amended ground that leave to appeal was granted to the applicant. 

“The Applicant’s conviction on Counts 1 and 2 is unsafe and unsatisfactory, alternatively there was a material irregularity at trial, in that the Applicant’s guilty pleas on Counts 1 and 2 were a nullity in the absence of any facts admitted by the Applicant or proof of any facts in support thereof, thereby there was insufficient or inadequate evidence to properly convict the Applicant.”

38.Having refused leave to appeal against conviction and sentence on the current perfected grounds of appeal, I advised the applicant at the conclusion of the hearing, and repeat now, that he has the right to renew his application for leave to appeal against conviction and sentence on those grounds to the Court of Appeal, but he is also warned that one of the consequences of doing so may be that the Court of Appeal could make an order for the loss of any time which the applicant has spent in custody.

Mr Ira Lui, ADPP, of the Department of Justice, for the respondent

Ms Pauline Leung, instructed by HK & JY Solicitors, for the applicant

[1] Appeal Bundle, 1 – 11, the Indictment dated 23 October 2017.

[2] The applicant filed on 3 September 2018 a Notice of application for leave to appeal against conviction and sentence (Form XI), in which he set out a series of complaints about his conviction and sentence.  This was substituted by his Perfected Grounds of Appeal Against Conviction and Sentence dated 14 May 2019.

[3] The Admitted Facts were not included the Appeal Bundle.

[4] A summary of these events is provided by the judge in her Reasons for Sentence.  See Appeal Bundle, 31B – J.

[5] Appeal Bundle, 25J – 26D, 31K – N, and 85E – 87H.

[6] Appeal Bundle, 70I – 74T.

[7] Appeal Bundle, 31R – S, 72H – J, 73P – R, 74A – B, 77R, 84U – 85B, and 91D – R.

[8] Appeal Bundle, 72K – O.

[9] Appeal Bundle, 75E – 76R.

[10] Appeal Bundle, 64 – 66, the applicant’s criminal record.

[11] Appeal Bundle, 79T – 80Q.

[12] Appeal Bundle, 82P – 84K.

[13] Appeal Bundle, 14 – 24, Summary of Facts.

[14] The Admitted Facts, although not included in the Appeal Bundle, were produced and referred to during the leave hearing.  They had been summarized in the written submissions of the parties.

[15] Appeal Bundle, 84S – 85B.

[16] Appeal Bundle, 91D – R.

[17] Appeal Bundle, 32F – 35L.

[18] Appeal Bundle, 42F – N.

[19] Appeal Bundle, 42P – 43L.

[20] Appeal Bundle, 30 – 46, Reasons for Sentence.

[21] At paragraphs 28 – 30.

[22] Appeal Bundle, 60 – 63 (Psychological report of X) and 56 – 59 (Psychological report of Y).