R. v. Chow Kan Shing

CACC000205/1995

IN THE COURT OF APPEAL

1995, No.205
(Criminal)

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Coram: Hon. Power, Ag. C.J., Mayo, J.A. and P. Chan, J.

Date of hearing: 13 September 1995

Date of judgment: 13 September 1995

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant pleaded guilty to two counts of rape. They were counts 2 and 11 in a twelve count indictment. On the other charges, pleas of not guilty having been entered, no evidence was offered.

2. The trial judge, Deputy Judge Yeung, as he then was, sentenced the applicant to seven years on the first count, six years on the second count and ordered that three years be concurrent producing a total sentence of ten years. He now appeals against the sentences.

3. The first count particularised that on 18th February 1991, at the second floor of 27 Pine Street, Taikoktsui, the applicant had raped one victim. The second count particularised that on 15th August 1994, a considerable time later, at Room 835 Shek Yuk House, Chun Shek Estate, Shatin, he raped another victim.

4. The facts were that the applicant was a friend of the mother of the two victims who were sisters. He was a self-employed lorry driver who, after December 1989 had, on a weekly basis, visited the family and had about once a week slept overnight in the family home. The two sisters called him father. We make it plain at the outset that this was a case in which, we are satisfied, the applicant was in a position of trust. He was, on the facts, virtually in loco parentis.

5. The first offence, which occurred on 18th February 1991, took place when he went with the younger sister, who was then 12, to the premises particularised in the charge which apparently belonged to his friend. They were alone in those premises and he removed the child's clothes and raped her. Prior to doing so he had told her that he liked her very much and that she was not to tell others. After the incident she did not report the matter to her mother because she was very afraid and did not know what to do. We pause to remark that such fears are common in cases of this kind. The child victim is in a complete dilemma as to what she should do. While feeling that she should complain to someone, she also feels a sense of personal guilt and, worried that she may be the one to receive the blame for what has happened, lapses into uncomplaining silence.

6. The second offence occurred on 15th August 1994 when the applicant found himself alone with the older sister. He closed all the windows and doors, berated the girl and told her that he was going to rape her which he then did. On this occasion he ejaculated inside her vagina. That had not occurred on the first occasion.

7. The applicant's offences were discovered because the girl ran away to seek comfort from her sister. The confusion and fear felt by the two girls is exemplified by what next occurred.. Being frightened and in doubt as to what they should do they spent the night wandering in the vicinity of Butterfly Beach in Tun Mun. It was only on the following day when they returned home and told their mother that the police were informed.

8. It has been urged today by Mr. Oderberg, who appears for the applicant, that the trial judge failed to give proper weight to the totality principle and that he failed to give sufficient weight to the clear record of the applicant, to his plea of guilty and to the absence of evidence of psychological damage. We have no doubt that the trial judge had all of those factors in mind and that he gave to them the weight which he thought they deserved. We are asked to determine whether that was sufficient in the circumstances.

9. This was neither a case of excessive violence, nor was it a case of sexually humiliating conduct, but in circumstances such as obtained here it is rare to find those elements. The perpetrator of such offences conducts himself so that the child will be unlikely to make a complaint which will lead to the discovery of the misconduct. It is true that the above elements were not present but it was, nonetheless, a very bad case involving young children and appalling conduct by a person in a position of trust. He used that position to overbear the children and, in the case of the first offence, to frighten the child into silence. The behaviour was despicable. It is to be noted that there was no suggestion of any mental abnormality. The offences were carried out by a person in full control of his faculties with full knowledge of what was being done for his own sexual gratification.

10. In such offences the deterrent aspect must loom large. This is particularly so in our community in Hong Kong which is full of busy working parents who, countless times in any year, must entrust their children to the care of others. Such persons are placed in a position of trust. If they are proved to have abused that position the courts, when sentencing, must take a very severe view of such conduct. The overall sentence was, in our view, not a day too long. Nothing has been urged that indicates any ground for interfering therewith and the application must be refused.

Representation:

Mr. D.G. Saw, S.A.C.P. (Crown Prosecutor) for the Respondent.

Mr. Oderberg assigned by D.L.A. for Applicant.