Attorney General v. Chan Chi Wah

CAAR000023/1988

Headnote: sentience: rape/robbery: 4 other robberies consecutive or pare consecutive : totality.

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Coram: Silke, V.-P., Kempster & Power, JJ. A.

Date of Hearing: 14 February 1989

Date of Judgment: 14 February 1989

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J U D G M E N T

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Silke, V.-P.:

1. The Respondent, Chan Chi Wah, appeared for trial in the High Court before His Honour Judge Corcoran sitting as a Deputy Judge of that Court. He pleaded guilty to five offences one count of rape and four counts of robbery. He was sentenced, to 7 years' imprisonment for the rape which was Count 1, 7 years for the concurrent robbery which was Count 2, 4 years for another robbery Count 3, 5 years for another Count 5 and 5 years for another robbery, Count 6. All these sentences were ordered to run concurrently which gave a totality of 7 years.

2. The Attorney General now applies to this Court to review those sentences on the basis that their totality is manifestly inadequate and, by making them concurrent, wrong in principle.

3. Counts 1 and 2 involved the rape and robbery of a 43 year old night club waitress. They took place on, 16th April 1988. At about 5:10 a.m. that morning she was returning home to her flat in Patterson Street, Causeway. Bay The Respondent came up behind her, caught her by the neck and threatened her, using abusive language with that which he intimated was a knife but which was in fact a ball point pen. He forced her to the ground. She took $1,600 from her wallet and gave it to him. He then forced her to a nearby staircase, searched her handbag and took from it a small quantity of money. Again under threat or force she was made to accompany him to the nearby Victoria Park. There she was made to kneel down and open her upper garments. When she tried to protect her person, he slapped her face twice. These slaps caused minor injuries to her mouth. The Respondent lowered his trousers and forced her to perform a sexual act upon him. Then he stripped the woman of her lower garments and had intercourse with her. After that she was required to perform another sexual act upon him and he had a further intercourse with her There was no ejaculation.

4. The woman reported the robbery to the police but because of her acute embarrassment at the sexual assaults upon her person, not at first the rape.

5. The third count took place on 22nd April again in the Causeway Bay area. A 28 year-old night club waitress was returning home at about 4:40 a.m.. The Respondent came up to her. punched her on the face and said that he intended to rob. In Victoria Park where he had taken her by force, he stole $83 from her. He forced her to go to an apartment house with him where he rented a room and stole her necklace and watch. He then left.

6. Count 5 took place on 22nd April when another 28 year-old night club waitress was returning home at about 4:30 a.m.. The Respondent came up behind her in Tonnochy Road, grabbed her by the shoulder and threatened to stab her with an empty needle" saying he wanted money. She could feel a hard object in his hand but she never saw what that object was She was forced to walk to the Morrison Hill Swimming Pool and there made to kneel down and hand over her purse. She was punched on the neck and this caused her to lose consciousness. Later medical examination found that she had a swelling of the forehead bruises and a black eye. Upon recovery she reported to the police.

7. Count 6 took place on 26thApfil when a 30 year-old night club hostess was returning home at about,5:00 a.m.. On the previous day she had noticed a man following her. On the 26th she saw the same man. She went into a building in Yee Wo Street. The man, who was the Respondent, followed her and got into a lift with her. As she was about to leave that lift on the third floor the Respondent caught hold of her and produced a knife. He forced the girl to go to the ninth floor where he stole her ornaments and money, but not a platinum ring which she had the presence of mind to drop on the floor where it was later found by the police. She was then taken out of the building and to an apartment house. The first apartment house they went to was full and when they arrived at the second the police, no doubt - alerted by the report of victim of the previous day, were on duty. The woman shouted out that she had been robbed whereupon the Respondent ran away, was chased and caught. The knife he had used was found on him. It was an eight-inch fruit knife. Her property was recovered. No property in the other robberies was recovered.

8. These were all agreed facts admitted by the Respondent after he had pleaded guilty to all the offences.

9. So - there was a series of robberies in the same neighbourhood of lone women in the early hours of the morning in which a hard object, positively identified in one case as a knife, was carried by the perpetrator. Threats were issued, humiliations offered and considerable violence used. A severe sexual assault was carried out upon the fist victim. In all it must have been a terrifying and grossly unpleasant experience for the women concerned.

10. The Respondent is 26, married and worked as a waiter and a hawker. He had previous convictions. In 1981, he was convicted of unlawful possession and a fine of $500 was imposed. In that same year, he was convicted of robbery and was sentenced to a Detention Centre.  In 1988, he was convicted of possession of dangerous drugs for unlawful trafficking for which he received a sentence of one years imprisonment. In 1987, he was convicted to theft, and received a sentence of 6 months imprisonment which was suspended for 12 months. It is noteworthy that all the offences with which we are concerned were committed while that suspended sentence was still in operation.

11. It was said in mitigation by Mr. Ramanathan, who appeared for the Respondent both here and below that and this was put not as an excuse but as a form of explanation, that the Respondent was in financial difficulties. His wife at the time of the offence was pregnant. He had expressed remorse and this was of course indicated by his plea. All these were matters taken into consideration by the sentencing judge. He stated that but for the pleas he would have imposed a sentence of 9 years on the first count but he clearly achieved the totality of 7 because of that plea and of the mitigating circumstances which had been brought to his attention.

12. It was urged upon us by Mr. Cross, who appears for the Attorney General, that two principles of sentencing were not considered by the judge: (i) that separate offences of the same kind attract a higher scale of sentence than a mere single one and, (ii) those separate and distinct offences normally required the imposition of consecutive or part consecutive part concurrent sentences.

13. In any event he submits, the rape and the robbery sentences on counts 1 and 2 should have themselves had been consecutive.

14. The imposition of cumulative sentences in the High Court, but not for some reason in the District Court, is provided for by Section 68 of the Criminal Procedure Ordinance, Cap. 221. We accept the arguments of the Crown that the totality in all the circumstances here was manifestly inadequate. It is unnecessary to repeat again that which we have said in relation to the facts of the offences, their nature, the manner in which they were committed and the very short period of time during which they took place. In our judgment a proper totality of sentence in the Court below would have been 12 years' imprisonment. This, however; is a Review and, as is now the invariable practice, we allow a discount.

15. We will not interfere with the actual sentences imposed which we think to be appropriate to the individual offences but we will make use of section 68 leaving the sentences on the rape and the robbery of 7 years each is concurrent. The sentence on count 3 of 4 years is to begin 4 years after the start of the sentences on counts 1 and 2, as is also the sentence of the fifth count of 5 years. The sentence on the sixth count of 5 years' imprisonment will commence five years after the start of the sentences on counts 1 and 2. This achieves a totality of 10 years'' imprisonment,

16. The application for review is granted to the extent we have indicated.

Representation:

I. G. Cross, Esq. & Miss E. Chan for Crown/Appellant

Kumar Ramanathan, Esq. (D.L.A.) for Respondent