Attorney General v. Ng Shing Chun

CAAR000005/1988

BETWEEN

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BETWEEN

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Coram: Fuad, V.-P., Power, J.A. & Macdougall, J.

Date of Hearing: 8 December 1988

Date of Judgment: 8 December 1988

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the Court):

Application for leave to appeal against conviction: (Appeal No. 130 of 1988)

1. The Applicant Ng Shing Chun appeared before the High Court on an indictment containing four counts: Kidnapping, contrary to common law (Count 1), Rape (Count 2), Rape (Count 3) and Buggery (Count 4). The victim in each case was the same woman and all the offences were averred to have been committed on the same day, 28 June 1986.

2. The Applicant pleaded guilty to Count 1 (Kidnapping) on 22 February 1988 upon arraignment before Judge Said sitting as a Deputy Judge of the High Court. He pleaded not guilty to the other three counts and the trial proceeded before the same judge and a jury. On 7 March he was found guilty on Counts 2 and 3 (Rape) by majority verdicts of 5:2 and acquitted upon an unaminous verdict of the offence charged in Count 4 (Buggery).

3. On the same day, the Applicant was sentenced to 8 years' imprisonment on each of the three counts upon which he had been convicted, the sentences to run concurrently. He seeks leave to appeal against his convictions on Counts 2 and 3. He had sought leave to appeal against all the sentences imposed upon him but he abandoned his application with regard to sentence before us today.

4. The evidence led by the prosecution was that the victim, who worked in a massage parlour, was called downstairs at about 11:00 p.m. on the night of 27 June 1986. She was grabbed by a group of men and forced into a taxi against her will. The only man of the group she recognised was her former husband Kwok Kai Chun. She was taken to a construction site in Yuen Long, the taxi driver having been threatened that if he reported the abduction his wife and children would be in trouble.

5. During the trial, letters were used to identify the other men involved who were not before the Court. In the taxi there were the driver, the victim, her former husband (Kwok), Mr. A and Ms. B. The victim was taken into a hut, which was brightly lit, on the site. After a while Kwok called her out of the hut and told her that he needed money. She said she had none. She was then taken back into the hut whereupon Mr. B threatened her with a knife.

6. Some considerable time later, they group in the hut were joined by the Applicant and Messrs. D, E and F. The Applicant punched her several times on the chest and scolded her in foul language. The others treated her in the same manner. She was assaulted again by the men when she kept saying that she had no money. She eventually told them she had on her person $2,000 in the form of a cash cheque. This was in response to a demand for $10,000. One of the men, Mr. D, took her purse from the hip pocket of the jeans she was wearing, and took the cheque from it as well as $600 of the $630 she also had in her purse. The Applicant got $100 of this amount.

7. The Applicant then gave the victim four Mandrax tablets and made her swallow them. She stayed in that hut (she had been made dizzy by the pills) until about 4:00 a.m. and was then taken by force to another hut by Mr. A. The electric light there was on too.

8. About 10 minutes later the Applicant came into that hut, accompanied by five other men. The one they called "big brother" told her to undress and kicked her in the stomach when she refused. One of the others said she would be killed if she did not do as she was told. She took off her clothes and was told to lie down face downwards. "Big brother" then committed the act of buggery on her after some of the men had gone out but while others stood in the doorway. The Applicant then came in and undressed himself. He had sexual intercourse with her against her will. Three of the other men then had intercourse with her.

9. The victim then cleaned herself up as best she could and put on her clothes. Later "big brother" came in with two other men. They undressed and stood there chatting. At about 6:00 a.m., the Applicant came in and made the victim take off her clothes once more, threatening her with an iron bar. He then had sexual intercourse with her again, without her consent.

10. The Applicant then told "big brother" to make love to her. "Big brother" then committed another act of buggery against her. The Applicant threatened her again with an iron bar when she resisted. The third man, followed by three others, then also had sexual intercourse with her.

11. She was left alone until about 11:00 a.m. when Mr. B came in and had sexual intercourse with her against her will. While Mr. B slept the victim managed to made her escape and reported what had happened at Yuen Long Police Station.

12. The Applicant was arrested by a party of police officers on 2 November 1987 when he was seen on the roof of a hut built on the top floor of a building in Tai Kok Tsui. When the victim attended an identification parade held on 5 November 1987, the officer in charge read out to her the facts of the complaint. These were that on 27 June 1987 she had been abducted in Shanghai Street, Kowloon by seven men and had been taken to a hut on a construction site and raped and buggered by five of the men. She was then told that the purpose of the parade was to ascertain whether she was able to identify anyone who had raped and detained her on 28 June 1987. It was then that she pointed out the Applicant.

13. The Applicant gave evidence and told the jury that he had been at a dinner on 27 June 1986 with a man called Fei Chai Ho. The victim's then husband (Kwok) as also present. Kwok, who was the Applicant's clansman, asked Ho to help him catch his wife. A man named chau ching then joined them, as it was he who knew where the victim worked. After they had had some beer at a food stall he was shown a photograph of the victim and told to go to the Kan Lung Centre where he found her working in the massage parlour there. After a massage he had sexual intercourse with the victim and paid her for her services. He asked the victim to go out for a snack with him but she refused.

14. The Applicant's evidence continued that when he rejoined the men he had been with, they scolded him for returning without the victim. Chau Ching made a number of telephone calls to try and get the victim to come out of the massage parlour and when these were not successful one of the men was sent to fetch her. He returned with her about half an hour later when she was forced into the taxi and taken to the construction site.

15. The Applicant said that when they reached the site he scolded the vicitim for being a prostitute. This had bothered him because Kwok was his clansman. He slapped her on her shoulder and swore at her. He then went into one of the huts and asked Ho for some pain killing tablets since he felt discomfort due to the drinks he had taken that night. He swallowed two tablets and after cursing the victim again, he gave her two tablets of the kind he himself had taken to ease her discomfort which was by then apparent to him.

16. After telling Ho that he was feeling very tired, he was shown to another hut where five men were sleeping. He stayed there for about two hours during which time he heard that the woman's money had been snatched. He became frightened on hearing this and left, taking a taxi to Tsuen Wan. This was at about 3:00 a.m.. He was sick in the taxi. He then took another taxi and got home between 4:00 a.m. and 5:00 a.m. on 28 June. He later discovered that his notebook with telephone numbers in it and his identity card were missing.

17. The Applicant told the jury that the driver of the taxi in which he had vomited that night had rung him up between 7:00 a.m. and 8:00 a.m. that morning with the news that he had found the notebook and the identity card in his taxi. By arrangement, they later met in a restaurant at about noon where the Applicant recovered his property. He gave the driver $200 as a reward for his honesty and then obtained his telephone number because he felt that they might become friends in the future.

18. The taxi driver, Lai Kan Chiu (DW3) gave evidence that he had picked up a passenger near the Lau Fau Shan bus stop between 2:00 a.m. and 3:00 a.m. one morning and driven him to Tsuen Wan. His passenger smelt of alcohol and later vomited in his taxi. Later, when he was washing out his vehicle he found in it a notebook and an identity card in the name of Ng Shing Chun. Later that morning he made a telephone call to the first number which was written in the notebook and spoke to a man called Lee to ask him if he knew a man called Ng Shing Chun. When Lee said he did, Lau obtained the Applicant's telephone number from him and rang the Applicant up and arranged to meet him in a restaurant. They duly met at about noon at the pre-arranged place where Lau handed over the Applicant's property and received $200 as a reward. On being asked to do so by the Applicant, he wrote his name and telephone number on a slip of paper and gave it to him.

19. The witness could not recall the day upon which the incidents he related had occurred but it was, he said, a month or two after he had moved into his present home, in April 1986.

20. The Applicant's clansman, Lee Sai Ming (Dw2) also testified for the defence and spoke of the telephone call he had received from the taxi driver and how he had given the Applicant's telephone number to him. He said that this had happened in the summer of 1986, in the middle of that year. He could not say precisely when.

21. In the original grounds of appeal, the only complaint made about the summing up concerned the treatment by the judge of the alibi evidence. The formulation was as follows:

"1. The Learned Trial Judge failed to give sufficient weight to the Appellant's alibi in his summing up to the jury in that he :

22. The judge directed the jury what a "defence" of alibi involved and made it clear that it was for the prosecution to disprove the alibi and that it was not for the Applicant prove that he was elsewhere at the material time.

23. The Applicant had acknowledged that he had not told anyone about his alibi until February 1988. About this, the judge told the jury that they must clearly appreciate that a suspect was entitled to say nothing when asked questions about his alleged crime. He was under no obligation to disclose his defence.

24. The judge also told the jury that if they considered the alibi to be false this itself did not entitle them to convict the Applicant; the prosecution must still establish his guilt. The jury were urged to keep in mind the fact that false alibis might be put forward for many reasons. An accused person might, for example, when he had only his own truthful evidence to rely upon, stupidly fabricate an alibi, and get lying witnesses to support it, out of fear that his own evidence would not be enough. Thus, the mere fact that an accused person might have lied about where he was at the relevant time did not prove that he was where the identifying witness for the prosecution said he was.

25. As regards ground I(i), we think that the judge gave a fair summary of the alibi evidence and reminded the jury of the substance of the evidence given by Lee Sai Ming (DW2) and Lai Kan Chiu (DW3) on pages 13 and 14 of the summing up. No valid criticism can be made about his treatment of the evidence.

26. Ground I(iii) is not sustainable. The judge expressly warned the jury: "Alibi witnesses could make genuine mistakes about dates and occasions as could any other witness". Earlier in his summing up, at pp. 2-3, when speaking of the evidence of witnesses in general, the judge was at pains to point out to the jury that the witnesses were recalling events that had occurred two years before and the judge referred to the possibility of memory lapses due to the passage of time.

27. In relation to ground I(iv), in our judgment, the draftsman has misunderstood the significance of what the judge was saying. At page 24 of the summing up the judge said:

"    You heard how the taxi driver obtained the defendant's telephone number to contact him. And both those witnesses, Mr. Lee and Mr. Lai, were pressed about the time when this happened. Both were also to mention the season only, that is summertime of 1986, and the taxi driver said that this happened about a month or two after he had moved to his present residence which was in April, 1986.

It is a matter entirely for you to consider, and you may think that there was nothing to stop these two witnesses from mentioning a particular date had they so wanted, but they did not.

How far those witnesses impress you as credible witnesses is for you to decide. Should you find that their evidence goes to support the alibi raised by the defendant, or goes to the extent that it might probably be true, then of course you will find him not guilty."

28. It is clear to us that the judge was not making an unfavourable comment; rather he was pointing out to the jury how easy it would have been (it is to be inferred, if they were lying to the Court) for the taxi driver and the Applicant's clansman, had they wished, to tie the events about which they were testifying to a precise date. The jury could not, in our view, have misunderstood what the judge was saying. There is nothing in this ground of appeal.

29. At the opening of the appeal we gave leave for an additional ground of appeal to be raised. This contends that the judge failed to impress upon the jury:

(a)    the importance of the fact that the victim had failed to identify the Applicant at the identification parade as one of the men who had raped her; and

(b)    that the reason the victim had given in her evidence for identifying the Applicant upon that occasion "was also not one concerning the alleged fact of her rape by him".

30. In referring to the evidence about the identification parade, at page 22 of his summing up, the judge reminded the jury that the officer in charge of the parade had said that the victim had pointed out the Applicant without elaborating or explaining her identification. It was, of course, unnecessary for her to give any explanation, as the officer had already explained to her that the purpose of the parade was to ascertain whether she was able to identify anyone who had raped and detained her on 28 June. The judge went on to direct the jury as follows:

"    In her evidence in court concerning the identification parade, she said, 'I can say for certain that this person was seen by me at the construction site.' You may think this was quite equivocal.

There were, it is true, two other people also present at the site against whom she raised no allegations. But you may consider in your wisdom as men and women of the world whether or not you would expect a victim of such serious sexual attacks to state categorically when confronted by one of her assailants who she claimed to have seen and identified during the course of those sexual attacks that he was one of the assailants.

You may find, and this is a matter for you, that the manner in which she picked out the defendant at the identification parade coupled with her evidence explaining that identification does little to enhance the rest of her evidence of the identification of the defendant."

31. What the victim had said in Court concerning the identification parade had been prompted by a question from counsel whose purpose was to elicit whether the person the victim had identified at the parade held on 5 November was someone concerned in the events of the evening of 27 June prior to the time she had been forced by a group of men into the taxi, or was someone concerned with the later events or with both. It was in that context that she replied that she had identified the Applicant at the parade as being one of the men at the construction site.

32. Defence counsel had contended that if the victim had really identified the Applicant at the parade as being one of the rapists, her natural response to the question asked of her at the trial would have been that the Applicant had been one of the men who had raped her at the construction site rather than that she had seen him there.

33. Whatever force there may have been in this contention, it is plain that the judge placed both this matter and the quality the victim's identification of the Applicant at the parade squarely before the jury.

34. In our judgment the summing up was complete and fair, and the verdicts which followed cannot be assailed. Therefore, the application for leave to appeal against the convictions on Counts 2 and 3 is refused.

Application for Review. (No. 5 of 1988)

35. We have before us an application by the Attorney General under s.81A of the Criminal Procedure Ordinance, for which leave was given by the Chief Justice, for review of the sentences imposed by the judge. On behalf of the Attorney General, it is submitted that by ordering the sentences on the rape counts to run concurrently with the sentence on the kidnapping count, the judge had not imposed any actual punishment for the rapes. He should, it was contended, either have increased the global figure to reflect the gravity of the different offences or have ordered the rape sentences to be consecutive or consecutive to the kidnapping sentence (as is now permitted by s.68 of the Criminal Procedure Ordinance).

36. With regard to the two rape sentences, it is submitted that the judge should have followed the ordinary sentencing practice of imposing a heavier sentence for two (or more) rapes than would be imposed for one rape.

37. Moreover, it is said that these were gang rapes which merited higher sentences - the worst category of such offences "could attract sentences of 15 years' imprisonment ": per the Chief Justice giving the judgment of the Court in R. v. Yau Wai Hung and another, Criminal Appeal No.38 of 1987 unreported: 4 December 1987).

38. It has also been submitted to that if the judge had considered the factors which aggravate the crime of rape and which were referred to by the Lord Chief Justice of England in R. v. Billam [1986] 1 All E. R. 985, and applied by the decision of this Court in Attorney General v. Ip Chung Hang, Application for Review No.6 of 1988 (unreported: 18 April 1988), he would not have imposed the sentences he did impose.

39. This is what the judge said when he passed sentence:

"For the purposes of this sentence I am ignoring the previous record of this defendant in as much as learned Crown counsel has said that that record is not relevant. And so far as the kidnapping charge is concerned, it has been said in this jurisdiction a number of times that anyone convicted of kidnapping must expect to receive a heavy sentence, and it has also been pointed out in clear terms that any sentence for such an offence has to be a deterrant sentence in the sense of general deterrant to other persons from behaving as you did, and the courts in Hong Kong have taken the view that the offence of kidnapping is a crime of such grave and vicious nature that all such offences should normally attract a heavy deterrant sentence. And it has been also stated that the previous good record of a person convicted of such an offence can have very little weight. The only mitigating factor in so far as the first offence of kidnapping is concerned is your plea of guilty. My starting point for that offence would have been a sentence of twelve years, but in view of your plea of guilty to that offence I give you credit for that to the extent of four years, so that the sentence on that offence is eight years. On the two rape charges, I am sentencing you to a prison term also of eight years on each count, these sentences to run concurrently."

40. We would mention here that it is common ground that the offence charged in Count l was a common law misdemeanour. Since no specific penalty is prescribed for that offence, by reason of s. 90 of the Interpretation and General Clauses Ordinance, the maximum sentence which could be imposed is 7 years' imprisonment and a fine of $50,000. The judge must have had in mind the maximum penalty of life imprisonment provided for by s.42 of the offences against the Person Ordinance (Cap.212) for the felony created by that section. We feel bound to say that it was the duty of both Counsel appearing at the trial to ensure that this mistake was not made, or if it was, that it was corrected. Whatever else happens on this application, the sentence of 8 years' imprisonment imposed by the judge on Count 1 will have to be reduced.

41. The sentencing principles applicable to cases of this kind are fully discussed and applied in Attorney General v. Ip Chung Hung. The judgment of the Court of Appeal (which was delivered by Penlington J.A.) was given some 5 months after the sentences were imposed in this case. It is not necessary for us to re-state the principles.

42. This was a bad case indeed. The prisoner is aged about 32 and is married with two young children. He had two previous convictions for which he did not receive custodial sentences. They can be disregarded for present purposes. The unfortunate victim suffered a terrible ordeal extending over many hours. There were no mitigating circumstances whatever although, possibly, the trial was shortened to some degree by the plea of guilty to Count 1. Instead, there were significant aggravating features. Quite apart from the forcible abduction and detention which must have terrified the woman, there were two very bad gang rapes which were quite distinct and separate and which (subject to the totality principle) clearly deserved sentences which were consecutive or partly concurrent and partly consecutive. To overcome her resistence the prisoner threatened the woman more than once with an iron bar. He made her swallow Mandrax tablets. He positively encouraged (and not by his mere presence) other men to take par in the gang rapes. No sign of remorse has been shown by the prisoner for his cruel, humiliating and vicious behaviour towards the woman.

43. In deciding what sentences should have been imposed, we must, of course have regard to the sentences passed on the other men involved in these incidents in three other trials so that the prisoner is not left with a justifiable sense of grievance on account of disparities. We will not detail those sentences. All we would say about them is that some, at least, of the other persons involved in these dreadful crimes appear to have been somewhat leniently treated. We have also applied the principle, now well established, of giving some discount to reflect the fact that we are enhancing the sentences on an application for review.

44. In the particular circumstances of this case, in varying the sentences imposed by the trial judge, we propose to substitute concurrent sentences of imprisonment to reflect the gravity of the prisoner's appalling conduct as a whole.

45. We allow the Attorney General's application for review. We set aside the sentences passed by the judge and in their place impose the following sentences on the prisoner, the sentences all to run concurrently:

46. 5 years' imprisonment on Count 1;

47. 12 years' imprisonment on Count 2;

48. 12 years' imprisonment on Count 3.

Representation:

Criminal Appeal No. 130 of 1988

Mr. J. Hingorani (Director of Legal Aid) for the Applicant.

Mr. I.G. Cross and Mr. W.S. Cheung (Crown Prosecutor) for the Crown.

Application for Review No. 5 of 1988

Mr. I.G. Cross and Mr. W.S. Cheung for the Attorney General.

Mr. J. Hingorani (Director of Legal Aid) for Respondent.