HKSAR v. Kong Ka Chun and Others

CACC000311/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 311
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 10 March 1998

Date of delivery of judgment: 10 March 1998

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The facts of the case will be rehearsed in the judgment which we will be giving. This was a bad gang rape involving a 14-year old girl. The 1st Applicant assumed a prominent role in the incident.

2. The judge adopted a starting point of 6 years and increased this to 9 years to take into account the aggravating features - namely that it was a gang rape and the victim was only aged 14. He did however give a discount of one year to take into account the youth of the defendants. We consider that this approach was appropriate. However on account of A1's attempt to reverse his plea the judge was only prepared to allow A1 a discount of six months rather than the usual discount of 1/3. We do not consider that A1 was entitled to the full discount as his attempt to reverse his plea was indicative of an attempt not to admit the criminality of what he had done.

3. Having regard to all circumstances of the case, we consider that the discount should have been 18 months. The result of this is that treating the application as the appeal we reduce the sentence to 6 1/2 years' imprisonment. To this extent the appeal is successful.

Representation:

Mr. A.A. Bruce, S.C., S.A.D.P.P. and Mr. S.L. TAM, S.G.C. (D.P.P.) for Respondent

Mr. Jeremy Cheung, (D.L.A.) for 1st and 2nd Applicant

Mr. Wong Po-wing, instructed by M/S Lo, Chan and Leung for 3rd Applicant