HKSAR v. Siu Chun Man

CACC000329/1999

CACC 329/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 329 OF 1999

(ON APPEAL FROM HCCC NO. 299 OF 1997)

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Coram: Hon Stuart-Moore, V-P, Mayo & Wong, JJA in Court

Date of Hearing: 7 October 1999

Date of Judgment: 7 October 1999

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J U D G M E N T

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Wong, J.A.:

1. The applicant pleaded guilty before Deputy Judge Wesley Wong in the Court of First Instance to three offences and these were (1) burglary, (2) indecent assault on a person and (3) wounding. The judge sentenced him to 3 years imprisonment on the first count, 18 months on the second count and 13 months on the third count; all the sentences to run consecutively making a total sentence of 5 years and 7 months imprisonment. The applicant applies for leave to appeal against the sentence.

2. The admitted facts are these. At about 7 p.m. on 21 September 1995, Madam Yeung Mei-ling (who was PW1) went to see a doctor leaving her daughter Tsang Sze-man, aged 9 (who was PW2) and a 7-year old son at home at Flat 3509, Alder House, Kwong Yuen Estate, Shatin, New Territories. At about 8:45 p.m., PW2 switched off the lights and both she and her brother went to bed.

3. While she was sleeping, the applicant entered the flat and gagged her mouth with a scarf. He then took her to another room and tied up her hands and feet. He covered her face with some materials, sat beside her, removed her underpants and put some greasy stuff inside her private parts.

4. The mother returned home at about 11:30 p.m. She found the living room had been ransacked. At that point of time, the applicant suddenly rushed out of her bedroom, holding a water melon knife of about 14 inches long and 2 inches wide. PW1 shouted "Robbery" and raised hue and cry while running out of the flat. A neighbour later came to her assistance. The applicant kept chasing after her and altogether stabbed her 3 times on her back. The applicant fled by the staircase and disappeared.

5. PW1 went back to her flat and found PW2 in her bedroom, crying. PW2's hands were tied up and her lower part was completely naked. She told her mother that someone had inserted some oily stuff into her private parts. PW1 found some cash, one gold necklace and two gold finger-rings missing.

6. The applicant was arrested by the police on 11 April 1997, some 18 months afterwards in a pipe room on the 33rd floor of another building in the same housing estate. He was standing beside a black cap, a pair of gloves and a screwdriver. Under caution, he admitted the offences but claimed that he did not touch PW2's private parts.

7. Both PW1 and PW2 were medically examined in the early hours of 22 September 1995. PW1 was found to have two lacerations on the back, each measuring about 3 cm long and 1 cm deep and she also had a superficial abrasion.

8. In the case of PW2, there were reddish bruises around her mouth, her upper back near her right shoulder, swollen lips, rashes on her forearms and wrists and there was an area of recent sliding abrasion on her left lower buttock. Swab samples were taken from PW2 and blood sample from the applicant for purposes of DNA tests. Pyjamas, a piece of semen-stained cling wrap and a pair of underpants belonging to PW2 were also seized. Human seminal stains were found on PW2's vulval swabs, her underpants and pyjamas. Upon comparison, Dr. Lun Tze-shan, the forensic scientist of the Government Laboratory formed the opinion that the seminal stains could have come from the applicant.

9. In his written submissions to this Court, the applicant complained that the sentence on the wounding charge should have been ordered to be served concurrently as all the offences committed on that occasion took place on the same day and arose out of the same incident. He had pleaded guilty and shown remorse. This was the first time he committed this type of offences, which is of course not quite true because he was convicted of burglary in 1994, and in 1992, he was convicted of theft from vehicle. For these two offences, he had been sent to both the Detention Centre and the Training Centre. In all, he asked for one more chance so that he could turn over a new leaf in his life.

10. Before us, he points out that the judge, in fact, gave him a one-third discount for the charge of wounding and not one-quarter as in the other two charges. Therefore, he submits that the correct sentence of wounding should be one of 12 months and not 13 months. He also says he absconded on bail in connection with another offence and not these offences. But still he disappeared while he was awaiting trial for the present offences. He argues that his bail money was forfeited and he had been punished for absconding on bail. He submits that he is therefore entitled to the normal full discount of one-third for all the offences.

11. In arriving at the total sentence of 5 years and 7 months, the judge took as a starting point of 4 years for burglary, 2 years for indecent assault and 18 months for wounding. He allowed one quarter reduction for the first and second counts but one-third reduction for the third count. We are a little puzzled why the judge has made this differentiation between the third count and the other two counts in so far as discount is concerned.

12. The judge allowed one-quarter discount for the first two charges on the ground that the applicant absconded bail before he was due to appear in Court for his trial for the present offences. We are of the view that the judge was entitled to take that course when he considered the percentage of discount to be given to the applicant. The judge also ordered all the sentences to be served consecutively. We also uphold his decision on this because the three offences were separate and distinct offences which bore no relation or resemblance to each other. It was not necessary for the applicant to commit the other two offences in order to achieve the burglary.

13. Now we deal with the sentence on the first count of burglary. It is well-established by now that the starting point for a simple burglary committed in domestic premises is one of 3 years imprisonment and 4 years adopted by the judge is far beyond the range. We would reduce the sentence of 4 years to 3 years and taking into account the discount of one-quarter that has been ordered by the judge, the sentence on this count comes down to 2 years and 3 months.

14. The sentence passed by the judge on the second count is, in our view, manifestly inadequate and must be increased substantially. What the applicant did to this 9-year old girl was a nasty and depraved act. This Court takes a very serious view of offences involving sexual attacks on girls of tender age and will not hesitate to punish offenders who commit offences of this type in a severe manner. We consider that the starting point for this count should have been at least 5 years and allowing a discount of one-quarter, the sentence will be 3 years and 9 months.

15. We come to the sentence on the third count of wounding. As we have observed that the discount of one-third instead of one-quarter given by the judge is somewhat strange. Be that as it may, we would allow the appeal on this count and reduce the sentence to one of 12 months, being two-thirds of an 18 months sentence.

16. We grant the application. Treating the application for leave to appeal against sentence as the hearing of the appeal, we allow the appeal to the extent indicated. That is to say, in place of the sentences imposed by the judge, we reduce the sentences on Counts 1 and 3 to 2 years and 3 months and 12 months respectively. Using our powers under Section 83 I of the Criminal Procedure Ordinance, Cap. 221, we quash the sentence of 18 months imposed by the judge on count 2 and, in place of it, there will be a sentence of 3 years and 9 months.

17. All the sentences will run consecutively, making a total sentence of 7 years' imprisonment.

Representation:

Mr. P. K. Madigan (SADPP) (Ag.) for Director of Public Prosecution

Applicant: Siu Chun-man, in person