R. v. Ng Yuk Wing

CACC000406/1994

IN THE COURT OF APPEAL

1994, No. 406
(Criminal)

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Coram: Hon Macdougall, V.-P., Penlington and Liu, JJ.A.

Date of hearing: 24 February 1995

Date of judgment: 24 February 1995

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. The applicant was convicted after trial before Leong J. and a jury on one count of rape and one count of administering an overpowering drug with intent to commit an indictable offence contrary to section 21 of the Offences against the Person Ordinance, Cap. 212. Having been sentenced to consecutive sentences of seven and four years' imprisonment respectively, the applicant now applies for leave to appeal against those sentences.

2. Briefly the facts were these. In the early hours of 3 June 1990 the complainant went to a flat in Kwun Tong to have a snack with a friend called Ah Keung. When Ah Keung said that he was sleepy and did not want to go out, two other men then present in the flat, one of whom was the applicant, agreed to accompany her. After having had the snack, they returned to the flat where the complainant, who was tired, rested on a mat on the floor. The applicant then began fondling her breasts and private parts. When she protested at his conduct the applicant hit her and punched her in the face. The other two men, who were still present in the flat, told the applicant that if he continued to hit the complainant he would kill her. However, he ignored their pleas and told them to leave. After their departure the applicant ordered the complainant to take off her clothes. When she refused to do so he again punched her on the face. Although she was bleeding she still refused to comply with his demand. He then went to a drawer, took out a medicine bottle and poured an ammonium solution onto a glove. He then forced her to lie on a bed and, covered her mouth and nose with his gloved hand. The complainant had great difficulty in breathing and experienced a severe irritation to her throat.

3. When the complainant continued to struggle the applicant kneed her. He then ordered her to remove her clothes. Terrified, she obeyed his command. The applicant then inserted his penis into her vagina. The complainant tried to resist but was again punched on her face.

4. The ammonium solution in the bottle was later found to be of 22 per cent concentration. This was of such strength that, if applied to human skin, would produce burns and, if inhaled, would cause laryngeal spasm and difficulty in breathing, all of which the complainant suffered as a result of the application of the fluid to her mouth and nose. Moreover, the punches resulted in bleeding to her eyes and extensive bruising to her face.

5. Mr Mullick, who appeared to the applicant both in this court and in the court below, submitted that an overall sentence of 11 years' imprisonment was manifestly excessive, and that the judge erred in passing consecutive sentences when "the circumstances of the commission of the offences amounted to one transaction". He also contended that the cumulative sentence of 11 years' imprisonment was passed in disregard of the principle of totality. Put another way, Mr Mullick's submission was that "the aggravating features attendant upon the applicant's act of raping the victim had been factored into the sentence on the rape offence". Although Mr Mullick did not refer to the cases cited in his list of authorities which had been filed for the purpose of this application, we availed ourselves of the opportunity to read them before the hearing. One of the cases was R. v. Billam (1986) 82 Cr App R347, a decision of the Court of Appeal in England. We find that none of these cases is of any assistance. It hardly need be stated, as it was in Billam, that where there are aggravating features in a case of rape, the sentence should be substantially higher than that which would otherwise be imposed.

6. This was a particularly brutal rape in which the victim was beaten into submission, her breathing stifled by the application of a corrosive fluid to her nose and mouth, and in which she sustained severe injury to her face. We do not accept the proposition implicit in Mr Mullick's submission that had the judge, in deciding the appropriate sentence on the rape count, taken into consideration the offence of administering the ammonium solution with intent to commit an indictable offence, a sentence of nine years' imprisonment on the rape count would have been appropriate.

7. Crimes vary infinitely in the variety of circumstances in which they are committed. This court looks at each case on its own facts and decides whether on those facts it could be said that the sentence passed is manifestly excessive or wrong in principle. We have on several recent occasions been at pains to emphasize that this court is not bound by the suggested guidelines in Billam as to the quantum of sentence.

8. The applicant is no stranger to violence. Apart from having a triad background, he has previous convictions for wounding with intent, criminal damage, common assault and assault occasioning actual bodily harm. Moreover, by contesting the issue of guilt he has demonstrated a lack of remorse.

9. In our view, an overall sentence, after a contested trial, of 11 years' imprisonment for the conduct in this case was well merited. The application is therefore refused.

Representation:

Mr A.A. Bruce, SACP for Crown Prosecutor

Mr John Mullick assigned by DLA for applicant