HKSAR v. Leung Kam Wah

CACC 467/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO. 467 OF 2003

(On Appeal from DCCC 695/2003)

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BETWEEN

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Coram: Hon Stock JA, Lugar-Mawson J and McMahon J in Court

Date of Hearing: 2 December 2004

Date of Judgment: 2 December 2004

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

Background

1.On 24 October 2003, Leung Kam Wah, the Applicant was convicted after trial in the District Court before H.H. Judge Sweeney of one charge of assault occasioning bodily harm, and three charges of causing grievous bodily harm with intent.

2.He was sentenced to 1 year’s imprisonment on the 1^st charge, 2 years’ imprisonment on the 2^nd charge, consecutive to the sentence on the 1^st charge; 4 years’ imprisonment on the 3^rd charge, consecutive to sentences on the 1^st & 2^nd charges; and 2 years’ imprisonment on the 4^th charge, concurrent with the sentence on the 3^rd charge.  His total sentence is one of 7 years’ imprisonment.

3.He now seeks leave to appeal against both conviction and sentence.  He is unrepresented.

The prosecution case

4.The Applicant and the victim, a young woman of 23, lived together as boyfriend and girlfriend in a flat on the 20^th floor of Sheung Yat House, Upper Ngau Tau Kok Estate, Kowloon.  At about 3 a.m. on 11 May 2003, PW1, who lived four floors below that flat, was woken up by the victim entering in his bedroom through an open window.  She had climbed down the external drainpipes of the building to get there.  She was crying and shouting out for help.  She was in such poor physical condition that PW1 at first believed she was a ghost.  He described her appearance as follows in his evidence:

“A young woman in a long dirty white dress, whose face was dark and whose hair was long.  She was dirty with a smell from her.  Her feet were also very dirty and bruised”  

5.PW1 called for the police, who arrived soon after.  They found that the victim’s body was extensively battered and bruised.  She was immediately sent to hospital for treatment.

6.After having spoken to the victim, PW2 who was the first police officer at the scene went up to the Applicant’s flat.  He found that the bathroom window and its metal grille were open.  He arrested the Applicant for the false imprisonment and assault of the victim.  After caution, the Applicant replied:

“Ah Sir, she gave me a green hat.  How am I supposed to bear it? So I hit her. She has the key, so how can I imprison her?” 

PW2 recorded this reply in his police notebook.

7.On 12 May 2003, the police interviewed the Applicant after caution.  The interview was video recorded.  He was told that police suspected him of the false imprisonment; assault occasioning actual bodily harm and rape of the victim.  The Applicant denied the accusations of false imprisonment and rape, but admitted that between 7 May and the early morning of 11 May 2003 he had repeatedly beaten the victim.  He had done this because he had found out that she was consorting with another man and he wanted to find out more about that man.  He had also acted out of rage because she had cuckolded him. 

8.He said that, initially, he had only hit her with his fists and open palm (this admission gave rise to the 1^st charge).  For the subsequent beatings, he had hit her with slippers and an electric torch (this admission gave rise to the 2^nd charge), thrust the handle of a long electric torch and a bottle into her private parts and forced the handle of a brush or a comb into her mouth (this admission gave rise to the 3^rd charge).  He admitted beating her for the last time on the night of 10 May 2003, which was the last beating she endured before her escape (this admission gave rise to the 4^th charge).

9.The victim was called as a witness at trial, but refused to testify, saying that she had no recollection of the events leading to her hospitalisation on 11 May 2003.

10.The medical report on her injuries revealed that the victim had sustained extensive bruising all over her body.  These covered her head and neck, her trunk, both of her arms, both of her legs, both her buttocks and the soles of her feet.  Some of the bruises found on her legs exhibited ‘tram-like patterns’ which were typical of them being inflicted by a rod-like object such as the handle of a torch.   In addition, one of teeth was broken and her mouth was so bruised that the doctor who examined her was unable to examine the interior of her mouth because she was in so much pain.  She also had bleeding in her eyes and infected wounds in her vaginal wall cause by a blunt penetrative trauma into the vagina.  The doctor found 52 external marks of injury on her head and body.  The extent and nature of the majority of the injuries found on her body were consistent with them having been caused by repeated blows from a blunt object over an extended period.

11.We have seen photographs of the victim’s injuries; they may fairly be described as horrific.

Defence case

12.The Applicant elected not to give evidence or call witnesses.  His case was that, although his admissions in the video recorded interview and on arrest were voluntary, he was under the effect of ‘ice’ at the time the police questioned him and because of that none of his answers were the product of a rational mind and should be excluded by the Judge.

13.There was also a suggestion that the victim’s injuries may have been self-inflicted.

14.The Judge had earlier rejected a no case to answer submission that the prosecution could not succeed without the victim’s evidence.

The Judge’s findings

15.The Judge was satisfied that the Applicant’s admissions, both on arrest and in the video recorded interview were voluntary and admissible, and that there was no valid ground for him to exercise his residual discretion to exclude either of them.  He relied on them to convict the Applicant.

16.On the issue of the Applicant being under the influence of ‘ice’ at the time of his interviews the Judge said this:

“There is not a shred of evidence that the defendant was so impaired by drugs on either occasion as to make his confessions unreliable. On the contrary, his demeanour throughout the videotaped interview is calm and reasonable as he gives his answers in a lucid and rational manner, careful to distance himself from any allegations of false imprisonment or rape.  Despite his submission, (counsel for the Applicant) has himself commented, “On the face of the videotape he appears perfectly normal”.  Further, the explanation he gave in the post-record is consistent with that which he subsequently seeks to give on videotape.”

17.The evidence relating to the victim’s injuries was unchallenged. The judge found that they supported the Applicant’s confessions to each of the four charges.

Grounds of appeal against conviction

18.We turn to the application for leave to appeal against conviction first.

19.In essence, the Applicant raises three grounds of appeal, none of which is sustainable:

20.Firstly, he asks whether the Judge showed bias by requesting the press not to reveal the victim’s identity?

21.Here the Judge did no more than adopt the accepted approach in cases of this nature, where a woman has been subjected to a sexual assault.  The request was made to ensure that the victim would not be discouraged from giving evidence because of her fear of publicity.  The suggestion that the Judge was biased against the Applicant is misconceived.

22.Secondly, he asks whether the Judge erred about the victim’s mindset when she gave her evidence, and that he disregarded those parts of her evidence that were favourable to the defence.

23.Whatever her mindset was, the victim was unwilling and reluctant to testify.  She claimed she had no recollection of the events that lead to her suffering her injuries.   Her evidence could not be relied on for any purpose.  She gave no evidence that could be said to be favourable either to the prosecution or the defence

24.Thirdly, he asks whether the judge erred in admitting his confessions as they were given under the influence of drugs, and whether it was safe for the Judge to rely on them?

25.The judge dealt with this issue at trial.  The Applicant gave no evidence on this issue.  The Judge was satisfied that the Applicant was not under the influence of drugs on either occasion that the police questioned him.  We see no reason to doubt that conclusion.

Decision on application for leave to appeal against conviction

26.The application for leave to appeal against conviction is dismissed.

Ground of appeal against sentence

27.We turn to the application for leave to appeal against sentence.

28.The Applicant alleges, in his written grounds, that the judge was biased against him and that his sentence is manifestly excessive.  This morning, he tells us that at the time of his assaults upon the victim both of them were under the influence of ‘ice’.  He also speaks wanting of his being reconciled with the victim and wanting to marry her, and take care of her and their child.

29.There is no evidence at all that the judge was biased towards the Applicant.

30.This was one of the worst cases of its kind that the three members of this court have come across.  It would not have been amiss for this case to have been tried in the Court of First Instance of the High Court.  Whatever the initial cause of the quarrel between the victim and the Applicant was, this case went far beyond a domestic dispute and the Applicant’s conduct went far beyond the violent acts of an angry man directed towards an unfaithful partner.  Rather, they demonstrate that over a period of four days he repeatedly, systematically and sadistically beat and humiliated the victim.  His attacks upon her went beyond physical blows and descended into sexual torture, as is evidenced by the injuries she suffered to her vaginal wall.  Had she not made good her escape by the very dangerous expedient of climbing down the drainpipes on the exterior wall of the block of flats in which she and the Applicant lived, the attacks on her may well have continued and grown worse. 

31.The Applicant has shown no remorse for his acts, even in the recent submission before us, he maintains the ridiculous proposition that the victim’s injuries may have been self-inflicted.  The fact that they may have been committed when the Applicant and he were under the influence of ‘ice’ only exacerbates his offences.

32.Paradoxically, the victim herself, in a letter to the Court, asks us to show leniency to the Applicant.  At the time of the assaults she was pregnant by him and later bore his child.  She tells us that she wishes to marry him once he is released from prison.  She also claims, as she did at trial, to have no memory of the incident and to have suffered no trauma as result of it.  Quite why the victim takes this attitude is unclear.  However, in our view, given the extremely serious nature of the offences the Applicant committed, the possibility of a subsequent reconciliation between the victim and the Applicant has no bearing on the sentences passed

33.For our part, we are satisfied that the Applicant received condign punishment for his offences and that in all the circumstances of the case that overall his sentences are not manifestly excessive.

An error of sentencing principle

34.There is, however, one error of sentencing principle which we need to correct.  When the Judge came to sentence the Applicant on the 3rd charge, he said this:

“The 3rd charge, wounding with intent (including the insertion of foreign objects into the victim’s mouth and private parts), I take a starting point of 6 years’ imprisonment. However, I reduce that to 4 years’ imprisonment on the totality principle but make that sentence consecutive to the 2nd charge.”

35.That is not the way the Judge should have approached the matter.  If he thought that 6 years’ imprisonment was the correct sentence on the 3^rd charge (and we agree that it was) he should have passed that sentence and taken account of the totality principle by ordering that the Applicant serve part of that sentence consecutively to the sentences on the 1^st and 2^nd charges.  What he should not have done is to reduce what was an otherwise appropriate sentence to a lower one to accord with the totality principle.  This is an all too common error made by trial Judges and we express the hope that they will now cease to commit it.

Decision on application for leave to appeal against sentence

36.The application for leave to appeal against sentence is dismissed.   In addition, we exercise our powers under section 83I(3) of the Criminal Procedure Ordinance and quash the Applicant’s 4-year sentence on the 3^rd charge and in place of it pass a sentence of 6 years’ imprisonment.  The Applicant will serve 4 years of that sentence consecutively to the sentences on the 1^st and 2^nd charges.  This means that his total period of imprisonment for all four charges remains one of 7 years’ imprisonment.

Ms Mary Sin, SADPP of Department of Justice, for the Respondent Applicant, in person