HKSAR v. Chan Kim Kwan

CACC 405/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 405 OF 2004

(ON APPEAL FROM HCCC 326 of 2003)

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BETWEEN

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Before : Hon Stuart-Moore VP and Burrell J

Date of Hearing : 22 June 2005

Date of Judgment : 22 June 2005

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 9 August 2004, the applicant, aged 39, was convicted by a jury on 13 counts of rape following a trial before Deputy High Court Judge Wright.  The applicant was sentenced on 30 August 2004 to 12 years’ imprisonment on each count but the judge ordered that counts 3 to 13 which were concurrent to each other should run 3 years after the commencement of the concurrent 12-year sentences on counts 1 and 2, making a total of 15 years in all.  This application for leave to appeal against sentence is solely directed at the 3-year consecutive element in this sentence as it was conceded that 12 years’ imprisonment could not, on the facts of this case, be criticised.

2.We do not need to give more than the briefest outline of the facts as they were presented to the jury.  The 13 offences of rape occurred between 1 January 2003 and 18 August 2003 when the victim was 9 years old.  They took place on 6 different days, sometimes in the applicant’s own flat and on other occasions in his parents’ flat.

3.The applicant, who has a clear record, is a married man with a daughter of the same age as the victim.  These two girls were known to each other and there came a time when the applicant’s wife became the victim’s tutor.  The applicant was fond of the victim and, with the consent of the victim’s mother, became her sworn father.  Thereafter, the applicant made up excuses such as inviting her to feed the goldfish so that he could take the victim by herself to one of the two addresses where he raped her.  On each occasion, there were two acts of rape save once when there were three, and once the applicant also kissed the victim’s private parts.  The victim was told not to say anything to others about his activities.

4.Eventually, on 19 August 2003, the victim’s mother became suspicious and confronted her.  The victim related what had been taking place and they went to see a social worker.  On 20 August 2003, the applicant surrendered to the police but denied rape at all times.  His admissions were confined to a number of acts of indecent assault.  The forensic pathologist’s evidence, however, provided confirmation that repeated sexual intercourse had taken place over a period of time.

5.Prior to sentence, the judge called for reports from a psychiatrist and a psychologist.  The former confirmed that the applicant was not suffering from a mental illness.  The clinical psychologist’s report, however, concluded with a finding that the applicant was suffering from the “sexual disorder of paedophilia”.

6.The most significant factors which it seems were taken into account by the judge when sentencing were that the applicant:

(1)	was well aware that the victim was only 9 years old;
(2)	abused his position of trust as the husband of the victim’s tutor and as the victim’s sworn father;
(3)	displayed a total lack of remorse, making the victim re-live her ordeal in court and describing his relationship with her as “natural” when he had deprived her of the innocence of her childhood; and that
(4)	this was intended by the applicant to be a longstanding relationship rather than a casual encounter.

7.In a measured and realistic submission made on the applicant’s behalf by Mr Surman, it was contended that these offences were not aggravated, amongst other things, by intimidation and threats or by some of the perverted sexual acts which sometimes accompany offences of this sort.  He also referred us to a number of sentencing decisions both inside and outside this jurisdiction, accepting in doing so the obvious limitations of such an exercise having regard to the wide variety of circumstances which are likely to prevail in such cases.  This point has often been emphasised and was referred to in the English guidelines in R v Millberry & Ors  [2003] 2 All ER 939 where, with reference to the Sentencing Advisory Panel (the panel), Lord Woolf CJ (at pp. 942-3) said:

“The panel begins its proposals by suggesting that –

‘there are, broadly, three dimensions to consider in assessing the gravity of an individual offence of rape.  The first is the degree of harm to the victim; the second is the level of culpability of the offender; and the third is the level of risk [posed] by the offender to society.’

We accept that courts should consider each of these dimensions whenever a sentence for rape is imposed.  We endorse what was stated by Lord Lane CJ in R v Billam, and repeated by the panel in its advice, that while rape will always be a most serious offence, its gravity will depend very much upon the circumstances of the particular case and it will always be necessary to consider an individual case as a whole taking into account the three dimensions to which we have already referred.”

8.The three “dimensions” in Millberry are clearly important and relevant considerations for present purposes and we note also that later in the judgment (at p. 946) the Lord Chief Justice said:

“The panel confirms the 15 years and upwards starting point for a campaign of rape.  This is recommended where the offender has repeatedly raped the same victim over a course of time as well as for those cases involving multiple victims.”

9.The judge in the case now before us had regard to HKSAR v Kwan Hoi, CACC 415/2002 where the defendant, aged over 70, was convicted after trial on two counts of buggery and one count of unlawful sexual intercourse with a girl under the age of thirteen.  The victim was between the ages of three and five when the offences were committed.  This court, when upholding a total sentence of 13 years’ imprisonment, said:

“	18.	This was neither, of course, an isolated case nor was it one which concerned a relatively mature victim.  There is no saying what the long term effects on such a young girl will be.
	19.	The present offences were committed upon an unusually young victim and for paedophile crimes of this sort a singularly severe sentence is generally required both as a safeguard to the community and as a deterrent to others.  Whilst the Applicant has not previously offended in this way and he is now considerably advanced in years, he has shown no remorse at any stage for what he has done.”

10.In the present case, as Mr Zervos SC on behalf of the respondent has pointed out, the applicant is a mature family man who has repeatedly abused the trust placed in him by raping this young victim for his own sexual gratification. 

11.We have concluded that the judge was entitled to take the view that 15 years’ imprisonment was appropriate in its totality for a series of rapes over this period of time, on a victim as young as this and in circumstances where the applicant, as a paedophile, regarded what he was doing as “natural”.  The sentence was at the top end of the range for offences of this kind committed by a first offender but, in our opinion, it was not manifestly excessive.

12.Accordingly, the application is dismissed.

Mr Kevin P Zervos, SC, SADPP and Ms Alice Chan, SGC, of the Department of Justice, for the Respondent.

Mr Giles Surman, instructed by Messrs Liau, Ho & Chan, for the Applicant.