R. v. Kwok Ngai-man

CACC000478/1996

IN THE COURT OF APPEAL

1996, No. 478

(Criminal)

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Coram: Hon. Power, Ag. C.J., Mayo, J.A. & P. Chan J.

Date of hearing: 29 April 1997

Date of judgment: 29 April 1997

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. In this application for leave to appeal against conviction we are concerned only with two of the counts to which the applicant pleaded not guilty at trial. At trial he pleaded not guilty to a number of other counts besides the robbery count and the attempted non-consensual buggery count with which we are concerned. There was a third count of robbery to which he pleaded guilty. We will refer again to that count when dealing with the application for leave to appeal against sentence. The first count is particularized as follows: that he on 16th of October, 1995 at Flat 15, Chung Kin House, 12th floor, No.80, Kok Cheung Street, Tai Kok Tsui, robbed Lam Chung-shun of $200 cash, one gold necklace, one gold finger-ring and three K-gold finger-rings each set with small stones, Chan Yi-man of cash $700 and Chan Wai-lok of cash $400. The particulars of the non-consensual buggery state that at the same time and place, he attempted to commit buggery with another person, namely Chan Yi-man, who at that time did not consent to the buggery. He was found guilty after trial before Sears J. and a jury and was sentenced to nine years on the robbery count and to four years on the non-consensual buggery count. These were ordered to be consecutive. He was also at that time sentenced to two years on a separate count of burglary which was ordered to be concurrent with the robbery count. In all he was sentenced to imprisonment for 13 years. He now appeals against conviction on the non-consensual buggery count and seeks leave to appeal out of time against the overall sentence of 13 years.

2. The facts upon which the Crown relied were that on 16th October 1995, the applicant had entered Flat 15 through a window in the kitchen. This flat was occupied by a mother, her 13 year-old son and her 18-year-old daughter. He, after entering the flat, twice assaulted the mother, eventually punching her into unconsciousness. She only recovered consciousness in the intensive care ward at the hospital. He then tied up the mother and the son and attempted to bugger the 18-year-old daughter. Before leaving he stole the cash and jewellery particularised in the charge.

3. There is really only one matter urged by Mr. McCoy in the application for leave to appeal against conviction. When dealing with the non-consensual buggery count, the trial judge said:

"Let me then tell you what this count is about. It is an attempt to commit what is called non-consensual buggery. As you probably know, it is not an offence for people over the age of 18 who consent to bugger each other, and that means just sexual intercourse through the anus. Now, it is charged as an attempted offence. What an attempt is, members of the jury, is that before you can convict of an attempt, you have got to be sure about two things: first of all, that a person intended to commit the offence; and secondly, that he did something which is more than mere preparation. It must be a step towards the commission of the crime which is immediately and not remotely connected with it, and the doing of which cannot reasonably be regarded as having any other purpose."

Let me give you an example on a sexual matter. If you take a girl's trousers and underpants off, it does not necessarily mean that you are going to attempt to rape her. On the other hand, if you take her trousers and underpants off and you take your own off - a man takes his own off and lies on top of her and starts doing something, that is capable of being an attempt. It is doing something which is more than preparation for committing the offence. It is a step towards its commission."

I have read the whole passage because the flavour of his direction can only be gained if the words about which complaint is made are looked at in context. Those words are: "and starts doing something that is capable of being an attempt". It is submitted that they are vague and uncertain and would have misled the jury into acting upon the basis that having a soft or flacid penis would suffice for an attempt to commit buggery. The argument goes on to suggest that in such circumstances the offence was impossible for want of capacity and that, as the law stood at the time, there could not be an attempt to commit an impossible offence and so the conviction was wrong in law. We have already looked at the paragraph where the judge defined attempt. There is no argument as to the correctness of that definition. The only complaint is as to the words "starts doing something that is capable of being an attempt". The judge however, in the passage set out, was giving no more than an explanatory example which did not relate to the facts of the case. He then went on to deal with the facts of the case saying:

"He (the applicant) says in his statement that he rubbed -- 'I touched her lower parts and rubbed her lower parts with my penis.' You have heard Mr. Donald mention about that she said that this man's penis was soft. Well, whether it was or whether it was not, the question is, members of the jury, what he was doing when he was lying on top of her. She says that he was -- her actual words: 'His sexual organ tried to enter my parts', and she said it was her anus. 'He laid on top of me, he was moving. He had taken off his trousers and his underpants. Then afterwards he said, 'you are pretty nice'."

4. We are satisfied that the jury can have been left in no doubt that what they had to decide was whether what the applicant was doing was something more than preparation for the commission of the offence. The judge outlined the evidence for them and they had, of course, already heard. The evidence of the victim and the admissions in the cautioned statement are of particular importance. The applicant in his cautioned statement said:

"On seeing the girl, I have a momentary impulse. Moreover, I had taken 'sap chai' so I wanted to rape her.

Question: You have mentioned 'sap chai' - what was that?

Answer: A hallucinogen.

Question: You said that you wanted to rape the girl. Well, how did you wanted to rape her?

Answer: I only pulled down the girl's trousers, touched her lower parts and rubbed her lower parts with my penis. Then I left."

That came from the applicant himself. He there states unequivocally that his intention was to rape the girl. Her evidence is as follows:

"Q. Miss Chan, my Lord is asking you to tell us step by step what happened in the course of this assault. Please do so.

A. Well he took off my trousers and then he assaulted me indecently.

Court: Yes, what did he do, please?

A. His sexual organ - his sexual organ tried to enter my parts.

Court: Yes?

A. And then nothing else.

Court: How were you lying when this happened?

A. I was lying with my face towards the bed - facing the bed.

Q. Now were you from the outset lying face down?

A. No.

Q. All right. So how did you get in that position?

A. He turned me round.

Q. All right. And did he do anything to you before he turned you round?

A. He did not do anything before he turned me round. But he said something.

Q. What did he say?

A. I don't remember it now.

Q. All right. You say that that 'His sex organ tried to enter my parts.' What are you referring to when you say 'parts'?

A. Anus.

Q. All right, so he tried to enter your anus. What prevented him? You say he tried?

A. I can't tell why he couldn't.

Q. All right. And was his sex organ erect? How could you feel and ascertain?

A. Soft.

Q. All right. So did anything else happen to you as you were lying face down as you have described that he did what he was doing? Did anything else happen?

A. No, he did not do anything else.

Q. Okay. So how long did this whole incident last from the time he pulled your trousers down to the time he stopped trying to enter your anus?

A. About five minutes.

Q. Can you give any descriptions as to how he was trying to enter your anus? What he was doing to try and do that? Could you feel any movement of his body, anything like that?

A. He laid on top of me.

Q. Was he moving in any way?

A. Yes.

Q. Can you tell us about that, please? What sort of movement was he attempting?

A. His body was moving.

Q. In what direction, what way?

A. Forward.

Q. Towards what? Towards you presumably as he was lying on top of you.

A. Yes, towards me.

Q. Did he touch you at all?

A. Yes.

Q. What did he do?

A. Upper part.

Q. And then in what way did his efforts come to - how did it end? You say he was trying for 5 minutes. What brought it all to an end at that stage?

A. My mother yelled out."

There was clear evidence from the victim that the applicant was attempting to push his penis into her anus. We have no hesitation in holding that the jury was properly directed by the judge and that there was evidence on which they could properly act to find an intention to penetrate and an attempt so to do. The conviction was in no way either unsafe or unsatisfactory. The application for leave to appeal against conviction is, therefore, refused.

5. We turn now to the question of sentence.

6. The trial judge, as we have said, sentenced the applicant to nine years on the robbery charge and to four years on the attempted non-consensual buggery charge, those being consecutive, and to two years concurrent on a separate burglary charge. The judge said when sentencing:

"The robbery was a particularly nasty and violent one. It occurred in the early hours of the morning, and you must have caused great fear to all the people in that flat. I do not know whether you were really under the influence of drugs, but you were excessively violent. You assaulted the mother on two occasions. I have seen her in court, and I am sure she is still in fear when she thinks of this incident. You punched her with such violence that she was made unconscious and didn't wake up until she was in the intensive care unit. You tied up a 13-year old boy as well as tying up that young girl. People in Hong Kong are entitled to be protected in their homes. People such as you who invade the privacy of people's homes and cause great fear and violence should receive no mercy.

On the facts of this particular robbery, the correct starting point in my judgment is 9 years imprisonment. On the Second Count, you committed this attempted buggery on this young girl. You tied her up and subjected her to this terrible ordeal. I have also seen her in the witness-box, she is a young and innocent person. Not only have you caused her great fear, but I am sure great shame and anxiety. The appropriate sentence for that is one of 4 years imprisonment."

The judge having observed that two years was appropriate for the other offence, the burglary offence, and then said:

"The total sentence therefore would be one of 15 years imprisonment which would be served at the conclusion of your period of two years. I consider that on the principle of totality too much having particular regard to your age. Although age is not a mitigating factor in these cases, it is not right to pass a sentence which would completely crush you. For that reason and that reason only, I would reduce the total sentences."

He came then to an overall sentence of 13 years.

7. He said on the following day:

"Well, the sentences I passed were severe, were intended to be severe. And I think, on reflection, it would be unfair to the defendant, albeit that these were committed on bail and therefore that is an aggravating feature for the offence. Nevertheless, having thought about this overnight, I think the proper sentence will be one that will date back to the date of his arrest."

The intention of the judge was, it seems to us clear, that the sentence of 13 years which he was imposing should run from the 9th of November 1995. It is not possible to back date a sentence but we think that we should, giving due regard to what the judge intended, put the matter beyond doubt by imposing a sentence which will effect that intention. This can properly be done by sentencing him to an overall period of imprisonment of 12 years from the date on which the sentence was imposed by the judge, i.e. 13th August 1996, and by ordering that it be concurrent with any sentence which he was then serving.

8. The application for leave to appeal against sentence out of time is allowed. The hearing of application is treated as the hearing of the appeal and the sentences are varied as indicated above.

Representation:

Mr. Veltro, S.C.C. (Crown Prosecutor) for the Respondent.

Mr. McCoy & Miss Corrina Tai assigned by D.L.A. for the Applicant.