HKSAR v. Tsang Chun Yu

[English Translation – 英譯本]
CACC 17/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 17 OF 2000

(ON APPEAL FROM HCCC NO. 242 OF 1999)

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BETWEEN

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Before: Hon. Leong and Wong JJA in Court

Date of Hearing: 13 April 2000

Date of Judgment: 13 April 2000

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JUDGMENT

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Leong JA (delivering the judgment of the Court):

1. The Applicant Tsang Chun Yu pleaded guilty in the Court of First Instance on 4 January this year to two counts of rape, namely the 1^st and 10^th counts on the indictment.  The Applicant was originally charged with 10 counts of rape.  He was sentenced by Pang J to 8 years’ imprisonment on each charge, to be served concurrently, making a total of 8 years’ imprisonment.  He now seeks leave to appeal against sentence.

2. According to the facts admitted by the Applicant, the circumstances leading to the offences were as follows:

3. The victim in the present case was a girl aged 14.  She resided with her mother and the Applicant at a unit in Shan King Estate, Tuen Mun.  The Applicant was the boyfriend of the girl’s mother, and the girl treated him as a senior member of the family.  On a morning in July 1998, the girl’s mother had gone to work, but the girl was still asleep because she was having school summer vacation.  The Applicant, taking the opportunity of the absence of the girl’s mother, asked the girl to get onto his bed to sleep with him, and the girl did as told.  During that time, the Applicant caressed her breasts, telling her that he and her mother had a habit of doing that when they slept together.  Afterwards the Applicant asked the girl to have sex with him and she refused.  The Applicant then demanded the girl to take off her clothing and had sexual intercourse with her against her will.

4. On a morning in October 1998 the Applicant asked the girl to go to his room. There the Applicant, without the girl’s consent and knowing that the girl would not consent, had sexual intercourse with her.  After the incident the girl went away from home.  She was later found by the police.  The Applicant promised her that he would not assault her again and asked her not to tell anyone.  The girl did not complain to her mother and only talked to a classmate of hers about what happened. That classmate told a social worker at school about this.  The social worker reported the matter to the police.  The Applicant was arrested.  He admitted in his cautioned statements that he had raped the girl.

5. In sentencing, the Judge said that it was shameful for the Applicant, who was in effect a senior member of the family, to rape a younger member.  Regarding the sentence for the offence of rape, the Judge ruled as follows:

“Rape is a very serious offence, particularly so where the victims are children.  The court will definitely not take a lenient approach in considering sentence for this type of offence.  In light of the background and special circumstances of the present case, I adopt a starting point of 8 years.  Nevertheless, I have also taken into account the fact that you raped the girl on a number of occasions during that period of time (within 3 months) and lied in your capacity as a senior to her that that was just for once, which, of course, turned out not to be the case, as you committed the offence repeatedly.  The blow to the girl was self-evident because, having been assaulted by you, she went away from home.

Although you said your girlfriend had forgiven you in writing, I have not taken this into account at all.  This is because the victim was her daughter, not her.  In my view, the fact that you wrote to the victim asking for her forgiveness was merely a remedial action which was of no avail.

In view of certain special factors in the present case, I increase the starting point from 8 years to 12 years.

With regard to your counsel’s submission that you were deeply remorseful for what you had done and that you pleaded guilty, it is of course necessary for me to give you a discount in sentence, which is a one-third discount.  Apart from this, I do not see other mitigating factors or other factors which warrant any further reduction of sentence.  Accordingly, I sentence you to 8 years’ imprisonment.”

The grounds of appeal are:

1.  The starting point of 12 years is manifestly excessive.

2.  In adopting 8 years as the starting point, the Judge had already taken into consideration the background and special circumstances of the case.  Therefore, there were no other special reasons which warranted an increment of the starting point to 12 years.  The Judge made the error of increasing the starting point twice.

3.  The Judge erred in assessing the sentence against the number of counts with which the Applicant was charged as opposed to the two counts to which he pleaded guilty.

4.  The Judge thought that the victim’s age was 13, but her actual age was 14-1/2.  In adopting a starting point of 12 years, the Judge was influenced by his mistake over the age of the victim.

6. Mr. Wong, who appeared for the Applicant, submitted that, in respect of the offence of rape, Hong Kong courts have all along been following the sentencing guidelines set out in R v Billam (1986) 82 Cr App R 347.  Mr. Wong cited a number of authorities to support his argument.  He pointed out that, having regard to the Billam guidelines on starting points in general, the starting point of 12 years is, in the circumstances of the present case, manifestly excessive.

7. The authorities relied on by Mr. Wong include R v Cheung Ming Lim [1989] 1 HKLR 415, R v Liu Ping Kin [1993] 2 HKC 192 and HKSAR v Wong Kwong Yick [1997] 4 HKC 160.

8. This Court takes the view that, even if the Billam guidelines were to be followed, there were a number of aggravating factors in the present case.  According to Billam, in the absence of aggravating factors, the sentence for an offence of rape is 5 years.  Where the offender is in a position of responsibility vis-à-vis the victim, for instance, where he is a guardian of the victim, the starting point is 8 years.  Where there are other factors, for instance, where violence was used in the course of rape, or where the offender repeatedly raped the victim, or where the offence was premeditated, or where the victim is either very old or very young, then the starting point should be higher than 8 years.

9. This Court has to point out that R v Cheung Ming Lim, one of the cases cited by Mr. Wong, does not hold that the Billam guidelines must as a rule be followed in considering sentence for the offence of rape.  In that case, Macdougall J merely took the view that the Billam guidelines served to assist Hong Kong courts in reaching an appropriate sentence for the offence.  In R v Liu Ping Kin, another case cited by Mr. Wong, the Court of Appeal took the view that, unless there were other factors to show that the Billam guidelines had to be departed from, the general starting point set out in the Billam guidelines was to be upheld.  In HKSAR v Wong Kwong Yick, the Court did not address the question of whether the starting point set out in the Billam guidelines should continue to be followed in respect of an ordinary offence of rape.  In HKSAR v Wong Kwong Yick, it was held that the sentence of 3-1/2 years was manifestly inadequate in the circumstances of the case and that an appropriate sentence should be 5 years.

10. In Secretary for Justice v Sukhmander Singh, CAAR No. 5 of 1999, decided on 7 April, this Court, in delivering judgment, commented on the Billam sentencing guidelines.  This Court indicated that, although the Billam guidelines provided some assistance, the starting point of 5 years suggested by the guidelines did not necessarily apply to Hong Kong.  The court could, in light of the particular circumstances of the case, consider a higher starting point appropriate.  Accordingly, this Court takes the view that Pang J did not have to follow the Billam guidelines in considering the Applicant’s sentence.

11. In our view, there are two factors which might have led the Judge to erroneously increase the starting point to 12 years.  Firstly, although the Applicant pleaded guilty to two counts of rape, the Judge might have erroneously considered that the Applicant had repeatedly assaulted the victim and might therefore have taken that into account in increasing the sentence.  Secondly, the Judge might have been influenced by his belief that the victim was aged 13 instead of 14-1/2 and increased the sentence on that basis.  These might have caused the Judge to increase the sentence from 8 years to 12 years.  In our view, the age of the victim has a direct bearing on the severity of sentence. Where the victim is aged 13, the sentence must be higher than that where the victim is aged 14-1/2. 

12. In our view, taking the circumstances of the case as a whole, the starting point of 12 years is manifestly excessive, and an appropriate starting point should be 10 years.  In reaching this conclusion, this Court has also considered the sentence imposed in Secretary for Justice v Sukhmander Singh.  Having regard to the Applicant’s guilty pleas and the one-third discount to which he is accordingly entitled, we are of the view that the sentence to be imposed on the Applicant should be 6 years and 8 months.  For the reasons given above, we grant leave to appeal against sentence.  Treating the application for leave as the hearing of the appeal, we allow this appeal and reduce the Applicant’s sentence from 8 years to 6 years and 8 months.

Mr. T K W Law, Deputy Principal Government Counsel (Ag) of the Department of Justice, for the respondent.

Mr. H Y Wong, instructed by the Director of Legal Aid, for the Applicant for leave to appeal.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor