R. v. Kwok Ka Fai

CACC000579/1994

IN THE COURT OF APPEAL

1994, No. 579
(Criminal)

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Coram: Hon Power, Ag. C.J., Litton, V.-P. and Bokhary, J.A.

Date of hearing: 4 October 1995

Date of judgment: 4 October 1995

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence.

2. The applicant Kwok Ka-fai was convicted after trial in the High Court before Deputy Judge Jones and a jury on an indictment containing four counts: one of robbery, one of rape and two of indecent assault on a woman. He was sentenced on 9 November 1994 to a total of eight years' imprisonment.

3. The offences all occurred on the same day: 4 July 1993 at 4.30am at Pok Yue House, Pok Hong Estate, Shatin. The applicant was at that time 15½ years of age. There was only one victim, a school girl aged 17. The total sentence of eight years' imprisonment imposed by the judge came about in this way. In relation to the robbery count the applicant was sentenced to three years' imprisonment. In relation to the rape count he was sentenced to five years' imprisonment to be served consecutively to the sentence on the robbery. In relation to the two indecent assault counts he was sentenced to three years' imprisonment each to be served concurrently with the other two sentences.

4. The facts have been stated succinctly by the Deputy Judge and briefly they are as follows. The victim was in the lift on her way home from a social evening with some schoolfriends when the applicant entered. As she tried to leave the lift at her apartment, the applicant grabbed her and when she cried out he punched her. The lift then went to another floor. The victim was told to take her shoes off to jam the lift door and prevent it moving.

5. The applicant then took $12 from the victim's purse (which was all she had) and after that the first indecent assault took place which included the applicant forcing the victim to perform oral sex on him. The rape then followed. Later the applicant took the victim out of the lift to a staircase where the second indecent assault took place.

6. Counsel for the applicant in this court accepts that the judge cannot be faulted for rejecting the option of training in a Training Centre: a concession which upon the facts of this case seems to be properly made. The only question therefore is whether the judge had sufficiently taken into account the extreme youth of the applicant at the time of the offence. The applicant did not have the benefit of any discount which might have been given for any remorse shown because he pleaded not guilty at his trial and subjected the victim to the trauma of giving evidence in a public trial. And he also has a bad criminal record.

7. The judge in sentencing did take into account the extreme youth of the applicant but he went on to say this:

"I have to balance this against the affront which these offences represent both to the victim and to the community. I have also to consider the vulnerability of people in the public areas of public housing estate, women in particular, and to demonstrate that such predatory behaviour, even in the very young, will be severely dealt with by the courts."

We would gratefully adopt those statements of the trial judge.

8. Counsel argues that the judge erred in referring to the case of The Queen v. Lam Chun-po, Cr App No. 552 of 1990, 2 August 1991 (unreported) which involved a gang rape by four defendants. Two of the defendants in that case, both very young men, attracted sentences of eight years' imprisonment for robbery and rape after pleas of guilty. We cannot agree that the judge had erred in the way suggested. The assistance which the judge derived from Lam Chun-po, as we understand it, was the fact of the extreme youth of the defendants in that case and no more.

9. It may be thought that, in the case of a young man who at the time of the offence was only 15½ years of age, a sentence of eight years' imprisonment is harsh. That cannot be denied. On the other hand the community must be protected. Having regard to the very careful way in which the trial judge had analysed all the relevant circumstances, we feel that we cannot interfere with the sentence and the application for leave must therefore be dismissed.

Representation:

Mr A Bruce (Crown Prosecutor) for Crown/Respondent

Mr John Wright (DLA) for Defendant/Applicant