The Attorney General v. Ho Wing-ho

CAAR000012/1981

Appeal against sentence - 3 counts burglary, 2 counts of robbery, 2 counts of rape, 2 counts aggravated robbery - Sentences 2 years for each of 3 counts of burglary, 4 years each count of robbery, 5 years each count of rape and 4 years each count of aggravated burglary, all concurrent - Cases of MO Kwong-sang and Attorney General v. YIM Yee-kwong applied - Application allowed - Sentences of 2 years for burglary to stand - Sentences for 1st robbery of 4 years to stand - Sentence for 1st rape to stand but ordered consecutive - Sentence of 2nd robbery but sentence for 2nd rape increased to 6 years to be consecutive but concurrent with all other sentences - Sentences for 1st aggravated burglary increased to 5 years and the 2nd aggravated sentence to 6 years. Discount given to case of application for review. Totality of sentence is 8 years in all because sentences, except the counts of 2nd rape and 2nd robbery, are to be concurrent.

          Sentences for the rape would have been much longer but for circumstances of the case. Only reason for a sentence of 8 years is because we feel a totality of 8 years sentence appropriate.

Coram: Li, Silke, JJ.A. & Bewley, J.

Date of Judgment: 9th November, 1981

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JUDGMENT

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Li, J.A.:

1. The respondent pleaded guilty to 9 offences on indictment. The first 3 counts alleged that he committed burglary in a set of premises called the Yau Shing Building. In the same building, in another flat, he committed 2 robberies and 2 rapes a few days later. After the second robbery and rape, he committed 2 aggravated burglary in the vicinity 3 days later. The total effect was that, between the 23rd of December last year and the 26th of January this year, he committed 9 serious offences. The learned trial judge, having considered the Probation Officer's report, psychiatric report and the Commissioner of Prisons' report, felt that he had no other way to deal with him except to award an immediate custodial sentence. He awarded a sentence of 2 years imprisonment each in respect of the first 3 counts of burglary; 4 years each in respect of the 2 counts of robbery; 5 years each for the 2 counts of rape; and 4 years on each count of the aggravated burglary. He ordered that all the sentences to run concurrently. In short, all that the respondent has to serve is a total of 5 years imprisonment.

2. The Attorney General is of the view that such a totality of 5 years is manifestly inadequate and wrong in principle. For this reason, he applied for a review on the 7th of September this year. Leave was granted to apply to this court by a single judge. Hence these proceedings.

3. The background of the respondent is that he was a reserved, quiet and submissive boy. At his very young age he had a somewhat broken family. His mother was a disciplinarian. He had been to an orphanage between 1972 to 1974. After that, he earned his living. His father, in the meanwhile, had returned home and applied for the respondent to join him (the father) in Hong Kong. He came in February 1980. He stayed in his married sister's home. He was in touch with his father. However, within 1 week of his arrival, he left his sister to be on his own. He had a regular job. According to the probation officer, he mixed with some undesirable elements in Summer 1980, some 14K triad members. Probably he was led astray by them, into committing all these offences.

4. The principle of sentencing as far as robberies are concerned has been clearly put by the learned Chief Justice in the case of MO Kwong-sang v. The Queen⁽¹⁾. In delivering the judgment of the court he said:

Later he said:

"These guidelines are intended to apply to those who are convicted after a trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty."

5. In the case of The Attorney General v. YIM Yee-kwong⁽²⁾, delivering the judgment of the court the learned Chief Justice said:

"The usual principle is that where a series of offences occurs, during the course of what could fairly be described as the same expedition, the sentence for each similar offence which is committed in the course of that expedition is concurrent with the others, though the correct concurrent sentence is likely to be higher because more than one offence was committed."

6. Acting upon such principles and having regard to the necessity to give guidelines as to principles of sentencing we feel that we should make reference to the sentences in respect of each count without losing sight of appropriate totality of the overall sentence.

7. We feel that the learned trial judge is right in awarding 2 years for the first count of burglary, however, having regard to the same group of offences in one set of premises, we feel that the sentence in respect of the second and third counts should be 3 years instead of 2, albeit these three sentences should be concurrent.

8. We come now to the fourth and the fifth counts: We find that the fourth count of robbery is aggravated by the fact that a few days before he had already committed burglary. He returned to the same set of premises, bound and gagged the victim in order to perpetrate his crime of robbery. He also raped the victim. We have come to the conclusion that we would not disturb the robbery sentence for 4 years or the sentence of 5 years for the rape. However, we are of the opinion that the sentence for the robbery and the sentence for the rape should be consecutive with the result that the respondent should be sentenced to a total of 9 years.

9. With regard to the sixth and seventh counts, they took place 2 days after the first robbery and rape. The respondent went back to the same flat and raped another woman of 22 after having bound and gagged her. In the course of the first robbery that occurred, he had a conversation with the woman of that flat after he raped her. He told that woman that he had observed the victim of the second rape offence for 2 days. It was a planned expedition. He was determined to succeed in committing the rape upon the second woman. We will not disturb the 4 years imprisonment on the robbery but we feel that the rape sentence should be increased to one of 6 years to run consecutively with the robbery count. We also feel that the 2 consecutive sentences of the second robbery and rape should concurrently with the 9 years sentence. The net result is that he should be sentenced a totality of 10 years imprisonment.

10. In order to reflect the gravity of the other two aggravated burglaries, we feel that the first aggravated burglary, the eighth count, should be increased to a sentence of 5 years and the second aggravated burglary, the ninth count, to one of 6 years. These sentences as those imposed for the 3 counts of burglary will be concurrent with the consecutive sentences of the sixth and the seventh counts.

11. Having regard to the fact that this is a review of sentence, we give the usual allowance. We will give an allowance of 2 years. The ultimate effect is that the respondent should serve a total sentence of 8 years.

12. In this connection, it is only proper that we should give the reason why we have not further raised more drastically the sentences in respect of rape. We find it rather unusual and surprising that immediately after the rape, the victim had a long conversation with the respondent. Similarly the victim in the sixth and seventh counts had a long conversation with the respondent. She went up to the roof-top of the premises to retrieve the respondent's jacket, went out shopping with the respondent before she took a taxi to report the matter to the police. As far as the eight count is concerned, the aggravated burglary, the victim also had a long conversation with the respondent. She was able to talk the respondent out of carrying out a rape upon her. These lead us to the conclusion that, bad as rapes are, these are not the worst cases of rape.

13. We would add that had the aggravated burglaries been considered without regard to the overall totality, the sentences would be considerably longer. In the event we allow the application and increase the respondent sentences to a totality of 8 years imprisonment.

Representation:

Miss J. Leung (D.L.A.) for respondent

E. Alderdice (Crown) for appellant

(1) Criminal Appeal No. 359 (1981)

(2) Application for Review No. 6 of 1981