HKSAR v. Hui Ka Sang

CACC 73/00

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 73 of 2000

(On Appeal from HCCC No. 233 of 1999)

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Coram: Hon Stuart-Moore V-P, Wong & Woo, JJA in Court

Date of hearing: 5 July 2000

Date of delivery of judgment: 5 July 2000

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J U D G M E N T

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Hon Woo, JA (delivering the judgment of the Court):

1. The defendant was charged with three counts of sexual offences, being two counts of rape and one count of buggery. He was tried before Deputy High Court Judge Tong with a jury. He was convicted on all the three counts on 26 January 2000. On 16 February 2000, the Judge passed a sentence of 10 years' imprisonment for each of the three counts and ordered the sentences to run concurrently. By his notice of appeal, the defendant sought leave to appeal against conviction and sentence. But before us today, he has made known to us that he abandons his application in respect of conviction. As a result, we dismiss his application for leave to appeal against conviction.

2. All the three offences occurred on the same day on 17 February 1999 and in respect of the same victim, a girl aged 16 years and six months at the time. The story started on 16 February 1999, which was the first day of the Lunar New Year. The victim went to a bar in Mongkok to meet with her friends at about midnight. Inside the bar, the victim consumed a glass of whisky soda and half a can of beer. After a short stay in the bar, she and her friends moved to another bar where she consumed more cans of beer, another whisky soda, a coffee with wine and three cocktails. She began to feel very dizzy and she was thinking of calling a friend. As the bar was very noisy she went outside to make a phone call with her mobile phone. When she was outside the bar, she felt very tired and she sat down on the pavement to take a rest. She was able to talk to her friend over the phone but she felt very dizzy and not sober. At some stage, the defendant came to talk to her. Eventually telling her that he would take her home, the defendant brought the victim to his car. On the way to the defendant's home in Tuen Mun, the defendant stopped the car and had sexual intercourse with her. This was admitted by the defendant in his videotaped statement given to the police after his arrest.

3. In fact, contrary to what the defendant promised the victim, the defendant took her to his own home and not hers. Upon arrival at the building where the defendant's flat was situated, the defendant carried the victim on his back when going inside the lift. After the defendant had brought the victim to his flat, he had sexual intercourse with her again. Thereafter the defendant also had anal intercourse with the victim.

4. Afterwards, the victim fell asleep and when she woke up she saw the defendant smoking. She started to sob and told the defendant that she would make a report to the police. The defendant then told her to do so if she wished. The victim went downstairs and called the police at a public phone to report that she had been raped.

5. In the perfected grounds of appeal in support of the application for leave to appeal against sentence, Mr Kwok, on behalf of the defendant, complains that in adopting a starting point of 10 years, the judge failed to consider or properly consider two matters:

(a) the lack of previous similar conviction; and

(b) the absence of any physical violence.

Counsel for both parties in their written submissions refer us to the cases of R v Billam [1986] 1 WLR 349 and the Secretary of Justice v Lau Yun Leung [1999] 3 HKLRD 289, generally on the law regarding sentencing in rape cases.

In Billam, Lord Lane CJ said at 351 of the report that "for rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case." As for aggravating factors, the Chief Justice said at 351F to H :

"The crime should in any event be treated as aggravated by any of the following factors: (1) violence is used over and above the force necessary to commit the rape; (2) a weapon is used to frighten or wound the victim; (3) the rape is repeated; (4) the rape has been carefully planned; (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind; (6) the victim is subjected to further sexual indignities or perversions; (7) the victim is either very old or very young; (8) the effect upon the victim, whether physical or mental, is of special seriousness. Where any one or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point."

6. Although there was uncertainty as whether the starting point of five years' imprisonment suggested in Billam applied to Hong Kong, the matter was settled in Lau Yun Leung where this Court, differently constituted, after reviewing the authorities, held that the courts in Hong Kong were entitled to take into account local conditions and to pass sentences that varied from those referred to in the Billam sentencing guidelines; some cases might well call for a higher starting point than 5 years, even in the absence of aggravating factors, depending on all the circumstances. At page 299H of the report, my Lord, Stuart-Moore VP, delivering the judgment of the Court, also said :

"The courts owe a duty to the public to show that such grave conduct will not be tolerated and to reflect the abhorrence of right-minded people towards this kind of offence. Not only do such offenders need to be punished but others must be deterred from committing similar offences."

7. Mr Kwok also refers us to the case of R v Chan Chi Wa [1997] 2 HKC 549. In that case, the victim met the applicant the first time in a bar. The victim was unhappy and she drank a few bottles of beer. She felt dizzy and uncomfortable. She left the bar with the applicant thinking that they were going to another bar as she had an earlier arrangement to meet with a friend there. However, the applicant took her to a motel. When she declined to go up, the applicant told her to go into the motel room so that he would make a phone call for her friend to come and pick her up. Once inside the room, the applicant turned nasty and forcibly had anal intercourse with her, followed by two acts of vaginal sexual intercourse, all against her will. For the two counts of rape and one count of buggery, a sentence of 10 years' imprisonment each was passed and the judge ordered all sentences to run concurrently. The applicant's application for leave to appeal against sentence was dismissed by this Court, differently constituted. The victim was a girl of the age of 17 years at the time of the offences.

8. Mr Kwok submits that the facts in Chan Chi Wa are very similar to the facts of the case before us with the exception of two aggravating factors in Chan Chi Wa, namely, violence and criminal record. He stresses that the victim in Chan Chi Wa was struck and slapped and a patchy red bruise was found on her face when she was medically examined. He also emphasises that the applicant in Chan Chi Wa had a similar record and was only released from prison less than a year before the offences were committed. He draws our attention to the fact that in the present case, while the victim was raped in the defendant's car and later in his home, no violence was used. The victim did not resist physically as she said she was too drunk and too weak to resist. Mr Kwok also stresses that the victim was not prevented from leaving the defendant's home and report the matter to the police.

9. At the trial before the Judge, Mr Kwok had made similar submissions. The Judge when passing sentence had this to say :

"The victim in the present case was a young girl of 16 at the time of the incident. She was obviously experiencing much distress by having to come to court to recount in public what had happened to her. The defendant had taken advantage of her drunkenness and raped her inside his car and then took her home where the other two offences were committed. I doubt whether the lack of actual violence could really be a mitigation factor as, in her drunken and very weak condition at the time, violence would in any event not be necessary.

Having considered the circumstances I will also adopt a starting point of ten years for all the offences, although I really think that the non-consensual buggery is by comparison a more serious offence as this unnatural act would have an even worse effect on this young girl.

I do not consider a lack of similar conviction to be a mitigating factor nor is the defendant's undisputed steady work pattern. Also considering the evidence I find no substance for the purpose of mitigation in the suggestion that the defendant may be influenced by drink at the relevant time. In fact I can find no valid ground to reduce the sentences; however I shall adopt defence counsel's submission and order that these three terms to run concurrently as the offences did arise from the same incident."

10. The court in Chan Chi Wa pointed out that there were four aggravating factors in that case, namely, the applicant had a previous conviction of rape, the rape was repeated, the victim was subjected to further indignities or perversion, and the victim was very young. Although the defendant before us does not have any previous conviction of a sexual nature that is the main difference between this case and Chan Chi Wa, he has a criminal record of robbery, albeit occurring in 1988. But similar to Chan Chi Wa, there were repeated rapes and sexual perversion and also involving a very young victim in the present case. While it can be said, as the Judge did, that the three offences arose from the same incident committed one after another, we consider that strictly speaking, there were two different criminal transactions, one in the car and the other in the defendant's home. Had the defendant taken the victim back to her home after the occurrence inside the car, this case might never have been brought to light, for the victim was too intoxicated, tired and sleepy inside the car as to be able to recall whether sexual intercourse had taken place there. However, the defendant took further advantage of her drunkenness and brought her home to commit the second and third offences. Although the defendant did not use any violence on the victim, we agree with the Judge that violence was totally unnecessary for perpetrating his crimes in view of the special circumstances of this case. The lack of violence did not mitigate, albeit there was no aggravation either. Moreover, the victim in this case is only 16 and a half years old. In all the circumstances of this case, we do not consider that the sentence of 10 years of imprisonment for all the three offences either manifestly excessive or wrong in principle. We therefore dismiss the application for leave to appeal against sentence.

11. The Judge adjourned the case after the jury announced their guilty verdicts, for the purpose of seeking a probation officer's report on the defendant. In such a serious offence as rape, it is normally unnecessary to have a probation report on the accused because his background will rarely matter to the sentence to be passed, and to do so would be a waste of public resources. We just mention this as a reminder to the lower courts.

Representation:

Ms Winsome Chan, Senior Government Counsel, for HKSAR

Mr Eric Kwok, on the instructions of the Legal Aid Department, for the Defendant, in respect of the application for leave to appeal against sentence