HKSAR v. Chan Li Fat
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HCCC119/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO. 119 OF 2009 -----------------
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----------------------------------------------------- Transcript of the Audio Recording ----------------------------------------------------- COURT: Chan Li-fat, stand up. It is fundamental to people’s personal security that they are able to sleep safely in their beds at night. In these two cases now before the court you have breached that security in the most heinous manner. I have said to you before, and I repeat, that your conduct represents the worst nightmares of anyone, but especially women, to be woken in their beds, when they are at their most vulnerable, by a masked man wielding a knife, and then to be subjected to terrifying violence and sexual abuse. They undoubtedly felt that they were going to be murdered, that their last moments had come. It is no exaggeration to say that you have mentally scarred each of these women for life. It is to be hoped that with time and family support the painful recollection of what you did to them will diminish, but there is no certainty even as to that. What you did was wicked and depraved. On 22 March 2008, the female occupant of a 4th floor flat in Electric Road returned home at 2 am. You had already broken into the premises through a toilet window, armed with a 25 cm knife. It is not known how long you had been there, but you did not flee when she returned. You stayed and immediately threatened her with the knife. You grabbed her as she tried to escape. You tied her up using cloth and computer cables, and covered her with a blanket. You ransacked her flat, demanded the PINs for ATM cards you were stealing. Then you used scissors to cut off the outer clothing of this woman. Then you removed her upper and lower underclothing, indecently assaulting her breasts, and raped her while she was tied and blindfolded. You did not use a condom. Then you tied her to the headboard of her bed before leaving, having stolen the cash and other items. She had to bite through the cables to get free and roll to her front door. Then it took her an hour of shouting to attract a neighbour’s attention and obtain assistance. She was so traumatised by this monstrous attack that she moved out from her flat immediately and never returned. She rented a hotel room until she could find somewhere else to live. She suffers frequent bad dreams. She found it difficult to work for some months and had little contact with her friends. Her relationship with her boyfriend was affected, though he has been supportive. She has not been able to confide in her parents. Then on 27 June 2008, in the early hours of the morning, you entered a 4th floor flat in Aberdeen by prising open a window. Inside the flat were two females, a woman in her 50s and her daughter-in-law, a woman in her late 20s. They were both sleeping, in separate rooms. The older woman woke and found you in the living room, masked and wearing sunglasses. You were armed with a 30 cm knife, which you used to threaten her. Although she handed over her wallet, you were not satisfied with that, and you pushed her into her bedroom and used packing tape to tie her hands and feet and to cover her eyes and mouth. You then ransacked her room and the living room. In order to protect her daughter-in-law, this lady lied to you by saying that she was alone in the flat. But you heard a noise from the other room, and you then applied more tape to the older woman to secure her. You punched this trussed up woman and threatened to kill her before you turned your attention to the other room. You entered that other room and switched on the light, waking the occupant, the daughter-in-law, who thought at first that her husband had returned home. To her horror she realised she was being threatened by a knife held by a masked attacker. You tied her hands to her back and her feet with plastic strips. You blindfolded her with tape, and you ransacked her room demanding the PINs for ATM cards. You squeezed her neck and threatened to kill her, but she resisted you. You punched her heavily to the back repeatedly. She was shaking with fear. Then, having covered her face, you removed the lower clothing of this tied-up woman. You fondled her breasts and shouted at her. She pleaded with you not to interfere with her. Her mother-in-law, tied up and unable to help, could hear her pleas. But you were merciless in your pursuit of your sexual attack, and you ignored her pleas and raped her. You did not use a condom. At some point during the rape her husband returned home. You had put the chain on the door to prevent entry, but he could see you through the gap, partially dressed and leaving his wife’s bedroom. He must have feared for her life. He managed to kick open the door and chased you as you escaped through the kitchen window onto scaffolding which was there at the time. You had stolen various items, including cash, but you dropped your wallet in the chase, so enabling police to locate and arrest you promptly. The knife and the chopper which was used in this attack came from the flat, but you had taken the plastic strips in with you, and the packing tape which you used to tie up the occupants. You had gone prepared to deal with any householders, knowing, of course, that, as in all homes, you would be able to find a knife or a chopper to use to threaten them. Again it comes as no surprise to learn from the Victim Impact Statements, taken a year or so after the event, that your vile conduct has had a lasting effect on their lives. The older woman, who had to listen helpless to her daughter-in-law pleading not to be raped, felt compelled to move away from the flat, afraid to be in the premises, unable and unwilling to face the “kai fong”. She wakes up at night in a sweat. She dare not stay alone at home. The younger woman and her husband have moved far away, but even in their new home she is afraid to be alone, afraid to sleep without lights being on. She has problems sleeping. Her husband is supportive, but their relationship is being affected. She fears going out at night. Her personal security has been substantially undermined. Chan Li-fat, these were offences of the utmost gravity, and I refer both to the aggravated burglaries and the rapes in that regard because they are each offences to be seen in the context of the whole attack. You broke into people’s homes, having equipped yourself for personal violence. You behaved abominably towards the occupants who were unable to defend themselves, unable to resist, women who were terrorised by you. Such conduct, even taken in isolation from everything else that is known about you, deserves nothing less than the most severe punishment. However, much is already known about you because, as has been revealed in detail during the course of these proceedings, you are a man with a long history of offending in a manner which involves violent attacks upon women, including sexual violence, on some occasions involving offences of such violence in the victims’ homes. You have previously been described in the Court of Appeal as a menace to society. It is evident that you remain so. Indeed, it is evident to me that you remain a grave danger to society in general, and to women in particular. I must add some detail in respect of this finding, though I do so against the background of a fundamental statement of principle, namely that a man is not to be sentenced twice for his crimes. Having stated that, in clear and unequivocal terms I must also say that the background of an offender, where it shows him to be persistent in his misconduct, is nevertheless relevant to the gravity of the offences presently before the court, and where that background shows him to be a danger to the community or to a specific section of it, that fact is relevant to the type of sentence imposed for the continued offending, and whether such a sentence should be designed to protect the community or that specific sector from the danger that he poses. For that reason I must further refer to your previous convictions and outline the relevant circumstances. In 1979, when you were about 17 years of age, you were convicted of indecent assault and false imprisonment and were sent to a detention centre. The circumstances involved you and others going to collect a debt from a 25-year-old woman, whose clothing was removed, who was detained for a period and indecently assaulted. In 1983 you were convicted of four offences of robbery, one of indecent assault and one of assault occasioning actual bodily harm. One of the robberies involved an attack on a woman alone in her home at night, in which she was threatened with a knife, tied up and gagged, whilst the flat was ransacked. One of the robberies involved an evening attack in a house of a lone woman, who was threatened with a knife, tied up and gagged, and forced to remove her lower clothing to show that her claim to be menstruating, made by her to prevent a sexual attack, was true. Her home was ransacked. Another robbery involved an afternoon attack on a woman in her house, in which you threatened her with a knife and tied her up. She resisted and was beaten unconscious. You were sentenced, upon your pleas of guilty, to a total of 12 years’ imprisonment, from which you were released in February 1992. In 1993 you faced an indictment containing 20 counts: 16 of robbery, two of indecent assault and two of rape. You pleaded guilty to 12 counts of robbery, one of indecent assault and one of rape, and the other counts were ordered to lie on the file. I should say that I have checked the court file, and insofar as your criminal record shows that four indecent assault charges were left on the file, it is wrong. However, that case involved a series of attacks on beauty parlours staffed by women, all of which involved the use by you of a knife or a chopper to threaten the victims, in all of which the victims were tied up, in some of which they were also gagged, and in one of which you indecently assaulted one of the women customers who resisted your attack. She was tied up, and you removed her clothing, lay on top of her and rubbed your penis against her vagina until you ejaculated. You did not penetrate her because she was struggling. In another case a woman who tried to escape from the premises was tied up and indecently assaulted to her upper body, and in due course raped by you. These offences commenced in May 2003, about 15 months after your release. A total term of 16 years’ imprisonment was imposed: 10 for the robberies, 4 years for the indecent assault and 6 years for the rape. You were released in July 2004. In 2005 you were convicted of two burglaries committed in October and November 2004 and were sentenced to 3 years and 4 months’ imprisonment. The circumstances of these offences can be found in the judgment of the Court of Appeal in CACC186/2005. They were burglaries of domestic premises. After your arrest on the 2nd you were found to be in possession of a knife. You were released in April 2007, about 11 months before the commission of the first of the present offences. When your case first came before this court for sentence on 11 August 2009 I warned you and your counsel that I was considering whether it was necessary to impose a sentence of life imprisonment upon you. Following that a psychiatric report has been prepared by Dr C H Yuen at Siu Lam Psychiatric Centre, and at the request of those representing you, a psychological report has been prepared by Dr Anita Leung, a Clinical Psychologist. The report of Dr C H Yuen, Consultant Psychiatrist, cites prison records from 1989, showing you then had little motivation to change, doubting, with justification, that you had told him the truth. For example, “I don’t hit women,” a claim contradicted by the facts of this case. He concludes that you have a dissocial personality disorder, which is very well illustrated; that you present a definite risk to society; and that it is impossible to predict at this stage when it would be safe to discharge you back to the community. Dr Leung comes to a rather different view, and suggests that Dr Yuen is placing too much emphasis on reports dating back to 1989, which he quotes at some length. The purpose of citing those reports is in part to support his conclusion that you are suffering from a dissocial personality disorder. I quote paragraph 17:
The report of Dr Anita Leung sets out a detailed family and social history, reflects remorse for the current offences, which is taken as genuine, describes you as being a man without violent sexual fantasies or deviant sexual desire, who is ashamed and wants to change for the better. You are a pathological gambler and steal to fund your habits. You do not fit the criteria for dissocial personality disorder, as Dr Yuen suggests. There is no evidence that you inflicted serious bodily harm on others. You did not appear to be a violent person and normally behaved within social norms. Despite your criminal record, you are believed by Dr Leung to be corrigible, i.e. capable of reform, no doubt with assistance. Given the absence of mental illness and risk factors such as sexual deviation, substance abuse and homicidal ideation, etc., “the risk of his engaging in violent or sexually violent offences is predicted to be not high.” On the face of it, there appears to be a conflict between the two reports submitted to the court. I have offered Mr Andrews the opportunity of calling Dr Leung to give oral evidence, but he declines to do so and seeks to rely on what is written by Dr Leung, whose views deserve careful consideration given her eminence as a clinical psychologist. Although the statements by Dr Leung that there is no indication that you have inflicted serious harm to others and that you do not appear to be a violent person are made in the context of her disagreement with Dr Yuen as to whether you have a dissocial personality disorder, they are statements which I find it impossible to accept in the circumstances of your case. You have inflicted violence of the most grave nature, not just in the sexual assaults you have perpetrated, but also the striking of blows to the women in question whilst they were tied up, coupled with threats to kill at a time when you were armed. Furthermore, the court is entitled, in looking at the question of whether serious bodily harm has actually been inflicted upon others, to have regard to the fact that the absence of such serious harm may well be fortuitous. A victim overpowered or cowering away from an armed assailant might avoid direct physical injury, but the court can consider the likely response of the offender if his victim, instead of surrendering, had resolutely defended herself. I invite attention to R v Johnson[1], a case dealing with particular United Kingdom legislation, but which has application here in this regard. PW1, in the first of these attacks, was prevented from escaping and was violently raped. This is a feature which is discernable in the earlier 1993 case where a customer who resisted the attack was seriously sexually assaulted, and another who tried to escape was raped. However, the infliction of serious bodily harm is only one aspect of your repeated conduct. The infliction of serious psychological harm is manifest from the Victim Impact Statements, and obvious from the circumstances both of this case and the previous cases. I cannot accept the assertion that you are a non-violent person. I must note at this point Dr Yuen’s record of you saying to him that the main reason for sexually offending, as well as robbing, was that, “The opportunity should not be wasted since I am already committing another crime.” Dr Leung goes on, contrary to Dr Yuen’s conclusion, to say that for the reasons to which I have referred, the risk of you engaging in violent or sexually violent offences in the future is predicted not to be high. However, although Dr Leung concludes that it may be possible to reform you, it is important to note that she does not attach any timeframe to such possibility. She does not contradict Dr Yuen’s conclusion that you are presently a danger to society and that it is impossible to predict at this stage when it would be safe to discharge you back into the community. I must view these conclusions in the light of the fact that you have repeatedly demonstrated a willingness to re-offend in an extremely serious and similar manner shortly after release from long sentences. Within 18 months of release from a 12-year sentence you committed the 1993 offences; three months after the release from a 16 year sentence you committed the 2004 offences; and 11 months after the release from a 3 year and a 4 month sentence you committed the first of the offences now before the court. The assertion that towards the end of your last sentence you took positive steps to reform and to establish yourself upon release carries no weight, in my judgment. It is evident, indeed it is manifest, that you are not in any way deterred by the long sentences thus far imposed upon you. I cannot come to any conclusion other than that you are a man who presents a very substantial risk of re-offending in a similarly grave manner. To borrow the words of Watkins LJ in a case called Easterbrook[2], you are not a man who has anything wrong with your mind in a medical sense. This is a case of a man who is a very skilful and dangerous criminal, who has not been deterred from committing serious crimes, no matter how long the sentences which have previously been imposed upon him. I do not consider that I need to resolve the issue as to whether or not you have a dissocial personality disorder. I have already indicated to you, Chan Li-fat, that for these offences I am considering the imposition of a sentence of life imprisonment. I need to be satisfied that certain criteria are met before I can properly do so: 1., that the offences in themselves are grave enough to require a very long sentence; 2., that it appears from the nature of the offences and/or the history of the offender that he is a person of unstable character who is likely to commit the offences again; 3., that if the offences were committed again, the consequences might be especially injurious as in the case of sex crimes or crimes of violence. These are called the “Hodgson criteria,” and they apply here in Hong Kong. I am satisfied, for the reasons I have given, and in particular your repeated offending in a manner that couples violent theft with serious sexual assault, that each of the criteria is fully met in your case in respect of both the rape and the aggravated burglary offences, which in this case are indistinguishable from robbery in terms of their circumstances and their gravity. I am satisfied that you present an extreme danger to the public and that it cannot presently be said when or whether you will cease to be a danger, so that in principle an indeterminate sentence of imprisonment is appropriate. It is a sentence which is available as a discretionary life sentence for both aggravated burglary and rape. The fundamental objective in imposing life imprisonment, as opposed to a fixed term of imprisonment, is to ensure that somebody who presents such a danger is not released upon a determinate date, irrespective of whether he remains a continuing danger. I am in no doubt that such a sentence is appropriate in your case, and therefore in respect of each of the four offences to which you have pleaded guilty I impose a sentence of life imprisonment, concurrently on each of those four charges. It is up to those having the management of your case over the years to determine if and when you are fit to be returned into the community. I stress that the purpose of the imposition of life sentences upon you is the protection of the public from the continuing danger which you pose. The law requires me, in respect of each of the offences, to set a minimum term, that is the minimum period which you must remain in custody in respect of that offence before you can be considered for release. Judicial authority suggests that the term must be set by reference to the ordinary sentencing principles of punishment and deterrence, and must take into account mitigation such as a plea of guilty, although the minimum term is by no means to be seen as an ordinary prison sentence which the court fixes by reference to those principles - it is not to be seen as a term of imprisonment in lieu of a life term. I judge the circumstances of each of these offences, the aggravating features and mitigating features, together with your pleas of guilty, to determine the appropriate period. It is submitted that the court should have regard in fixing the minimum term to the possibility that the offender would normally be entitled, under the prison rules, to a reduction of up to one-third upon a determinate - that is a fixed - sentence of imprisonment, for good behaviour; and that the court should therefore take account of that and assume that such a reduction would be available to you; and should reduce the minimum term by two-thirds from the notional starting point. This was referred to obiter, that is in a non-binding manner, in one of the previous cases to which I have been referred, namely Cheung Lai Man[3], where it was said that the sentencer should take account of it. It was not mentioned by the Court of Appeal in Hui Mak Kwan[4]. I am bound to say that whether a prisoner will or will not be eligible for such a discount is a matter of pure speculation at the time of sentencing him. That is partly why a minimum term cannot be equated with a normal sentence of imprisonment. I am satisfied that I must ignore the fact that you will not be eligible for discounts under the prison rules, or indeed subject to review by the Long Term Prison Sentences Review Board. One of the factors, however, which I consider that I should take into account, and which would not be similarly relevant with an ordinary sentence of imprisonment, is your age, that is to have regard to what your age will be when the minimum term expires. You are now 48 years of age. For the aggravated burglaries, given their similarity to the 16 previous serious offences of robbery committed by you, which aggravate these present offences, given the physical force used by you and the threats with lethal weapons, I judge that before any discount for your mitigation, a minimum term of 18 years’ imprisonment would be appropriate. I will reduce that by the conventional one-third to 12 years to reflect your pleas, and I will apply that minimum term to both of the aggravated burglary life sentences. So far as the rape offences are concerned, I have regard to the fact that violence was used which was over and above the force necessary to commit the rapes, that weapons were used to terrorise the victims, that the rapes were planned by the taking of equipment to immobilise the victims, that you have previous convictions for rape and other serious offences of a sexual nature, and that the effect upon the victims was of special seriousness. I note that neither of the victims was subjected to further sexual indignities or perversions. These two rapes represent your fifth and sixth convictions for serious sexual offences, and your third and fourth (sic) convictions for rape. I am satisfied that the appropriate minimum term, but for your plea of guilty, would be 30 years’ imprisonment. In the light of your pleas of guilty I would reduce that to 20 years’ imprisonment in each case. However, that would mean that you will be 68 years of age before becoming eligible for release, and I consider that such eligibility should operate from a slightly earlier age, namely 66 years. I therefore fix a minimum term of 18 years’ imprisonment to be served in respect of the life sentences for each of the two rapes. That means overall that you must serve a minimum term of 18 years’ imprisonment before you can be considered for release into the community. Sit down. I do not presently consider that it is necessary to make any report to the Chief Executive under s.67B(2) of the Criminal Procedure Ordinance, Cap. 221, but if I revise that opinion I will inform you or those representing you so that you can be given an opportunity to be heard on the matter. [1] 1 Cr. App. R.(s) 112 CA at P674 [2] (1990) 12 Cr App R (s) P331 at P333 [3] [2004] 2 HKLRD 473 [4] unreported, CACC2/2003 Appeal against sentences by the Defendant dismissed. Please refer to CACC308/2009 dated 2 July 2010 |
Cases cited in this judgment