HKSAR v. Chung Chi Wing

CACC 81/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 81 OF 2009

(ON APPEAL FROM HCCC NO. 250 OF 2008)

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BETWEEN

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Before: Hon Hartmann JAand Lunn J in Court

Date of Hearing and Judgment: 14 May 2010

Date of Handing Down Reasons for Judgment: 31 May 2010

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REASONS  FOR  JUDGMENT

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Hon Hartmann JA (giving the Reasons of the Court):

Introduction

1.On 23 February 2009, the applicant pleaded guilty to one count of rape before Deputy Judge Line, as he then was, in the Court of First Instance. Taking as his starting point a term of 15 years’ imprisonment and applying a discount to give effect to the guilty plea, the judge sentenced the applicant to 10 years’ imprisonment. The applicant sought leave to appeal that sentence on the single ground that it was manifestly excessive.

2.Having heard submissions, we allowed the application and, treating it as the appeal, quashed the sentence. In our view a proper starting point should have been 11 years. Allowing for the discount to give effect to the guilty plea, we therefore imposed a sentence of seven years and four months. We said that we would give our reasons later and do so now.

The evidence

3.The rape took place on 10 November 1999. At the time of the rape the applicant was 22 years of age. His victim was aged 13 years and five months. The two were strangers to each other.

4.The rape required a degree of planning. The applicant had a vehicle which he parked in an open space opposite a school. The open space at that time was being used as a car park. At the end of the school day, when the victim left the school at 5.30 p.m., the applicant was able to lure her into his vehicle. It was inside the vehicle that the rape took place.

5.When the victim resisted, the applicant hit her around the head causing a 2 cm laceration to her forehead. In committing the act of rape, the applicant wore no condom. He ejaculated inside the young girl who suffered some injury to her private parts including a laceration and abrasions.

6.After the rape, the victim was ordered to step out of the vehicle and to look away. The applicant then drove off. The victim immediately reported the incident to the teaching staff of the school.

7.As it was, some nine years passed before the applicant’s arrest, his apprehension being the consequence of advances in DNA technology.

The judge’s approach to sentence

8.As we have said, in determining sentence, the judge took as his starting point a term of 15 years’ imprisonment, reducing it by one third for the plea of guilty. As to the circumstances of the offence, he said:

“This is the type of rape that must be met by the most severe penalty. It is the rape that every parent fears and against which the child victim can put up no defence.  Any right-thinking person would demand that you be punished to the full.”

9.The sentence imposed on the applicant was a stern one but that was the intention of the judge. As he said:

“You will therefore go to prison for 10 years.  That is a long sentence on a plea of guilty to a single count of rape but it is designed to be.  Society will not tolerate what you did and it rightly will expect these courts to show no mercy.”

The ground of appeal

10.In advancing the submission that the sentence was manifestly excessive, Mr Francis Cheng, applicant’s counsel, accepted that the circumstances of the offence were aggravated. He submitted, however, that, when compared with other like cases, the sentence imposed on the applicant was out of the range of appropriate sentences.

11.In support of his submissions, counsel referred us to two earlier judgments of this Court: HKSAR v Choi Lin Cheong CACC 597/1998 and HKSAR v Chan Lai Sing CACC 100/2002.

12.In Choi Lin Cheong, the defendant gained access to the apartment of a 15-year-old schoolgirl who was at home alone. He did so by exploiting her gullibility, holding out that he was promoting a swimming gala and had a swimming costume to give to her. The defendant put a cutting blade against the neck of the young girl. He lay her on a bed, removing her clothes. He tied her hands and her feet causing bruising. He used a towel to gag her and to cover her eyes. He attempted sexual penetration, causing some injury to the girl. When he was unsuccessful, he made the girl take his penis into her mouth. He was then disturbed by the return of the girl’s mother to the apartment. He assaulted her and in the ensuing struggle, she was injured and then gagged. After trial, he was sentenced to 13 years’ imprisonment for the attempted rape and 10 years for the indecent assault, the two sentences to be served concurrently. The sentence of 3 years’ imprisonment imposed in respect of the wounding with intent of the mother was ordered to be served consecutively to the other sentence. On appeal, the court held that the total sentence of 16 years, severe as it appeared, was nevertheless justified.

13.In Chan Lai Sing, the victim, a 14-year-old schoolgirl, was gang raped by a group of young men who held themselves out to be triads. When first stopped, the girl was punched and dragged by her hair. She was forced to go to a nearby hillside. Her clothes were taken off her. A camera was used by one of the young men to pretend to take photographs of her. Her body was fondled. She was then carried to a stone bench and, while held by members of the group, was twice raped. During the course of her ordeal, she was made subject to gross indignities, being forced to perform oral sex with one of the young men and being ejaculated upon. It was estimated that she was held by the gang for some six hours. For the purposes of this judgment, we needed only to look to the sentences imposed on the first defendant. The first defendant was 17 years old. He had played a leading role, personally committing the first rape. He had aided and abetted the second rape. He had also participated in the indecent assault, holding the young girl’s head when she was forced to perform oral sex. He was sentenced to 10 years’ imprisonment for the first rape, the one committed by himself, and to 9 years’ imprisonment for the second rape. He was further sentenced to a term of three years’ imprisonment for the indecent assault. All the sentences were ordered to run concurrently, making for a total of 10 years’ imprisonment. The sentences were not disturbed on appeal, the court commenting that they could have been no complaints had the sentences been set higher.

A further sentencing authority

14.We would add that, among the authorities placed before the sentencing judge in this matter, was HKSAR v Lau Chin Yu [2007] 1 HKC 104, a judgment of this Court in which the guidelines contained in R v Millberry and others [2003] 1 WLR 546 were considered.

15.The defendant, a man of 23 years of age, had invited a neighbour into his apartment, the neighbour being a 24-year-old woman who suffered from mild grade mental retardation. On that occasion he had indecently assaulted her, taking photographs of her partially undressed. On a second occasion, when he had invited her into his apartment, he again took photographs and on this occasion he raped her. She was in pain and said ‘no’ but he carried on against her will. A victim's impact report revealed that the victim had suffered from considerable emotional distress, could not sleep well and cried often. In sentencing for the rape, the trial judge took a 10-year starting point, reducing it to 6 years and eight months to reflect the applicant’s guilty plea. While the Court of Appeal accepted that the rape was aggravated by virtue of the victim's mental impairment, it held that the proper starting point should have been seven years’ imprisonment, to be reduced to 4 years and eight months to give effect to the plea of guilty.

16.We appreciate that a comparative exercise of the kind we have conducted cannot be conclusive. The circumstances of each case will vary considerably including the degree of harm to the victim and the level of the offender’s culpability. Even guidelines cases such as Millberry, while they are intended to assist the judge to arrive at the correct sentence, do not purport to identify that sentence.

17.In each case, the sentencing judge is required to stand back and look at the circumstances as a whole, imposing a sentence which is appropriate having regard to all relevant circumstances. This must include a consideration not only of the features of the case which are adverse to an offender but to all other circumstances, particularly the level of culpability of the offender and whether the offender poses a risk to society.

Considering all the circumstances

18.In our judgment, there were three main aggravating features of the present case all of which were taken into account by the judge at first instance. First was the planning of the crime, targeting a school and the young pupils emerging from that school at the end of the day and then luring the victim into the applicant’s vehicle. Second was the very young age of the victim: she was, as we have said, just 13 years and five months of age. Third was the fact that the applicant was indifferent to any possible physical consequences for the young girl; he did not wear a condom and ejaculated inside her.

19.It is true that, in order to gain physical dominance, the applicant assaulted the young girl and that had to be taken into account as an aggravating feature. But the injury sustained by her to the head was not serious: effectively a 2 cm cut to the forehead.

20.As against that, in looking to all the circumstances, the following we believed should have been taken into account by the judge at first instance. First, having been lured into the vehicle, the victim was not then driven off to some other place which would have magnified her uncertainty and fear. The vehicle remained parked opposite the school. She knew where she was. Second, while a degree of force was used to subdue the victim, no weapon was employed nor was she tied up, gagged or blindfolded. Third, the victim was not subjected to other gross sexual indignities. Fourth, on the evidence, the victim was kept in the vehicle for as long as was necessary for the rape to be effected and no longer. She was then released, still, of course, in the immediate vicinity of the school.

21.As to the degree of harm suffered by the victim, regrettably no victim’s impact statement was put before the court even though a period of some nine years had passed since the event. Accordingly, there was no evidence before the court of either the short-term or long-term effects of the ordeal on the young victim. In the absence of such evidence, it had to be assumed, in favour of the applicant, that there were no profound short-term or long-term effects.

22.An important issue for the consideration of the sentencing judge was the level of risk posed by the applicant to society. In the guidelines laid down in Millberry, this was laid down as one of the three principal dimensions to be considered in assessing the gravity of an individual offence of rape.

23.In the present case, some nine years having lapsed since the commission of the offence, the court was in an ideal position to assess that level of risk. The applicant’s antecedents revealed a history of intermittent crimes of dishonesty: handling stolen goods, taking conveyances without authority, dealing in contraband goods. But, other than the single count of rape, the subject of this appeal, the applicant’s antecedents revealed no convictions for offences of a sexual nature. There was therefore no evidence that, in respect of sexual matters, the applicant posed a continuing risk to society.

Conclusion

24.It was in light of these considerations, viewing all the circumstances as a whole, that we concluded that the proper starting point in this case should have been 11 years. That term was reduced to give effect to the plea of guilty: hence the reduction from 11 years to a term of seven years and four months.

Mr Francis Cheng instructed by Messrs Littlewoods for Applicant

Ms Catherine Ko, SPP of the Department of Justice for Respondent