The Queen v. Cheung Hing-biu
Read the full judgment text of CACC 829/1983 on BabelCite. This Court of Appeal judgment.
1. Cheung Hing Biu, now aged 26, was committed for sentence upon his pleas of guilty to a total of 16 offences of rape and robbery. In each case the offences were combined. They were those of the 20th October 1982; the 8th October 1982; the 23rd September 1982; the 7th September 1982; the 17th July 1982; the 6th March 1982 and the 19th April 1982. The offences in March and April were committed against the same person.
Cited by 4 cases
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CACC000829/1983 IN THE COURT OF APPEAL
BETWEEN
___________ Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 19th January 1984 ____________ JUDGMENT ____________ Silke, J.A.: 1. Cheung Hing Biu, now aged 26, was committed for sentence upon his pleas of guilty to a total of 16 offences of rape and robbery. In each case the offences were combined. They were those of the 20th October 1982; the 8th October 1982; the 23rd September 1982; the 7th September 1982; the 17th July 1982; the 6th March 1982 and the 19th April 1982. The offences in March and April were committed against the same person. 2. The matter came on for hearing on the 16th May 1983 before Sir Denys Roberts, Chief Justice, when the applicant was represented by Mr. O'Reilly Mayne, Q.C., with him Miss Esther Toh. 3. The Crown at that hearing made reference to a number of other offences which might be taken into consideration. In respect of one of the lists of those offences there was some difficulty and the hearing was adjourned. 4. Prior to the adjournment Counsel then appearing for the Crown made reference to the committal proceedings and brought to the attention of the Court his view that:
5. He cited the provisions of section 81B(3)(c) and indicated that the outline of the eight charges of rape was sketchy. 6. Mr. Mayne advised the Court that his instructions were that he should take no technical point whatsoever and further that he thought the Court to have jurisdiction. 7. The Chief Justice, having considered the record of the committal and that which Mr. Mayne had to say expressed himself as happy to proceed on the basis that there was a "valid plea at the committal under section 81B for sentencing" 8. The adjourned hearing took place on the 2nd June 1983 before Barker, J.A., sitting as an additional High Court Judge. Ho further point as to the validity of the committal was taken. There the applicant asked for two more rapes, eleven indecent assaults and thirty four further robberies to be taken into consideration. 9. These, taken with the committal counts, totaled forty two robberies, ten rapes and eleven indecent assaults. 10. Barker, J.A., passed sentence of life imprisonment in respect of the committal rapes and twelve years' imprisonment, concurrent, in respect of each of the committal robberies. He took into account the further offences admitted in the face of the Court. He recommended that the applicant be not released for at least 25 years. 11. The applicant filed an application for leave to appeal against sentence, with homemade grounds, on the 23rd June 1983. He was refused legal aid on the 26th July. 12. When the application first came before us on the 20th October we thought that, as a matter of principle, a man facing a sentence of this severity should have the assistance of Counsel at the hearing of his application. A Legal Aid Certificate was granted. 13. At the renewed hearing the applicant was represented by Mr. Keane, Q.C., with him Miss Fiona Steward. 14. The first point taken was that the committal was deficient, that the Chief Justice and Barker, J.A. were wrong to continue the proceedings and that they should have exercised their discretion to remit the case to the Magistrates' Court. 15. The history of the committal, under the provisions of sections 81 - 87 of the Magistrates Ordinance, Cap. 227, was this: the nature and purpose of the committal proceedings were explained to the accused; an amendment of the charge was explained to the accused; the charges themselves were read over and explained to the accused in ordinary language. There were then introduced thirty eight statements of the prosecution witnesses, these having been served on the applicant on the 31st March 1983. A normal course in a committal for trial. 16. In respect of each of these statements the applicant said he understood and he reserved his right to object. 17. The charges were then again read and explained to the applicant in ordinary language. The statutory provisions of section 82(l) were complied with as were those of section 82(2). Thus the applicant was aware of his rights to call witnesses and to give evidence and of the terms of the statutory caution and of its meaning. The applicant stated that he would "reserve his defence to all charges". Form 78 was used for this statement in answer to charge. 18. An explanation as to alibi was given to the applicant and the alibi notice handed to him. 19. At that point the applicant is recorded as saying:
20. He was then asked by the Committal Magistrate did he mean he wished to admit "all" the charges to which the applicant answered in the affirmative. 21. In answer to further questions he said that he had read all the witness statements and that he accepted in full the statements of the seven victims in which they alleged that he had threatened them with a knife and robbed and raped them. 22. The Magistrate then invoked the provisions of section 81B and recorded his compliance with them. 23. The Prosecutor briefly outlined the details of each separate charge. The applicant accepted them as correct. 24. The Magistrate recorded his compliance with section 81B(3)(b) and was satisfied that the applicant understood the offences with which he was charged and the ingredients in law which constituted those offences. 25. Thereupon the applicant stated that he pleaded guilty to all the charges, that he fully understood the nature of the charges and that he accepted the statements of the witnesses. 26. The Magistrate then recorded his compliance with section 81B(3)(c) - which requires that the Magistrate shall, before he accepts the plea:
27. For the sake of completeness that which the Magistrate recorded as the outline of the alleged facts was as follows:
28. Having done this and having expressed himself satisfied that the applicant understood the elements constituting rape and robbery the Magistrate put each individual charge, reading and explaining each of them, to the applicant. To each of those charges individually the applicant stated: "I admit it". 29. His pleas mere accepted and he was committed for sentence. 30. It has been necessary to set out in some detail that which occurred in the course of the committal in the light of the attack which Counsel has seen fit to mount upon it in this Court - based of course on the altered instructions of the applicant. 31. It is alleged, first, that the court of trial had no jurisdiction and therefore no power to pass sentence, there being non compliance with the provisions of section 81B(3) of the Ordinance and therefore no proper plea. 32. The nature of the attack is basically two fold: one: that the Magistrate failed to require the Prosecutor to outline the facts in accordance with section 81B(3)(a) - on the face of the record that is, with respect, completely misconceived - and, alternatively, that if the Prosecutor did outline the facts, then the Magistrate failed to record that outline. 33. As to this, if it were incumbent upon the Magistrate to record the outline of facts as given by the Prosecutor, and we do not think it necessarily to be so upon a proper reading of the subsection, then in the light of all that had gone before his own outline was sufficient compliance with the statutory provisions. There can be no whiff of prejudice upon this aspect. 34. Second: it has been submitted that as there was nothing capable of constituting a plea by the applicant at the time the Magistrate purported to invoke the provisions of section 81B, the section was not lawfully complied with and, a proper plea being a condition precedent, the committal for sentence was bad. 35. The basis of this submission is that the Magistrate after the service of the notice of alibi upon the applicant and when the applicant said he meant that he wished to plead guilty did not there and then read out each and every count on the charge sheet and take a separate plea to each. We are not surprised, in the light of that which had transpired, that the Magistrate did not take this course. There might be some point in the submission had there been an indication from the applicant at the outset of the committal proceedings that he intended to plead and if, at that point, each and every charge had not been read separately to him and an individual plea taken. But here the charges had already been read out twice, their nature and the law constituting them explained and the applicant had stated himself to have read and accepted all the 38 witness statements. 36. Both of Mr. Keane's submissions are based on the principle he advances that strict and formal adherence to the statutory provisions of the applicable sections of the Magistrates Ordinance must not only be carried out but must be recorded as having been done. It is his contention that if the face of the record fails to show strict compliance with that which he terms mandatory provisions then the committal must always be invalidated. 37. He places great reliance on Chan Kam-chau v. The Queen(1), a decision of the Full Court, adopted and followed in Mok Chung(2) and in In Re: An application(3). 38. In Chan (1), the applicants had purported to plead guilty to joint charges of robbery at the committal and before any evidence had been led. There was nothing on the record to show, nor was there any evidence either way before the Full Court, that section 81B(3) had been complied with. They were committed for sentence, sentenced and on appeal against sentence the Court held the committal to be bad. 39. With respect, we entirely agree. The whole purpose of this section is to ensure that a person desirous of pleading guilty to an offence is fully aware of the facts and the law applicable to that offence before his plea is accepted. There was, in Chan (1), the clearest possible breach of the statutory requirements. 40. Mr. Keane seeks to pray an aid of his contentions a passage from the judgment of Huggins, J., as he then was, at page. 386:
41. And further, at page 387:
42. Here, whether or not the Magistrate should record that which the Prosecutor says as to the alleged facts or whether he records that which he himself says to the applicant as to those facts these were, and adequately, explained to the applicant. 43. It is contended that the Magistrate in asking of the applicant the questions recorded after the applicant had made clear his intention to plead guilty were in the nature of incriminating questions and should never have been asked. We do not agree. In hindsight it might have been better had the Magistrate asked the applicant did he mean he intended to enter a plea there and then or did he mean he intended to enter a plea when the matter came on for trial in the High Court. We do not, however, think that the course he took made the committal in any way defective. He was most careful to ensure that the applicant was fully aware of the implications of his plea and that he fully understood what he was doing. It was only after all this and after individual pleas had been recorded that the applicant's pleas were accepted and that he was committed for sentence. 44. The Courts have moved away from the formulistic thicket of the 19th century. It is true that a failure to record compliance with a statutory requirement may, there being no presumption of regularity, of itself, be sufficient to show actual non compliance, create prejudice and invalidate subsequent proceedings. 45. We do not think this to be so here, the first ground fails. 46. In respect of the substantive application two main grounds are advanced: 47. One: that the trial judge erred in imposing a sentence of life imprisonment coupled with a recommendation to the Executive as to a minimum period of imprisonment to be served by the applicant before any release therefrom. 48. Two: that the imposition of a sentence of life imprisonment was wrong in principle and excessive: in all the circumstances of the case determinate sentences of imprisonment for the offences in question would be more appropriate than and should be substituted for the sentences of life imprisonment. 49. As we have said the sentences passed by the trial court took into consideration a totality of ten rapes, eleven indecent assaults and forty two robberies. Each of the ten rapes was committed together with a robbery as were ten of the indecent assaults, that leaves one indecent assault unconnected with robbery and twenty two robberies without a sexual element. 50. The offences took place over a period from mid 1980 to the 10th November 1982 and all were in housing estates in East Kowloon. In order of frequency they took place at: Sau Mau Ping; Lam Tin; Ngau Tau Kok; Tze wan Shan; Tung Tau and Wong Tai Sin. 51. The applicant gained entry to flats in which there was a woman alone or with children, either with a key or through unlocked doors in the mid-morning or mid-afternoon. He also waylaid victims in corridors or lift lobbies. He wore a pair of woman's tights as a mask and a pair of woman's stockings as gloves. He used a small knife or a triangular file to threaten his victims. 52. While in each incident the actual degree of violence was small yet in each the knife was used to threaten and, when a victim evidenced reluctance, verbal threats were used, slaps were administered and women were pushed around. 53. Two women were cut accidentally while the rapes were taking place. One girl who struggled received a cut upon her finger. 54. On several occasions the applicant, at the request of his victim, handed back $40 or $50 from his haul. 55. The youngest victim was 141/2 the eldest in her early thirties. 56. The applicant kept a diary with a full record of his criminal acts. He was arrested through the bravery of the young woman whom he attacked on the stairs in Lam Tin Estate. It was she who received a cut finger. 57. Some time after arrest he made eleven statements, all of them confessional in nature. It was accepted by the Crown that without those statements it would have been impossible to prove the vast majority of the crimes. He relied on his diary to base those statements. 58. The applicant had a minor criminal record showing offences in 1974, 1978 and 1980.They were ignored, quite properly, by the trial judge in assessing sentence. 59. There were two - a short and a long - psychiatric reports before the trial court. In the long one - and we have seen, without objection, a further report from the same psychiatrist - it was stated that the motive for robbery was the normal one of gain and as regards the sexual offences the motives were to a "large extent normal". No sign of mental disorder was detected. 60. It would seem that a ballroom hostess had seduced the applicant's father breaking up his family as a consequence. While the applicant had a girl friend with whom he regularly had normal sex he began his career as a rapist when, in the course of a robbery, the victim pleaded with him not to rob saying he could do anything he liked with her. He had intercourse. From then on he would rape women if they appeared to him "indecent". His idea of "indecent" being a well dressed, cigarette smoking coarse voiced women. Or a woman who seemed to him as if she were of easy virtue. 61. He was unemployed from early 1981. 62. The prognosis at the time of trial was that the applicant's personality deficiencies were relatively permanent. He had established reasonably warm relations with his mother and sisters and he appeared to have guilt feelings for the offences he committed. 63. In the report brought to our attention at the hearing of this application, and dated 17th December 1983, it is stated that:
64. It is further stated:
65. On his first point Mr. Keane has referred us to R. v. Flemming (4) where the English Court of Appeal was considering a sentence of life imprisonment imposed for manslaughter and the provisions of The Murder (Abolition of Death Penalty) Act, 1965. 66. The applicant in Flemming (4) was a youth of sixteen who had committed a large number of offences of theft and robbery. In the middle of the series a man was killed. The youth was tried for murder but convicted of manslaughter. The sentencing judge made a recommendation that he "be not released until at least ten years have elapsed". 67. The 1965 Act contained a provision whereby, upon sentence passed for a conviction of murder, the sentencing judge may make a recommendation as to the minimum period which, in his view, should elapse before the Secretary of State orders the release of the convict on licence. It is mandatory upon the Executive to consider that recommendation. 68. Lawton, L.J., who delivered the judgment of Court, made it clear that the statutory provision applied only to conviction for murder and therefore there was no power to make a recommendation upon conviction for any other offence. 69. Our laws contain no such statutory provision. While Barker, J.A. used the word "recommend" he was not, in law, making a recommendation which had any binding force upon the Executive nor one which the Executive must consider. It is obvious, of course, that the Board which reviews long term sentences would bear in mind any such suggestion from a trial judge. But it is only that. An expression of the personal view of the judge which may, not must, be of assistance to the Board in its deliberation. Events may well overtake it and other consideration apply when the release of a prisoner is being considered. We see, despite Mr. Keane's submission, nothing wrong in exceptional cases where life imprisonment is imposed, in the sentencing judge expressing his views. But we would emphasize that such suggestions should not become the norm and should be made sparingly. 70. The expression by a judge of his view is not, in our judgment, abhorrent to the principles of sentencing nor to public policy in Hong Kong nor does it defeat the object of an indeterminate sentence. We said in IP Tin yan v. The Queen(5) at page 7:
71. There is no parole nor is there release on licence. Sentences tend to be more severe. 72. That is the Hong Kong position, it differs from England and, in any event, the public policy existing in England in 1973 has undergone changes, some as recently as late last year. 73. We are aware in this context, and in the context of Mr. Keane 's second ground, of the provisions of subsection 3 of section 9 of the Criminal Procedure Ordinance Cap. 221. 74. While in criminal causes and matters we are certainly obliged by the statute generally to follow English criminal practice and procedure as "nearly as possible" - for we look to the fount of the Common Law in our search for its principles -there has grown up over the years, and in particular since the constitution of the Criminal Division of the Court of Appeal, a corpus of practice and procedure, in conformity with the Common Law, peculiar to the environment in which we live. The quantum of sentences is an example. English cases have often little relevance as to that and text books such as "Thomas in Sentencing" whose principles are distilled from sentences imposed in English cases and from the effect of statutory enactments are often not of great assistance. 75. As to Mr. Keane's second point, Ground 3 of his grounds of appeal. He has submitted that we should consider the substitution of a determinate sentence for the one of life imprisonment imposed. He suggests that the medical evidence contained in the three reports before us, especially the one of the 17th December, does not warrant the imposi-tion of an indeterminate sentence; further that not sufficient allowance was made for the applicant's plea of guilty, his cooperation with the police or his remorse. He was not a person shown to be unsuitable for a determinate sentence. 76. He has referred us to Hodgson (6) - applied by the Full Court in R. v Fong Lung Fai(7) - and to the commentary upon it in the 41st Edition of Archbold paragraphs 5-30; 5-31 and 5-32. He concedes that in this instant case criterion (a) - "Where the offence or offences are in themselves grave enough to require a very long sentence" -and criterion (c) -"Where if the offences are committed the consequences to others even to one other may be specially injurious, as in the case of sexual offences or crimes of violence" - are both present. 77. He bases his argument on the suggested absence of criterion (b): "Where it appears from the nature of the offence or from the defendant's history that he is a person of unstable character likely to commit such offences in the future". 78. Whether or not, and we think not, all three guidelines must be present before the imposition of an indeterminate sentence the very nature and multiplicity of the offences here is, in our judgment, sufficient to satisfy criterion (b); whatever may be the views of the psychiatrist as the applicant's present mental instability or personality defect. 79. The crimes committed by the applicant merited condign punishment. The public is entitled to be protected from the depredations of a man such as this and it is the duty of the Courts in passing sentence to reflect this and also to reflect the abhorrence the community has for the nature of these offences. 80. If a determinate sentence were to be considered then one in the region of thirty five to forty years would be properly in contemplation. When one goes into the range of thirty years and over then an indeterminate sentence must obviously lie for consideration. When a Court comes to the conclusion that life imprisonment would be proper, factors such as pleas of guilty, cooperation with the police and remorse, if it exists, have little relevance in the sentencing process. A plea does most certainly merit a discount - it saves time and expense and it avoids for witnesses the ordeal of giving public evidence - but that only where the tribunal decides upon a determinate sentence in the first place. 81. In the circumstances of this case the only possible sentence was the one imposed. 82. The application for leave to appeal against sentence is refused. (1) [1971] H.K.L.R. 383 (2) [1975] H.K.L.R. 416 (3) 119751 H.K.L.R. 512 (4) [1973] 2 A.E.R. 401 (5) C.A. 1109/82 (18th May 1983) (6) [1968] 52 C.A.R. 113 (7) [1968] H.K.L.R. 249 Representation: D. Keane, Esq., Q.C. & Miss F. Steward (Messrs. Robert W.H. Wang & Co.) assigned for the Applicant. A. Hodge, Esq. for Crown/Respondent. |
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