HKSAR v. Ngai Yiu Ching

CACC 107/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 107 OF 2011

(ON APPEAL FROM DCCC NO. 773 OF 2010)

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BETWEEN

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Before: Hon Stock VP, Hon Fok JA and Hon McWalters J in Court

Date of Hearing: 2 September 2011

Date of Judgment: 3 October 2011

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J U D G M E N T

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Stock VP

1.This is a judgment to which each member of the Court has contributed.

Introduction

2.This is an application for leave to appeal against sentence.  The applicant was convicted after trial in the District Court of one count of false imprisonment for which he was sentenced to 3 years imprisonment and 3 charges of indecent assault for which he was sentenced to 3 years imprisonment on each count.  The sentences for each offence of indecent assault were ordered to be served concurrently with each other but consecutive to the sentence of 3 years for the false imprisonment.  Thus the total sentence imposed on the applicant was 6 years imprisonment.

The Grounds of Appeal

3.There are two grounds of appeal, but the second ground, which is that the final sentence is manifestly excessive, flows from the first.  The first ground of appeal is that the District Judge erred in not ordering the sentences for the indecent assaults to be served concurrently with the sentence for false imprisonment.  Counsel for the applicant submits in support of this ground that the four offences were all part of the one transaction and consequently it was an error of principle not to order them all to run concurrently with each other.

The Background to the Offences

4.These offences took place in the evening of 22 May 2010 at which time the applicant was 69 years of age and a widower of 12 years. The victim of these offences is a 30 year old married woman who worked as a cashier at a supermarket.  The applicant first came into contact with the victim when, in January 2010, he started shopping at the supermarket where she worked. The applicant attended the supermarket quite regularly and became friendly with the victim.  At some stage the applicant told her that he wanted her to become his sworn daughter and after the applicant bought her a mobile phone in February 2010 the victim agreed that they could be sworn father/daughter.  Thereafter they occasionally met privately and dined together.  In the course of their acquaintanceship the applicant told the victim that he owned two steel companies and at the beginning of May 2010 he took her to a premises which he claimed was one of them.  He asked her to come and work for him.  She agreed, resigned her job at the supermarket and intended to start working for the applicant on 1 June 2010.

5.In truth the applicant owned no steel companies and the premises to which he had taken the victim at the beginning of May were simply the warehouse premises where he was employed as a caretaker.  He was in no position to offer the victim any employment.

6.At around 7 pm on 22 May the applicant telephoned the victim and persuaded her to come to what she believed were the steel factory premises where she would be later employed.  He lured her to the premises by promising to give her $1 million that could be used by her parents to build a house in Mainland China.  He also said that at this office he would introduce her to a woman called Ah Mei and they would later have dinner together.

7.The victim travelled to the applicant’s office which was located in a quite secluded area.  She arrived at about 7.30 pm but there was no Ah Mei to be seen.  The applicant reassured her that Ah Mei would arrive shortly.  When Ah Mei had not come by 8.45 pm the victim became frightened.  When the applicant closed the door of the office and switched off the light the victim became even more frightened and she asked the applicant to be allowed to leave.  He replied that he would only let her go if she allowed him to kiss her.  When the victim refused the applicant grabbed her right arm and tied her hands behind her back with a nylon rope.  The victim said she tried to run away but the applicant blocked her with his right arm.

8.The false imprisonment lasted for between 6 and 7 hours with the victim not being able to escape until about 2.15 am on 23 May 2010.  In the course of this imprisonment the three episodes of indecent assault took place. Although quite properly describing this whole course of criminal conduct as “a terrifying ordeal” for the victim the judge has not set out the evidence in the detail needed properly to appreciate what the victim had to endure.  As we do not have the victim’s evidence before us we enquired of the applicant’s counsel whether the Summary of Facts that is in the appeal bundle accurately reflected what the victim told the court.  She assured us it did.  That description of the events of the evening of 22 May, is as follows :

“8.  At about 2045 hours on the same day, the Defendant pretended to phone the watchman of the warehouse and tell him to have dinner. The Defendant then locked the office door. PW1 immediately told the Defendant that she wanted to leave but the Defendant said he would let her go if she allowed him to give her a kiss. PW1 refused. The Defendant took out a nylon string from the drawer of a desk and tied PW1’s wrists from behind. The Defendant pushed PW1 onto a desk and lifted up her upper garment and bra. He kissed PW1’s breasts for about 2 minutes. He then squeezed her breasts and sucked her nipples. PW1 struggled but in vain as the Defendant had pressed his body against hers. PW1 shouted for help and continued to struggle. The Defendant gagged PW1 with a piece of cloth. He told PW1 that he was impotent and it was nice to kiss her like that. He then removed PW1’s jeans and his own trousers but both of them were still wearing their underpants. The Defendant began kissing PW1’s inner thighs for about 5-6 minutes. PW1 begged the Defendant to let her go. The Defendant took away the cloth and continued to kiss PW1’s thighs. PW1 noticed that the Defendant was very excited. PW1 told the Defendant that she wanted to urinate. The Defendant took her to the dustbin at the corner of the office and told her to urinate into the dustbin. The Defendant pulled down PW1’s underpants to let her urinate. Thereafter, the Defendant helped PW1 to put on her underpants, let her sit on a chair and rested his head on her thighs. PW1 kept chatting to the Defendant to distract his attention and at the same time tried to untie the rope (Charge 2).

9.  At about 2330 hours on the same day, PW1 managed to loosen the rope but the Defendant discovered that. He told PW1 that he would not allow her to leave that night and she had to sleep there until 8 o’clock. PW1 asked the Defendant to tie the rope to the front and promised him that she would not run away. He did accordingly. The Defendant then pushed PW1 onto a desk in the office and lifted up her shirt and bra like the first time. The Defendant kissed and fondled her breasts and kissed her thighs for about 5-6 minute before taking a rest. PW1 begged the Defendant to let her go but he refused (Charge 3).

10.  Having rest for an hour, the Defendant pushed PW1 onto a desk in the office again and kept kissing PW1’s breasts and thighs for another 5-6 minutes. The Defendant then placed PW1 back to a chair and took a rest (Charge 4).

11.  Some time after 0100 hours on 23 May 2010, PW1 begged the Defendant to let her go.  She also told the Defendant that she would return the mobile phone to him and they would act like strangers thereafter. The Defendant agreed to that proposition.  PW1 then loosened the string with her mouth, walked to a desk, put on her jeans and placed the mobile phone which the Defendant had given her on a desk.  When PW1 was about to leave the office, the Defendant extended his right hand to prevent PW1 from leaving.  PW1 grabbed and bit the Defendant’s finger.  The Defendant pulled PW1’s hair to stop her from leaving.  While PW1 was opening the office door, the door hit the Defendant’s forehead and injured him.  PW1 used some tissue papers to stop his bleeding.  When PW1 tried to leave the warehouse, the Defendant opened the main door for her.”

9.After leaving the premises where she had been imprisoned the victim walked along a road where she encountered a taxi.  The taxi driver testified that the victim was walking hastily along the road, looking frightened.  It was an admitted fact that when the taxi driver stopped his taxi the victim, who was speaking on a mobile phone, asked him the address of the area and handed to him the phone so that he could inform the person on the other end of the call of the address.  The taxi driver did so and found he was speaking to a police officer.  The victim got into the taxi and whilst she was sitting in the passenger seat she was crying and the taxi driver noticed that her hands were red and swollen.

The Reasons for Sentence

10.In sentencing the applicant to 3 years imprisonment for the false imprisonment offence the judge took into account the duration of the false imprisonment (which he described somewhat generously to the applicant as “in the region of 5 hours”), the fact that the victim was tied and gagged, that the applicant lured the victim to the premises by taking advantage of her trust and naivety.  He was referring here to the lies the applicant told the victim about himself and his offer to her of $1 million and a job.  The judge also took into account the applicant’s betrayal of the trust that the victim had placed in him as a consequence of the sworn father/daughter relationship.

11.The judge treated all indecent assaults the same and sentenced the applicant to 3 years imprisonment on each of them.  He explained that the reason he ordered the indecent assault sentences to run concurrently with each other was because “they were all committed very soon after one another and to that extent can be considered as part of the same incident”.  However he provided no reason why he ordered these sentences to be served consecutively to the false imprisonment sentence.  Nor is there any indication by him that after determining the final sentence of six years imprisonment he had regard to the totality principle.

12.The judge was also completely silent on the mitigation and made no reference to any of the matters that the applicant’s counsel had advanced on her client’s behalf.  The applicant has a criminal record for an unrelated offence that took place in 2000 and for which he was ordered to pay a fine.  For all intents and purposes he was, prior to these offences, a person of clear record and this is relevant to his character.  But what, if any, mitigating weight should be given to the applicant’s good character was not a matter adverted to by the trial judge.

Sentencing for Multiple Offences

13.When a judge is faced with the task of sentencing for multiple offences he is required as an initial step to identify the appropriate sentence for each offence and as the final step to achieve a total sentence appropriate to the culpability of the offender.  The issue with which this appeal is concerned is the decision that the judge faced whether to order any of the sentences for the offences to run concurrently with each other or to be served consecutively.

14.The question whether to order concurrent or consecutive sentences can arise in many different scenarios.  An offender may be charged in respect of a number of different, or similar, offences committed on wholly separate occasions over a period of time or with a number of different offences committed in the course of one episode of criminal activity.  This case is concerned with the latter situation.

15.In the case of several offences committed in the course of a single episode, the prosecuting authorities might choose to proffer only one charge, where one charge embraces all the criminal conduct reflected by the evidence or, as in the present instance, separate charges for each criminal act.

16.If it chooses the former course, the instances of proved conduct embraced by the single charge but which could have been the subject of separate charges are taken into account in deciding what penalty reflects the true overall criminality.

17.But when the prosecuting authority elects the latter course, namely, to charge two or more offences arising from an episode of criminal activity, the objective is still the same; that is to say, the ultimate overall sentence must still reflect the overall and true culpability, although the sentencing judge must take care, first, to pass a sentence for each individual offence that is appropriate to that offence and the circumstances of its commission and, second, not to punish the offender twice for the same conduct.

18.It was in an attempt to safeguard fairness to the offender by ensuring that he was not punished twice for the same conduct that the courts developed the "one transaction" rule.  In essence, this rule said that if the number of offences have been charged arising from the one transaction or course of criminal conduct, then concurrent sentences should be imposed.

19.The one transaction rule was not developed as an inflexible rule of law. It was never intended as anything more than a practical rule of thumb to guide judges in the exercise of the power to impose consecutive sentences so that the final sentence was not one that was unfair to an offender.

20.However, once stated, this practical working rule tended to develop a life of its own and has led to some difficulty in its application. Judicial dicta explained what was meant by "one course of criminal conduct" and exceptions to the rule developed e.g. assaults committed on police officers by offenders who were under arrest for the main offence (HKSAR v Leung Ping Wa HCMA 1038 of 2005, 5 January 2006, unreported); and sexual assaults committed in the course of robberies (Secretary for Justice v Tseung Man Ka [2000] 4 HKC 611).  All of this, understandably enough, became material for advocates who sought to argue that the multiple offences of which their client had been convicted were part of one transaction and that it inevitably followed that the correct sentence was one where all the sentences were concurrent.

21.There are several problems associated with this line of reasoning.  First it runs the risk of elevating a practical working rule to a rule of law, thereby providing an opportunity to argue that departure from it inevitably meant that the sentence imposed on the client was excessive.  Secondly, it tends to obscure the real point which is not whether two or more offences are committed at about the same time, but whether the second or other further offences add to the culpability or criminality of the first.  Thirdly, it ignores the reality that whatever sentence is arrived at after application of the rule is still subject to the totality principle.

22.The importance of the totality principle cannot be overstated. It is there to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment but it is also a tool by which to ensure that “the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.”: R v K M [2004] NSWCCA 65 at paragraph 55.

23.The emphasis therefore should be on a reflection in the sentence of true culpability disclosed by the offences of which the accused has been convicted.  This is an approach which this court has consistently adopted in recent times, for example in HKSAR Kwok Shiu To [2006] 2 HKLRD 272 and HKSAR v Iu Wai Shun [2008] 1 HKC 79.  It is likely to be a more effective approach in reflecting an offender’s overall culpability than one which becomes overly concerned with the one transaction rule, although in the case of more than one offence, the court must guard carefully against punishing twice for the same act.  If the second offence which takes place in the course of the suggested single episode adds to the culpability of the first offence, it will normally follow that the sentence for the second offence will run wholly or partially consecutive to that for the first; to what extent, if at all, will depend upon an assessment of the totality appropriate for the conduct as a whole.  As with most sentencing exercises, the approach is an art, sensitive to the individual circumstances of the case and the offender.

24.This approach is reflected in other jurisdictions.

25.Recently the English Court of Appeal had to consider whether consecutive sentences should be imposed for money laundering offences where the money launderer was also guilty of the primary or predicate offence.  The case was R v Greaves & Ors [2011] 1 Cr. App. R.(S) 8.  Interestingly the Court made no mention of the one transaction rule and eschewed any analysis based upon identifying the gravamen of the offences.  At page 84, paragraph 24(c) the Court said :

“Where the offenders are one and the same, if the conduct involved in the Proceeds of Crime Act offence in reality adds nothing to the culpability of the conduct involved in the primary offence, there should be no additional penalty. A person should not be punished twice for the same conduct.”

And at page 85, paragraph 24(g) continued :

“We have avoided the use of the expression “gravamen of the offence”, which was much used in submissions to us in the context of the Proceeds of Crime Act offences having or not having a different gravamen to the ss. 19 and 22 conspiracies. “Gravamen” in its legal context means “the essential or most serious part to an accusation; the part that bears most heavily on the accused” ‑‑ The New Shorter Oxford Dictionary, We do not think that is necessary for the Proceeds of Crime Act offence to have a different gravamen to that of the primary offence. We prefer to say that the conduct involved in the former must add to the culpability of the conduct involved in the latter. Put shortly, there must be “something more”. The offender is not to be sentenced twice for the same conduct. We have referred to the “culpability of the conduct” We might have referred to “the criminality of the conduct”, but we prefer culpability because “criminality” simply means “the quality or fact of being criminal” –‑ Oxford English Dictionary.”

26.Finally there is a decision of the New South Wales Court of Criminal Appeal in Cahyadi v The Queen 168 A Crim R 41.  At page 47, paragraph 27 Howie J summarized the legal position in a way which we would adopt :

“…… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

27.For the sake of completeness we should refer to the multiple offence scenario that involves offences, different in nature or the same, committed on quite separate occasions.  In that situation the court will invariably have concluded that, in principle, it may impose consecutive sentences.  But the court still needs to assess the overall culpability of the criminal conduct for the purpose of applying the totality principle.  Only by doing so will it be able to arrive at a sentence that is fair to the offender yet also properly reflects the culpability of his conduct.

Analysis

28.The trial judge correctly recognized that he was required to impose separate sentences for each of the offences of which he had convicted the applicant.  The sentence for the false imprisonment offence was arrived at by the judge starting at 2 years imprisonment and increasing it to 3 years to allow for the aggravating feature of the applicant breaching the trust that he had developed between himself and his victim.  Here the judge was referring to the conduct of the applicant in cultivating a close relationship with his victim and over a period of months gaining her trust.  He caused her to believe that his interest in her was of a fatherly nature and that he liked her so much he wanted to treat her as his daughter and help her accordingly.  Abusing her trust in the way he did and luring her to a secluded location where he could restrain her more readily was a despicable act.  Once he had her under his control he bound her and also gagged her.  These acts added not only to the terror of her ordeal but also the danger of it.  Finally there is the duration of her imprisonment which we have taken from the Admitted Facts.  The sentence of 3  years imprisonment was, in these circumstances, fully justified.

29.Likewise in respect of the sentences for the indecent assaults.  Each was humiliating and all were serious examples of this offence.  The assaults were committed against a vulnerable, frightened woman who was under the control of the applicant.  Each offence lasted many minutes and involved a high level of indecency.  The sentences for these offences, especially given that there were three separate incidents of indecent assault, are not excessive.

30.At this stage the judge should have considered whether there was anything in the mitigation that had been advanced on behalf of the applicant that warranted awarding discounts on these starting points.  As we have mentioned there is nothing in the Reasons for Sentence dealing with this and the judge’s failure to explain why he was not awarding any discount for the suggested mitigation is an error of principle to which we shall return later.

31.The next step for the judge was to decide whether to order all the sentences to be concurrent or consecutive or a combination of the two.

32.In respect of the indecent assault offences he recognized that though each incident was a separate offence they were all part of the same conduct. Nevertheless to simply make them all concurrent with each other is to run the risk that the applicant is not properly punished for his overall culpability and the fact that whilst he had the victim under his control he repetitively indecently assaulted her.  Multiple offences of the same kind committed in effect on the same occasion can be sentenced by either of two ways.  The first is that adopted by the trial judge but when employing this method the sentence must reflect the fact that multiple offences have been committed.  The second course is to impose partially consecutive sentences.  Whichever course is adopted is a matter of discretion for the sentencing judge.  We are of the view that the course adopted by the trial judge was appropriate for the circumstances of this case and that the 3 years that he adopted as his starting point sufficiently reflected the fact that there were multiple indecent assaults inflicted upon the victim over the course of her imprisonment.

33.When it came to the false imprisonment offence the judge gave no reasons why he ordered the indecent assault sentences to run consecutively to the false imprisonment offence.  Nor did he say anything in respect of the totality principle.  Nevertheless the issue for this court is ultimately whether the course adopted by the judge has resulted in a sentence that is manifestly excessive.

34.As we have already indicated in this judgment we are unattracted to a rigid application of the one transaction rule as it tends to divert attention away from the real task before the sentencing judge.  In the circumstances of the present case that task was to determine whether the other offences in this case added to the culpability of the first and if so to assess the overall culpability of the offender.  Then the trial judge should have arrived at a sentence which reflected that overall culpability, achieving that end by making use, if necessary, of the power to order sentences to be served consecutively or partially consecutively.

35.There can be no doubt but that the indecent assaults substantially added to the applicant’s culpability for the false imprisonment of the victim; or, looked at the other way, that the false imprisonment added significantly to the applicant’s culpability for the indecent assaults.  The judge would have been in error in taking any other view and in the circumstances of this case he was wholly justified in ordering the sentences for the indecent assaults to run consecutively to the sentence imposed for the false imprisonment.

36.The judge did not expressly address the question of totality but we are satisfied that in the event he did not err in ordering the two sets of sentences to run wholly consecutively, for it is our view that, subject only to the question of mitigation to which we now turn, the resulting term of six years imprisonment properly reflected the overall culpability of the conduct of which the applicant stood convicted.

37.The sole remaining question is whether there was any mitigation which should have entitled the applicant to a discount from the starting points for each offence which the judge adopted and which we consider to have been appropriate.

38.The applicant is aged 69 years with some health issues hinted at. Neither of these factors constitute sufficient reasons to justify a discount. Old age, except perhaps advanced old age, has never, on its own been accepted as a mitigating factor.  We note that in HKSAR v Lan Yuk Huen CACC 37/2008 it was said that a 66 year old accused was not to be regarded as old.  For sentencing purposes this applicant should be regarded as a person of mature years, not as an old man.  Nevertheless, though age is not of itself a mitigation factor it is relevant, in conjunction with an absence of a criminal history, as providing an insight to the convicted person’s character.  That the convicted person has for a lengthy period of time hitherto led a blameless life may be strongly suggestive that the offence or offences of which he has been convicted are out of character.  That they are out of character is an inference more readily drawn if the applicant shows remorse for his conduct.  In Secretary for Justice v Wong Hong Leung [2010] 1 HKLRD 226 a differently constituted division of this Court said at pages 234, paragraph 25 :

“We have already referred to the mitigating factors, namely, the fact that prior to this conviction the respondent had reached the age of 71 years with a clear record. That age is not of itself one that in the circumstances attracts a reduction in sentence but the fact that a person has reached that age without previously offending is a material mitigating factor.”

and at page 235, paragraph 27 :

“We will accord credit for the fact that until relatively late in life, this respondent was a hardworking family man who had committed no criminal offences and had made some positive contribution to society. That, we think, is a fact that warrants a reduction of six months from the starting point ……”

39.A similar approach would have been appropriate in respect of this applicant unless there existed reasons for depriving him of the benefit of a good character discount.  In that respect there are two matters that we find particularly disturbing about this case.  The first is the planning that went into the commission of the offences.  This was not a momentary aberration but a premeditated offence that the applicant must have spent considerable time thinking about.  The second is that the applicant has not shown any remorse for his actions and even after his conviction persisted in making accusations against the complainant. Both these matters seem to us to be at odds with a claim to good character.

40.The only other mitigation of counsel pressed before us was the apparent lack of serious consequences to the victim in the absence of any evidence to suggest otherwise.  This submission echoed the comments made by another division of this Court in HKSAR v Chung Chi Wing [2010] 5 HKC 75. At pages 80-81, paragraph 21 Hartmann JA said :

“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.”

41.We do not agree with the message apparently conveyed by that paragraph.

42.Chung Chi Wing was a case of rape of a 13-year-old girl outside her school by an applicant aged 22 years.  The girl was lured into the applicant's vehicle which was parked opposite the school.  Inside the vehicle, the applicant hit the girl around her head when she resisted.  He raped her; he ejaculated inside her; and he caused injury to her private parts.  Thereafter she was ordered to step out of the vehicle and look away and the applicant drove off.  The victim reported the matter immediately to her teachers.  Some nine years passed before the applicant's arrest; the arrest was possible because of advances in DNA technology.

43.It takes no more than experience of life to understand the type of inevitable trauma occasioned to a 13 year old girl who is raped, let alone raped in the circumstances of that case. It is, with respect, contrary to common sense and to long established practice to suggest in such a case that a victim impact statement is necessary before one can assume profound effects.  The suggestion expressly made in the judgment that it was "regrettable" that there was no victim impact assessment report is to suggest that it was necessary to go to the girl years after the event, to ask what we are not sure, and is to suggest an exercise that would have served only to agitate painful memories.  We cannot think that the court could possibly have intended that.

44.Whilst no authority should be needed for the common sense of the matter, we see from HKSAR v Chow Yuen Fai [2010] HKC 226 the comment by Ma CJHC, as he then was, saying in the context of exploitation of young children that in the vast majority of cases the trauma, distress and psychological harm can be assumed without the benefit of psychological reports. And in HKSAR v Tam Kam Fai CACC 329 of 2001, 14 March 2002, unreported, this Court, differently constituted , categorised as foolish a contention in mitigation that there was no strong evidence that the young rape victim in that case had suffered long lasting psychological damage and the Court found that the judge was in error in accepting that mitigation.  On the facts of that case the Court held that it was inconceivable that the girl would suffer no permanent psychological damage.

45.There may be cases where consequences have been visited upon the victim beyond the serious trauma that can readily be assumed: for example, suicidal tendencies or gross psychological disorder.  If that has happened the prosecution will no doubt wish to place before the court a report to that effect. But it is inconceivable to us that in a case such as Chung Chi wah, one needs a victim impact assessment report before one can assume profound effect on the victim.

46.We trust therefore that Chung Chi Wing will not be used in support of arguments that in cases of that kind or of the kind with which we are dealing the failure to present a victim impact assessment report means that the Court is unable to draw commonsense conclusions as to the effect of a sexual offence upon a victim.

47.Here there was ample evidence from which to conclude that the victim was traumatised by her ordeal.  She was kept captive for hours; she was tied up; she had no idea when she was going to be released and it is not too much to assume that the question of her life being at risk came to mind.  She was, furthermore, subjected to prolonged sexual molestation which she must have found grotesque.  Once she escaped, the taxi driver noticed that she was frightened and crying.

Conclusion

48.The application for leave to appeal against sentence was arguable because of the judges’ failure to refer to mitigation or to the application of the totality principle.  For this reason, we grant the applicant leave to appeal against sentence and treat the hearing of the application as the appeal but, for the reasons we have provided, the appeal is dismissed.

Ms. Samantha Chiu, SPP (Ag.) of Department of Justice, for the Respondent

Ms. Manyi Tsang, instructed by Messrs Peter K.H. Wong & Co. assigned by D.L.A., for the Applicant