CRIMINAL CASE NOS. 323 AND 238 OF 2011
COURT: Choi Wing-kwok, who is the 1st defendant, pleaded guilty to Counts 1, 2 and 6 on the indictment. They are all charges of false imprisonment.
Counts 1 and 2 refer to Miss Wong Wai-yee, PW2 on the indictment, as the victim, and the offences were committed at Lamma Island on 24 May and 3 July in the year 2010.
Count 6 refers to Miss Man Hoi-ling, who is PW1 on the indictment, as the victim, and that offence was also committed at Lamma Island on 18 July 2010.
Throughout these observations I will refer to the victims as “PW1” and “PW2”.
Cheung Kam-tat, who is the 2nd defendant, pleaded guilty to Counts 3 and 4 and 7 and 8. These are all charges of rape.
The victim in Counts 3 and 4 was PW2. The offences took place on the same day, namely 3 July 2010.
The victim in Counts 7 and 8 was PW1. The offences also took place on the same day, namely 18 July 2010, again at Lamma Island.
Yau Chi-man, who is the 3rd defendant, pleaded guilty to one charge of false imprisonment, namely Count 6.
The victim in that charge was PW1. The offence was committed on 18 July 2010, again at Lamma Island, the day that she was twice raped by the 2nd defendant.
The 1st and 3rd defendants have no prior convictions and are aged 23 and 22 respectively. The 2nd defendant has an extensive criminal record, but not for matters of a similar nature. He is aged 29.
The facts which gave rise to these offences in the case of the 1st defendant and the 2nd defendant span the period 24 May 2010 to 18 July 2010. There were two victims, both young women. In the case of the 3rd defendant there was one victim, also a young woman, and one of the two involved in the charges to which the 1st and 2nd defendants have pleaded guilty.
In the case of the 1st and 3rd defendants, whilst it cannot be said that they were a party to the rapes committed by the 2nd defendant and they must not be sentenced for that, their offences are nevertheless serious.
In approaching sentence, I bear in mind that each of the defendants has pleaded guilty. Each has admitted a Summary of Facts which supports the charges to which he has pleaded. Each must be sentenced on the basis of the criminality demonstrated in that Summary of Facts.
It is to the credit of all three defendants that the two victims were not required to give evidence.
There are other counts on the indictment which will remain on the court file and cannot proceed without the leave of the court. This has no bearing on the sentences I intend to impose.
In the case of the 1st defendant and the 3rd defendant, they both offered to give evidence for the prosecution against the 2nd defendant, which obviously has had an impact on his decision also to plead guilty. Each will receive the appropriate benefit for that offer.
In the case of the 3rd defendant, he initially wished to be granted an immunity from prosecution, but that was not acceptable to the prosecution. Ultimately he elected to plead guilty some time before the trial was scheduled to commence. His offer to plead guilty was accompanied by a willingness to give evidence for the prosecution against the 1st and 2nd defendants. In the 1st defendant’s case, his decision was made after he became aware of the 3rd defendant’s intention and the contents of the witness statements he had made implicating both the 1st defendant and the 2nd defendant.
The 2nd defendant’s decision came after that of the 1st defendant and the 3rd defendant and their offers to give evidence in the prosecution case against him. Whilst the 2nd defendant has not been convicted of any charge of false imprisonment, the fact that the victims were detained against their will for the period of time referred to in the Summary of Facts is an aggravating factor in the rapes committed by him. Each of the victims had been imprisoned, blindfolded and bound at the behest of the 2nd defendant.
It is, to my mind, a serious aggravating factor in the offences committed by the 2nd defendant that on both occasions when two acts of rape were committed by him, this had obviously been planned in advance. These were not spontaneous acts. The events leading up to the rape were orchestrated. The 2nd defendant arranged for the two victims to be taken to Lamma Island on the days in question. It must be assumed that when he arranged for each victim to come to Lamma Island, he intended to rape each of them.
I intend to deal with the facts and the charges in a chronological order, in which case I will refer to PW2.
Some time before 24 May 2010, PW2 was told by the 3rd defendant, who was at the time her boyfriend, that he owed money to others. He asked PW2 to open a bank account for him, which she did. On 24 May, the 3rd defendant told her that he was going to see the people to whom he owed money. Some time after this conversation, the 3rd defendant telephoned PW2 and asked her to come to Lamma Island. This she did.
The 1st defendant met her at the ferry terminal and took her to Room 304 of the Lamma Vacation House. Inside that room was a fat male wearing a mask and a cap. He told her to sit down. The 3rd defendant’s wallet and telephone were on a table in the room, and PW2 was told to put her belongings there as well. She was told that the 3rd defendant was in the toilet. She was instructed to sit on the bed, and it was then that she was blindfolded and her hands were tied with duct tape. She heard the sound of the toilet door opening, and someone came into the room and sat beside her. It was the 3rd defendant. She then heard what she believed to be the sound of someone assaulting the 3rd defendant.
One of the two males told them both to co‑operate if they wanted to leave. Some time later, PW2 was taken from this room and into another room. A male came into the room. He stroked her on the right side of her face and said, “Such a beautiful face. You don’t want to be scratched”. She was instructed to hand over her ATM card and then to fill in a form which contained her personal details. To do this, she was permitted to remove the tape from her eyes and hands. When she did this, she saw that the 1st defendant was present.
She filled in the form as instructed. However, the information she provided was deliberately incorrect. After she had done this, she was instructed by the 1st defendant to cover her head with a towel and to wait where she was. Eventually, another person entered the room and returned her property to her. When the towel was removed from her head, she again saw the 1st defendant was present in the room.
She was then taken to the Lamma Ferry pier. Some 10 minutes after that, the 3rd defendant arrived. She saw that his chest and abdomen were red, which she took to mean that he had been assaulted. They left together without further discussing the incident.
She had been detained against her will for several hours, during which time she was bound, blindfolded, coerced into filling in a form, threatened with physical violence, and relieved of her ATM card.
This was the 1st charge on the indictment. I will deal now with the 2nd to 4th charges.
On 3 July 2010, PW2 received a telephone call from a male whose voice she recognised. It was the male she had seen on the previous occasion at Lamma Island who had been masked when she had entered that room. That person making the telephone call was the 2nd defendant. He scolded her for filling in the form wrongly and instructed her to return to Lamma Island to explain or, as she said, she would bear the consequences. Fearful of what would happen to her, she went to Lamma Island by ferry that afternoon. As before, when she arrived at the ferry pier, a male telephoned her and told her to wait.
The 1st defendant arrived and escorted her to Room 302 at the same address as before. There, he covered her eyes with a towel. A little later, the 2nd defendant appeared, and tied her hands with plastic handcuffs. The 2nd defendant instructed the 1st defendant to wait outside the room. After this, she heard the sound of the door opening and someone leaving. The 2nd defendant then asked PW2 why she had given false details on that earlier occasion when she had filled in the form as instructed.
He cut off the plastic handcuffs and told her to remove her clothing. Being frightened, she did as she was instructed. She was told by the 2nd defendant to lie on the bed, which she did, and he then raped her. This is the 3rd count on the indictment.
Some time later, PW2 could hear the 2nd defendant in the bathroom, after which she was asked by him if she wanted to take a bath. This she did, following which she again covered her eyes as instructed and sat on the bed. Some time passed, and then the 1st defendant entered the room and took PW2 to another room on the instructions of the 2nd defendant. The 1st defendant then left that room. Her hands were tied and she remained blindfolded, sitting on a chair. The 2nd defendant then told her to lie on the bed. He removed her dress and underwear and raped her for a second time. This is the 4th count on the indictment.
Following this rape, she was told to take another bath, and again cover her eyes. Eventually, she was taken back to Room 302, where the 1st defendant gave her yet another form and instructed her to fill in the details correctly, with no false information. Fearing the consequences, she did this, after which the 1st defendant told her she was then free to leave. He took her to the ferry pier, where she caught the ferry back to her home.
On 3 September 2010, PW2 became aware that the 3rd defendant had been arrested. On 6 September she went to the Eastern Magistrates’ Court to see him. There, she recognised that the person standing in the dock with the 3rd defendant was in fact the 1st defendant. She recognised him as the man who had taken her to that room on Lamma Island on both earlier occasions.
During the course of the proceedings that day, another man came and sat next to her in the body of the court. That man spoke to her, and she recognised his voice. It was the voice of the man who had raped her twice on 3 July and had spoken to her before that on 24 May. That man was the 2nd defendant.
I will now deal with Charges 6, 7 and 8.
PW1 is the victim in those charges. At the relevant time she was 18 years of age, and she had financial difficulties. She had been attempting to obtain a loan in the early part of 2010. Eventually, she made arrangements with a Miss Li to borrow some $20,000 from a company called Yat Tung.
On 20 June 2010, PW1 met this Miss Li at a cake shop near the Mei Foo MTR station. With this Miss Li at the time were two males who represented themselves to be staff members of Yat Tung. They were later identified as the 2nd and 3rd defendants.
PW1 gave her personal details to the two males and signed a number of papers for the so-called loan. Eventually, $20,000 in cash was passed to PW1, who then in turn gave the money to Miss Li as requested. Unbeknownst to PW1, Miss Li then departed with the money, leaving PW1 with the 2nd and 3rd defendants. She was obviously the victim of a scam. Miss Li had absconded with the money, and PW1 was told that she was to be responsible for the indebtedness.
On 16 July 2010, PW1 received a telephone call from a Mr Yip, who said he was from Yat Tung. She was told that a further sum of $30,000 could be lent to her, but that she had to attend a meeting to discuss the arrangements. This meeting was to be held at Lamma Island on 18 July 2010.
On that day she went to Lamma Island and was met at the Hongkong and Shanghai Bank branch by a man who called himself Mr Chan. This was again the 1st defendant. He took her to a nearby villa and to a room on the 2nd floor. There, she was divested of her mobile telephone and told to put on an eyeshade. When she queried the need for this, the 1st defendant told her that his boss did not wish to be seen. Her hands were then placed behind her back and her thumbs tied with plastic straps.
She heard the 1st defendant call out, “Boss, it’s ready.” Then another male - this was the 2nd defendant - entered the room. The 2nd defendant told her that they had been cheated and that she was responsible to pay the debt incurred. The 1st defendant subsequently left the room so that the 2nd defendant was alone with PW1. The 2nd defendant removed the plastic handcuffs from her hands and told her to remove her dress. She was then instructed to take off her underwear and lie on the bed. She was scared, and did as she was told. The 2nd defendant then raped her. This is Count 7 on the indictment.
The 2nd defendant then had a shower, and told PW1 to do the same, but that she must replace the eyeshade over her eyes after completing this. She did as she was instructed. She went to sleep on the bed. Some time later she was awoken by the 2nd defendant, who raped her a second time. That is Count 8 on the indictment.
She was told to take a shower again, after which the 2nd defendant left the room. Eventually, another male entered the room wearing a balaclava. This was the 3rd defendant. He told her to take off the eyeshade. She was instructed to remove all of her clothing. He then took some 20 photographs of her, some partially dressed in her underwear and others naked.
Having done this, the 3rd defendant then instructed her to put the eyeshade back on again. The 1st and 2nd defendants then entered the room, and told PW1 that she was not to tell anyone of the incident. There were further discussions about the loan and the repayments she was to make. Eventually, she was allowed to leave and was escorted to the ferry terminal by the 1st defendant.
The 2nd defendant was arrested by the police at the Lo Wu Immigration Checkpoint on 11 September 2010. At an identification parade held on 9 September 2010, PW1 identified the 3rd defendant as one of the males present on 20 June when the $20,000 had been handed to her at the cake shop near the Mei Foo MTR station. He was one of the two who had held themselves out to be representatives of Yat Tung. At a further identification parade held on 17 September 2010, PW1 identified the 2nd defendant as the other person who had held himself out to be a representative of Yat Tung on 20 June 2010 at the Mei Foo MTR station.
The 3rd defendant was arrested on 3 September 2010. The police recovered from his home a number of plastic handcuffs, two black hoods, and a blindfold. He admitted that he was the person who had taken the photographs of PW1 and also that he had taken with him to Lamma Island on that occasion the blindfolds and plastic strips which were used to fasten her hands. These he had handed over to the others to use.
I come now to the matters advanced in mitigation on behalf of each of the defendants. Mr Davies, on behalf of the 1st defendant, was at pains to emphasise that at no time was the 1st defendant present when PW2 and PW1 were raped, and that there was no evidence which suggests that he was aware that that was D2’s intention, or indeed that he was aware that this had in fact occurred.
Whilst I have some reservations about that submission, I accept that there is no direct evidence to the contrary and that the 1st defendant must be sentenced on that basis. The prosecution has chosen not to proceed with the rape charges he faced.
Mr Davies told me that the 1st defendant had become involved in these matters because he himself had been the victim of a scam similar to that practised on PW1. Mr Davies’ instructions were that at the time, the 1st defendant was a student and part-time waiter. Having become indebted in similar circumstances to that which PW1 encountered, he was then told that he was permitted to work to pay off his indebtedness. This was what, in effect, he was doing in that period, 24 May 2010 to 18 July 2010.
Mr Davies described him as “a victim as well”. I pause here to observe that he may have been, I cannot say; but it appears to me that there is no suggestion that his will was overborne. It is clear from the facts admitted that he was an active participant on all three occasions. On the second occasion he was instrumental in PW2’s completing the forms presented to her. He obviously knew by 3 July, if he did not know before, that the victims would be detained against their will and would be bound and blindfolded.
Mr Davies submitted that it is a clear indication of his lack of knowledge of the intentions of the 2nd defendant that at no time throughout the occasions he was involved was he masked.
What is, to my mind, critical in my approach to sentencing for the 1st defendant, is that he has committed three separate and discrete offences. On three occasions he was a willing party to the detention of these young women against their will for several hours, during which they had each been bound and blindfolded and subject to threats.
Mr Davies, quite properly, in my opinion, accepted in the course of his mitigation that the approach to sentencing in all of the circumstances would initially be on the basis that each sentence should properly be consecutive one to the other, subject to the overall assessment of totality. Apart from his previous good character and his pleas of guilty, Mr Davies urges upon me in the 1st defendant’s favour the fact that he has offered to give evidence against the 2nd defendant, which must have been a significant factor in the 2nd defendant’s ultimate decision to plead guilty.
In addition to the matters advanced in mitigation, he has passed to me on the last occasion a letter from the 1st defendant wherein he expresses his deep remorse and his apologies to the victims.
I will deal next with the mitigation advanced on behalf of the 3rd defendant, bearing in mind the charge he faces is identical to that of the three charges which the 1st defendant has faced.
On behalf of the 3rd defendant Mr Yu has placed before me a lengthy written submission in mitigation. I do not intend to address all of the matters contained in this document. It suffices for me to say that I have taken all relevant matters into account. I also take into account the various letters that were submitted on his behalf from colleagues and friends.
Mr Yu submitted to me, on his client’s instructions, that the 3rd defendant was also a victim of the same type of scam to which PW1 and the 1st defendant were victims. In the case of the 3rd defendant, it was his brother, not himself, that was in dire financial circumstances. To assist his brother, the 3rd defendant borrowed $30,000 from a Yat Tung Finance Company. The 2nd defendant had been a representative of Yat Tung on that occasion and had introduced himself to the 3rd defendant as Eddie.
In a manner similar to that described by PW1, the money was handed to a female introducer, who promptly disappeared with it. The 2nd defendant was present on this occasion. The 3rd defendant tried to resolve the situation. Yat Tung was pressing him to repay the money. Eventually, on 24 May 2010, he was forced to go to Lamma Island, where he himself was tied up and beaten and required to call PW2 to come to his aid. Thereafter, Mr Yu says, the 3rd defendant was at the beck and call of the 2nd defendant. He did as he was instructed by the 2nd defendant.
On 17 July 2010, he was instructed by the 2nd defendant to purchase two balaclavas. This he did. The following day, he met the 1st defendant and the 2nd defendant and, taking the balaclavas with him, went to see a “customer” at Lamma Island. He admitted eventually that he was instructed to take the photographs of PW1 which I have earlier described, which he did.
I will now proceed to the sentencing of the 1st and 3rd defendants.
False imprisonment is a Common Law offence punishable with a maximum sentence of 7 years’ imprisonment. The circumstances under which the offence may be committed vary greatly. In the case of the 1st defendant, there were three such occasions when his victims were falsely imprisoned; one of them, PW1, twice.
In my opinion, the false imprisonment charges are serious. I have been referred during the course of mitigation to cases wherein it has been suggested that starting points of 15 months’ imprisonment after trial are appropriate for this offence. That may have been the case in those matters, but is not the situation here.
In each of the instant cases of false imprisonment there are a number of aggravating factors. In each case, the offence was obviously planned in advance. In each case, the victim was bound and blindfolded and held against her will for several hours. In each case, demands were made in respect of repayment of so-called debts; in the case of PW2, the debts of the 3rd defendant.
As to Count 6 on the indictment, the victim was photographed, as I have earlier described. It is obvious that in each case of false imprisonment, the experience suffered by these victims must have been terrifying. If support beyond the obvious is needed for that, it is reflected in the statements made by the respective witnesses in support of an earlier application pursuant to section 79B of the Criminal Procedure Ordinance.
In the case of the 1st defendant, taking all matters into account, including all matters advanced in mitigation, I am of the opinion that the most lenient starting point for sentence after trial would be a term of 3 years’ imprisonment on each charge.
In the case of the 3rd defendant, the fact that he took some 20 photographs of the victim, as I have earlier described, is a factor which aggravates the starting point for sentence, and the appropriate starting point for sentence after trial would be 4 years’ imprisonment. There can be no doubt that the 3rd defendant was fully aware of the possible use that could be made of those photographs.
Therefore, for Counts 1, 2 and 6, for the 1st defendant I adopt a starting point of 3 years, and for the 2nd defendant, for Count 6, 4 years.
In the case of the 1st defendant, I believe that, subject to the principles of totality, I should approach sentencing on the basis that the sentences should be consecutive one to the other. Each offence is separate and discrete. The 1st defendant will receive a one-third discount from that starting point on each charge, and that brings the sentence to 2 years on each charge.
If all of those sentences were consecutive one to the other, that would result in a sentence of 6 years, which, in my opinion, is too high. I am satisfied that a global term of 4½ years’ imprisonment would be appropriate. However, for his offer to give evidence against the 2nd defendant, I will reduce this by a further term of 4 months.
This will result in a sentence of 4 years and 2 months’ imprisonment. To give effect to this, he is sentenced on each count to 2 years’ imprisonment. I will order that the sentences on Counts 1 and 2 be consecutive one to the other, and that 2 months of the sentence on Count 6 be consecutive to the sentences on Counts 1 and 2.
In the case of the 3rd defendant, taking 4 years after trial as the appropriate starting point for sentence, he is of course entitled to a full one-third discount from that for his pleas of guilty. That would result in a sentence of 2 years and 8 months’ imprisonment, which I will further reduce by 6 months for his offer to give evidence against his co‑accused. I consider that his offer was made some time before that of the 1st defendant, and that, by reason of that alone, is deserving of a further reduction. The resulting sentence is one of 2 years and 2 months’ imprisonment.
I come now to deal with the matters advanced in mitigation on behalf of the 2nd defendant and the sentences appropriate for those four charges.
On behalf of the 2nd defendant, Ms Chow has told me that he was also initially the victim of a similar scam to that effected on PW1 and which the 1st defendant and the 3rd defendant say they were also subjected to. Ms Chow told me in mitigation that in the past, the 2nd defendant had been an inveterate gambler and at one stage had debts in excess of $2 million in Macau. He too, she said, answered an advertisement that led him in due course to Yat Tung. He too was swindled, and was eventually offered the opportunity to repay his own indebtedness by being employed by Yat Tung.
Ms Chow has taken me, in the course of mitigation, to a number of decisions of the Court of Appeal where sentences for the offence of rape were considered. I must say, with all due respect to Ms Chow, these have not been of a great deal of assistance to me because the facts of this case are exceptional. Ms Chow had suggested in the course of her mitigation that the offences committed by the 2nd defendant were not of the worst type because, for example, there was no physical violence used against either of the victims.
That submission must inevitably diminish by reason of the fact that violence was unnecessary insofar as each of the victims was obviously outnumbered on each occasion. The will of the respective victims was overborne without the need for violence.
Ms Chow submitted to me in support of the suggestion that these were not the worst type of offences that the rapes were not committed at night, and that each of the victims were permitted to bathe subsequent to the commission of the offences. I regret to say that I cannot accept either of those submissions.
One matter that is of some moment is Ms Chow’s submission that insofar as Counts 3 and 4 and Counts 7 and 8, that it would be appropriate to impose concurrent sentences. She also, quite properly, in my opinion, accepted that subject to the question of totality, one should properly approach the two groups of sentences - that is, Counts 3 and 4 and Counts 7 and 8 - on the basis that they should be consecutive one to the other, subject always, of course, to the principles of totality.
There are four rapes in all: two rapes each committed on each occasion. There are two victims, and the offences are serious. In each case, the victims had been detained against their will both before and after the rapes. In each case, before and after the rapes, they had been bound and blindfolded.
However, to my mind, the most significant aggravating factor in the offences committed by the 2nd defendant is that these were planned and orchestrated. Each of the victims had been lured to Lamma Island by the 2nd defendant together with the assistance of others. Whatever the motives of those other persons might have been, it is apparent that the 2nd defendant’s primary motive was to rape his victims, and, in the case of one of them, subject her to the further indignity of being photographed, as I have earlier indicated.
These are very serious offences of rape. In my opinion, a starting point for sentence after trial for each of the rape charges should be 9 years’ imprisonment. The 2nd defendant will receive a full one-third discount from that starting point to reflect his pleas of guilty. That will reduce the sentence on each charge to one of 6 years’ imprisonment.
I agree with Ms Chow’s submission that in all of the circumstances it is appropriate that the sentences on Counts 3 and 4 and 7 and 8 should be respectively concurrent one to the other. That is, 3 and 4 are concurrent; 7 and 8 are concurrent.
As I have earlier indicated, to my mind, it is appropriate that the two groups of sentences should be consecutive one to the other. However, taking into account the principles of totality, I am satisfied that the overall global sentence that the 2nd defendant should receive is one of 10 years’ imprisonment.
To give effect to that, I will order that on each count, the 2nd defendant is sentenced to 6 years’ imprisonment. The sentences on Counts 3 and 4 will be concurrent one to the other. The sentences on Counts 7 and 8 will be concurrent one to the other. I will direct that 4 years of the sentences on Counts 7 and 8 be consecutive to the sentences on Counts 3 and 4.
The resulting sentence is one of 10 years’ imprisonment.