HKSAR v. Kkk

CACC 504/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 504 OF 2011

(ON APPEAL FROM HCCC NO. 278 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.This is an application for leave to appeal sentences totalling 23 years 7 months’ imprisonment imposed by McWalters J on 22 November 2011.

2.The applicant has three daughters to whom we shall refer as X, Y and Z.  He raped X as well as Y and committed indecent assault upon Z.  X was born in 1994; and the twins, Y and Z were born in 1999.

3.The offences were committed between 2006 and 2008.  At the date of sentencing, the applicant was aged 51 years; which means that at the time of the offences he was in his mid to late 40s.

The charges

4.The charges to all of which he pleaded guilty at the magistracy, were as follows :

(1)   that on a day unknown in 2006, the applicant, being a Hong Kong permanent resident, raped X at a flat in Shenzen.  X was then aged 12 years.  (The relevance of his status as a permanent resident of Hong Kong is the extraterritorial effect of section 153P of the Crimes Ordinance in relation to certain sexual offences committed against children outside Hong Kong).

(2)   that on a day unknown in 2007, the applicant, being a Hong Kong permanent resident, at different premises in Shenzen, raped X.  She was then aged 13 years.

(3)   that on a day unknown in the winter of 2007, in Kwai Chung, he raped X.  She was then aged 13 years.

(4)   that on a day unknown in June or July 2009, in Kwai Chung, he raped X.  She was then aged 14 years.

(5)   that on a day unknown in the summer of 2009, in Shenzen, he raped Y.  She was then aged 10 years.

(6)   that on a day unknown in early November 2010, again in Shenzhen, he raped Y.  She was then aged 11 years.

(7)   that on a day unknown in the summer of 2008, in Kwai Chung, he committed an act of gross indecency with or towards Z, a girl of the age of about 9 years, contrary to section 146(1) of the Crimes Ordinance.

The sentences

5.The judge sentenced as follows:

(1)   In relation to each of the charges 1 – 4, he took 18 years’ imprisonment as the starting point.  He accorded the usual one-third discount in recognition of the plea of guilty and deducted from the resulting 12 years’ imprisonment a further 6 months to accord special recognition to the fact that X was relieved from the stress of having to testify; and he then ordered the resulting 11 years and 6 months’ imprisonment for each of these four charges to run concurrently; a total so far of 11 years 6 months’ imprisonment;

(2)   He adopted the same approach in relation to each of charges 5 and 6, that is to say, a starting point for each of 18 years’ imprisonment, a sentence for each of the two offences after taking into account the guilty and the benefit to Y for not having to testify, of 11 years 6 months’ imprisonment and ordered them to run concurrently making a total for these two offences of 11 years 6 months’ imprisonment;

(3)   In relation to the offence of gross indecency, he took a starting point of 12 months’ imprisonment; and after deducting a third for the plea of guilty and a further one month for Z’s relief from having to testify, he imposed the sentence of 7 months’ imprisonment; and

(4)   he ordered the sentences for the three groups of offences – the total of 11 years and 6 months for offences 1-4; the total of 11 years and 6 months for offences 5 and 6; and the 7 months for offence number 7 – to run consecutively, making a total of 23 years 7 months’ imprisonment.

The Summary of Facts

6.The summary of facts, which was the basis of the applicant’s pleas, is relatively sparse as to the circumstances of and surrounding the offences.  This stands in stark contrast to the detail revealed by the victim impact statements of Y and Z and by the psychological reports in respect of all three girls.  The relevance of this difference, for the purpose of the present exercise, is that extremely grave though the conduct is as revealed by the summary of facts, the panoply of degradation and abuse revealed by those statements and the psychological reports, if those revelations be true, would take the seriousness of the applicant’s conduct, within this category of offence, to a level of awfulness all of its own.  In the event, the judge was constrained to sentence on the basis of the summary of facts.  

7.It is convenient, and advisable, in the circumstances to relate the factual background to the charges by setting out that summary.  It seems clear from the summary content (see the references to the original count numbers, in square parenthesis below) that the 7 charges to which a plea was tendered were not the only charges on the original indictment:

“Background

1. In 1993, the defendant and the three victims’ mother began cohabiting in Mainland. The three victims are daughters of the defendant from their wedlock. PW1, i.e. Girl X, the first victim, was born in 1994, is now aged 16 and a Form 3 student. PW2, i.e. Girl Y, and PW3, i.e. Girl Z, are the second and third victims. They were twins born in 1999, are now aged 12 and Primary Six students.

2. In 2007, the mother and PW1 moved to Hong Kong to live with the defendant. The twin sisters were also granted right of abode in Hong Kong but they remained in the Mainland. The twin sisters visited Hong Kong from time to time until November 2010 when their mother also brought them to Hong Kong for permanent stay.

Disclosure of the case

3. On 15 November 2010, PW1 disclosed to a school social worker that the defendant had raped her since she was 12 years old in Mainland and he continued raping her after she had moved to Hong Kong. PW1 said her mother was aware of the incidents but she did not stop him due to fear. On 17 November 2010, the matter was reported to the police.

4. On 20 November 2010, PW2 and PW3 were brought to Hong Kong by their mother. During a social worker’s visit on 29 November 2010, PW2 also complained that the defendant had forced her to have sexual intercourse with him against her will when she was small. PW3 made similar complaint and said the defendant had indecently assaulted her when she was a young girl.

The offences

PW1 - the 1^st Victim

5. During two video recorded interviews with the police, PW1 disclosed the following offences: -

[Count 3]: Rape (1^st Victim) (1^st charge on Indictment)

(i) One evening in the winter in 2006, when PW1 was about aged 12, the defendant took her to a flat of his friend in Longgang, Shenzhen in a motorcycle. As soon as they arrived at the flat, the defendant told her to take a shower. When she had finished, he asked her to go into a room where he was staying. The defendant asked her to take her clothes off and she complied. When PW1 was naked, the defendant put his penis into her vagina and he forced her to have sexual intercourse with him against her will.

[Count 4]: Rape (1^st Victim) (2^nd charge on Indictment)

(ii) On a day in 2007 and before PW1 moved to Hong Kong, i.e. when she was about 13 years old, the defendant asked PW1 to go into the bedroom at their flat in Longgang, Shenzhen, where she saw the defendant and her mother naked. Inside the bedroom, the defendant forced PW1 to have sexual intercourse with him against her will and in the presence of her mother.

[Count 5]: Rape (1^st Victim) (3^rd charge on Indictment)

(iii) In end of 2007, the defendant was staying at their home in a unit at Luk Kwai House, Kwai Chung Estate, Kwai Chung, New Territories. One winter day that year, PWl came to Hong Kong to spend a few days with the family. During her stay, the defendant forced her to have sex with him at their home against her will.

[Count 6]: Rape (1^st Victim) (4^th charge on Indictment)

(iv) In June or July 2009, i.e. when PW1 was aged 14, at their home in a unit at Hop Kwai House, Kwai Chung Estate, Kwai Chung, New Territories, the defendant had forced PW1 to have sexual intercourse with him against her will. In September 2009, PW1 found out that she was pregnant by the defendant and she informed him of the matter. The defendant then took her to Shenzhen to have an abortion. PW1’s grandmother also accompanied her to the hospital. PW1 said she was asked by him to tell her grandmother that her pregnancy was caused by her friend if she would ask about it.

6. PW1 stated that she had, in 2007, complained to her grandmother about what the defendant had done to her but her grandmother only told her to avoid him.

PW2 - the 2^nd Victim

7. During a video recorded interview with the police, PW2, a younger sister of PW 1, stated that the defendant had forced her to have sexual intercourse with him against her will at their home in the Mainland with the following details: -

[Count 8]: Rape (2^nd Victim) (5^th charge on Indictment)

(i) On a day in the summer of 2009, when PW2 was aged 10, at their home in Longgang, Shenzhen, the defendant told her to remove her clothes. He told her to spread her legs apart and he inserted his penis into her vagina for about 5 minutes. She shouted at him and asked him to stop but he covered her mouth and carried on. PW2 saw semen coming out from her vagina when he finished.

[Count 9]: Rape (2^nd Victim) (6^th charge on Indictment)

(ii) In early November 2010, when PW2 was aged 11 at their home in Longgang, Shenzhen, the defendant had forced PW2 to have sexual intercourse with him against her will. She had asked him to stop but he went on regardless. PW2 saw semen coming out from her as he finished.

PW3 – the 3^rd Victim

8. During a video recorded interview with the police, PW3, another younger sister of PW1, stated that the defendant had done the following act of indecency against her will: -

[Count 15]: Indecent Conduct towards a child under the age of 16 years (3^rd Victim) (7^th charge on Indictment)

(i) On a day in the summer of 2008, when PW3 was about 9 years old, at their home in a unit at Hop Kwai House, Kwai Chung Estate, Kwai Chung, New Territories, the defendant took off his trousers and underpants in front of PW3 and he asked her to pluck his pubic hair. PW3 did not want to do it but she complied in the end.

9. After the incidents stated in paragraphs 7 and 8 above, the defendant told PW2 and PW3 not to tell anyone about them.

Unprotected sexual intercourse

10. The defendant did not use any condom in any occasion when he had sexual intercourse with PW1 and PW2 against their will.

Arrest and cautioned interviews

11. The defendant was arrested on 18 November 2010. He was cautioned for incest but he denied. During subsequent video recorded interview with the police, he denied all offences.

Forensic Examination

12. PW1 to PW3 had been examined by a forensic pathologist. According to the pathologist, he had the following observation: -

PW1

(1) The nipple of PW1 was found darkened which might be the indication of having been pregnant;

(2) Four complete tear marks found on hymen;

(3) A scar was found at the bottom of labia minor which was caused by object forcibly thrusting in; and

(4) Gardnerella vaginalis found from vagina may or may not be caused by sexual activity.

PW2

(1) Two partial tear marks were found on hymen; and

(2) Gardnerella vaginalis found from vagina may or may not be caused by sexual activity.

Other allegations

8.The allegations in the reports and victim statements we have seen went much further:

(1)   X told a psychologist that forced sexual intercourse took place for about 6 years, two to three times per week; that the applicant used her as well as other members of the family with regular violence; that if she declined his sexual demands he would strike her and threatened to sell her into prostitution and told her that both he and she would die if he were not permitted to have his way with her.  When she fell pregnant as a result of one of the rapes, he accused her of falling pregnant by a boyfriend.

(2)   Y said in a statement that he had raped her several times per week and to the psychologist that he had made her watch him having sexual intercourse with her mother, that he showed her pornography, forced her to have oral sex and hit her about with a belt.

(3)   Z spoke of grossly obscene behaviour including an incident of forcing her to drink a glass of urine.

9.Mr Delaney, who appeared below as well as before us, made it clear to the sentencing judge that he proceeded on the assumption that it was the summary of facts which formed the basis of the sentencing exercise and not the additional allegations made against the applicant in various reports before the court saying that there was a great deal in those statements with which the applicant took issue.  The judge accepted that he was, for sentencing purposes, limited to the information admitted by the applicant in the summary of facts, save that he correctly considered himself entitled to take into account the reports as to the impact of the applicant’s abuse upon his daughters.

10.We mention these additional allegations of the grossest possible behaviour not to judge the accuracy or otherwise of them, but in order to gauge for sentencing purposes where in the wide range of sentences available for the offence of rape the facts disclosed by the summary – as opposed to the facts disclosed by these various statements – fell.  Had the full range of alleged conduct been charged and proved, that full range would have added most substantially to the sentences warranted by the present summary of facts.  This is not to criticise the prosecution for the course it adopted, for we do not know what considerations dictated its ultimate approach: it may well be that it took the view that a plea of guilty to 7 charges and a limited summary was sufficient to the ends of justice, given the undesirability of requiring the girls to testify and given the likelihood of heavy sentences to be imposed on the basis of the summary of facts – if that was the reasoning, then it is hardly one which we would criticise.

Impact

11.No challenge was made to the assessments by the various psychologists of the impact upon the victims of these offences.

12.X suffers a very high level of sexual distress and has recurring memories of the abuse.  She engages in self-mutilation and has turned to alcohol and smoking to relieve her emotional distress.  She sees only darkness in life.  She is dysfunctional in respect of heterosexual relationships.

13.Y suffers flashbacks.  Her relationship with her mother has been adversely affected for although she appreciates that her mother was also a victim of the applicant’s threats and violence, she remains disappointed that her mother failed to protect her.  She has nightmares and fears anyone who looks like her father.  She has an extreme fear of the dark.

14.Z has also, not surprisingly, been traumatically affected by the offence against her and from the sexually abusive environment which was her home.  She, as in the case of the others, needs long-term psychotherapy.

The question of an indeterminate sentence

15.The judge’s comprehensive sentencing remarks demonstrate a conscientious, well researched and thoroughly careful approach to this difficult sentencing exercise.

16.The judge first, and quite correctly, considered whether this was a case that warranted an indeterminate sentence.  To this end, he commissioned a psychiatric report and a psychological report.

17.One thing that both reports demonstrate is the total lack of remorse by this applicant to the extent that, whilst admitting he had sexual intercourse with his daughters, he asserted he did not force them to do so and, according to the psychologist, even went so far as to blame the girls, although how they were, according to the applicant, to be blamed is not recorded.  There was no evidence, said the psychiatrist, that the applicant suffered from any psychiatric illness.

18.The psychologist noted that the applicant, whilst living on the Mainland, engaged in multiple live-in relationships – in other words, he had mistresses, three of whom lived in the same house as the victims of this case and their mother.  He attributed his need for intercourse with his daughters to the suggestions of a fortune teller.  The applicant said that the victims were old enough to understand and capable of giving informed consent.  The psychologist said that the applicant “showed a high degree of psychopathic traits, which largely contributed to his long-standing and versatile criminal history…. .  His risk of general reoffending was assessed to be very high whilst his risk of sexual recidivism … was found to be moderate to high.”  The psychologist recommended a long period of treatment and rehabilitation in a structured environment, though the prognosis was pessimistic.

19.The applicant’s criminal record, to which reference was then made, is indeed extensive.  It goes back to 1978, when the applicant was aged about 18 years and runs through in relatively concentrated fashion to 1990; whereafter there was one offence of criminal intimidation in 2003.  The offences are offences of burglary and theft and forgery; assault occasioning actual bodily harm; criminal damage; conspiracy to pervert the course of public justice; robbery; wounding with intent to do grievous bodily harm and agreeing to let premises be used as a gambling establishment.  There are two previous occasions of sexual offences – the first in 1985, two offences of unlawful sexual intercourse with a girl under the age of 16 years and the second the following year, 1986, an offence of indecent assault.  The details of these offences are no longer available and we note that they are about 25 years in the past.

20.The judge did not, so it would appear, hear oral testimony from the psychiatrist or psychologist.  In the light of the facts of the offences and the reports he had to decide, he said, whether the applicant represented “such a danger to the community that he should be made the subject of an indeterminate sentence.”  He noted that the psychiatrist entertained doubts as to whether the applicant had a paedophilic tendency, though he could not rule it out and the judge noted the psychologist’s comment about the risk of sexual recidivism.  He remarked that the applicant did not have a serious history of sexual assaults on women and that the incidents which are the subject of his criminal record did not reveal a person disposed to unlawful, violent sexual behaviour; nor was there sufficient evidence for him to conclude that the applicant was a paedophile.  He went on:

“What the reports and the offences do suggest is that when placed in a position where he can exercise control or authority over women, such as in a marriage cohabitation relationship, he is likely to behave violently and abusively. Where such relationships bring him into contact with younger females his abusive behaviour may extend to them. However, I do not believe that these aspects of his personality and behaviour justify the imposition of an indeterminate sentence of imprisonment.”

21.With that conclusion it then fell for the judge to consider what determinate sentences were appropriate.

The judge’s further analysis

22.The judge recognised, again correctly, the limited assistance that sentences in other rape cases provide, since the factual matrix of each case tends so much to vary but instead he identified the sentencing principles that required to be addressed, in particular: retribution, which required a proper reflection of the moral culpability of the offender; denunciation to reflect the community’s disapproval of crime; deterrence, primarily to others who may be tempted to abuse their power and authority over children as well as personal deterrence to those who might be likely to offend again; and, finally, rehabilitation of the offender though with crimes as serious as the ones committed by this applicant, the issue of rehabilitation was, he said, overshadowed by the other principles.

23.The judge took the view – one with which we agree – that there was exhibited no remorse by the applicant and that he used his daughters as “sexual toys to do with as he wished… completely indifferent to the pain and suffering both physical and psychological that he caused them.” These were, he said, “extraordinarily horrific crimes which call for a singularly severe response from the court.”

24.“Although,” he said “the offences in respect of each victim are separate I shall nevertheless treat the rape offences vis-a-vis each victim as one course of conduct and enhance the starting point to reflect the fact that the offence was repeated.  As one course of conduct I shall order the sentences for the rapes in respect of each victim to be served concurrently with each other.  However, because there are three different victims the final sentence must reflect the defendant’s overall culpability.”

25.The judge then noted that he would give a discount not only for the plea of guilty but an additional discount for the considerable benefit to the victims in not having to testify.

26.Against the background of this reasoning, the judge imposed the individual and total sentences to which we referred at an early part of this judgment.

Analysis

27.Mr Delaney argues that the individual sentences were manifestly excessive as was the totality.  He seeks to support his argument by reference to other cases and by emphasizing that the charges were not presented as sample charges.

28.In relation to his argument, there is one particular matter with which we must take issue.  The suggestion was that offences of this nature are not as serious as offences of rape of strangers.  We do not agree.  The suggestion does not compare like with like.  The rape of the stranger has its own horrors for the victim.  But the fact of the matter is that girls in the position of the victims in this case are innocents, who commence their young lives instinctively trusting, and entitled to trust, the families into which they are born.  They have no option but to live in the places to which they are brought after birth and to which from time to time they are taken.  They are wholly at the mercy of their parents.  The fundamental right of the child is to expect from its parents protection and love.  In most instances, in this society, that is what the child and young person receives, for that is the normal instinct of the parent.  It is painful to recognise that that instinctive protection and love is not always provided.  But actual abuse of a child through physical violence or deliberate neglect is not merely at odds with that to which a child is entitled; it is a damnable breach of the trust which the child and society at large places in a parent.  And since the child is not in a position to protect itself or to seek relief, society at large – ultimately through the courts – takes upon itself the duty proactively to protect the child and to visit condign punishment upon those who so abuse that trust as deliberately to harm the child.  In the circumstances of a case such as the present, the child is a captive, physically and emotionally, and it is in that light that the seriousness of a sexual offence of a child by its parent, or by a person in the position of a parent, is to be viewed.

29.Previous cases are of limited value since with this category of offence there are so many variables.  Amongst those cited to us as comparables, there are a few of some utility for present purposes.  One is HKSAR v Tam Kam Fai CACC 329 of 2001, 14 March 2002, unreported.  It was a case in which the applicant had been found guilty after trial of four counts of rape and sentenced to 10 years’ imprisonment on each count.  Those sentences were ordered to run concurrently making a total of 10 years’ imprisonment. The judge had taken a starting point of 12 years’ imprisonment for each offence.  The applicant had raped a young daughter of his girlfriend on four occasions.  She was aged 11 years at the time of the first offence and just turned 15 years at the time of the last two offences.  During the course of the period covered by the indictment, the victim became pregnant and underwent an abortion in a hospital in Shenzhen, though the court remarked that it was only right to state that the applicant was not convicted of the allegation of rape that was said to have brought about the pregnancy.  The court there said that the starting point taken by the judge, namely, 12 years’ imprisonment was “the least he should have properly considered”, a clear intimation that the court considered it to be on the low side.  However it is noticeable that all sentences were ordered to run concurrently making a total, at first instance, of 10 years and upon appeal of 12 years; a total after trial for four rapes which might be thought to be on the low side.

30.In that judgment, reference was made to R v Chow Kan Shing CACC 205 of 1995, 13 September 1995, unreported, in which the applicant was the boyfriend of the mother of the two female victims, the younger of whom was aged 12 years (the age of the elder was not given).  The applicant pleaded guilty and was sentenced to 7 years on the one count and 6 years on the other with a totality of 10 years which was said to be “not a day too long.”  It was a case in which there was said to be no sexually humiliating conduct, meaning, no doubt, no humiliating conduct over and above that occasioned by the rapes themselves.

31.Then there is HKSAR v Chan Kim Kwan, CACC 405 of 2004, 22 June 2005, unreported, where the victim, aged 9 years was one of two sisters who were students of the applicant’s wife.  He was convicted after trial on no fewer than 13 counts of rape in a nine-month period.  12 years had been imposed on each of the counts with a totality of 15 years.  The judgment of Stuart-Moore VP described the total as appropriate though he added that it was, for a first time offender “at the top end of the range for offences of this kind committed by a first offender.”  He cited also from the judgment of Lord Woolf LCJ in R v Millberry & Ors [2003] 2 ALL ER 939 at 946 that 15 years and upwards was recommended as a starting point for a campaign of rape.

32.Reference was also made to R v Billam [1986] 1WLR 349 where Lord Lane CJ had said that amongst the aggravating features were violence over and above the force necessary to commit rape; the use of a weapon; the rape is repeated; the rape has been carefully planned; previous convictions for rape or other serious offences of a violent or sexual kind; the subjection of the victim to further sexual indignities or perversions; that the victim is either very old or very young; and where the effect upon the victim, whether physical or mental, is of special seriousness.  “Where any one or more of these aggravating features are present,” said the Chief Justice “the sentence should be substantially higher than the figures suggested as the starting point…. The extra distress which giving evidence can cause to a victim means that a plea of guilty, perhaps more so than in other cases, should normally result in some reduction from what would otherwise be the appropriate sentence.  The amount of such reduction will of course depend on all the circumstances, including the likelihood of a finding of not guilty had the matter been contested.”

33.We have referred earlier to the judge’s global approach whereby he took a global approach for each set of offences against a particular victim; so that, for example, he took the view that for the first four charges the appropriate sentence after trial would have been 18 years’ imprisonment and after plea 12 years’ imprisonment.  It is this approach which gives the impression that the individual sentences, on their face, were manifestly excessive.

34.We prefer to test these sentences and the totality by taking the more orthodox, perhaps more laboured approach; assessing sentence for each individual offence, not least because some of the offences, particularly that reflected in charge 4, where the rape resulted in a pregnancy and an abortion, were more grave than others.

35.The first offence was grave in itself involving as it did a gross breach of trust in respect of a girl aged only 12 years; the applicant not using any protection to prevent a pregnancy.  We would take a starting point of 12 years’ imprisonment, which we would reduce to 7 years 9 months in view of the plea, and including a slight further reduction given the saving of the girl from having to give evidence.  Whilst we do not discourage judges from giving some extra discount for that factor, it must nonetheless be remembered that in other jurisdictions there is no standard one-third discount regardless of circumstances as there is (save when there has been an issue as to fact decided against the defendant) in this jurisdiction and, further, in this case the proven fact of a pregnancy and an abortion resulting from one of the rapes as well as the fact of similar complaints by the sisters, rendered convictions inevitable, so the additional discount warranted must be slim.

36.For the second offence, we would take a starting point of 14 years’ imprisonment.  The fact of the mother’s presence during the rape is an added aggravating feature, for we attribute that humiliating factor to the applicant: the mother lived in total fear of him.  This would reduce to a sentence of 9 years 8 months’ imprisonment after plea; which we further reduce by two months for saving the girl from having to testify; therefore 9 years 6 months.

37.For the third rape, it is in the nature of the first offence, save that it is a repeat offence on the same victim which we shall take into account in judging the question of totality; so we would take a starting point of 12 years’ imprisonment and reduce it after plea to a sentence of 7 years 9 months.

38.The fourth rape on the victim X was particularly serious given the pregnancy that followed.  We would take a starting point of 15 years’ imprisonment with a sentence after plea of 10 years’ imprisonment.

39.If we were to stop there, we would impose an overall sentence of 14 years’ imprisonment.

40.In relation to the fifth and sixth charges we would impose on each of the fifth and sixth charges a sentence of 8 years 6 months’ imprisonment, having taken the starting point for 13 years: the girl was young indeed at the time of this offence.  For the two offences, we would impose a total of 10 years’ imprisonment.

41.We would not interfere with the sentence imposed in relation to the seventh charge.

42.Whether one looks at it in the light of this stepped approach, or the “group” approach adopted by the sentencing judge, we are satisfied the totality which the judge imposed was manifestly excessive.  That, primarily, is because a sentence of 23 years’ imprisonment (plus a few months for the seventh charge) leaves little room for more serious situations, which is not to detract from the gravity of the applicant’s conduct as revealed by the present charges.  If 23 years’ imprisonment were appropriate for the first six offences after pleas, then insufficient realistic room is left for the sentences one would have realistically to contemplate for these offences after trial or for a greater series of like offences or for a situation which combines both, that is to say

conviction after trial for a greater series of like offences.

43.We are of the view that the appropriate totality was one of 18 years’ imprisonment and we propose to allow the appeal to that extent.

Result

44.Accordingly, we grant the applicant leave to appeal the sentences, treat the hearing of the application as the appeal, and allow the appeal by setting aside each sentence imposed save for that in relation to the seventh charge; and substitute the following sentences :

Charge 1:  7 years 9 months’ imprisonment;

Charge 2:  9 years 6 months’ imprisonment;

Charge 3:  7 years 9 months’ imprisonment;

Charge 4:  10 years’ imprisonment;

Charge 5:  8 years 6 months’ imprisonment;

Charge 6:  8 years 6 months’ imprisonment.

45.We further order:

(1)   that the sentences on charges 1-3 shall run concurrently but that 4 years of that concurrent total shall run consecutively to, the remainder concurrently with, the sentence on charge 4, making a total for those four offences of 14 years’ imprisonment;

(2)   that one year and 6 months of the sentence on charge 6 shall run consecutively to, the remainder concurrently with, the sentence on charge 5, making a total for those two offences of 10 years’ imprisonment;

(3)   that of the total of 10 years’ imprisonment on charges 5 and 6, 4 years are to run consecutively to, the remainder concurrently with, the total of 14 years imposed in relation to charges 1 to 4; and

(4)   that the sentence of 7 months’ imprisonment in relation to charge 7 shall run concurrently with the other sentences.

46.This makes a total of 18 years’ imprisonment.

Ms Fanny Wong, SADPP, of Department of Justice, for the Respondent

Mr Michael Delaney, instructed by Legal Aid Department, for the Applicant