HKSAR v. Chan Ho Nam and Others

CACC 394/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 394 OF 2014

(ON APPEAL FROM HCCC NO. 535 OF 2014)

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REASONS FOR JUDGMENT
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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.The four applicants sought leave to appeal against the sentence of 9 years’ imprisonment imposed on each of them on 29 October 2014 following their convictions after trial before Andrew Chan J and a jury of a single count of rape of a woman described as Ms X on 14 June 2013, contrary to section 118(1) of the Crimes Ordinance, Cap. 200. At the hearing we allowed the applications for leave to appeal against sentence, quashed the sentences of 9 years’ imprisonment imposed on each of the applicants and in place of those sentences imposed sentences of 8 years’ imprisonment. We said that we would give the reasons in due course. That, we do now.

The Facts

2.Ms X was born in the Mainland in 1993.  In 2008, on the application of her stepfather, she became a Hong Kong resident.  However, she continued living in Shenzhen, whilst attending a secondary school in Hong Kong.  She was educated up to Form 5 level.  In 2011, she became pregnant by her boyfriend and gave birth to a daughter in November 2011.  In June 2012, she moved to live with her mother in Hong Kong.  In May 2013, she began living on her own at a residential building in Tai Po, closer to where she worked as a receptionist in a Shanghainese restaurant.

3.The four applicants worked at a recycle store on the ground floor of the building.  When Ms X went to work in the morning, she would walk past the store.  The applicants took the initiative to speak to Ms X and eventually she provided her mobile telephone number to the 1^st applicant.  On and between 3 and 13 June 2013, the 1^st and the 3^rd applicants communicated with Ms X by ‘Whatsapp’ text messages.  On the evening of 13 June 2013, the 2^nd applicant also began to exchange text messages with her. 

4.On the morning of 13 June 2013, whilst on her way to work, Ms X chanced upon the 1^st applicant, who asked her to go out for fun that evening.  Ms X agreed to talk to him later.  In an exchange of text messages with the 1^st applicant Ms X agreed to meet the four applicants at a bar called Banbie, after she had finished work at 10:00 p.m. that evening.

5.Having been met by the 2^nd, 3^rd and 4^th applicants at the restaurant at which she worked, eventually Ms X accompanied them to the Banbie bar where they met the 1^st applicant. There, they consumed beer and chatted to one another.  For her part, Ms X became drunk having consumed five glasses of beer.  At about 1:30 a.m. they left the bar.  Ms X was unsteady on her feet and the 1^st applicant helped support her.  All five of them ordered a taxi and returned to Ms X’s home.

6.On their entry to her home, Ms X asked them to leave and lay on her bed, which was on the ground in a cubicle separated from the other parts of her home by a sliding door.  However, the 1^st applicant went in the cubicle and embraced and kissed her.  Ms X pushed his head away and tried without success to kick him.  He gripped her wrist forcefully and unbuttoned and tore her blouse.  Although she kept saying “No”, he removed her skirt and stockings, revealing the fact that she was wearing sanitary napkins.  She begged him not to have sexual intercourse with her as she was menstruating, but he proceeded to have sexual intercourse with her against her will.  That caused her severe pain, and she bled.  When she tried to scream, he covered her mouth.  She put up a sustained struggle until she was exhausted.  Then, the 1^st applicant left the cubicle. 

7.Next, the 2^nd applicant entered the cubicle.  Although Ms X struggled and tried to push him away he gripped her wrist firmly and had sexual intercourse with her for several minutes against her will.

8.After the 2^nd applicant had left the cubicle the 3^rd applicant entered the cubicle, having already removed his underpants. 　Ms X was so exhausted that she could no longer resist and merely watched and cried as he had sexual intercourse with her against her will.

9.Finally, after the 3^rd applicant left the cubicle the 4^th applicant entered the cubicle and forced her to have sexual intercourse, during which she could only watch and cry.  The four applicants all left together at around 2:30 a.m., leaving Ms X bleeding and in pain.

10.In the morning, having failed to make contact with any of the four applicants by telephone, Ms X engaged in a series of text messages with the 2^nd and 3^rd applicants, in which she asked them why they had treated her in that way. 　For their part, they apologised and asked for her forgiveness. 　Although Ms X thought of reporting the matter to the police, she testified that she did not do so for fear of reprisals by the applicants.

11.In another series of text messages commencing 11:25 pm on 15 June 2013, Ms X told the 2^nd applicant she wanted to kill herself. 　In fact, she did cut her wrist and sent him a photograph depicting that injury in one of the messages. 　In the event, a report to the police was made of all the rapes, but only on 20 June 2013 and only after her boyfriend, who visited her home having travelled to Hong Kong from Shenzhen, questioned her about blood stains on her bed sheets. 　In response, Ms X told him of the circumstances in which she had been raped.

The defence case

12.At the trial, each of the four applicants gave evidence in his own defence.  All of them were aged 16 years at the time of the offence.  Although the 1^st applicant admitted that he had kissed Ms X inside the bedroom cubicle in her home, he denied having sexual intercourse with Ms X.  He told her that she was tired and should go to sleep.  He had no idea that any of the other applicants had sexual intercourse with her that evening.

13.The 2^nd applicant said that he had peeped into the cubicle and had seen the 1^st applicant having sexual intercourse with Ms X.  Later, he entered the cubicle and had sexual intercourse with Ms X, although he desisted when he heard her saying “no” as he squeezed her breasts too hard.  Although the 3^rd applicant admitted that he had entered the bedroom cubicle and touched the breast of Ms X, he denied that he had sexual intercourse with her, saying that he had decided not to have sexual intercourse with her when he had thought of his girlfriend.  For his part, although the 4^th applicant admitted that he had sexual intercourse with Ms X in the bedroom cubicle of her home, he asserted that she initiated sexual contact.

Reasons for sentence

14.In his reasons for sentence, the judge described the circumstances of the commission of the offences and the factors of aggravation :

“ The victim who was, at the time, only 19 had been subjected to a degrading act of gross indecency. The offence was planned and that the victim was raped by four men. The ordeal lasted more than an hour. Undoubtedly, the ordeal would hardly be forgotten and would have haunted the victim for the rest of her life.

…………

The victim trusted the four defendants and treated them as friends before she agreed to come out for a drink.  So instead of being raped by strangers, the victim was raped by trusted friends.  That, in my view, is also an aggravating factor.”

15.Of his determination that the offences were “planned” the judge said that during the trial evidence emerged “that shortly before their departure from the pub, two of the four defendants, on instructions from the 1^st accused went to a convenience shop and purchased a pack of condoms”.

16.Of the effect of the rapes on Ms X, the judge said :

“ Although it is accepted that the victim was not subjected to excessive violence during her ordeal, force was nevertheless used to overcome any resistance put up by her. By the time the victim was raped by the 3^rd and the 4^th accused, she was already exhausted, could no longer put up any resistance.

Needless to say, the victim was severely traumatised by the ordeal.  That can be seen firstly, from her cutting her wrist as depicted on the WhatsApp message which she sent to the defendants.  Secondly, the victim stated in her evidence that she, at one stage, wanted to commit suicide but for the fact that she needed to take care of her mother and her daughter.”

17.In identifying the appropriate starting point for sentence, the judge referred to the judgment of this Court and the Secretary for Justice v Habib Ahsan[1] and noted that this Court said that the appropriate starting point for sentence in that case, namely involving a gang rape by three men of the victim, should be increased from 6 years’ to 10 years’ imprisonment.

18.Mindful of the fact that the four applicants were only 16 years of age at the time of the commission of the offence, the judge said that he had ordered the preparation of reports to provide a court with background information in respect of the applicants.  However, having noted that none of them had completed their secondary education and had failed in their academic studies, the judge rejected the submission made on their behalf that “a rehabilitative approach should be adopted”.  The judge said :

“ In my view, the offence that the four defendants committed was so grave that little weight can be placed upon their youth. Youth pales into insignificance of the magnitude of the offence. Nevertheless, I am prepared to slightly reduce the sentence. Having considered all the factors, a starting point of 9 years is adopted for each defendant.”

19.Earlier, the judge said that, having regard to the fact that Ms X had not been abducted notwithstanding the fact that there were four rapists rather than three, he regarded the seriousness of the circumstances of the commission of the offence as “only marginally less” than those obtaining in Habib Ahsan.  Further, he made it clear that the reason that he did not adopt a starting point of 10 years’ imprisonment was “…simply because of the four defendants’ youth”.

20.In the result, the judge sentenced each of the four applicants to 9 years’ imprisonment.

Grounds of appeal against sentence

21.In the grounds of appeal against sentence advanced on behalf of all the applicants, Mr Chung Boey submitted that the judge erred in determining that the circumstances of the commission of the instant offences were only marginally less serious than those obtained in Habib Ahsan.  That case was far more serious, given that the victim had been abducted from a public place, where the defendants had been preying on women who gathered there.  Further, in the instant case there was no factor of sexual degradation of the victim, whereas in Habib Ahsan the victim had been forced to engage in oral sex.  Also, he contended that whilst there was a degree of planning, it was not substantial.

22.Next, it was contended that the judge had erred in determining that the commission of the offence was aggravated by the fact that the applicants’ conduct was a breach of the trust reposed in them by Ms X.  Finally, it was submitted that the judge had failed to take adequate account of the fact of the youth of the applicants and that they had no previous criminal convictions.  It was accepted that the 1^st, 2^nd and 3^rd applicants had received a Superintendent’s caution.

The submissions of the respondent

23.For the respondent, Mr Wong SC submitted that, whilst not all of the factors of aggravation identified in Habib Hashan were present in the commission of the instant offence, it was clear that the offence was not committed on the spur of the moment.  Rather, there was a degree of planning.  Three of the applicants had met Ms X at her place of work and escorted her eventually to the bar.  There, whilst she was being plied with beers, two of them left to buy condoms from a convenience store.  All four of the applicants escorted her home.  Whilst there was no excessive or gratuitous violence, violence necessary to overcome her had been used by the 1^st and 2^nd applicants.  Furthermore, Mr Wong pointed to the fact that there were four rapists, rather than three, as a factor of aggravation greater than that present in Habib Hashan. Also, regard was to be had to the fact that Ms X had been raped in her own bed at home, whilst she was menstruating.  Having heard Ms X give evidence the judge was well-placed to make his finding that she had been “severely traumatised”.

24.Next, Mr Wong submitted that the judge was entitled to determine that the applicants “abused the (ir) trust placed on them by the victim.”  No doubt, that reflected the sense of betrayal by the applicants felt by Ms X arising from all the circumstances leading up to the rapes.  Finally, in respect of the issue of the youth of the applicants, Mr Wong invited the court to note that, being 16 years of age, none of the applicants was of “extreme youth”, namely those yet to reach 15 years of age.  He invited the court to note that in the joint judgment of the majority in this Court Stock JA and Gall J in HKSAR v Chan Lai Sing & Another[2] said that age is not a “…black-and-white determinant of maturity”.

A consideration of the submissions

The Law

25.In Habib Hashan & Others, the victim, a 21-year-old Indonesian woman was raped by the three defendants in a villa in Kam Tin to which she was taken by taxi, having been abducted by the 1^st and 2^nd defendants in the street near the Clock Tower at the Star Ferry, in Tsim Sha Tsui.  Earlier in the day, those two defendants had approached the victim and a female friend but their approaches had been rejected.  However, in the evening they returned together with the 3^rd defendant and, after the victim and her friend had managed to run away, they succeeded in manhandling the victim into a taxi.  The 3^rd defendant re-joined the group when the party changed taxis in Jordan.  At the villa each of the defendants raped her in turn.  The 2^nd defendant thrust his penis into her mouth and then raped her.  In the judgment of the court Seagrott J identified “a significant number of the aggravating factors” in the commission of the offence, namely that:[3]

“ the offence was planned;

the Defendants were openly preying on women in a public place;

the victim was abducted;

there was further degradation of the victim beyond the offences of rape;

this was a concerted rape by three men. It was in vernacular terms “a gang rape”;

the victim will plainly have been traumatised having at the time of these offence been a virgin and by reason of her cultural background and religion she regarded herself understandably as having been “ruined”. ”

26.As noted earlier, the judge acknowledged that one of the factors of aggravation in the commission of the offence in Habib Ahsan identified by this Court absent in the instant offence was that of abduction.  There, the victim had been abducted from the Star Ferry Concourse in Tsim Sha Tsui and taken to Kam Tin.  In the course of the abduction, the victim had been overpowered so that she was unable to free herself from the grip of one of her abductors.  She was taken to the villa where she was unable to escape from the room in which she was raped in succession by the three men.

27.The judge was correct to observe that one aspect of the instant case which was more serious than Habib Ahsan was that there were four men, rather than three men, who raped the victim.  However, notwithstanding the fact that he noted that the aggravating factor of abduction was absent in this case, he fell into error in determining that the seriousness of the circumstances of the commission of the offence was only marginally less than in Habib Ahsan.  The physical abduction of the victim from a well populated public place, her transportation to a distant place and her imprisonment in a room in the villa in which the rapes occurred were serious factors of aggravation absent from the instant offence.

28.In describing the circumstances of the commission of the offence the judge said that “… the four defendants abused the (ir) trust placed on them by the victim” and that the victim “was raped by trusted friends”, which he found to be a factor of aggravation.  With respect to the judge, it is difficult to understand how he came to describe the applicants as the victim’s “trusted friends”.  It appears that the meeting at the Banbie bar on 13 June 2013 was the first occasion Ms X had met the applicants socially.

29.Having been persuaded to provide the 1^st applicant with her telephone number some 10 days prior to the rapes, Ms X had exchanged multiple text messages with the 1^st, 2^nd and 3^rd applicants in the intervening period.  Clearly, it was on the basis of what she had come to know of them that Ms X had been prepared finally to accept an invitation to meet them at the Banbie bar.  On 10 June 2013, she declined the invitation of the 1^st applicant to meet after work to have a drink or a late night snack.  Furthermore, it is clear from the text messages that Ms X declined the suggestion of the 1^st applicant, made immediately before he suggested meeting at the bar, that the four of them buy food and alcohol and consume it at her home.[4]  Ms X rejected that suggestion, first on the basis that her home was “very small” and then that it was “not that convenient”.

30.Clearly, in being prepared to meet the applicants at all, Ms X was being cautious.  In all the circumstances, the applicants were better described as new acquaintances of Ms X.  To the extent that she trusted them at all, it was merely to meet them in a public place for a drink.

31.Obviously, the judge was aware that all of the applicants were aged 16 years at the time of the commission of the offences.  He said so.  He adverted to the reports the preparation of which he had ordered to better inform him of their backgrounds.  He noted that none of them had any criminal convictions.  The fact that the 1^st, 2^nd and 3^rd applicants had all received a Superintendant’s warning on 1 September 2009, almost four years before the commission of the instant offences, was obviously irrelevant in the context of the instant offence.  We have no doubt that the judge treated those applicants accordingly.  There is no merit in the submission that the judge failed to have adequate regard to their youth in imposing the sentences of imprisonment upon the applicants.

32.The suggestion, made in oral submissions, that the fact that the 4^th applicant’s girlfriend had given birth to their child in November 2013 and that he had stood by and supported them in the period of about a year whilst he was on bail before he was sentenced, was a basis on which the judge ought to have distinguished between the sentence imposed on him and the other applicants is of no merit.  Whilst laudable, in itself it was no reason to afford the 4^th applicant a discount in the otherwise appropriate sentence to be imposed on him for this offence.  In any event, it is be noted that it was as a result of the generosity of his parents that the three of them were permitted to live at his family’s home.

Conclusion

33.For the reasons set out above, we are satisfied that the judge fell into error in stipulating a starting point of 9 years’ imprisonment.  Having regard to all the circumstances, we were satisfied that the appropriate starting point for sentence was 8 years’ imprisonment.

34.Accordingly, treating the hearing of the application as the hearing of the appeal, we granted the applicants leave to appeal against their sentences and quashed the sentence of 9 years’ imprisonment imposed on each of them.  In substitution, we imposed a sentence of 8 years’ imprisonment on each of the appellants.

Mr Wesley W. C. Wong, SC, DDPP and Ms Fontaine Lai, PP, of the Department of Justice, for the respondent

Mr Chung Boey instructed by To, Lam & Co.,assigned by Director of Legal Aid, for the 1^st and 4^th applicants