HKSAR v. AU KEUNG SIU KAY

CACC 276/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 276 OF 2001

(ON APPEAL FROM HCCC NO. 118 OF 2001)

____________________________________

_______________________________

________________

J U D G M E N T

________________

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

1. This is an application for leave to appeal against sentence. The applicant pleaded guilty before Jackson J to each of six counts upon an indictment. He was sentenced to a total of 10 years' imprisonment, and his application relates to the sentences imposed on each count, and against the totality of the sentence.

2. At the time of the offences, which spanned a period of about nine months between March and December 2000, the applicant lived with his wife and family on the Lower Ngau Tau Kok Estate. He was the sole proprietor of a stationery shop there. He was then aged 24 years, and had no previous convictions. The offences which he committed all took place in the Lotus Garden Estate in Ngau Tau Kok, and displayed a systematic course of conduct by the applicant by which he preyed upon young women on their own returning to their homes at the estate late at night. What he would do was to wait in lifts, or follow them into lifts, and when they left the lift at the floor of their homes, he would follow them out, grab hold of the victim's neck, on most occasions produce a sharp weapon such as a knife, drag them or take them to a nearby staircase and, unless they shouted out, he would rob them and indecently assault them. He was eventually arrested by the police on 31 December 2000. He pleaded guilty before Jackson J who sentenced him on 26 July 2001, after calling for and reading a psychiatric report.

3. The facts as they related to each count are as follows:

(1) The first count alleged indecent assault. At about 1.30 am on 31 March 2000, a 25-year-old female returned home and took the lift at the ground floor of Block 1 of Lotus Tower. The applicant was inside the lift, and when she left the lift he grabbed her from behind and took hold of her breasts. He then dragged her to the staircase and when she struggled to set herself free, he punched her on the head, and when she shouted for help, he fled.

(2) The second count alleged assault with intent to rob. This took place at 2.40 in the morning of 4 April when he followed a 24-year-old female into the lift at the ground floor of Block 3, Lotus Tower. When she left the lift on the sixth floor, he grabbed her by the neck and pointed a 5-inch long paper cutter at her. She shouted for help and he fled. She later identified him at a parade.

(3) The 3rd and 4th counts are connected. The 3rd count is robbery; the 4th indecent assault. At about half-past three in the morning of 3 July 2000, he followed a 20-year-old female into the lift at the ground floor of Block 2, Lotus Tower. When she left the lift on the 16th floor, he grabbed her neck and displayed an 11-inch long knife. She was taken to the staircase where she was robbed of $530 and of a mobile telephone. That was the robbery, Count 3. In the course of this incident, he fondled her breast for several minutes, and told her to perform fellatio upon him, which she refused to do. He then masturbated behind her, and ejaculated over her back, and then fled. This was the indecent assault, Count 4. The lady identified him on 4 January 2001.

(4) The 5th count was wounding. On 11 July 2000 at 2.15 am he followed a 31-year-old lady into the lift at the ground floor of Block 1, Lotus Tower. On the 29th floor outside the lift, he grabbed her neck from behind and attempted to drag her to a door near the staircase. He produced a one-foot long knife from a bag and pointed it at her neck. She struggled, and in the course of the incident her right middle and ring fingers were cut. The applicant fled when she shouted for help and she, too, subsequently identified him at a parade. When interviewed the applicant admitted that he had followed her and threatened her with a knife. He said that he had done so because he wanted to make friends with her.

(5) The 6th count was robbery. Yet again the attack was in the small hours of the morning, this time on 15 December 2000 at 2.50 am. The applicant followed a 19-year-old female into the lift at Block 3 of Lotus Tower and there on the 19th floor, he covered her mouth with one hand and displayed a 3-inch long knife with the other. He said he wanted money. He pushed her out of the lift and then took her to the staircase landing between the 16th and 17th floors where she was robbed of an Octopus card, $40 cash, some photographs, a mobile telephone, a set of keys and a credit card statement. He detained her to tell her in detail about his robberies of other women. Then he took her to the staircase landing between the 11th and 12th floors and asked her to take off her clothes. This she refused to do. He removed her brassiere, although he later returned it. He then fled. Her ordeal in his company lasted for about an hour. She too later identified him.

4. The applicant was arrested on 31 December 2000. It was 3.45 am, and he was on his own at a car park near Lotus Tower. He was arrested after a chase, and he struggled when he was caught. Items of stolen property were found at his house.

5. In his extensive sentencing remarks, the sentencing judge noted the common features of the offences: attacks against young ladies in the small hours of the morning at an estate which the applicant had self-evidently targeted, the violence used, and the indecency of accompanying conduct.

6. The psychiatric report reveals the applicant to be an intelligent man who took up a place at Baptist University, though he did not finish his course there. The applicant apparently attributes the root cause of his conduct to what he terms two unpleasant childhood experiences. They appear to us, even if true, to be of no possible casual connection with the type of conduct with which we are concerned and the psychiatrist evidently agrees with that assessment. The psychiatrist concluded that the applicant suffers from no psychiatric illness, and he noted a distinct lack of remorse on the applicant's part. The tenor of the reports as well as the offences themselves gives one cause for real concern that this applicant is a significant danger to the public. This assessment is cemented by a letter the applicant sent to the sentencing judge and to which the judge referred in his sentencing remarks:

"In mitigation before me on 4 July, Mr Wong, having presented me with two letters, one from the defendant's father and one from a former teacher, told me, among other things - and this was confirmed by a letter written to the court by the defendant himself - that two incidents had affected him as a trial.

The first led to what I will describe as sexual curiosity, and the second led to his harbouring resentment against the residents and, in particular, female residents of the Lotus Tower premises. Perhaps, most disturbingly, in his letter to the court, the defendant said that in consequence of the second incident, which occurred when he aged about 12, he went to the Lotus Tower blocks once every few days and that he had done this for some 10 years, but that in the last two years, he had started to follow female residents.

Principally, it was because of this explanation given by the defendant, together with his admission of the facts of the offences which I have recited, that I called for a psychiatric report prior to sentence, and adjourned the case until today.

I now have the psychiatric report, which is comprehensive. It is illuminating and it is helpful, and I am grateful for it. Paragraphs 12, 13 and 15 of the report cause me some distinct unease. And in approaching sentence for these offences, I note that it is the psychiatrist's opinion that the defendant is not suffering from any formal psychiatric illness; that there is evidence of escalating dangerousness in his criminal conduct; that he does not seem to appreciate the gravity of these offences; that he shows no concern whatsoever about the feelings of his victims and that he apparently has little motivation for change."

7. In articulating his approach to sentence, an approach which is the subject of criticism by counsel for the applicant, the judge said this:

"I intend to give him the conventional discount for those pleas of guilty, which have saved a good deal of time and a great deal of distress. Had he not pleaded guilty to these offences but been convicted after trial, I would have sent him to prison for a total of about 15 years.

In the event, the sentences which I impose are as follows: in respect of Charge 1, that is of Indecent assault, he will go to prison for 2 years. In respect of Charge 2, that is Assault with intent to rob, he will go to prison for 4 years. In respect of Charge 3, that is the charge of Robbery, he will go to prison for 8 years. In respect of Charge 4, that is the second Indecent assault, he will go to prison for 2 years. In respect of Charge 5, that of Wounding, he will go to prison for 18 months. In respect of Charge 6, that is the second count of Robbery, he will go to prison for a term of 8 years. Each of those sentences will be served concurrently, with the exception of that for Charge 4, which will be served consecutive to the other sentences, making 10 years in all."

8. The first ground of complaint is that the judge considered totality before he passed individual sentences, and that that is wrong in principle. There is no doubt but that a sentencing judge must first consider the correct sentence for each offence, and pass the correct sentence after giving effect to aggravating and mitigating features. That done he must consider the question whether, in principle, sentences for separate convictions merit consecutive or concurrent sentences, and if in principle they merit consecutive sentences, he is then to consider the question of overall totality, having done which, he is to give effect to that totality by passing concurrent or consecutive sentences, or partially consecutive sentences, as the case may be.

9. It is not entirely clear in this case quite how the judge approached the matter. Looking at the order in which he expressed himself it could well be said that he actually addressed totality first and then adjusted individual sentences accordingly. However, given his references to conventional discounts for the pleas of guilty, it may very well be that in himself first considering the question of sentence, he approached the matter in the correct chronological way before arriving at his totality but has merely articulated matters on paper, as it were, by stating first what the appropriate totality was before plea.

10. Be that as it may, we shall examine, as we must in any event, what the correct sentences should have been for each offence, what the correct totality should have been, and then see whether the result is materially different from that at which the judge arrived.

11. There is a complaint that the judge did not state his starting point for each offence. It is true that he did not, but it is obvious in this particular case what they were because he says in terms that there are but two mitigating factors, the plea of guilty, and the lack of previous convictions, and that he accords to the applicant the "conventional discount for the plea of guilty". We all know that that discount, conventionally, is a one-third discount. Given the nature and circumstances of these particular offences, previous good character will not have warranted any further discount.

12. So, we see in this case that the judge has taken starting points of 12 years' imprisonment for each of Counts 3 and 5 (the robberies); six years' imprisonment for Count 2, (the assault with intent to rob); three years' imprisonment for the indecent assault, Counts 1 and 4; and two years and three months' imprisonment for Count 5, (the unlawful wounding) - resulting, as has already been indicated, in individual sentences of two years, four years, eight years, two years, 18 months and eight years respectively. The judge has ordered all sentences to run concurrently, save in respect of Count 4, the two-year sentence, which he ordered to run consecutively to the rest, making, as we say, a total of 10 years' imprisonment.

13. It is said that the starting point in each instance was too high, and it is said, further, that it was wrong in principle for the judge to order the sentence on Count 4 to run consecutively to the sentence imposed on Count 3 since the two offences arose out of the same incident.

14. We examine each count in turn.

15. Count 1: indecent assault. The starting point in this instance of three years' imprisonment was not too high. Indeed one might wonder whether it was inadequate. The maximum sentence for indecent assault is 10 years' imprisonment. Here was a young woman assaulted late at night by a stranger when she was returning to her home and she had been dragged by him to a staircase. Her breasts were fondled and her head punched. This was the full setting in which this assault took place. The applicant desisted from carrying matters further - whether to a robbery or to further indecency we cannot say - only because she shouted. This sentence will stand.

16. Count 2: There is nothing excessive about the starting point of six years. This incident only fell short of an actual robbery by reason of the shouting of the victim which drove the applicant away. This, again, was a late night attack on a single lady in the vicinity of her home where he grabbed hold of her by the neck and used a knife.

17. Counts 3 and 4: The 12 year staring point on Count 3 was manifestly excessive, given in particular that the judge had sentenced separately for the accompanying sexual attack. If the two offences are to be treated separately, then the sentence for the robbery should, in line with established guidelines, have taken a starting point of seven years for the robbery, making a sentence after plea of four years and eight months' imprisonment; and, in our judgment, a four-and-a-half year starting point, at least, for the offence of indecent assault which is Count 4, it being a particularly nasty indecent assault in itself, also accompanied by violence. After plea the sentence for the indecent assault should have been three years' imprisonment, and not two years as was imposed by the judge, and in exercise of our power under section 83I(3) of the Criminal Procedure Ordinance, Cap 221, that is the sentence we will substitute. It is said that the two offences arose from the same incident and that therefore the sentences should be concurrent. We do not agree. Either the indecent assault is a severe aggravating feature which should result in a much longer sentence for the robbery or, if not reflected in the robbery, the indecent assault must be viewed as a matter warranting consecutive punishment. The totality for the two offences reflected by Counts 3 and 4 should, in our judgment, after plea, be six years' imprisonment. So the sentence which we will substitute in relation to Count 3 will be one of four years and eight months' imprisonment. The sentence which we will substitute in relation to Count 4 will be a sentence of three years' imprisonment. We will order that one year and four months of the term imposed in respect of Count 4 will run consecutively to the term imposed in relation to Count 3, the remainder to run concurrently, making a total for those two offences of six years' imprisonment.

18. Count 5: Wounding. It is true, as has been emphasised, that unlawful wounding carries a maximum term of three years' imprisonment. 18 months' imprisonment assumes a starting point of two years and three months. Given the circumstances in which this wounding was effected, the sentence imposed is not at all too long.

19. Count 6: Robbery. Here, too, the starting point of 12 years was manifestly excessive. We recognise that this was a lift robbery with a knife, with the aggravating feature that it was late at night on a single woman, that her ordeal lasted an hour and that there was the element of an indecency added. In the particular circumstances a starting point above nine years' imprisonment would have been difficult to justify. That is the point we adopt, and we say that a sentence of six years' imprisonment after plea is more appropriate to that count.

20. Accordingly, we grant the applicant leave to appeal and, treating this hearing as the appeal, we set aside the sentences imposed in relation to Counts 3 and 6, that is, the two robbery offences, and substitute a sentence of four years and eight months' imprisonment in relation to Count 3; and six years' imprisonment in relation to Count 6. In relation to Count 4, in the exercise of our power under section 83I(3) of the Criminal Procedure Ordinance, we quash the sentence of two years' imprisonment imposed by the judge for the indecent assault, and substitute a sentence of three years' imprisonment. The other sentences, namely, those in relation to Counts 1, 2 and 5, remain unaffected.

21. This takes us then to the question of totality. The five attacks covered by the indictment were each quite separate and, as a matter of principle, they deserve consecutive sentences, so that the whole remaining question is one of totality. It is argued that the total sentence of 10 years was manifestly excessive and is "particularly harsh on a person with a previous clear record like the appellant who was going to prison for the first time". This is to ignore the gravity of the course of conduct upon which the applicant was engaged. The offences with which we are concerned cover five wholly separate occasions on which this appellant was engaged in violent crime against single women late at night on the same estate. This was a deliberate course of conduct in which this appellant acted as predator to the terror of his victims, and to the terror of the estate. He has added to the terror of those victims, and of others, by engaging as well in grossly indecent behaviour. Looked at in that light, which is the correct light, a total of 10 years is not too long. We do not propose to interfere with that total. The fact of his previous good character carries scant weight when viewed in light of the facts which have emerged in this case.

22. To effect that totality, the order we make is as follows: Of the sentence of three years' imprisonment imposed on Count 4, we order that one year and four months shall run consecutively to, the remainder concurrently with, the sentence of four years and eight months imposed on Count 3; a total therefore of six years for those two offences. The two-year sentence on Count 1 will run consecutively to that six-year sentence, taking one to a total of eight years. Of the sentence of six years imposed on Count 6, two years will run consecutively to the sentences thus imposed on Counts 3, 4 and 1, the remainder concurrently, making a total of 10 years. The sentences on Counts 2 and 5 will run concurrently with the other sentences; in other words a total of 10 years' imprisonment, which is the sentence which the trial judge imposed.