HKSAR v. CHAN KA CHUN

CACC 45/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 45 OF 2015

(ON APPEAL FROM DCCC NO. 954 OF 2014)

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REASONS FOR JUDGMENT
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Hon Macrae JA (giving the Reasons for Judgment of the Court):

Introduction

1.  On 8 January 2015, the Applicant appeared in the District Court before HH Judge Johnny Chan on a charge sheet containing the following charges:

(1) Possession of apparatus fit and intended for the smoking or inhalation of dangerous drugs, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134;

(2) Possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134;

(3) Indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance, Cap 200;

(4) Indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance, Cap 200;

(5) Possession of offensive weapons, contrary to section 17 of the Summary Offences Ordinance, Cap 228;

(6) Criminal intimidation, contrary to section 24(b)(iii) and 27 of the Crimes Ordinance, Cap 200;

(7) Criminal intimidation, contrary to section 24(c)(i) and 27 of the Crimes Ordinance, Cap 200; and

(8) False imprisonment, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221.

The Applicant pleaded guilty to Charges 1, 3, 4, 6, 7 and 8.  Charges 2 and 5 were ordered to be left on the court file marked not to be proceeded with without the leave of the court.

2.  On 23 January 2015, following the obtaining of psychiatric and psychological reports, the judge imposed the following sentences of imprisonment in respect of the offences:

Charge 1:  4 months’ imprisonment

Charge 3:  16 months’ imprisonment

Charge 4:  16 months’ imprisonment

Charge 6:  8 months’ imprisonment

Charge 7:  8 months’ imprisonment

Charge 8:  24 months’ imprisonment

The judge ordered that the sentences on Charges 1, 3, 4, 6 and 7 should run concurrently with each other, but wholly consecutively to the sentence on Charge 8.  The total sentence was, therefore, 40 months’ imprisonment.

3.  On 7 July 2015, leave to appeal against sentence was refused by the Single Judge (McWalters JA).  On that occasion, the applicant was represented by Mr HY Wong, as he is before us today at this renewed application for leave.  A lengthy and considered judgment in respect of the leave application was handed down two days later by McWalters JA, with an express warning as to this Court’s powers to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 being specifically spelt out at the conclusion of the judgment.  We shall return to this matter in due course.

4.  By a notice dated 14 July 2015, the Applicant applied to renew his application for leave to appeal against sentence.

5.  On 10 November 2015, we refused a renewed application for leave to appeal against sentence and ordered loss of time of one month, saying we would give reasons for our decision in due course.  This we now do.

The facts

6.  On 8 July 2014, the Applicant, who was then 37 years of age, came to know the victim, who was a schoolgirl of 16 years of age but, it would seem, also working part-time.  On 9 July 2014, the applicant apparently ran into the victim as she was returning home at about 6 am near the main gates to the building where she lived.  He followed her to the outside of her apartment.  After the victim had got dressed into her school uniform, she discovered that the applicant was still standing outside her apartment.  Accordingly, she had a conversation with him, during which the applicant offered to help the victim find a job, for which he asked her to fill in a form.  Accordingly, the victim followed the applicant to his home at Fu Shing House, Fu Cheong Estate, Sham Shui Po, Kowloon, arriving there at about 7:15 am.  There was no one else in the apartment at the time.

7.  The applicant sat on a bed and requested the victim to sit on the bed as well.  He put on a pornographic movie and undressed, leaving only his boxer shorts on.  He then sat behind the victim and started unbuttoning her school uniform.  The victim immediately queried his actions and buttoned herself up. The applicant then tried to unbutton her again, by which time he had removed his boxer shorts and was completely naked.

Charge 3

8.  The victim indicated that she wished to leave but the applicant said that he would only allow her to do so after she had watched part of the movie; he then pulled the victim back onto the bed.  The applicant squeezed the victim’s right breast for two or three seconds, but she asked him to stop and pushed him away.

9.  At this stage, the applicant became emotional and started to talk nonsense.  When the victim asked to leave, the applicant asked her to watch part of the movie and, if she would “do it” quickly, he would give her $500 and let her go.  When the victim motioned towards the front door, the applicant pulled her back, saying that he did not want to let her go.

10.  The victim then managed to call her friend on her mobile telephone in order to tell her not to wait for her, without mentioning her predicament; although the friend was able to hear part of the conversation between the applicant and the victim.  She was able to open the front door, although the applicant tried to stop her from leaving.  However, the victim did succeed in stepping out of the apartment.

11.  The Applicant then seized her mobile telephone, turned it off and threw it onto the bed, telling her to come back into the apartment.  Wanting to retrieve her telephone, the victim asked the applicant to retreat further into the apartment.  She then re-entered the apartment in order to pick up her mobile telephone, having placed her bag on a bench outside the apartment.  When the victim re-entered the apartment to retrieve her telephone, the applicant immediately walked over and shut the gate, using his body to block her exit, despite her attempt to stop him closing the front door.

12.  The stand-off between the victim and the applicant was witnessed by a neighbour, who called the security office.

Charge 4

13.  The applicant then dragged the victim to the bed and tried to undress her, in the course of which he touched her inner thighs.  He then tried to touch her private parts but she managed to brush his hands away.  There was a struggle, during which the victim insisted that she wanted to leave.  The applicant refused her requests and asked her to perform fellatio on him, for which he would give her $500.  The victim asked the applicant to stay away from her and, when she tried to stand up, he pressed his body against her and touched her inner thigh.  There was a struggle, whereupon the applicant said he would only let the victim leave after she had “done it” on him.

14.  Meanwhile, in response to the neighbour’s report, a security guard arrived at the apartment and knocked on the door, asking for it to be opened.  With his body still touching the victim, the applicant reached over to a cabinet next to the bed and took out a knife, waving it towards the door.  He spoke foul language towards the security guard, who continued to knock on the door.  In due course, the knocking stopped when the security guard went to report the matter to the police.  The applicant then asked the victim to touch his private parts and kiss him before he would let her go.  The victim refused to comply.

15.  When the police in due course arrived and announced their presence, the applicant placed the knife on the floor and walked over to look through the spy-hole of the door.  The victim took the opportunity to hide the knife in the bathroom.  As she did so, and as the applicant was speaking foul language to the police, she received a telephone call from the police, who asked her to lock herself in the kitchen. As instructed, the victim went into the kitchen.  However, before she could secure herself in the kitchen, the applicant, unable to find his original knife, entered the kitchen to fetch another knife, after which he locked the kitchen door behind him.  For her part, the victim also used various items to barricade the kitchen door from the inside.

Charge 6

16.  The victim then heard a few loud bangs, presumably on the front door, followed by the applicant warning the police, “If you continue, I will chop my friend to death.”

Charge 7

17.  During the stand-off between the police and the applicant, he also told the victim, in the hearing of the police, that if she continued to make a noise, he would rape her.

18.  At around 9:45 am, the police broke into the apartment and subdued and arrested the applicant.  A 39 cm long knife was found next to him.

Charge 1

19.  On a search of the applicant’s apartment, the police found the two knives, which had been used during the incident, as well as an inhaling device, a plastic bottle inserted with a straw, and a glass tube shaped as a bulb at one end; all of which contained suspected dangerous drugs.  The police also found a lighter, an electronic scale and nine empty transparent re-sealable bags of various sizes.  The suspected dangerous drugs were a small amount of cocaine and traces of methamphetamine.

Charge 8

20.  The entire incident inside the applicant’s apartment had lasted about 2½ hours, during which time the victim had been detained against her will, threatened and indecently assaulted.

21.  She was medically examined later on the same day and found to have two erythematous linear marks (measuring 0.5 cm and 1 cm) over the dorsum of her left hand, and three erythematous dots over the dorsum of her right hand.

Mitigation

22.  In mitigation, it was submitted on the applicant’s behalf that, since his guilty pleas had spared the victim from having to give evidence, he should receive an additional discount on top of the conventional one-third discount for his pleas of guilty.  It was also suggested that the commission of the offences was to some extent due to the “perceived encouragement” of the victim, who, despite her age, was said to be someone with “experience of the world”.  The judge did not accept these suggestions.

Reasons for sentence

23.  The judge considered the background of the applicant, who had a criminal record involving no less than 27 appearances before the courts involving 34 previous convictions, a number of which were for, or associated with, crimes of violence: three for wounding or inflicting grievous bodily harm and one for wounding with intent; one for robbery; one for blackmail; one for claiming to be a member of a triad society; one for assaulting a police officer in the execution of his duty; and one for common assault.  The applicant had numerous other convictions for dishonesty and possession of dangerous drugs.

24.  Ms Leung, for the respondent, has further pointed out that, since the applicant’s last convictions for theft (shoplifting) and common assault were on 2 April 2014, the applicant would have emerged from prison shortly before the offences with which we are concerned.

Reports

25.  The judge called for psychiatric and psychological reports before sentencing, since it was revealed in his antecedent statement that the applicant had been suffering from a psychiatric illness since 1995.  In his report, the psychiatrist, Dr Oliver Chan, gave his opinion that the applicant had a “serious personality problem with concurrent substance misuse issue”.  In the report of the clinical psychologist, Ms Sherry Im, it was said in conclusion that:

“The index offence appears to be a result of ungratified sexual needs, and his impulsive and aggressive personality. The present offence does not appear to be committed under the influence of drug-induced psychosis. In view of his offending history with early onset of offending behaviour, chronic drug abuse with self-induced psychosis, antisocial personality disorder with impulsive and aggressive tendency, poor anger management and problem-solving, intimacy deficit and sexual preoccupation, his risk of sexual and violence recidivism is high.”

26.  So far as any Impact Assessment Report on the victim was concerned, she declined to be interviewed.  Nevertheless, the judge referred to HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 for the proposition that a sentencer can draw common sense conclusions about the effect of a sexual offence on a victim.  From the facts admitted, the judge found that the victim, a 16-year-old girl in school uniform, who had been kept captive, repeatedly sexually molested and intimidated, as well as corrupted with offers of cash for sexual favours, must have suffered much at the hands of the applicant over the course of her captivity.

27.  The judge considered that the “heinous crimes committed by the (applicant) give rise to a natural sense of outrage”, which called for exemplary sentences in order to deter others and “redress the grievance of the victim, her family members and the public alike by imposing sentences that adequately and fairly reflect public detestation of crimes of this sort”.

Starting points

28.  The judge adopted the following starting points after trial: (i) 6 months’ imprisonment in respect of Charge 1 (possession of apparatus); (ii) 2 years’ in respect of Charges 3 and 4 (indecent assault); 12 months’ in respect of Charges 6 and 7 (criminal intimidation); and 3 years’ in respect of Charge 8 (false imprisonment).  For the two indecent assault charges, he considered the young age of the victim to be an aggravating feature, and adopted a higher starting point than he might otherwise have done, which, but for that aggravating feature, would have been 21 months’ imprisonment on each charge.

29.  The judge expressly took into account the principle of totality, in accordance with the views expressed in Ngai Yiu Ching[1] concerning false imprisonment and indecent assault offences.  He was also careful to explain that he was not taking into account, on the false imprisonment charge, the facts relevant to the indecent assault charges, and vice versa.  He regarded the two indecent assault charges as being part of the same course of conduct justifying concurrent terms in respect of Charges 3 and 4.  Accordingly, he considered that a notional starting point of 5 years’ imprisonment “should adequately reflect the overall culpability of the six offences committed by the (applicant) on the day in question”.

Grounds of appeal against sentence

30.  Mr Wong on behalf of the applicant essentially argues that the notional starting point of 5 years’ imprisonment, resulting in an overall sentence after plea of 40 months’ imprisonment, was manifestly excessive.  It was arrived at by adopting an excessive starting point in respect of Charge 8 (false imprisonment); and secondly, in ordering the sentence on Charge 8 to be served wholly consecutively to the sentences on Charges 1, 3 and 4, and 6 and 7, resulting in a total sentence of 40 months’ imprisonment after plea.

31.  In support of his submissions, Mr Wong took us to three previous decisions of this Court dealing with cases of false imprisonment, namely: R v Tsui Yun Chak (unrep., CACC 333/1991), Secretary for Justice v Yiu Man Chun (unrep., CAAR 14/2010) and Ngai Yiu Ching (supra).

Consideration of the submissions

32.  It has been said many times that, save in certain types of offence where guidelines have been issued by the Court of Appeal, the exercise of comparing particular sentences passed on different facts, in different circumstances, on different defendants is of limited utility.  It has also been said many times that, when reviewing multiple individual sentences passed on a defendant on the same occasion arising out of the same course of conduct, where sentences may have been ordered to run consecutively or partly consecutively to each other, the appellate Court must still look to see if the overall totality of sentence is appropriate.  Indeed, that was the very point emphasised in Ngai Yiu Ching.

33.  In our view, the notional starting point of 5 years’ imprisonment for the conduct exhibited by the applicant in this case cannot be impugned.  This was a disgraceful course of conduct by which the applicant, then aged 37 years of age, with a long history of violence and abuse of dangerous drugs, lured a 16-year-old schoolgirl in school uniform into his apartment on the false pretext of helping her to find a job, and then, over the course of 2½ hours, prevented her from leaving by a combination of intimidation and threats, having first subjected her to watching pornographic material, before repeatedly molesting her and offering to pay her for certain other sexual favours including fellatio, all of which she made quite clear she would not do.  When he produced the knives, albeit in relation to whoever was knocking at the door, the victim must have been terrified.

34.  In our judgment, the overall starting point was not a day too long.  It was no consolation to the victim, nor is it any reassurance to the general public, that the applicant’s repeated bouts of aggression and psychotic behaviour can, in part, be explained by his persistent drug abuse.  As the clinical psychologist concluded, the risk of the applicant’s sexual and violent recidivism is high.

35.  Mr Wong takes particular issue with the sentence imposed on the false imprisonment charge (Charge 8), suggesting that it was too high when compared with the sentences considered in the other three cases to which he referred.  We do not agree.  None of those cases involved the false imprisonment of a 16-year-old schoolgirl in school uniform by a man 21 years her senior for his sexual gratification, whatever other distinctions or similarities might be forged between the circumstances of those cases and the facts of this case.  But even if that individual sentence, viewed in isolation, could have been said to be on the high side, which we do not accept, the fact is the judge made it expressly clear that he was concerned with the overall totality of the applicant’s conduct and culpability.  That totality, which included offences of false imprisonment, indecent assault, criminal intimidation and possession of apparatus for the consumption of dangerous drugs, merited, in his view, an overall starting point of 5 years’ imprisonment.

36.  We consider that in his reasoning and approach to sentence and in the sentences he eventually passed, the judge cannot be faulted.  Indeed, we regard his process of reasoning as careful, considered and ultimately correct.  This application must, accordingly, be refused.

Loss of time

37.  As we have observed, this was a renewal of an application for leave to appeal against sentence, following a full hearing before the Single Judge, also conducted by Mr Wong on behalf of the applicant.  A full, considered judgment running to some 15 pages was handed down by the Single Judge on 9 July 2015, in which the applicant was expressly warned of the powers of this Court to order loss of time in the event that he renewed his application.  That judgment was translated to the applicant by the court interpreter the same day.  Five days later, the applicant renewed his application.  In the Notice of the Order (Form XII) handed to the applicant on 7 July 2015, and in the Notice of Application after Refusal by the Single Judge (Form XIII) signed by the applicant on 14 July 2015, the same Note appears in print in English and Chinese to this effect:

“A renewal to the Court after refusal by the Judge may well result in a direction for the loss of time, if the Court comes to the conclusion that there was no justification for the renewal.”

The applicant must, therefore, be taken to have known and understood the risks of renewing this application before the Court of Appeal.

38.  In our judgment, his renewed application had absolutely no merit whatsoever.  Any reading of the judgment of McWalters JA quickly reveals that all of Mr Wong’s submissions were dealt with in a full and considered judgment.  Yet, on instructions, Mr Wong has seen fit to repeat them before us, resulting in the further consideration of this appeal by two other members of the Court of Appeal.  Counsel are not, of course, mere mouthpieces for their clients and have the duty to give proper consideration and advice as to whether arguable grounds of appeal exist and, where necessary, to reconsider the matter when leave is refused by a Single Judge.  Further, the fact that Mr Wong may have advised the applicant that in his view there was merit in renewing the application for leave to appeal does not resolve the issue against the making of an order for loss of time, if the Court comes to the view that the appeal is without merit: see Li Mau Lam v R [1981] HKLR 600, at 602G, and R v Law Man [1983] 1 HKC 190, at 191F-G, as applied by the Court of Final Appeal in Chau Ching Kay v HKSAR (2003) 1 HKLRD 99, at 120G-121D.

39.  The Court in Chau Ching Kay held, at 121A-D, as follows:

“The position therefore is this. While the fact that an applicant has acted under legal advice in pursuing his application should and would be given careful consideration, this is not necessarily a bar to the exercise of the court’s discretion. It would be wrong in principle to say that the court should not as a matter of course consider ordering loss of time in such a case. For the court would then be delegating its discretion and subjecting it to the decision of counsel. This cannot be right. In appropriate cases where it is plain that the application is totally unmeritorious, it is the duty of the court to consider directing loss of time even though the application is made pursuant to legal advice. How much weight should be given to this fact is a matter for the court having regard to all the circumstances of the case.”

40.  The Court had earlier explained the rationale behind the power to order loss of time.  It said, at 117E-F:

“The purpose of having the power to order loss of time is to deter unmeritorious applications because they would otherwise engage judicial time which may well be better spent on other meritorious cases. The result of wasting judicial time is that meritorious cases would have to be deferred or delayed, thus causing injustice to the parties in those cases, particularly where such parties are held in custody pending appeal.”

These sentiments are repeated and amplified in the Practice Note (Crime: Sentence: Loss of Time) [2013] 6 HKC 300, at para 5.

41.  In the circumstances of this particular case, and having invited submissions from Mr Wong as to why we should not order loss of time, we found no justification whatsoever for the renewal of this application for leave to appeal against sentence.  This appeal was demonstrably without merit, as the Single Judge, and now we ourselves, have each determined.  Accordingly, we ordered, pursuant to our powers under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 that one month during which the applicant has been in custody pending the determination of his appeal shall not be reckoned as part of the term of 40 months’ imprisonment to which he is for the time being subject.

[1] [2011] 5 HKLRD 690, at paragraphs 13, 17-20, 22-23