THE QUEEN v. NG KOON TAI AND ANOTHER

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JUDGMENT OF THE COURT

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Considerations in sentences for rape

Silke, V.-P.:

1. Ng Koon Tai, who was D1 at trial and aged 20, and Yung Mo Ping, who was D2 at trial and aged 18, appeared before His Honour Judge Saied sitting as a Deputy Judge of the High Court on an indictment containing a number of counts of rape. The trial commenced on 18th May 1989 when both entered pleas of not guilty.

2. Trials within a trial were then held on the admissibility of their cautioned statements.

3. On 22nd May in the course of the voir dire relating to him, and before the trial judge had made any ruling, D2, Yung, pleaded guilty to the offence of rape contained in the 8th count in the indictment.

4. On 24th May, after the trial judge had ruled his statements admissible, D1 pleaded guilty to the offence of rape contained in the 4th count in the same indictment

5. As a result of those pleas the Crown offered no evidence in respect of D1 on counts one to seven and count nine and in respect of D2 on counts one to three and five to nine. They were acquitted. They were convicted on the two counts to which they pleaded and were sentenced respectively to 12 years and 12 years 9 months' imprisonment. They now seek leave to appeal against those sentences.

6. The rape was of the same girl and on 22nd December 1988 at an abandoned hut in the Tze Ku Wan Squatter Area in Kwai Chung.

7. The girl, who was aged 17 years and 3 weeks at that time, had come to know D2, Yung, in the summer of 1988. They became friends and on one occasion had consensual intercourse. They continued to meet thereafter. D2 in early December 1988 conceived a vicious plan which he started to put into effect.  He asked a man, who had the good  grace to refuse, whether that man would be interested in communal sex with the girl and then to take her into prostitution.

8. On 21st December D1 and D2, together with another man who was not before the Court, agreed that the girl would be brought to a wooden hut used by D2.  The other two would feign an attack on D2 who would pretend to be unconscious. The first two, one of them D1, would then have intercourse with the girl whether she consented or whether she did not. Afterwards D2 would take his turn. There was to be a mention of an imaginary debt of $15,000 owed by D2 to the others. It was intended to try to force the girl to become a prostitute to pay off this debt. She was after all supposed to be the friend of D2.

9. On 22nd December they put this plan into effect D2 lured the girl to the hut. D1 and the other men then burst in and beat D2 - a beating which appeared to have gone further than was originally intended for D2 was bruised in the course of it - and the girl was then raped by them in turn, her will being overborne, and this more than once. In addition sexual indignities were perpetuated upon her. D2 having recovered from the beating also raped the girl.

10. D1 pretended he was the boss and told the girl that she had to prostitute herself and instructed D2 that he had to teach her her trade. D2 had further intercourse with the girl.

11. The girl pretended to agree to acting as a prostitute and she was allowed to go. D1, D2 and the other man then remained in order to meet their "Big Brother".  The implications are clear.

12. The next day the girl with her own brother and some friends seized upon the persons of D1 and D2 and brought them to a police station.

13. Before passing the sentence he did, the trial judge obtained reports from the Probation Service and from the Intake Officer of the Correctional Services Department, this because of the ages of the applicants. He considered their contents, just as we have, and we have had our attention drawn to certain portions of them.

14. Generally, a more vicious callus and brutal betrayal by D2 of the confidence of a young girl would be difficult to imagine. D1's conduct was only marginally less heinous. The Probation Officer referred to D1's apparently great remorse - he broke into tears in the course of his interview. Whether the Probation Officer was fully apprised of the part D1 played and of the facts of the offence is open to some doubt but, be that as it may, D1 had little pity on the girl at the time of the offence.

15. It was accepted that no actual physical injuries were caused to the girl and there was no additional violence, apart that is from the violence offered to her being the violence necessary for non-consensual intercourse. She was not beaten up in any way.

16. The trial judge took as his starting point a period of 15 years' imprisonment after trial and both Mr. Allan, who appeared for D1 in this Court, and Mr. Wong, who appeared for D2 both here and below, criticised that starting point as being too high. As compelling mitigating factors Mr. Allan indicates the plea of guilty, the remorse which D1 is said to have entertained, the fact that the girl was not made to come into the box and recount her ordeal, his youth and his previous good character. Both D1 and D2 had clear records. He also refers us to the Intake Officer's report which considered training centre to be a possibility. He says that in any event, in the light of that, the eventual sentence of 12 years is too high.

17. Mr. Wong also emphasised the plea of D2, his age, the lack of any additional violence to the girl and the general circumstances of the case.

18. We have been referred to Attorney General v. Ip Chung Hang [1989] 1 HKLR 149 where another Division of this Court considered the appropriate sentences for offence of rape and adopted the line taken by Lord Lane, L.C.J. in Billam (1986) 82 Criminal Law Reports 347. There Lord Lane said the variable factors in cases of rape are so numerous that it is difficult to lay down guidelines as to the proper length of sentence in terms of years. With that observation we would respectfully agree.

19. Mr. Wong has referred us to a number of authorities in this jurisdiction starting with The Queen v. Kong Wai Kin, Criminal Appeal 351 of 1984 and going on to A.G. v. Kong Ming Chuen Application for Review No.18 of 1988, A.G. v. Mau Man Yiu, Application for Review No.1 of 1989 and R. v. Chan Pin Chung, Criminal Appeal No.84 of 1989 which bear upon sentences imposed for this offence. Distilled they emphasise that which Lord Lane had to say as to the variable factors which have to be taken into consideration and which bear on the sentence imposed.

20. In Billam Lord Lane went on to say that at the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime on a number of different women or girls. He represented a more than ordinary danger and a sentence of 15 years or more may be appropriate.

21. In R. v. Yau Wai Hung and another [1988]1 HKLR 452 at page 456, Yang, V.P. (as he then was) said in relation to the facts of that case:

It generally, therefore, appears that as a guideline for the worst category of gang rape, or of multiple rapes by a single person, sentences in the region of 15 years' imprisonment would be appropriate.

22. Certainly pleas of guilty which avoid the presence of the victim in the witness box are matters for which a substantial discount should be given. As Lord Lane said in Billam, 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. But he went on to emphasis, and again we adopt this passage :

"The amount of such a reduction would, of course, depend on all the circumstances, including the likelihood of a finding of not guilty had the matter been contested."

23. On the face of it here such a finding would not appear to have been open given the fact of the pleas, one in the course of the voir dire and one immediately after a cautioned statement had been admitted.

24. When the trial judge took as his starting point 15 years' imprisonment he had considered the general circumstances and the factors of aggravation which existed. However we think, with respect, that this case could not be classed in the worst category of gang rape and that 15 years was too high a starting point in all the circumstances. This is not in any way to diminish the grossly unpleasant ordeal which was forced upon this girl or the very vicious conduct of both tire applicants. It was well planned and fully premeditated.

25. In the circumstances we consider that a starting point of 12 years would have been appropriate, allowing for the factors of mitigation which have been advanced to us and bearing in mind all the circumstances of the offence and of the offenders as has been disclosed in the Probation Report and the Intake Officer's report, in particular their ages. In our judgment in the case of D1 the appropriate sentence would be 9 years' imprisonment and in the case of D2 the appropriate sentence would be 10 years' imprisonment.

26. We, therefore, grant leave and allow the appeal to the extent indicated.