HKSAR v. CHAN KA CHUN

DCCC 954/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 954 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant Chan Ka Chun appeared before me facing 8 charges:-

Charge 1: Possession of apparatuses fit and intended for the smoking or inhalation of dangerous drugs;

Charge 2: Possession of a dangerous drug;

Charge 3: Indecent assault;

Charge 4: Indecent assault;

Charge 5: Possession of offensive weapons;

Charge 6: Criminal Intimidation;

Charge 7: Criminal intimidation; and

Charge 8: False imprisonment.

2.  The defendant pleaded guilty to Charges 1, 3, 4, 6, 7 and 8 and admitted the facts pertaining to the amended summary of facts.

3.  I convicted the defendant of Charges 1, 3, 4, 6, 7 and 8 on his own pleas and admission.

4.  I ordered Charges 2 and 5 be left on court’s file and not to proceed with without leave of this court or that of the Court of Appeal.

5.  This case concerned the incarceration of the victim, girl X, a 16 years old school girl, at the residence of the defendant in the morning on 9 July 2014.  (Charge 8) X was lured by the defendant to go to the latter’s residence at Fu Cheong Estate, Shamshuipo and was unlawfully detained there.

6.  During the unlawful detention, X was twice indecently assaulted by the defendant (Charges 3 and 4).  Girl X was in school uniform when she was indecently assaulted.

7.  For Charge 3, the defendant played a pornographic film to girl X.  Girl X indicated that she wanted to leave but the defendant said he would let her leave after watching part of the movie.  During this episode, the defendant undressed himself until he was completely naked.  He tried to unbutton girl X.  He used his hand to touch the right breast of X for 2 to 3 seconds, and squeezed her right breast twice.  Girl X pushed the defendant away and asked him to stop.  Girl X then tried to button herself up.

8.  The defendant then became emotional and started to talk nonsensical things.

9.  Girl X indicated that she wanted to leave but the defendant asked girl X to stay and watch the film.  He asked girl X to “do it” quickly and offered to pay her $500 and promised to let her go after it was over.  Girl X tired to leave twice.  For her first attempt, she was pulled back by the defendant.  For her second attempt, girl X did manage to leave the apartment but the defendant seized her mobile phone and threw it into the apartment.  As soon as girl X returned to the apartment to retrieve her phone, the defendant shut the gate and used his body to block the entrance. Having retrieved her phone, girl X tried to prevent the defendant from closing the door but was unsuccessful.

10.  Girl X and the defendant’s stand-off outside the apartment was witnessed by a neighbour who summonsed a security guard of Fu Cheong Estate for help.

11.  Inside the apartment, the defendant pulled girl X to the bed and tried to undress her.  The defendant touched the inner thighs of girl X.  He tried to touch the private parts of girl X but was the latter brushed him off and managed to stop the defendant from touching her private parts.  Girl X struggled and insisted to leave.  The defendant refused.  He offered he would pay X $500 and asked X to perform fellatio for him.  Girl X asked the defendant to stay away from her.  When X tried to stand up, the defendant pressed his body against her and used his hand to touch her inner thigh.  X struggled.  The defendant said he would only let her go after she had done it on him (Charge 4).

12.  A security guard of Fu Cheong Estate arrived outside the apartment and knocked on the door.  Whilst the defendant’s lower body was still touching girl X, he reached over to the cabinet next to the bed and took out a 30-cm long knife (“Knife 1”).  He waved Knife 1 at the door.  X asked the defendant to open the door but the latter refused to do so.  By then the defendant had stopped touching girl X.  Whenever someone knocked on the door, the defendant would utter foul language.  After around 3 to 4 minutes, the knocking stopped.

13.  The security guard reported the matter to the police.

14.  The defendant then asked girl X to touch his private parts and kiss him before he would let her go.  X refused to comply.

15.  Eventually the police party arrived at the scene and knocked on the door again, revealing their police identity.  The defendant waved Knife 1 at the door whenever someone knocked on the door.

16.  The defendant then placed Knife 1 on the floor and walked over to look over the door through the door viewer.  As the defendant was doing so, X seized the opportunity and hid Knife 1 in the bathroom.  She then received a call from the police.  The defendant was then sitting in front of the door uttering foul language.

17.  The police asked X to lock herself in the kitchen.  X thus went into the kitchen.  Just them the defendant realized that Knife 1 had gone missing; he went into the kitchen to get a 39-cm long knife (“Knife 2”).  The defendant left the kitchen and locked the kitchen.  Girl X also used various items to block the kitchen door.

18.  Girl X then heard a few loud bangs.  The defendant was then heard saying “If you continue, I will chop my friend to death.” (Charge 6)

19.  Soon afterwards, the police broke into the apartment and subdued the defendant.  He was arrested for “False imprisonment” and cautioned.  Under caution, he remained silent.

20.  During the stand-off between the police and the defendant, the defendant was heard saying to girl X that if she continued to make a noise he would rape her.  (Charge 7)  The defendant had also at one point opened the front door slightly and asked the police to leave, during which he was seen holding Knife 2.  When the police managed to break into the apartment, Knife 2 was found next to the defendant.

21.  Girl X suffered minor injuries to her hands.

22.  Upon search of the premises, apart from the knife found next to the defendant, the police found and seized the following items as exhibits:-

(i) In the bathroom Knife 1;

(ii) On a dressing table:-

(a) One inhaling device (consisting of one plastic bottle inserted with one metal tube and one straw further connected to another 2 straws) containing 0.02 gramme of a solid containing cocaine;

(b) One plastic bottle inserted with one straw containing 84 milliliters of a liquid containing traces of methamphetamine, DNA found on the opening end of the straw could have originated from the defendant;

(c) One glass tube shaped as a bulb at one end containing traces of a solid containing methamphetamine;

(d) One lighter;

(e) One electronic scale; and

(f) Nine empty transparent resealable plastic bags of various sizes.

23.  Items (a), (b) and (c) formed the apparatuses of Charge 1.

24.  At all material times, the defendant unlawfully and injuriously imprisoned girl X and detained her against her will.  The ordeal lasted for 2½ hours.  (Charge 8)

25.  The defendant is 38 year old.  He first transgressed the law in 1991.  He had appeared in court for 27 cases and he has a total of 34 convictions recorded against him.  He has three previous convictions for Wounding 19, one for Wounding 17, one for Common Assault and one for Robbery.  He had been sentenced to prison on many occasions.

26.  The antecedent statement reveals that the defendant has been suffering from psychiatric illness since 1995.  I called for a psychiatrist’s report and a psychologist’s report before sentence.

27.  Mr Lee, counsel for the defendant, submitted 4 District Court sentencing cases as comparables in mitigation.

28.  In HKSAR v Tang Yiu Man Kenneth, DCCC 1169/2013, the defendant was sentenced to 2 months imprisonment for an offence of possession of apparatus fit and intended for the inhalation of a dangerous drug.  A starting point of 3 months imprisonment was taken by the learned sentencing judge.

29.  In HKSAR v Au Chun Tung and another, DCCC 974/2013, the defendant pleaded guilty to one charge of trafficking in a dangerous drug, one possession of apparatus fit and intended for the inhalation of a dangerous drug, one of willfully obstructing a police officer in the due execution of his duty and one of possession of a dangerous drug.  The learned sentencing judge considered that for possession of apparatus a starting point of 3 months imprisonment is appropriate.

30.  In HKSAR v Lam Shuk Ming and another, DCCC 60/2014, the defendant pleaded guilty to one charge of burglary, one of possession of a dangerous drug, one of possession of apparatus fit and intended for the inhalation of a dangerous drug and one of possession of Part 1 poison.  The learned sentencing judge considered that a starting point of 3 months imprisonment is appropriate for the possession of apparatus.

31.  In HKSAR v Lai Wai Sing and another, DCCC 143/2012.  The 2 defendants each pleaded guilty to one charge of indecent assault on a girl who was 15 years and 11 months old.  The learned sentencing judge took a starting point of 9 months imprisonment for each of the indecent assault charges.

32.  As I told Mr Lee, these sentencing cases are not binding on me.

33.  Subsequent to the first hearing, Mr Lee filed his second list of authorities.

34.  In HKSAR v Lee Yuen Ping Maggie CACC 242 of 2000 (unreported), the defendant was convicted after trial of one charge of trafficking in a dangerous drug and one of possession of smoking apparatus.  For the possession of smoking apparatus, the defendant was sentenced to six months’ imprisonment.  The Court of Appeal observed that “The sentence of six months’ imprisonment on the second charge is in itself not objectionable…

35.  In The Queen v Wong Pak Ho and 2 others (unreported) Criminal Appeal No 372 of 1987, the 3^rd defendant in that case was sentenced after trial to 3 years’ imprisonment for possession of dangerous drugs for the purpose of unlawfully trafficking, he was also sentenced to 6 months’ imprisonment for possession of apparatus.  On appeal, the Court of Appeal accepted that the 3^rd defendant had possessed a much smaller quantity of dangerous drug for trafficking, on the basis of the smaller quantify possessed by the 3^rd defendant, the Court of Appeal reduced the sentence of 3 years to 10 months.  For the sentence of 6 months for possession of apparatus, the Court of Appeal ordered it to stand.

36.  I called for a psychiatric report and a psychological report of the defendant before sentence.

37.  Dr Oliver Chan, Visiting Psychiatrist of Siu Lam Psychiatric Centre, who examined the defendant and prepared the psychiatric report states that the defendant was known to mental health service in 1995 and had been hospitalized several times mainly for complications resulting from his drug abuse.  Dr Chan opines that the defendant has serious problem in personality with concurrent substance abuse issue.  He is advised to continue attending the out-patient clinic for monitoring and treatment.

38.  Ms Sherry Lam Clinical Psychologist of Correctional Services Department, who interviewed and prepared the psychological report of the defendant states in paragraph of the report that:-

“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 behavior, chronic drug abuse with drug-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.”

39.  I had called for a victim impact assessment report but was given to understand that girl X refused to be interviewed, hence no such report is available.

Discussion

40.  In the present case, the victim, a girl of 16 years old, who was in school uniform, was unlawfully and injuriously detained against her will by the defendant.  She was sexually molested and put in great fear by the defendant.  The defendant had just sexually abused the victim girl, he tried to corrupt the victim by offering to pay her $500 for performing oral sex for him.

41.  These heinous crimes committed by the defendant give rise to a natural sense of outrage.  Although I do not have a victim impact assessment report of girl X before me, I have no difficulty in finding that the victim must have suffered much at the hands of the defendant. She was kept captive until she was saved by the police, she was subjected to repeated sexual molestations, she was intimidated.  To me, these findings are common-sense conclusions I can reach from the facts admitted by the defendant. The Court of Appeal held in HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 that despite the absence of a victim impact assessment report, a sentencing judge can still draw common-sense conclusions of the effect of a sexual offence on a victim.

42.  In my judgment, exemplary sentences are called for in the present case in order to deter others from committing the same wrongs as the defendant did and to redress the grievance of the victim, her family members and the public alike by imposing sentences that adequately and fairly reflect public detest of crimes of this sort.

43.  In my judgment, the 2 indecent assault charges each calls for a starting point of 21 months” imprisonment. The offences were aggravated by the fact that the victim was a young girl of tender age, she was only 16 years old in school uniform.  In the light of the abovementioned aggravating feature, I would take a higher starting point of 2 years” imprisonment for Charge 3 and Charge 4.  The defendant is entitled to the customary one third reduction for his guilty pleas to the charges.

44.  For the false imprisonment charge, Charge 8, a starting point of 3 years’ imprisonment is called for.  The defendant is entitled to one third reduction for his guilty plea.

45.  For the defendant’s possession of apparatus, Charge 1, a starting point of 6 months’ imprisonment is appropriate.  I shall allow the defendant 2 months’ reduction for his guilty plea.

46.  For the 2 Criminal Intimidation charges, Charge 6 and Charge 7, they were both serious in nature.  For Charge 6, the defendant threatened the police that if they continued their action, he would chop his friend, ie the victim, to death.  For Charge 7, the defendant threatened to rape the victim if she continued to make a noise.  Mr Lee told me in mitigation that the defendant committed Charge 6 as he was annoyed by the knocking on the door.  The defendant committed Charge 7 as he wanted to stop the victim from making noise.  In my judgment, the threats that the defendant uttered to the police and the victim show he had no respect for the law and was totally indifferent to the feelings of those at the receiving end of his threats.  A person who threatens the police and a young girl under captive in the way the defendant did must expect nothing less than an immediate custodial sentence.  On Charge 6 and 7, I shall adopt 12 months” imprisonment as the starting point.  The defendant is given one third reduction for his pleas.

47.  For the reasons given, on Charge 1, I sentence the defendant to 4 months’ imprisonment.

48.  On Charge 3, I sentence the defendant to 16 months’ imprisonment.

49.  On Charge 4, I sentence the defendant to 16 months’ imprisonment.

50.  On charge 6, I sentence the defendant to 8 months’ imprisonment.

51.  On Charge 7, I sentence the defendant to 8 months’ imprisonment.

52.  On Charge 8, I sentence the defendant to 20 months’ imprisonment.

53.  Mr Lee submitted the guilty pleas of the defendant spared the victim from giving evidence hence the defendant should be given additional discount on top of the one third reduction for his guilty pleas.  Mr Lee in mitigation once suggested that the commission of the offences to some extent was due to the “perceived encouragement” from the victim.  He also submitted the victim is a working student and is somebody who has experience of the world.  Submissions of this kind show that the defendant was indifferent to the sufferings of the victim at the time of the offences, he is still indifferent to the sufferings of the victim today.  I am not prepared to give the defendant additional discount over and on top of the one third reduction for his guilty pleas.

54.  I take into account the totality principle.

55.  In Ngai Yiu Ching, the applicant was convicted after trial in the District Court of one court of false imprisonment for which he was sentenced to 3 years’ imprisonment and three counts of indecent assault for which he was sentenced to 3 years’ imprisonment on each count.

56.  The Court of Appeal had this to say about sentencing for multiple offences in paragraphs 13, 17 to 20 and 22 to 23 of the judgment.

“13. When a judge is faced with the task of sentencing for multiple offences he is required as an initial step to identify the appropriate sentence for each offence and as the final step to achieve a total sentence appropriate to the culpability of the offender. …..”

“17. But when the prosecuting authority elects the latter course, namely, to charge two or more offences arising from an episode of criminal activity, the objective is still the same, that is to say, the ultimate overall sentence must still reflect the overall and true culpability, although the sentencing judge must take care, first, to pass a sentence for each individual offence that is appropriate to that offence and the circumstances of its commission and, second, not to punish the offender twice for the same conduct.”

“18. It was in an attempt to safeguard fairness to the offender by ensuring that he was not punished twice for the same conduct that the courts developed the “one transaction” rule. In essence, this rule said that if the number of offences have been charge arising from the one transaction or course of criminal conduct, then concurrent sentences should be passed.”

“19. The one transaction rule was not developed as an inflexible rule of law. It was never intended as anything more than a practical rule of thumb to guide judges in the exercise of the power to impose consecutive sentences so that the final sentence was not one that was unfair to an offender.”

“20. However, once stated, this practical working rule tended to develop a life of its own and has led to some difficulty in its application. Judicial dicta explained what was meant by “one course of criminal conduct” and exceptions to the rule developed, eg assaults committed on police officers by offenders who were under arrest for the main offence (HKSAR v Leung Ping Wa (unrep, HCMA 1038/2005, [2006] HKEC 43)); and sexual assaults committed in the course of robberies (Secretary for Justice v Tseung Mang Ka [2001] 2 HKLRD 115). All of this, understandably enough, became material for advocates who sought to argue that multiple offences of which their clients had been convicted were part of one transaction and that it inevitably followed that the correct sentence was one where all the sentences were concurrent.”

“22. The importance of the totality principle cannot be overstated. It is there to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment, but is also a tool by which to ensure that “the overall effect of the sentences is sufficient having regard to the usual principle of deterrence, rehabilitation and denunciation.” R v KM [2004] NSWCCA 65 at para 55.”

“23. The emphasis therefore should be on a reflection in the sentence of true culpability disclosed by the offences of which the accused has been convicted …..”

57.  In sentencing the defendant for the False Imprisonment charge, I have not taken into consideration the facts relevant to the indecent assault charges, and vice versa.

58.  In assessing the totality the true culpability disclosed by the offences in question, I have come to the conclusion that the two indecent assaults on the victim were part of the same conduct, concurrent terms are appropriate as far as Charge 3 and 4 are concerned.

59.  In my judgment, the two indecent assaults substantially added to the defendant’s culpability for the victim’s false imprisonment and vice versa.  The sentences for the two indecent assaults should run wholly consecutively to the sentence imposed for the false imprisonment charge.

60.  In my judgment, a total term of 40 months’ imprisonment, which represents a notional starting point of 5 years’ imprisonment, should adequately reflect the overall culpability of the six offences committed by the defendant on the day in question.  To achieve that end, I order the sentences for Charge 1, Charge 3, Charge 4, Charge 6 and Charge 7 are to run concurrently with each other.

61.  I order the sentences for Charge 1, Charge 3, Charge 4, Charge 6 and Charge 7 are to run wholly consecutively to the sentence for Charge 8.

62.  The total sentence for the defendant is 40 months’ improvement.