THE QUEEN v. AU KAI-WING

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J U D G M E N T

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Penlington, J A. :

1. This is an application for leave to appeal against sentence on charges to which the applicant pleaded guilty before Hopkinson, J. There were a series of six robberies, two charges of indecent assault and one rape.

2. It.is not necessary to go into all the facts of each charge. For a period of some four months in the Chai Wan area, the applicant carried out a series of offences, all against women, and it is quite clear that the inhabitants of that particular area must have been put in some degree of fear. A special Police Task Force was set up to detect the culprit. Women were accosted in stairway, or landings, some degree of physical force was used on them and whatever property they had, be it money or jewellery, was taken. On two occasions a paper-cutter was produced to threaten the victims. Also on two occasions the victims were fondled underneath their clothing. This was taken further on one occasion when the victim's lower garments were pulled down and she was raped.

3. As has been submitted by Mr. Remedios in his eloquent plea on behalf of the applicant, only in two of the robberies was the applicant armed. Some degree of violence was involved but the weapon, a papercutter, was not used on the two occasions when it was produced. A paper-cutter, although perhaps not. in itself a particularly dangerous weapon, is very sharp, and to a woman carries the clear threat of disfigurement. If the paper cutter had been used that would however be the subject of another charge and additional sentence.

4. The applicant, aged 24, had a clear record, came from a normal background and a psychiatrist who examined him did not find any mental abnormality.

5. In respect of the robbery charges the trial judge imposed sentences as follows:

Charge 2 (no weapon) 7 years

Charges 5, 8 and 12 (no weapon) 9 years

Charges 4 and 6.(weapon produced) 11 years

All these sentences were to be concurrent.

6. The sentences for indecent assault were:

Charge 6, 2 years; charge 11 (where the indecency was more serious) 4 years.

7. Both sentences were to be concurrent with each other but consecutive to the robbery counts.

8. On charge 14, rape, the sentence. was 9 years, concurrent with the sentences for indecent assault but consecutive to the sentences for robbery.

9. This then produced a total sentence of 20 years.

10. The trial judge said that he took into.account the applicant's clear record and his plea of guilty to all charges at an.early stage. He said he would have passed a total sentence of 25 years but for those mitigating factors,

11. Mr. Remedios puts forward as grounds for a reduction in the sentences that the trial judge has not given sufficient weight to the guilty pleas which here do show genuine remorse, the applicant's clear record, and that the robberies were not in themselves of the most serious type. He points out that in particular the applicant's pleas saved the victims of the sexual assaults the embarrassment of giving evidence. It was also submitted that the sentences for the indecent assault and rape counts should not have been made to be consecutive to he other sentences. However the main thrust of Mr. Remedios argument for the applicant was that for a young man of 24 with a clear record who was genuinely remorseful the circumstances of these offences did not call for a total sentence of 20 years.

12. We have been referred to various authorities relating to sencence for similar offences and there is also a case which my Lord Kempster has found of Ho Wing Ho⁽¹⁾ where there were two robberies, two rapes and two aggravated burglaries. The circumstances of the. rapes appeared to be more serious than here in that the victims were bound and gagged before the offence was committed. A total sentence of ten years was considered appropriate which we ourselves feel was to take a lenient view,

13. Having considered all the authorities to which we have been referred together with Ho Wing Ho ⁽¹⁾ we consider that ^the total sentences passed here were manifestly excessive.

14. The general -tariff sentence for armed robbery was set out by Roberts C.J. in Mo Kwong Sang v. R.⁽²⁾ and confirmed in R. v, Lo Man Choi⁽³⁾. The starting point in a case of armed robbery i.e. where the accused is carrying a dangerous weapon, is a sentence of five years. That would however be increased if there were aggravating factors such as the invasion of domestic premises, which includes lifts and stairways, when a sentence of six years may be normal, This should again be increased if the victims were tied-up, there was a group of robbers, the victims were ill-treated or there were other aggravating factors present.

15. Looking at the robbery offences here as a whole the aggravating factors were that, on two occasions, a weapon was presented. They were committed, with one exception, at night in stairways; the victims were women and there were multiple offences. However we consider that the total sentence of eleven years for the robberies on the facts here, is too high. A sentence of eight years would have been appropriate after trial which should be reduced by reason of the guilty pleas which we consider did indicate genuine remorse and the applicant's clear record, to 6 years in each case; all those.sentences to be concurrent.

16. Turning to the other charges,, and bearing in mind that the maximum sentence for indecent assault is 5 years, we consider that they were serious, They were carried out at night; were repeated and on one occasion carried out under threat with a weapon. The only factors in mitigation is the applicant's clear record and remorse. We consider that a sentence of years in each case is appropriate, to be concurrent.

17. Lastly in respect of the charge of rape while that is always a serious charge and, unless there are quite exceptional circumstances; a substantial custodial sentence is called for, there are not present here the aggravating factors of brutality or gang rape which do call for very long sentences, We consider that a sentence of 7 years would be appropriate which will be reduced to 6 years by reason of the mitigation. That sentence will be concurrent with the sentences for indecent assault but consecutive to the sentences for robbery.

18. The trial judge was quite correct in ordering that the sentences for the indecent assaults and rape, while concurrent with each other; should be served consecutively to chose for robbery. That is an offence which by definition involves the use or threat of violence but if victims are also subject to sexual attach of any sort the penalty for such attack must be in addition to that for the robbery and such offenders can expect substantial sentences.

19. On the facts of this case, while there were multiple offences we consider that the trial judge was not. Justified in coming to the conclusion that a total sentence of 25 years was called for to be reduced to 20 years on account of the guilty pleas and the applicant is clear record. Such a sentence is only required in the worst type of robbery and rape and the facts here fell well short of that. We consider that a total sentence of 12 years is appropriate.

20. The application is granted. We treat the application as the. appeal and allow it to the extent indicated, This leaves the sentences as follows.

Charges 2, 5, 8, 10, 12, 13 (all robbery) 6 years' imprisonment on each, all concurrent.,

Charges 6 and 11 (indecent assault)  4 years' imprisonment on each concurrent with each other and charge 14 but consecutive to the robbery charges.

Charge 14 (rape) 6 years' imprisonment, consecutive to the robbery charges.

21. Total sentence. 12 years imprisonment.

(1) Application for Review No. 12 of 1981

(2) 1981 H.K.L.R. 610

(3) Crim. App. 73/1984