HKSAR v. LAM CHUNG TAK, JEMY

CACC 271/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 271 OF 2006

(ON APPEAL FROM HCCC NO. 4 of 2006)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  On 8 May 2006, the applicant pleaded guilty before Deputy High Court Judge Toh to counts of indecent assault (1^st count) and incest (5^th and 6^th counts).  The victim in each case was the applicant’s daughter.

2.  Prior to sentencing, the judge called for a psychological report about the victim who, by this stage, was 11 years and 9 months old.  A background probation report and a psychological report for the applicant were also required.  On 29 May 2006, after these three reports had been made available, the judge sentenced the applicant to a total of 10 years’ imprisonment against which he now seeks leave to appeal out of time.

3.  The victim was born on 29 July 1994.  The applicant and the victim’s mother were cohabiting and looked after the victim until 25 September 1996 when the applicant was sent to prison for 21 months for a series of burglaries.  In the following month, the applicant again appeared in court for a further series of burglaries and breach of a suspended sentence.  On this occasion, he received a sentence of 2 years and 4 months’ imprisonment in all.  This was, however, to be served consecutively to the other sentence leaving the applicant with a total sentence of 4 years and 1 month.

4.  After the applicant was discharged from prison, he lived apart from the victim until August 2004.  At that time, the applicant was living with a girlfriend, Ngai Siu-hung (Ngai) and he was the father of her son who was then 2 years old.  The applicant and Ngai, together with Ngai’s son and the victim, moved into a small flat in Kowloon.

1^st count

5.  Soon afterwards, on a day unknown in September 2004, the indecent assault, the subject of the 1^st count, took place.  The family, at this stage, used to sleep on a mattress in one of the two bedrooms as they had not yet purchased a bed.  This offence occurred while Ngai and her son were asleep.  The victim was wearing nightclothes when the applicant put his hands under the victim’s upper clothing and squeezed her breasts.  The victim showed her awareness of what the applicant was doing and after twenty seconds he left the room and pretended that nothing had happened.  The victim made no complaint about this at the time as she was too afraid that the applicant would beat her if she said anything.

5^th count

6.  The incest in the 5^th count occurred about two months later.  In early November 2004, at about midnight, after Ngai and her son had gone to sleep, the victim was still doing her homework.  She was then 10 years and 4 months old.  The applicant approached the victim under the pretext of wanting to help her with her homework.  He asked her to sit on the sofa which she did and he then tried to put his hands under her clothes to touch her breasts.  The victim resisted this by wriggling about.  This made the applicant lose his temper and he ordered her to stay up for the rest of the night doing homework and household chores.

7.  The victim was still doing chores at 6.00 am when the applicant said that if she did not let her do “that” to her, he would hit her.  This made her comply out of fear that she would be beaten up.  She then lay down, as she was told to, and removed her clothes.  After the applicant had removed his clothes, he put on a condom.  Sexual intercourse then took place for about a minute with the victim telling her father not to do this and pushing at his shoulders.  She was completely ignored.

8.  Afterwards, having removed his condom, the applicant told the victim to discard it in the rubbish bin immediately.  He then told her that she was to take a day off school by reporting “sick” and that she should tell no one what had happened.

6^th count

9.  The 6^th count was concerned with a similar incident about nine months later, on 28 August 2005.  Ngai was in the shower when the applicant told the victim, now just 11 years old, to come into the bedroom where he was lying on the bed wearing only a pair of underpants.  The victim was told to lie down and the applicant then fondled her breasts before lowering her shorts and underpants.  Sexual intercourse, this time without a condom, then took place for about three minutes.  The victim tried to resist but was overpowered.

10.  The next day, the victim told a neighbour that the applicant had hugged her after he had taken off her trousers and she wanted to leave home.  The neighbour’s promise to help was followed by a visit from the police that evening.  However, at that stage, the victim was unable to bring herself to make a complaint of sexual assault.  She feared a beating if she did so.

11.  After the police had left, the victim was struck by the applicant with a wire coat-hanger on her arms, hands and buttocks because of his anger at the police visit.  This assault left ten bruises which were noted by the doctor who examined the victim on 31 August 2005.  The applicant also ordered the victim to clean up the toilet as a further punishment for involving the police.

12.  The next day, 30 August 2005, the victim again spoke to her neighbour and, on this occasion, the neighbour took the victim to the police station to report the matter.

Confession following arrest

13.  The applicant was arrested at 11.50 pm that same day.  Thereafter, he made a full confession to these offences.  He described, in relation to the 6^th count, how he had withdrawn from the act of intercourse and then ejaculated into tissue paper.  He admitted also that he realised the victim, his daughter by his “ex-wife”, was afraid of him.  This was, he said, why she said nothing and had put up little resistance to the sexual assaults.  Accordingly, he said, there was no need for him to resort to force because he was aware that the victim knew that he used to be a “fierce” person.  He also admitted hitting the victim with a coat-hanger after the visit by the police on 29 August 2005.

14.  The applicant went on to make a full confession to the offences outlined in counts 1 and 5.

Antecedents and sentencing

15.  The applicant’s past record, including the burglaries with which we have dealt already, consisted of thirteen court appearances.  His other offences included an indecent assault in 1985, three convictions for assault occasioning actual bodily harm, in 1988, 1992 and 2005, respectively, and fighting in a public place in 2002.

16.  When sentencing, the judge said that these “tragic and cruel” offences represented an “utter breach of trust”.  The judge noted that the victim was suffering post-traumatic symptoms which would necessitate counselling and went on to say that the applicant deserved no compassion as he had shown none to his own daughter when satisfying his “selfish needs”.

17.  The judge did not accept a part of the plea in mitigation to the effect that the applicant was “deeply ashamed”, pointing out that after the police were first called on the occasion prior to his arrest, the applicant had reacted with anger and had beaten the victim.  Nevertheless, the judge recognised that the pleas of guilty were to the applicant’s credit.

18.  The applicant was 36 years old at the time he was sentenced.  On the 1^st count the applicant was sentenced to 12 months’ imprisonment after a starting point of 18 months had been adopted; on the 5^th and 6^th counts, the applicant received 6-year sentences, in each case reduced by a third from a 9-year starting point.  With totality in mind, the judge ordered that while the sentence on count 5 should be consecutive to the sentence on count 1, only 3 years of the sentence on count 6 should run consecutively to the other terms of imprisonment, making 10 years in all.

Grounds of appeal

19.  Mr Percy, who did not represent the applicant in the court below, submitted in his 1^st ground of appeal that the sentence, in its overall effect, was manifestly excessive.  He argued that insufficient recognition had been given to the “early pleas”, indicated on 21 March 2006 at a pre-trial review which had in any event followed the applicant’s immediate confession to the police when he was interviewed.  His pleas of guilty had, in turn, saved the victim having to give evidence.

20.  Originally, this ground was linked to a 2^nd ground of appeal which asserted that the judge had “failed to identify any particular aggravating factors (beyond the victim’s age) or to demonstrate why the starting point of 9 years was at the higher end of the accepted range of sentences of between 6 and 10 years”.

21.  The 2^nd ground of appeal was abandoned by Mr Percy at the commencement of these proceedings as, also, was a 3^rd ground in which complaint was made about the judge having attached, at the time of sentencing, some significance to the beating given to the victim after the first visit to the applicant’s flat by the police.

22.  Mr Percy had at some stage, apparently, come to realise that neither of these grounds had the remotest chance of success.  In this regard, he was entirely correct but he did not have the courtesy either to inform the respondent’s counsel or the court in advance that he would not be pursuing these grounds.  The result of this is that Ms Sin has had to spend what was plainly a considerable amount of time in preparing written submissions in answer to these grounds.  These grounds have equally involved the unnecessary expenditure of time on our part in reading evidence, submissions and a large number of authorities which have no relevance whatever to the sole point now at issue.  Mr Percy only needed to send a note, by email or by fax of his intention to abandon these grounds in good time before the hearing and he had no explanation for his failure to do so.

23.  We shall not waste time with a review of any of the authorities put before us.  It is apparent that the 9-year starting point adopted by the judge for incest by a father on a daughter of such a young age, in circumstances which, as Mr Percy eventually accepted, were tantamount  to rape, was well within the bracket of sentence for this kind of offence.

24.  The applicant was well aware that his actions did not have the consent of the victim and, as such, these offences were every bit as serious as rape.  When the victim is as young as ten and the incest offence has been repeated, we do not consider that 9 years’ imprisonment, although towards the top of the sentencing range, to be manifestly excessive.

25.  The only matter which has concerned us, although it did not specifically form any part of Mr Percy’s arguments, was whether the judge ought to have made the 12-month sentence on the 1^st count, appropriate though it was in itself, consecutive to the sentences imposed for incest.  We bear in mind the applicant’s subsequent conduct has had the consequence that the victim has not had to relive the trauma of these events by rehearsing the sordid details of these offences long after they occurred.  It is because of this, and on this account alone, we consider that as a matter of principle the applicant should have been given rather more credit for his pleas of guilty when totality was considered.

26.  Accordingly, we shall give leave and, treating the hearing as the appeal, we allow the appeal to the extent that we shall quash the order that the 12-month sentence for indecent assault on the 1^st count of the indictment should run consecutively to the sentences for incest.  Instead, we make an order that this sentence should run concurrently to the other sentences.  This has the result of making a total sentence of 9 years’ imprisonment.