THE QUEEN v. CHUNG PIN CHUNG

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J U D G M E N T

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Silke, V.P.:

1. Chan Pin Chung was originally indicted on three counts: the first forcible detention contrary to section 42 of the Offences against the Person Ordinance, the second and third being separate counts of rape. The circumstances are somewhat unclear but that indictment was amended and a plea was taken to the amended indictment which contained two counts, one: kidnapping contrary to Common Law and second: rape.

2. He pleaded guilty and was sentenced to 8 years' imprisonment on the kidnapping count and 10 years' imprisonment for rape the sentences running concurrently. He now seeks leave to appeal against sentence.

3. The events which led to these counts being preferred were that a man Kwok had married a Thai girl, whom we shall call for convenience Kanya. In 1978 they lived together in Tsuen Wan with a child being born in 1982. Kanya left her husband in 1983. There were disputes between them.

4. On 27th June 1986, the Applicant as a result of a call from a man, Chau Kai Ho, met in a restaurant in Tsuen Wan with Choi Kam Ping, Yau Sze piag, Ng Shing Chun and another man whose identity is not known. They had a meal and in the course of that meal they were joined by Kwok. Kwok asked the group to assist him to take his wife away from that which was described as a "bath-house" where she worked as a masseuse. The group agreed.

5. The applicant went to the massage premises that evening; had a massage from Kanya and attempted to lure the girl out for sexual intercourse. She refused. He left, made various telephone calls to the girl and, eventually, she was persuaded to come out to meet him. Near the intersection of Tong Mi and Mongkok Roads the girl was grabbed around the neck from behind by the Applicant. She struggled. The Applicant was then joined by Kwok and the other members of the group. A passing taxi was stopped, Kwok insisted she get into the taxi, she refused and was then pushed towards it. She struggled and was hit by one of the group and also by the Applicant. She became semi-conscious and was physically bundled into the back of the taxi which then with Kwok, Yau and the unidentified men took her to a hut on the grounds of the Luen Hing Construction Company in Deep Water Bay Road.

6. The Applicant, Choi, Chau and Ng boarded another taxi went to another place and later joined the group holding Kanya in the hut.

7. There she was beaten again and money in the sum of $10,000, which it was claimed she owed her husband, was demanded from her. She made a promise of $5,000 the next day and another $5,000 on the day after that. A cash cheque for $2,000 was stolen from her wallet and as was also a sum of $600 cash. Ng forced her to swallowed Mandrax tablets and she felt dizzy.

8. Later, it was now well into the morning of 28th June, she was taken by Yau to another nearby hut there they were joined by Ng, Choi, Chau, the Applicant and the unidentified man. Chau demanded she remove her clothing. She refused. She was beatened. The group left the hut leaving Chau inside it with her. Chau ithen committed buggery upon her and following that the Applicant, Ng, the unidentified man and Yau took it in turns to have sexual intercourse with her.

9. Later she escaped and she made a report to the police station. Her injuries were a bruise on her left eye, abrasions her chin, neck, right collar bone and right upper chest; bruises to the front and right side of her chest, back of her left and right shoulder and back of her left hand. There was redness on her right shoulder,

10. Choi, Yau, Chan, Kwok and Ng have all been dealt with at trials before different judges at different times. Chan was not apprehended for approximately two years after the event and therefore this trial was the last in the series.

11. In passing the sentence he did, Barnes, J. bore in mind that on his first appearance before the Magistrate, the Applicant had indicated he wished to plea guilty; that he changed his mind but then re-changed it and pleaded to the amended indictment. He was aware that this saved expense for the community and that the impanelling of a jury became unnecessary. For this plea he stated that he would give the Applicant a full discount. He then went on to say that gang rape was an offence which, on a verdict of guilty after trial, ought to attract a sentence of about 15 years. He took into account the sentences passed on the other participants and the roles they played in contra distinction to the role played by the Applicant and expressed himself of this view:

"Nevertheless, I think that the part thay you played in the overall episode was such that you after trial ought to have received a sentence of imprisonment of 13 years as well. Because of your plea of guilty, I will reduce that sentence in your case to one of imprisonment for 10 years.

    On the first count of kidnapping, I order that you be sentenced to imprisonment for 8 years. On the second count of rape, I order that you be sentenced to imprisonment for 10 years."

12. The trial judge clearly approached the sentencing exercise on the basis of totality. However the 8 years passed on the kidnapping was an error in that, as the count was laid at common law, the maximum sentence capable of being imposed, under section 90(1) of the Interpretation and General Clauses ordinance, Cap. 1, is 7 years. This application started as one for leave to appeal out of time against sentence. We gave that leave in the light of the error and the possibility that it might impinge on the generality of the sentence.

13. The sentences passed upon the other persons where: Kwok, who faced a count of false imprisonment and one of robbery: 7 years. On appeal that was reduced to 5 years; Choi who faced counts of false imprisonment, blackmail and robbery: 8 years; Yau who faced counts of false imprisonment, blackmail, two rapes, robbery and assault occassioning actual bodily harm: 13 years; Chau who faced similar counts to Yau, with the addition of the count of buggery: 14 years. Ng Shing Chun was originally sentenced for kidnapping and for two counts of rape to 8 years' imprisonment. In Application 0for Review 5 of 1988 which was heard together with Criminal Appeal 130 of 1988 - Ng's application in respect of conviction which was dismissed - the Court of Appeal increased the quantum of the sentence passed upon Ng - reducing, as indeed we must also, the individual kidnapping sentence to 5 years - to 12 years on each of the rape counts. That sentence bore in mind the normal discount which is given upon a Review.

14. Mr. Sceats has urged upon us on behalf of the Applicant that he was not so active a participant in these events as were the other persons, in particular Ng, and that he was "passive" as regards the assaults prior to the rapes. Further, that his plea should have been attracted a greater discount and, in any event, the starting point of 13 years taken by the trial judge was too high - there being but one count of rape in respect of him. It was submitted that the trial judge was in error in the totality he reaches and, in any event, in error in relation to the sentence passed on the kidnapping count.

15. We have been referred to Billam [1986] 1 AER at 985, the general principles of which have been adopted in this jurisdiction in The Attorney General v. Ip Chung Hang [1989] 1 HKLR 149, and that which Lord Lane, L.C.J. had to say on general guidelines in cases of rape where he suggested that for a rape committed by an adult without any aggravating or mitigating features a figure of 5 years should be taken as the starting point in a contested case. He then went on to refer to the various aggravating circumstances which, when they are present, should make the sentence substantially higher than the figure suggested as a starting point.

16. Here there was a gang rape. The Applicant was a full participant and not merely a passive spectator in the events which took place in the hut and which directly concerned the count upon which he stood for trial. He was present and he evinced no intention of in any way protecting the girl from the vicious treatment she was receiving. The two counts go together in that he was a direct participant in the abduction, administering a beating and forcing the girl into the taxi, the whole episode culminating in his raping her.

17. We accept that Ng's conviction included an extra count of rape. It was suggested that, in the light of the sentences passed upon Ng that the sentences upon the Applicant are excessive. We do not agree. There was a course of conduct entered into by the Applicant which involved treatment administered to the girl which was quite appalling. While we bear in mind the sentences passed upon the other persons involved and while the totality of this sentence may be on the high side, it is not in our view sufficiently so in all the circumstances to warrant our interference.

18. The sentence on the first count will be reduced to 5 years' imprisonment and the appeal is allowed to that extent but it will run concurrently with the 10 years imposed on the second count which will remain unaltered.