NG YUK HUNG and Others v. R.

IN THE COURT OF APPEAL

1993, No. 100
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Originally five defendants appeared for trial before His Honour Judge Yeung, sitting as a Deputy Judge of the High Court, on an indictment containing four counts. The first count was that of robbery and was laid against all five. Its particulars stated that, on 1st October 1991, at the junction of Castle Peak Road and Tuen Mun Road in Tuen Mun they, with other persons, robbed Lam Kit Man of cash and a bank card. The second count, also against all five, was that of rape. The particulars were that they on 1st October 1991 at the hillside near the Li Ka Shing Home for the Aged, Wah Fat Street, Tuen Mun together with another person raped Lam Kit Man.

3. The third count which was laid against the 3rd defendant, Leung Yu Wing, and the 5th defendant, Chu Kwok Wai, was of attempted theft. Its particulars were that on 1st October 1991 at the Standard Chartered Bank, Yau Oi Estate, Tuen Mun, they attempted to steal a sum of money belonging to the Standard Chartered Bank.

4. The fourth and last count was laid against the 5th defendant only. That was attempted rape and its particulars alleged that, on 1st October 1991, at the hillside near the Li Ka Shing Home for the Aged, Wah Fat Street in Tuen Mun, he attempted to rape Lam Kit Man.

5. That indictment was signed on 9th April 1992 and the defendants were required to answer to it on 1st February 1993. Upon pleas of guilty being entered by D2, Chung Yau Tat, to the first count of robbery; by D3, Leung Yu Wing, to count 3 the attempted theft and by D5, Chu Kwok Wai, to the first count of robbery and the count laid separately against him of attempted rape - count 4 - the indictment was amended, and an abstract was placed before the jury, on 10th February 1993.

Upon that indictment, the 1st defendant Ng Yuk Hung, the former 3rd defendant, Leung Yu Wing, and the former 4th defendant, Tsoi Man Chun, now renumbered and referred to in the course of the summing up as D1, D2 and D3 were tried in respect of two counts the first being the robbery count and the second being the rape count.

6. The jury convicted D1 Ng Yuk Hung, D2 Leung Yu Wing and D3 Tsoi Man Chun on both counts.

7. The sentences imposed were, in order, Ng Yuk Hung was sentenced on the first count to 7 years' imprisonment and on the second count to 8 years' imprisonment with four years of the 8 years directed to run concurrently with the sentence imposed on the first count giving a total of 11 years' imprisonment. He originally sought leave to appeal both his conviction and his sentence but, prior to the hearing of these applications, he abandoned both those applications.

8. Chung Yau Tat, the original 2nd defendant was sentenced to a period of 4 years and 6 months' imprisonment. He sought leave to appeal that sentence.

9. Leung Yu Wing, the original 3rd defendant, and the 2nd defendant at trial, was sentenced to 6 years' imprisonment on the first count and 6 years' imprisonment on the second count with 4 years of the imprisonment imposed on the second count directed to run concurrently with that imposed on the first count. On the third count to which he had earlier pleaded he was sentenced to one year's imprisonment directed to run concurrently with the first count. His total sentence was 8 years' imprisonment. He sought leave to appeal against both his conviction and his sentence.

10. Tsoi Man Chun, the original 4th defendant, and the 3rd defendant at trial, was sentenced on the first count to 7 years' imprisonment and on the second count to 7 years' imprisonment, 4 years of the imprisonment on the second count was directed to run concurrently with that imposed on the first count giving a totality of 10 years' imprisonment. He sought leave to appeal against both his conviction and his sentence.

11. Chu Kwok Wai, the 5th accused on the original indictment, was sentenced to a period of 5 years' imprisonment on the first count and 4 years' imprisonment on the fourth count with 2 years of the sentence of the fourth count directed to run concurrently with that imposed on the first count giving a totality of 7 years' imprisonment. He sought leave to appeal against those sentences.

12. At the conclusion of the hearing, we allowed the appeal of Chung Yau Tat in respect of sentence reducing the sentence from 4 years and 6 months to one of 4 years' imprisonment. We dismissed the application for leave to appeal by Leung Yu Wing in respect of his convictions on the first and third counts but allowed his appeal in respect of his conviction on the second count - the rape count. We also reduced his sentence in respect of the robbery count to 5 years' imprisonment but refused his application for leave to appeal against sentence on the third count.

13. While Tsoi Man Chun, the 4th defendant on the original indictment and the 3rd at trial, was represented by Mr. Percy in respect of his application for leave to appeal against conviction, counsel informed us that he was unable to advance any grounds on Tsoi's behalf. Tsoi therefore abandoned, with leave, his application concerning conviction but proceeded in respect of sentence. We were asked to adjourn the matter of his sentence to a later date and this we agreed to do. Subsequent to the hearing, he abandoned all further proceedings in relation to sentence. We are therefore no longer concerned with him.

14. We dismissed the application for leave to appeal against his sentence by Chu Kwok Wai, the 5th defendant.

15. We stated that we would hand down our reasons later and this we now do.

16. At the hearing of these various applications, Mr. Tse Hon appeared for Chung Yau Tat, Mr. Percy appeared for Leung Yu Wing and Tsoi Man Chun. Chu Kwok Wai appeared in person. Mr. Bruce appeared for the Crown.

17. In an attempt to avoid confusion we shall refer to the applicants by their given names and not by the several numbers against those names emerging from the two indictments.

18. The ages of the applicants at the time of the offences were respectively, Chung Yau Tat 16 years, Leung Yu Wing 15 years, Tsoi Man Chun 16 years and Chu Kwok Wai 15 years.

The facts

19. The evidence was that Miss Lam Kit Man, aged 22, was living in Hong King Garden in Tuen Mun with two friends and studying at the Grantham College of Education. She was working part time as a waitress at the China Palace Night Club in Wanchai. On the evening of 30th September 1991 she finished her work at about 9 p.m. and went to her parents' home at Upper Ngau Tau Kok Estate. She then returned to Tuen Mun on board a public light bus from which she alighted shortly after midnight at Rainbow Garden. Having walked about ten paces down Castle Peak Road on a way towards Hong King Garden, someone came up from behind her, grabbed her neck and threatened her with a serrated edged knife. She was told it was robbery. Two more persons came up and the three then forced her to go to a flyover at the intersection of Castle Peak Road and Tuen Mun Highway. There were others of the gang waiting there. The victim thought there was a total of six to eight persons. At the flyover the cash, some $300, which was in her wallet was taken, bank cards were also removed and she was asked for her pin code. She gave it and some of the group went away to withdraw money by use of her bank cards.

20. She was then pulled to an open space by the hillside - a construction site - near the Kam Fai Garden and was told to sit down. While there she was again threatened with a knife and she saw one or two others of the group also carrying knives.

21. After an interval, one of the men, who had taken her bank cards to attempt to get money by the use of them, returned. She was accused of having given the wrong pin code. One of the members of the gang took out a piece of white cloth and put liquid from a Sprite soft drink bottle on it. Under his directions, two others of the group held the victim while he covered her mouth and nose with that piece of wet cloth. She struggled. She said she smelled a strong odour of thinner-like substance and she became partially unconscious. She felt herself being dragged up the hill and, when she had recovered full consciousness, she found she had been stripped naked and the group were committing indecent assaults upon her. She was then sexually abused with three of them forcing her to fellate them and four or five of them raping her. In the course of all this, she heard the members of the group talking amongst each other and she was able to recognise their voices. There was also a female voice amongst that group, she thought it to belong to a 14 or 15-year-old girl whom she had seen at one time in the course of the incident. Those who raped her wore condoms. The attack ceased when sirens of police vehicles were heard. When her attackers left, she saw various items such as clothing, shoes, knives and other things scattered around. She was unable to find her own clothing but covered herself with some of the other clothes lying around. She went to the management office of Hoi Tak Garden and telephoned a friend of hers.

22. That friend came to her bringing clothing into which she changed and a report was then made to the Tuen Mun Police Station. There she handed over the clothes she had used to cover herself up and, having taken the police to where the incident took place, was removed to hospital for treatment. Amongst the items of clothing at the scene and which she could identify was exhibit P38 a black jacket and exhibit P39 a black and white T- shirt. She also identified the Sprite bottle from which the liquid had come as well as a knife which was used in the course of the incident.

23. A resident of Hoi Tak Garden, who was about to go to bed, looked out of his window and saw a group of young people sitting near the gate of the nearby construction site. He noticed some of them going forward to, as he put it, "press down" another person and they later carried that person through the gate of the construction site. He thought the person being carried was unconscious. Initially, he did not consider making a report to the police but a little later, having seen lights waving round the hillside and two more persons also going into the construction site, he dialled 999. He saw the arrival of a police vehicle and the arrest of two persons. He also saw a youth going towards the hill and running away. Later in the morning he saw a thorough search of the area being carried out by the police.

24. The prosecution called other evidence to show that at about 1.05 a.m. on 1st October somebody had checked the balance of the victim's account with the Hong Kong Bank at the automatic teller machine of the Chi Lok Garden branch. An attempt was made to withdraw $500. While the correct code number had been punched in, the attempt to withdraw the money failed as the ETC account had been terminated. There were two further attempts to operate the victim's account at the Yau Oi branch of the Standard Chartered Bank. But the wrong code number had there been punched in and the attempts were unsuccessful.

25. Forensic evidence showed the presence of chloroform and acetones in the blood and urine samples of the victim.

26. None of this evidence was seriously disputed. The issue before the jury was whether the defendants, or any of them, had taken part in this atrocious incident. It was the prosecution case that this was a joint enterprise to rob and to rape.

27. In the course of the trial, Chung Yau Tat, who was, as we have indicated the 2nd accused on the original indictment and who had pleaded guilty to a robbery count, was given an immunity on the joint charge of rape which was not proceeded with in respect of him. He was called as a witness by the prosecution. He gave a detailed account of the incident nvolving the three defendants at trial. He placed Leung Yu Wing as waiting under the flyover at the junction of Castle Peak Road and Tuen Mun Road and being present when the victim was brought there with a knife held against her neck by Tsoi Man Chun. He placed both of them as being amongst the party who brought the girl to the area of the construction site. He said that it was Leung Yu Wing and Chu Kwok Wai who, having obtained the pin number for the ETC cards, left to try to take money from the victim's bank accounts. He said that Leung Yu Wing returned some few minutes after the chloroform had been administered to the victim and after she had been carried into the construction site and up the hill. He remained waiting below and about five minutes after he had gone up the hill, Leung Yu Wing came down again saying he was going off to buy some soft drinks. He left the construction site. A little later the police arrived. The witness fled.

IN THE COURT OF APPEAL

1994, No. 10
(Criminal)

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Coram: Hon. Penlington, J.A., Nazareth and Litton, JJ.A.

Date of hearing: 1 June 1994

Date of judgment: 1 June 1994

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court):

28. This is an application for leave to appeal against a sentence of two years' imprisonment passed in the District Court for simple possession of dangerou drugs.

29. The amount involved was substantial for a charge of simple possession. It was 33 grammes of a mixture containing 16.77 grammes of salts of esters of morphine. The applicant pleaded guilty and the trial judge called for psychiatric and Drug Addiction Treatment Centre reports. In his written reasons for sentence the judge did not say that he had considered the question of sending the applicant to a drug addiction treatment centre. The applicant clearly was drug dependent with a long list of convictions for drug offences but also for other offences involving Later that morning, he had tea with a group which included Leung Yu Wing.

30. There was evidence that Leung Yu Wing was arrested at the home of Chung Yau Tat later that morning. He was in the sitting room. He was cautioned and when DPC4067 tried to handcuff him he resisted the policeman, giving him a push on the chest, and tried to run to a toilet at the back of the flat. There was a struggle and with the assistance of other police officers at the scene he was subdued. In answer to caution, he said:

"Ah Sir, I didn't take part in raping the girl. I just took the card of the girl with Chu Yeung to get money but couldn't get any. The card was thrown away but they were in the hill. I didn't know what they would do to the girl."

31. In the course of her final address, counsel then appearing for Leung Yu Wing, urged the jury to accept his statement as true. There was no suggestion made at trial that it had been in any way induced.

32. Two other matters which concerned Leung Yu Wing emerged in the course of the trial. First, the print of his left ring finger was found on the Sprite bottle. Second, the victim made no identification of him on subsequent identification parades. Leung gave no evidence at trial. It is clear that at trial the thrust of the defence by Leung was that, while he knew about the plan to commit the robbery and while he was aware that a bottle of chloroform and knives as well as condoms would be used in the course of that robbery, he knew of no plan to rape and was not a participant. In his statement he said that, on his return from his abortive attempt to get money, he was told to rape the girl but he did not want to do it and he went down the hill leaving the others at the rape scene.

33. Mr. Percy confined his submissions to the conviction on the count of rape. He complains that the trial judge failed adequately to direct the jury on the law relating to joint enterprise and, in particular, that he failed to point out or distinguish the evidence in respect of Leung Yu Wing from that of the evidence concerning the other two defendants at trial. He further complains in this regard of a non-direction by the trial judge on the issue of the existence of express, or tacit understanding, by Leung that there would be rape; that the judge failed to deal with the concept of mere presence at the rape scene and finally, that, when the judge said to the jury, having given them directions as to participation in a joint plan, a direction which concluded with the words:

"Before you can convict any of the defendants on any of the charge (sic), you must be sure that he committed the offence himself or he did an act or acts as part of a joint plan with the others to commit it. To put it simply, you must be sure that they were in it together."

he had gone on to say, and this is the gravamen of Mr. Percy's complaint:

"In our case, it is a matter for you but you should have no difficulty in concluding that there had been a plan to rape the victim."

34. Allied to those complaints, Mr. Percy submits that, in dealing with the uncontested statements made by Leung, the judge indicated that what was said there was, as Mr. Percy put it, "less than evidentiary material and were unlikely to be believable or true."

35. Dealing first with Mr. Percy's complaint as to the manner in which the judge dealt with Leung's statements. At page 52 line O of the summing up, the judge said this:

"You must consider the whole of the statement in deciding where the truth lies. You may feel that the incriminating parts are likely to be true for why else would he have made them. You may feel that there is less weight to be attached to his excuses. They were not made on oath, have not been repeated on oath and have not been tested by cross-examination."

36. With respect to Mr. Percy, we found nothing in his complaint. The trial judge was perfectly entitled to direct the jury in the manner in which he did. Further, when he said that the accomplice Chung Yau Tat - in respect of whom a full and detailed accomplice warning had been given - that his evidence has not been challenged by Mr. Percy at trial, this was factually accurate. We do not accept that it would have given the jury the impression that this in some way corroborated the accomplice's evidence. It is of note that the trial judge concluded this part of the summing up by saying:

"These are all the matters that you have to take into account in deciding whether the second defendant [Leung] did take part in this joint plan to rape the victim."

37. What does concern us is the passage in the summing up where the trial judge indicated to the jury that they should have "no difficulty" in concluding there had been a plan to rape the victim. There was no direct evidence to suggest that Leung was engaged in such a plan before he went off to attempt to collect the money from the cash dispenser. There was his own statement that, on his return and having gone up the hill, he discovered the girl naked and, having been told to rape the girl, he immediately resiled from the enterprise and returned down the hill without taking any further part.

38. In those circumstances, the judge's direction was far too wide spread. In Leung's case, it was essential that the matter of the robbery be sharply differentiated from the matter of the rape. The fact that he participated in one did not necessarily mean that he had participated in the other. With respect to him, the judge in his lengthy and detailed summing up did not make this sufficiently clear.

39. We came to the conclusion that the conviction on the rape count was unsafe. It was for those reasons that we treated the hearing of the application as the hearing of the appeal and allow the appeal by quashing the conviction and setting aside the sentence.

Sentence

40. There are two observations we would wish to make. The first is that we are gravely disquieted by the fact that these very terrible offences were committed by youths of such young age. Their age clearly played a part in the sentences imposed by the trial judge. Second, the sentences here were very lenient ones. We have not thought fit to increase them but have come to our decision on to the applications for leave to appeal against sentence honouring the general level of sentences which the sentencing judge imposed. We considered that these criminally minded young men may well think themselves to have been lucky.

Chung Yau Tat

41. Chung Yau Tat was, as we have said, aged 16 at the time of the offence. Before considering what sentence he should pass, the judge, properly, called for a Probation Officer's Report together with the Detention and Training Centre Suitability Report. Those he considered as have we. Chung had pleaded guilty to the robbery. He had been aware that his co- participants were armed with knives and that a bottle of chloroform was being carried. He himself had a knife. He gave evidence on behalf of the Crown which must have assisted the jury in coming to their conclusions of guilt in respect of his co-defendants. We note what was said by another division of this court in R. v. Tsui Ying Hung CA 289/92 on convicted defendants giving evidence against their co-defendants. In the light of the sentences passed on his co-accused, the age of this youth and his manifest co-operation, we thought that his sentence of 4 1/2 years should be reduced to one of 4 years to reflect all this. We therefore gave him leave to appeal and allowed his appeal against sentence to that extent.

Leung Yu Wing

42. Having quashed the conviction for rape, it was necessary for us to reconsider the totality of the sentence passed upon this applicant in respect of his conviction after trial of the robbery and his plea of guilty to the third count of attempted theft. Again, we took into account the sentences passed on his co-accused. We reduced the sentence on the robbery from one of 6 years to one of 5 but refused the application in respect of the third count the attempted theft.

Chu Kwok Wai

43. He had, as we have indicated, pleaded guilty to the count of robbery and to the count laid against him alone of attempted rape. The judge clearly reflected that in the sentence he passed. At the time of the offence, he had a clear record. The judge, again properly, called for and considered a Probation Officer's Report and also a Detention Centre and Training Centre Suitability Report before arriving at the sentence he did. The totality of the sentence of 7 years' imprisonment was not a day too long. We did not see any reason to interfere with it.