HKSAR v. CHEUNG MAN WAI

[ENGLISH TRANSLATION - 英譯本]
CACC 138/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 138 OF 2014

(ON APPEAL FROM HCCC NO 474 OF 2013)

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BETWEEN

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Reasons for Judgment

(application for leave to appeal against conviction)
Judgment (application for leave to appeal against sentence)

Hon Poon J (giving the Reasons for Judgment (application for leave to appeal against conviction) and Judgment (application for leave to appeal against sentence) for the Court):

Introduction

1.  The applicant was charged with three offences:

(i) Robbery, contrary to section 10 of the Theft Ordinance, Cap 210, Laws of Hong Kong;

(ii) Indecent Assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200, Laws of Hong Kong;

(iii) Assault Occasioning Actual Bodily Harm, contrary to the Common Law and punishable under section 39 of the Offences Against The Person Ordinance, Cap 212, Laws of Hong Kong.

2.  In summary, the Prosecution alleged that on the 3rd day of January, 2013, outside Buddhist Tai Kwong Chi Hong College (“College”) at Chui Yi Street, Tai Po, New Territories, Hong Kong, after robbing a girl (“X”) of a mobile phone, a wallet, cash of $160 Hong Kong currency, one Hong Kong Identity Card, one student card, one medical card, one personal octopus card and some photographs, the applicant took X to a secluded hillside nearby and assaulted her sexually and physically.  X was a Form 3 student of only 14 years and 8 months old at the time of incident.

3.  The applicant denied all the charges.  He did not dispute that X had been robbed, assaulted sexually and physically but he asserted that X had misidentified him as the culprit.

4.  The case was tried in the Court of First Instance before High Court Judge Andrew Chan (the trial Judge) and a jury.

5.  On the 5th of March, 2014, the jury found the applicant guilty of all three charges.  On the 8th of April, 2014, the trial Judge sentenced the applicant to an imprisonment of four years for the first offence, ten years for the second offence and two and a half years for the third offence.  Three years in respect of the first offence were to run consecutively to the ten years’ imprisonment in respect of the second offence; and two years in respect of the third offence were to run consecutively to the ten years’ imprisonment in respect of the second offence, making a total of 15 years’ imprisonment.

6.  On the 23rd of April, 2014, the applicant filed application for leave to appeal against conviction.  He was denied legal aid and acted in person for the application for leave to appeal against conviction.

7.  On the 29th of July, 2014, the applicant filed application for leave to appeal out of time against sentence. Mr Y. K. Tze, James was assigned by the Legal Aid Department as counsel representing the applicant.

Prosecution Case

(I) The Course of the incident

8.  X’s evidence can be summarised as follows.

9.  At around 7:15 on the night in question, X was on her way alone to her paternal grandmother’s.  When she was passing a secondary school, she saw a man walking in her direction.  The man was wearing a red cap, a black-white-grey striped jacket, a pair of light blue jeans and white clogs.  The man was the applicant.  The applicant suddenly grabbed her by the neck from behind with his left arm saying that it was a robbery and he had a knife in his hand.  After robbing X of the aforementioned items, the applicant kept grabbing X and took her to a gazebo by the side of a pond after walking through a park.  While they were there, the applicant smoked and talked with X at the same time for as long as 20 minutes.  Among other things, he said that he had a son and he only resorted to robbery because of financial difficulties.  During the time, he threatened X that he would give her a cut on the neck if she shouted for help.  But he also said that he could not bear to give a cut on her face and kill her.  After saying that, the applicant took X to walk through an alley before eventually reaching a secluded hillside in the vicinity of Tai Ping Industrial Centre.  There and then, the applicant dragged X to a staircase forcefully and ferociously.  X was very scared.  She resisted in vain.  The applicant once demanded X to raise her head and gave him a cheerful smile.  The applicant remarked that X was quite pretty and cute.  He would not bear to give her a cut on the face.

10.  The applicant then took X to a path in the hillside and ordered X to take off her clothes, socks and shoes.  When X resisted, the applicant immediately hit her head once.  X had no choice but to obey.  She was crying while taking off her clothes.  She was very scared and begged the applicant not to kill her, rape her or sexually assault her.  The applicant then ordered X to squat down, spread her legs and use her finger to masturbate before him.  When X refused, the applicant immediately hit her head two, three times, kicked her back and hit her shoulders.  X had no choice but to obey after having been beaten up.  After X had masturbated, the applicant wrapped his finger with X’s clothes and worked it in and out of X’s vagina and anus.  He further molested X’s breasts over the clothes and asked X how large were her breasts.

11.  After having sexually assaulted X, the applicant pulled her hair and banged her head against the railings in the hillside.  X fell onto the ground because her head was hurting.  The applicant pulled X’s hair again and banged her head against the concrete barrier and the ground.  He then went on to kick X causing her to fall down into a gully nearby.  X’s head was very painful.  She thought of pretending to faint but the applicant said he would drown her in mud if she did not respond.  So X had to get up.  Shortly afterwards, the applicant allowed X to leave.  X testified that the duration of her being kept in the hillside and the course of the assault lasted for 40 to 45 minutes.  She was only allowed to leave after another 10 minutes.  X made a complaint to her mother about the ordeal when she returned home and called the police for assistance.

(II) Examination findings of X’s forensic medical report

12.  Upon agreement made by both the Defence and the Prosecution, the forensic medical report of X was admitted into evidence.  The particulars are as follows^[1]:

“3. At 2255 hours on 3rd January 2013, Dr Hui Yuet Yum conducted a physical examination on X in the Accident and Emergency Department of Alice Ho Miu Ling Nethersole Hospital. The findings were as follows:

(i) X was fully conscious during the examination;

(ii) scalp haematoma was seen without neurological deficit;

(iii) no external wound was noted on X’s vulva and anus;

(iv) CT brain scan was unremarkable;

(v) X was admitted to the paediatric ward for further management.

4. On 4th January 2013, Dr Mak Kiu Yan conducted a physical examination on X in Alice Ho Miu Ling Nethersole Hospital. The findings were as follows:

(i) multiple superficial abrasions over X’s four limbs were revealed;

(ii) there were bruises, redness and swelling over both wrists of X;

(iii) small right forehead and postero-lateral scalp haematomas were seen;

(iv) perineal examination showed no bleeding and no obvious external injury;

(v) pre-rectal examination was slightly tender;

(vi) respiratory, cardiovascular, abdominal and neurological examinations were normal;

(vii) blood tests including complete blood picture and clotting profile were normal;

(viii) urgent CT brain scan showed no skull fracture or intracranial bleeding;

(ix) urine culture, multistix and pregnancy test were all negative;

(x) X-ray of the wrists showed no fracture.

...

5. At 1530 hours on 4th January 2013, inside the Forensic Pathologists’ Office of Regional Police Headquarters, New Territories North, in the presence of Woman Detective Senior Police Constable 56106 and with the consent of X and X’s mother Y, Dr Mak Kwok Shing medically examined X. The medical findings were as follows:

...

(v) a bluish birth mark, 2 cm in diameter, on the outer part of left upper arm.

(vi) an area of swelling, 2.5 cm x 1.5 cm, on the right forehead with surrounding erythema.

(vii) a purplish bruise, 1.5 cm x 1.5 cm, on the outer part of left wrist.

(viii) multiple parallel short linear scabbed abrasions with surrounding erythema, covering an area of 2 cm x 1 cm, on the back of the right elbow. They were covered by dressing.

(ix) multiple parallel linear abrasions with surrounding erythema, covering an area of 9 cm x 4 cm, on the inner part and back part of right upper arm. They were covered by dressing.

(x) multiple parallel oblique abrasions with surrounding erythema, covering an area of 4 cm x 2 cm, on the outer part of left forearm.

(xi) multiple parallel oblique abrasions with surrounding erythema, covering an area of 3 cm x 2 cm on the right loin.

(xii) multiple parallel linear abrasions with surrounding erythema on the back of right thigh.

(xiii) a purplish bruised abrasion, 2.5 cm x 2 cm, on the left knee.

(xiv) a small scabbed abrasion, 1 cm x 1 cm, on the right knee.

(xv) a small abrasion, 1 cm x 1 cm, on the outer part of right ankle.

(xvi) a small purplish bruised abrasion on the knuckle of left 2^nd toe.

(xvii) private parts:

(a) no recent external injury.

(b) hymen was of annular type with fleshy hymenal tissues as well as thin and smooth edge. No abnormality or injury found.

(c) speculum examination was not performed.

(xviii) anus and perineal region: no injury or abnormality found.”

13.  On 9th January 2013, the physical examination conducted on X by a gynaecologist was unremarkable.

(III)  The applicant had appeared in the vicinity of the robbery scene

14.  The defence admitted that at around 5:15 pm on the 3rd of January 2013, the applicant did appear in the food court at Fu Hang Estate, Tai Po.  At that time, he was wearing a black-white-grey striped top, a pair of blue jeans and a black and white cap with a red brim^[2].  The defence also admitted to the content of a video clip provided by “Mans Auto Repair Shop”（猛士專業汽車美容護理公司）.  The shop was across the crime scene where X was robbed.  The video clip recorded the situation outside the shop between 1900 hours and 1930 hours on the 3rd of January 2013.  A man in black-white-grey striped top was seen walking past a secondary school in the video.  He was the applicant^[3].

15.  The defence further admitted that a photo was provided by the police for X’s identification on the 7^th of January 2013.  The photo was retrieved from the aforementioned video clip^[4] and the defence admitted that the man in the photo was the applicant.

(IV) The arrest of the applicant

16.  At 7:10 pm on the 31^st of May 2013, the police arrived at the residence of the applicant in Kwai Chung and arrested the applicant. At the time, the applicant was at home together with three women and a child.  Under caution, the applicant said, “on that day I did rob her of her phone and wallet before taking her to a hill.  But I had no idea of what I had done because I was short-circuited that day.”  The applicant was then taken to the police station for investigation.

(V) X recognised the applicant

17.  On the 4^th of June 2013, X positively identified the applicant as the culprit^[5] in an identification parade conducted in Tai Po Police Station.

Defence Case

18.  The applicant elected not to give evidence.  His defence was that X had mistaken him for the culprit.  As regards the verbal admission he made on the night of the arrest, the applicant asserted that he was drunk and did not have a clear mind at that time.  He was coerced into signing his name on the police notebook.  In addition, the admission made under caution was fabricated by the police officer.

19.  The applicant called Dr Wong Suk Kwan to testify for him.  Dr Wong conducted a physical examination on the applicant on the 31^st of May 2013.  She testified in evidence that no superficial injuries or marks were found on the applicant.  His heart, lungs, chest and abdomen were normal.  His blood alcohol content was 18.7.  According to normal standard, blood alcohol content between 10.9 and 21.7 would have an impact on a man’s ability to react.  Dr Wong pointed out that the applicant was sober at the time.  He was coherent and did not have a strong smell of alcohol.

Issue

20.  In the original trial, the issue was whether the applicant was the man described by X who had robbed her, sexually and physically assaulted her.

Verdict

21.  The jury found the applicant guilty of the offence of robbery by 5 to 2 and they found the applicant guilty of the offence of indecent assault and the offence of assault occasioning actual bodily harm unanimously.

Reasons for Sentence

22.  On the 5^th of March 2014, the trial Judge ordered a clinical psychological assessment report in respect of X.  At the same time, he pointed out that the facts of the case were extremely vile.  He intended to impose the maximum penalty, that is, ten years’ imprisonment, on the applicant and he invited the defence counsel to make submission in this regard.  On the 1^st of April 2014, the trial Judge heard further submission on mitigation.  The defence counsel submitted that X did not require any psychological counselling treatment quoting the psychological assessment report.

23.  During sentencing on the 8^th of April 2014, the trial Judge pointed out that the applicant was thirty six years old with fifteen criminal convictions of which one was for robbery, several for theft and four for wounding/assault.  There was also one criminal conviction of attempted rape in 1996.  The victim of the case was only 13 years old.  The trial Judge considered that the applicant was an extremely violent and dangerous person.

24.  In respect of the offence of robbery, the trial Judge pointed out that no weapon was used in committing the crime.  He therefore followed the sentencing guidelines laid down by the Court of Appeal and sentenced the applicant to four years’ imprisonment.

25.  In respect of the offence of indecent assault, he considered that the facts of the case were very serious.  X was forced to perform acts that seriously hurt her dignity.   What the applicant did made no difference from rape or unlawful buggery.  He pointed out that the sentence must have a deterrent effect and also to show the abhorrence of members of the public to crimes of this nature and also to redress the grievance suffered by X and her family.  He therefore imposed the maximum penalty of ten years’ imprisonment on the applicant for this offence.

26.  Lastly, since the acts committed in the offence of assault had not caused severe permanent physical injuries to X, the trial judge therefore sentenced the applicant to two years and six months’ imprisonment.  As aforementioned, he had taken into consideration the totality principle and ordered part of the sentences to be served concurrently making a total of fifteen years’ imprisonment.

Grounds of appeal (against conviction)

27.  As regards conviction, the applicant failed to set out any grounds of appeal in his notice to appeal.

28.  The Vice President of the Court of Appeal issued a written direction on the 24^th of October 2014 asking the applicant to file written submission to the Court in 28 days before this hearing.  But the applicant had not complied with the direction.

29.  It was not until the 13^th of February 2015 that the applicant submitted a 5-page written submission to this Court in the process of the hearing setting out eighteen grounds of appeal therein, inter alia, allegations of incompetence on the part of his defence counsel at trial and unfair handling of the case by the trial judge.  When this Court asked the applicant why did he not conduct his appeal in accordance with the written direction issued by the Court earlier but rather submitted a written submission only in the process of the hearing, he was unable to give a satisfactory answer.  Regardless, this Court still had to give an opportunity for the applicant to present his grounds of appeal to this Court.  In that case, adjournment of the hearing would become inevitable.  This Court therefore explained the situation to the applicant and gave him a warning: if his appeal is dismissed eventually by virtue of S83W of the Criminal Procedure Ordinance^[6], the Court might direct that the time during which he is in custody pending the determination of his appeal shall not be reckoned as part of the term of any sentence to which he is for the time being subject because his action has wasted the time and resources of the Court.  This Court therefore adjourned the hearing briefly for the applicant to consider thoroughly.  When the Court resumed, the applicant submitted to this Court that he would abandon his application for leave to appeal against conviction.  This Court then explained to him that once the application was abandoned, he would be unable to re-apply for leave to appeal against conviction.  The applicant indicated that he understood.

30.  Since the applicant abandoned the application himself, this Court refused his application for leave to appeal against conviction.

Grounds of appeal (against sentence)

31.  The applicant asked for extension of time for issuing the notice of application for leave to appeal on 29 July 2014.  In other words, his application was two and a half months out-of-time.  Mr Tze, counsel for the applicant, only applied for leave to appeal out-of-time against sentence in respect of the second offence.  He advanced three grounds of appeal:

(1) it was manifestly excessive to take the maximum penalty of ten years’ imprisonment as the starting point for sentencing in respect of the second offence especially when it was pointed out in X’s impact assessment report that there were no severe symptoms indicative of traumatisation and X was able to resume normal functioning within a short period of time;

(2) considering the facts and circumstances of the applicant’s case, all three offences happened at the same time, the imposition of 15 years’ imprisonment was manifestly excessive taking into account the totality principle; and

(3) the overall sentence was manifestly excessive.

Discussion

32.  There is no sentencing tariff or guidelines for the offence of indecent assault.  The facts of individual cases must be taken into account in considering the appropriate punishment.

33.  The maximum penalty for the offence of indecent assault is ten years’ imprisonment.  In other words, the trial judge had imposed the maximum penalty under the law on the applicant.  The maximum penalty prescribed by the law was only reserved for the worst possible example of the offence concerned (see para 17[7] of the judgement of The Attorney General v Dominic Cheung Kai Man, Application for Review No. 1 of 1987 (unreported) dated 2 April 1987).  Therefore, the issue for discussion of this Court is whether the facts in this case are the worst possible example of the offence of indecent assault.

34.  One of the aggravating features in this case is that victim X was only a girl.  This Court has repeatedly emphasized in similar cases that sexual assault on children is a serious offence.  The Court must impose a severe punishment on the offenders based on the actual situation of the case.

35.  In HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 422, this Court (differently constituted) had pointed out the sentencing principles[8] for offences of sexual assault on children as follows:

“8. The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent those vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.

9. The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:

(1) The age difference between the defendant and the victim;

(2) The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;

(3) Whether the defendant had used threats or inducement to make the victim succumb;

(4) The number of occasions of committing the offences and the duration of the offences;

(5) Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6) Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7) Whether the sexual abuses have caused physical or psychological trauma to the victim;

(8) Whether the offences have impact on the family members of the victim;

(9) Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and

(10) Whether the defendant is psychologically imbalanced and paedophilic; and the likelihood of his re-offending.”

36.  Recently, the Hon Yeung VP of the Court of Appeal in HKSAR v Tsang Chiu Yu [2012] 3 HKLRD 561 emphasised that:

“50. In our view, in considering the appropriate sentence, the interest of the society at large is a factor of paramount importance (see our observations in paragraph 23 of the judgment in HKSAR v Cheung Kwok Yip Peter [2013] (sic) 3 HKC 470).”

The interest of the society emphasized by the Hon Yeung VP refers to the Court’s duty to protect the public[9] when imposing sentence on sexual offenders against children.

37.  In his submission, Mr Edmond Lee, Senior Public Prosecutor of the Department of Justice representing the Respondent, pointed out that there were multiple features in this case that enhances the culpability of the offender:

(a) At the time of incident, the applicant was 36 years of age whereas the victim was 14 odd.  There was a huge age difference between the two of them.  The victim was at an age incapable of protecting herself and vulnerable to any harm done to her;

(b) The applicant threatened to cut the victim’s neck and even kill her if she dared to leave and refused to do what she was told to do.

(c) The whole ordeal of robbery, sexual assault and assault lasted for more than one hour.  During the time, the applicant forced the victim to take off all her clothes in a very cold winter day and spread her legs to masturbate before him.  Then the applicant worked his finger in and out of the victim’s vagina and anus and molested the victim’s breasts.  This was a series of abhorrent violation against the victim.  The applicant’s behaviour was extremely vile.

(d) The applicant repeatedly used inappropriate violence occasioning injuries to the victim.  The victim was hit on the head for any disobedience.  Even after she had been violated, the applicant still assaulted her with fists and kicks, banged her head against the concrete barrier and kicked her down into a gully for no reason.  Although the victim did not suffer permanent physical injuries, she was battered and injured all over.

(e) Although the victim’s assessment report indicated that she did not suffer serious Post Traumatic Stress Disorder, it pointed out that the victim experienced intense distress in her court attendance to testify.  When she was asked about the stress, the victim could not help but burst into tears.  She also became emotionally unstable after she had testified in Court.  The life of the victim was seriously disturbed by the assault and it created difficulties in adaptation. Besides, the fright and pain the victim had suffered in the course of the robbery and assault could be envisaged even without the expert report.

38.  Although this Court is of the view that the facts of this case were indeed extremely vile, they were still a littlebit short of falling into the category of the worst example. This Court is concerned with the following two aspects.

39.  First, although the applicant was sentenced to four and a half years’ imprisonment for attempting to rape a girl of 13 years old with another two men in 1996, it should not be given too much weight in sentencing since he was only 18 years old at the time.  In addition, that case happened seventeen years apart from this case.  We would have considered otherwise if the applicant has more recent and more previous convictions[10] for sexually assaulting girls,because such previous convictions indicate D’s recidivism and that previous sentences have had no deterrent effect on him.  In order to protect the public, the Court must impose a more severe punishment.  (See para 23 of HKSAR v Cheung Kwok Yip Peter [2010] 3 HKC 470).

40.  Second, although the modus operandi of the applicant was extremely vile, it did not involve other inappropriate behaviour such as taking photos or videos of the offence he committed[11].

41.  This Court is of the view that the appropriate sentence is nine years instead of the maximum ten years.

42.  In order to avoid unnecessary misunderstanding, this Court must emphasise that although there are two mitigating factors in this case, namely the applicant does not have any recent similar conviction or performed other inappropriate behaviour, it does not mean that the Court cannot impose the maximum ten years’ imprisonment on defendants in other caseswithsimilar circumstances.  The sentencing all depends on the actual facts of the case.  If the facts of the case are extremely vile, the Court can still impose the maximum penalty on the defendant in the absence of similar previous or other inappropriate behaviour.

43.  This Court also has to point out that although this Court is of the view that the appropriate sentence for the second offence is nine years, we are only saying that the culpability of the applicant is not asserious as to warrant the maximum penalty. His modus operandi was still extremely vile.  He also does not appear to have a scintilla of remorse. This Court seriously condemns the applicant.

44.  As regards the total term of imprisonment, Mr Tze, the counsel submitted that since all three offences were committed at the same time and the second and third offence happened in the same place, under the totality principle, fifteen years’ imprisonment is manifestly excessive.

45.  This Court does not agree with Mr Tze.  This Court is of the view that trial judge’s handling of the total term of imprisonment is correct.

Conclusion

46.  For the above reasons, this Court grants the applicant’s application for leave to appeal out-of-time against sentence and treating the hearing of the application as the appeal.  Appeal allowed and the sentence for the second offence is reduced to nine years making a total imprisonment of fourteen years.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.