HKSAR v. MO HIU FUNG

CACC 139/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 139 OF 2013

(ON APPEAL FROM HCCC NO. 300 OF 2012)

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the reasons for judgment of the court):

Introduction

1.  The applicant was tried on an indictment containing five counts before Line J (“the judge”) between 16 to 19 and 22 April 2013.  All counts involved the same victim, who was simply referred to as woman X in each count.

2.  At the outset of the trial the applicant pleaded guilty to the first two counts on the indictment which were two counts of assault occasioning actual bodily harm (“AOABH”), contrary to common law and punishable under section 39 of the Offences Against the Person Ordinance, Cap 212.  The first offence was alleged to have occurred on 5 June 2012 at Tin Ping Shan Tsuen, Ting Ping Road, Sheung Shui; the second offence was alleged to have occurred on the same day, but subsequent in time, at Luen Wo Hui, Fanling.

3.  The third count on the indictment was attempted non‑consensual buggery, contrary to section 118A and section 159G of the Crimes Ordinance, Cap 200.  The applicant was acquitted after trial of this count.

4.  The fourth count on the indictment was rape, contrary to section 118(1) of the Crimes Ordinance, Cap 200.  The applicant was convicted of this count after trial.

5.  The final count was another count of rape and the applicant was acquitted of this count after trial.

6.  On 22 April 2013 the judge sentenced the applicant for the offences of which he had been convicted.  For the first and second counts, to which he had pleaded guilty, the judge sentenced the applicant to 12 months’ imprisonment on each count ordering the sentences to run concurrently with each other.  In respect of the fourth count, the judge sentenced the applicant to 5 years’ imprisonment but ordered the 1 year sentences of imprisonment imposed on the first and second counts to run consecutively with the sentence on the fourth count, thus making a total sentence of 6 years’ imprisonment.

7.  The applicant subsequently applied for leave to appeal his conviction on the fourth count and his sentences on all counts.  However, on 27 August 2013 the applicant filed a Notice of Abandonment in respect of his application for leave to appeal against conviction on the fourth count.  On receipt of that Notice of Abandonment, the application for leave to appeal against conviction was that day marked dismissed.

8.  At the hearing of the application for leave to appeal we exercised our powers under section 83I(3)(b) of the Criminal Procedure Ordinance, Cap 221 (“the CPO”) and, being of the considered view that the applicant should be sentenced differently for the offence of rape that is the fourth count, we imposed on him a sentence of 6 years’ imprisonment.  We dismissed the application for leave to appeal against sentence.  We said we would give our reasons for these orders at a later date and this we now do.

The Prosecution Case

9.  The victim of all of the acts of violence of the applicant was the same person, a woman with whom the applicant had been in an intimate romantic relationship for a period of one month.

10.  The victim testified that she met the applicant on 23 April 2012 and from that time onwards they became boyfriend and girlfriend and had a sexual relationship.  However, after two or three weeks they started to quarrel and she said that she wanted to break off the relationship towards the end of May. When she mentioned this to the applicant, he refused to accept it and hit her. These assaults continued with him pushing her and sometime using his fist to assault her.  She said that she continued to see the applicant because, after these occasions of violence, he had apologized to her and she had forgiven him.  Although she did say that she had started to fear him.

11.  During the day of 5 June, she told the applicant she wanted to end the relationship with him.  When she finished work at 10 p.m. she found him outside her workplace waiting for her.  At that time he begged to be given a chance and proposed to her that they go somewhere where they could talk.  He lied to her that there would be other people around and so she trusted him and followed him.  However, he snatched her mobile telephone from her and forced her to accompany him to an isolated location near a river.  At this location the applicant started to scold her and then punched her repeatedly, the blows landing on her chest and back.  He pushed her to the ground and sat on her and used both his hands to grab her neck, making it difficult for her to breathe.  The victim said she screamed, but that there was no one to hear her cries.  The victim felt that the applicant was out of control and she feared for her life. She tried to calm him down but this did not work and the applicant continued to hit her and scold her.  This was her evidence in respect of the first count on the indictment.

12.  After some time, the applicant agreed to bring her away from the riverside area to the main road.  During this period of time, they were still arguing about why the victim wanted to break-up with the applicant.  The applicant took her to a garden in Luen Wo Hui and what took place in this location is the subject of the second count of AOABH.  The victim said she continued to accompany the applicant because he had her property and she was afraid of him and of what he might do to her.  She did not want to make him more angry in case by doing so she endangered her own life.  Once at this garden they continued to talk about their relationship but the victim insisted she would not reconcile and when she made her position clear, the applicant again started to hit her.  He noticed that there was a message from a male friend of hers on her telephone and this made him very angry.  He then used the telephone to hit her on both the left and the right ears, after which he then hit her face and body and threatened her.  In his threats he used words associated with a triad society also saying that he would harm her family and burn her home.  He went through the pretence of making a telephone call instructing someone to carry out these threats and she then felt that she had no choice and that if she did not come back to him, he would carry out the threats immediately.

13.  The victim said that she was afraid for her family and so when the applicant asked her to accompany him to his home to have sex, she agreed to do so.  She stressed that she was very frightened and she believed he would do something to hurt her family.  That brought to an end her evidence in respect of the second count on the indictment.

14.  When they arrived downstairs at the block of flats where he lived, the applicant threatened the victim not to say anything and not to wake his parents up, otherwise he would “melt her”.  The victim said that on entering his flat, she saw his parents but because of the applicant’s threat to her, she said no more than “hello”.  The victim then went on to relay how the applicant took her to his bedroom, ordered her to remove all her clothes and forced her to perform oral sex on him.  At this time he used his mobile telephone to give the appearance of making a video of her naked.  He also forced her to swear that she would remain with him for her whole life and threatened her that if she disclosed anything that had happened he would put the video of her on the internet.  She then related how he took a clothes-hanger and tried to insert it into her vagina.  She resisted his effort describing this incident as painful.  She said that he then forced her to have anal sex with him, making her kneel and face the bed while he tried to insert his penis into her anus.  She said she kept on struggling and that he failed to achieve his object and so gave up.  This was her evidence in relation to the third count.

15.  She said that he then forced her to have sex with him.  She tried to resist him but he scolded her and threw objects at her and so, because she was frightened and fearful for her life, she stopped resisting in order to calm him down.  She pretended to show affection to him in the hope that he would not pursue his request to have sexual intercourse, but he ignored her and penetrated her by force.  This was her evidence in respect of the fourth count.

16.  Once daylight came, the victim persuaded the applicant that she needed to go home in order to shower and change.  They went to her flat, arriving between 7 and 8 a.m. after having stopped to buy something to eat.  He told her that if she behaved nicely he would not harm her but, in the following week, he said she would have to report on a daily basis to him concerning her whereabouts and what she was doing.  He then insisted on taking pictures of her but she refused and tried to prevent him doing so.  However, he was able to take some photographs although in them the victim was covering her mouth so that they would not be proper pictures of her.  They then both slept until after 3 p.m.

17.  After waking, the applicant again demanded sex and when the victim refused he forced the issue by removing her underpants.  Despite her efforts she was unable to prevent sexual intercourse taking place.  This was her evidence on the fifth count.

18.  The following day, the victim met a friend and related to him all that had happened.  He immediately brought her to Tai Po Police Station to make a report and as a result of so doing a police investigation was initiated.

19.  A police officer was called to testify to retrieving information from the victim’s mobile telephone.  This witness confirmed that beyond the photographs taken by the applicant of the victim when she was covering her mouth there were no other images on the phone relevant to the case.

20.  The other key witness in the case was a forensic pathologist whose evidence was admitted in the form of a report which was supplemented by photographs of the victim’s injuries.  The report revealed there were no less than forty areas identified as being bruised or abraded on the body of the victim, two of which were abrasions found on the inner lining of the labia minora. This latter injury was consistent with the insertion of a clothes-hanger into the victim’s vagina as alleged by her.  The forensic pathologist made the following concluding remarks in respect of his general examination of the victim:

“(i) The finding of multiple soft issue injuries over the whole body were compatible with blunt force traumas which could be inflicted within about two days before the present medical examination as alleged.

(ii) The finding of multiple bruises on the face was compatible with being caused by blunt force impact due to hitting by a fist, as alleged by the victim.

(iii) The finding of multiple bruises on the right side of neck and lower jaw was compatible with being caused by forceful gripping or squeezing of the neck, as alleged by the victim.

(iv)    The finding of multiple bruises on the truck and limbs was compatible with being caused by pumping onto hard surfaces or hitting by a fist, as alleged by the victim.”

Although the bruises were apparent from the photographs they did not appear, at least at the time the photographs were taken, to be particularly severe.

21.  The only other evidence of any significance that was part of the prosecution case was the applicant’s response to caution.  This was post-recorded in a police notebook and the record was as follows:

“Ah Sir, I did not rape her. She is my girlfriend. I have known her for one month and had sex with her 30-odd times. (We) sometimes played SM. (I) even poked her cunt with clothes hanger(s) occasionally and hit her. We both were very high.”

(“) Then, I asked you which clothes hanger and you pointed at the green clothes hanger on the window of your room.  We, the police, seized the clothes hanger as exhibit right away.”

(“) That is what has happened just now.  Do you agree? (”)

(“) I agree.  I know that I was wrong. (”)

This notebook entry was not disputed in the prosecution case and was produced as an Exhibit by means of an Admitted Fact.  However, when the applicant testified he denied that this statement by him was true and when asked to explain why he said it, all he could answer was that he was very confused, had taken alcohol and had only just woken up from sleeping, having taken some pills, and that he was a bit dizzy.

22.  The defence wished a police officer who was on duty on 7 June 2012 at Tai Po Police Station to be tendered for cross-examination.  The sole purpose for this was to obtain from her a statement that in an initial conversation with the victim, the victim did not make any mention of the attempted buggery.

23.  The final witness by the prosecution was the friend to whom the victim made her recent complaint and who was responsible for causing the victim to make a report to the police.  His evidence was not disputed.  He disclosed that in the conversation he had with the victim, she did reveal to him that the applicant had inserted a clothes-hanger into her vagina but she had not mentioned to him the attempted buggery.

The Defence Case

24.  The applicant gave evidence and he tried to portray the break‑up of the relationship as being initiated by him.  He said he only started hitting the victim when he became provoked by realizing that she had told a male friend about private matters between himself and her.  After slapping her once and punching her once, he stopped and denied hitting her any further.  When they went to the garden, he said that he again saw a ‘WhatsApp’ contact from a male friend on her telephone and this led to a further argument, which in turn led to him again hitting her.  He said that he hit her head with his palm a few minutes and then stopped.  He said he did hit her with a telephone.  He said that they went to his home and that there normal sexual intercourse took place including oral sex upon him.  He portrayed this incident of sexual intercourse and the one later at her place as quite unexceptional.  In cross-examination he agreed that the acts of violence alleged by the victim were true but he denied using a clothes‑hanger on her notwithstanding the admission he made in his response to caution, to which we have earlier referred.

The Judge’s Reasons for Sentence

25.  There was little advanced in mitigation on behalf of the applicant.  He was 19 years of age at the time of the offence and it was suggested that his actions were prompted by his girlfriend seeing another man.  Apart from this only two other matters were raised in mitigation.  One was that he was a young man with little or no understanding of matters of the heart and it was suggested this immaturity may have contributed to him reacting in the way he did to the break-up of his relationship with the victim.  The other matter that was raised in mitigation was that there appeared to be little in the way of permanent harm suffered by the victim.  Although in this respect, in fairness to the applicant’s counsel, we should note that he did qualify his comment by saying it was premature to judge what long term effect this incident may have upon the victim.

26.  The judge had regard to the age of the applicant and said that he understood the anger he may have felt when the applicant decided to terminate their relationship.  But, he reminded the applicant that that is a situation experienced by many young men.  The judge was clearly concerned by the circumstances of the first assault describing it, correctly in our view, as the applicant engineering the victim’s presence “at a lonely spot, where her screams for help went unheard, by false pretences”.  The judge noted that the first assault on the victim went well beyond the sudden loss of control as the number of assaults and the injuries were extensive.  He described the applicant’s conduct as pressing on, “deliberately to hurt her”.  The judge accepted that the applicant, in the circumstances, would have feared for her life.

27.  The judge noted that there was a time lapse between the first two counts when the applicant had an opportunity to calm down and to realise the seriousness of what he had done.  This should have inhibited him from proceeding with any further assault.  Yet, it did not.  Within an hour he attacked the victim again, this time using a mobile telephone to strike her.

28.  The judge noted also that the applicant had already two previous convictions for assault.  They troubled him, but he did not enhance the sentences for the AOABH offences notwithstanding that these previous convictions did indicate that the applicant had some propensity to violence.

29.  In respect of the rape offence, the judge described it as follows:

“It is clear that you decided to have sex with her, and you used your physical dominance and threats to her and her family to achieve it, knowing it was against her will. You forced her submission. The threats to set her family on fire were particularly nasty.”

30.  The judge referred to the acquittal of the attempted buggery, but concluded that was readily explicable in terms of the evidence and said that it provided the applicant with “no succour in assessing the gravity of the rape”. The judge concluded that he had no doubt that the majority of the jury believed in the victim’s good faith as to what happened at the applicant’s home.

31.  In regard to the acquittal of the second allegation of rape, the judge concluded that it likewise did not provide any mitigation as to the nature and quality of the proven allegation of the rape.  In this respect, the judge noted that there were two matters which may have exercised the minds of the jury. The first is the number of injuries and the proximity in time of the assaults that are the subject of the first two counts, to the rape that was the subject of the fourth count; and the second matter was the failure of the applicant to seek help before the rape the subject of the fifth count, despite having the opportunity to do so.

32.  In assessing the gravity of the rape of which the applicant had been convicted, the judge made the following comment:

“A point that is available to you in mitigation is this: that the rape of a woman with whom you had had already consensual sex does not have perhaps the abhorrent qualities of rape by a stranger.

Bearing in mind what your counsel has said to me, taken with those matters set out at the commencement of these reasons, I shall take a lower starting point than I otherwise might have done of 5 years’ imprisonment.  6 years’ imprisonment is a start commonly taken for the consideration of sentence in cases like this.”

33.  In respect of the two AOABH offences that are Counts 1 and 2 on the indictment, he imposed concurrent terms of 12 months’ imprisonment.  He made it clear that in reaching these figures he had afforded the applicant a one-third discount.  Consequently, the judge must have taken for each of these counts a starting point of 18 months’ imprisonment.  He decided that a total sentence of 6 years’ imprisonment was “the total that I judge meets the case for your overall conduct”.  To achieve this sentence he ordered the sentence for Counts 1 and 2 to be served concurrently with one another but consecutively to the sentence for Count 4.  In determining an appropriate sentence for the assault charges, the judge made it clear that he was treating them as separate from the rape charge.  He recognized that the assault charges played a part in the background to the rape but, apart from setting the scene for the rape, they were quite separate from it.

The Grounds of Appeal

34.  There are three grounds of appeal.  The first ground asserts that it is not clear whether the judge gave any discount for the guilty plea to Counts 1 and 2 on indictment.

35.  The second ground of appeal argues that the 18 months’ starting point was manifestly excessive for the first and second counts.

36.  The third ground of appeal argues that the judge did not consider the totality principle in reaching an overall sentence of 6 years.  It is said that the judge should have ordered part of the sentence for Charge 4 to run concurrently with the sentences for Charges 1 and 2.

Discussion

The 1^st ground of appeal

37.  We cannot understand why this ground is being argued.  It should not be. Granted, the judge did not indicate his starting point but he specifically said that he gave the applicant a full one-third discount for his guilty plea before imposing on him the final sentences of 12 months’ imprisonment.  Knowing the final sentence, the starting points are readily calculated.  They are 18 months for each count.  There is nothing in this ground of appeal.

The 2^nd ground of appeal

38.  This ground of appeal complains that the assumed starting points of 18 months’ imprisonment for Counts 1 and 2 were excessive.

39.  What stands out starkly from the judge’s sentences for these counts is that he made no distinction between the two episodes of violence in terms of their gravity, concluding that they should be ordered to be served concurrently and treating the applicant as a person who, notwithstanding his criminal record for violence, required no additional element of deterrence in his sentences.

40.  On 23 August 2008, when the applicant was still not yet 16 years of age, he was placed on probation for 12 months for the offence of common assault.  On 12 February 2010, he was placed on probation for a further 18 months for the offence of AOABH.  On 24 August 2010, he was found to be in breach of his probation order and sentenced to Detention Centre.  We are told by his counsel that he spent 5 months in Detention Centre.  This background should have informed the approach of the judge to the sentencing of the applicant and caused him to realize that the applicant was a person who needed a strong element of deterrence in his punishment.

41.  As to the offences themselves we see a clear distinction between them in terms of their respective gravity.  But, first it is necessary to place them in context.  The context is of a young woman who had been enduring a violent break-up of her relationship with the applicant and as a consequence had started to fear him.  On the day of the offences, 5 June 2012, she had again told the applicant that she wished to end the relationship.  Then, at 10 o’clock that night, as she was leaving work, she found the applicant waiting for her.  That is the context.

42.  In the first offence the applicant, late at night, lured the victim by deception to an isolated and remote location where she would be helpless and completely vulnerable to him.  Once at this location he verbally abused her and punched her repeatedly on her chest and back.  He sat on her chest and strangled her with both his hands.  The victim described the applicant as out of control.  The judge had no hesitation in concluding, as do we, that during the commission of this first offence the victim genuinely feared for her life.  The victim said she tried to calm the applicant but he hit her ribs heavily.  This prolonged episode of violence was, we are told, responsible for the bulk of the injuries to the victim’s body.

43.  Throughout the episodes of violent conduct it is clear that it was important to the applicant that the victim should suffer psychologically as well as physically and that she should know she was powerless and completely under his control.  His desire to instill fear and cause mental anguish and to subject the victim to his control are revealed quite clearly by the comments he made.  There was a strong element of sadism in the applicant’s conduct and he clearly enjoyed the dominance he had over the victim and his ability to cause her pain and to make her suffer.  This was a very serious offence of its kind and called for a sentence of at least 2 years’ imprisonment.

44.  The second episode of violence that is the subject of Count 2 involved the use of the victim’s mobile phone as a weapon to hit her about the head and face.  Although this episode may not have been as long as the first and the assaults not as numerous or extensive, it was nevertheless a very serious offence.  We would not have interfered with the starting point of 18 months’ imprisonment for the second count, but consideration should have been given to whether part of it should have been ordered to be served consecutively to the other offences.  As the judge rightly pointed out there was a time lapse between the first and second assaults and the applicant had an opportunity to calm down and reflect on what he had done.  Instead, he embarked on a new episode of violence.  Arguably, a partly consecutive sentence may have been warranted to reflect the additional culpability represented by the applicant’s second descent into violence.

45.  As is apparent from our comments we see no merit whatsoever in the second ground of appeal.

The 3^rd ground of appeal

46.  Under this ground of appeal the applicant argued that no more than 3 months of the sentences for first two counts should have been ordered to be served consecutively.  His basis for so submitting is that these offences “occurred in the course of a continuous emotional event as a single transaction within a very short period of time”.

47.  In HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 this Court made it clear that the one transaction rule is not a rule of law that determines when it is proper to impose consecutive sentences.  The correct approach is to determine whether the second or other offences add to the culpability of the first and if it or they do then wholly or partially consecutive sentences will be appropriate, subject of course to the totality principle.

48.  Here, there is no doubt that each of the offences is a separate offence with the culpability represented by each adding to the overall culpability of the applicant.  The final sentence of 6 years’ imprisonment for this conduct comes nowhere near infringing the totality principle.  There is no merit in this ground of appeal.

The sentence for Count 4

49.  The sentence for the rape offence was of great concern to us.  Given the presence of a number of aggravating features and the violent circumstances generally in which the rape took place, we were very surprised at the low starting point adopted by the judge for this offence.  The rape was preceded by forced oral sex; the applicant pretended to take a video of the victim naked and threatened to release it on the internet; the applicant used a clothes‑hanger in an attempted penetration by it of the victim’s vagina, thereby causing injury to her genital area; throughout the rape there were threats and intimidation to make the victim submit to the will of the applicant and there had been a history of violence by the applicant against the victim prior to the rape.  Throughout the period that the applicant remained with the victim, his conduct was replete with overtones of his dominance over her and her powerlessness to prevent him from doing to her whatever he liked.

50.  The judge recognized that the proper starting point for a rape of this gravity was 6 years’ imprisonment, we would say at least 6 years’ imprisonment, but determined to adopt a lower starting point of 5 years’ imprisonment. What persuaded him to adopt such an unduly lenient starting point were the matters advanced in mitigation and the matters he referred to at the beginning of his Reasons for Sentence.

51.  The matters mentioned by the applicant’s counsel were that the applicant’s conduct was due to jealousy and immaturity and inexperience in handling the breakdown of personal relationships and that the victim appeared to have suffered no permanent harm from the experience.  Given that the applicant had already had two appearances before the courts for violence and spent 5 months in a Detention Centre, it is difficult to portray the applicant as a total innocent and it certainly raises the possibility, if not likelihood, that his conduct was explained by a tendency to resort to violence.  Furthermore, the circumstances of these crimes do not suggest the reaction of a person emotionally distraught at losing the person he loves.  The applicant’s conduct was nothing less than the calculated application of violence in order to exert dominance over the victim and to cause her pain and suffering.  As to the harm to the victim, we are not willing to assume that such a traumatic experience will not have had a lasting effect on her.

52.  The matters mentioned by the judge also do not match the facts of the case.  The judge referred to the existence of a genuine relationship the breakdown of which would have caused anguish and might have prompted the applicant to want to strike out at the victim in anger.  This relationship was not a longstanding one.  It lasted only 1 month and when it broke down the applicant became violent towards the victim.  When the victim told him again on 5 June 2012 that she would not reconcile with him and wanted to break-up with him, the applicant planned the course of action he took after meeting her at 10 p.m. that night.

53.  This course of action was not a spontaneous incident of verbal and physical abuse, short-lived and reflective of an outburst of anger in response to emotional stress.  What this applicant embarked upon was a carefully calculated night of terror during which he was determined to inflict pain upon the victim as part of a process of forcing her to submit to his will.

54.  We do not understand how the judge could regard as mitigation that the rape of this victim, being by a person with whom she had previously had consensual sex, did “not have perhaps the abhorrent qualities of rape by a stranger”.  There was nothing in the conduct of the applicant to remind the victim of the man for whom she once had genuine feelings and, as we have pointed out, the act of rape was very much an act by which the applicant sought to demonstrate to the victim his ability to control and dominate her and how utterly powerless she was to stop him.

55.  We are given power by section 83I(3)(b) of the CPO to impose a different sentence from that imposed at trial.  Although no complaint is made by the applicant in respect of the sentence imposed for Count 4 there is no doubt, and the applicant’s counsel so concedes, that in both his Form XI and his Perfected Grounds of Appeal the applicant is making the sentence imposed on Count 4 the subject of appeal.

56.  We invited counsel for the applicant to address us on why we should not employ the power conferred on us to impose a different and more severe sentence on the rape count.  In opposing such a course, Mr Lam essentially repeated the arguments he had advanced on the appeal.

57.  We are aware that for this Court to impose a more severe sentence on an applicant seeking leave to appeal his sentence is a rare occurrence.  But, once the appeal is made, the sentence is at large and if this Court finds that the trial judge has, through erroneous reasoning, arrived at a wrong sentence then this Court is duty-bound to correct it.  Once, it is shown that the judge has fallen into error and as a result has imposed a wrong sentence then, absent any other considerations, the interests of justice will usually require this Court to act in order to impose a correct sentence.  The interests of justice, as always, is a balancing exercise and we recognize that there will be occasions where the balance falls in favour of leaving a wrong sentence undisturbed.  But, in our view, that is not the position here.

58.  There is, of course, in respect of most offences a range within which a sentencing judge will take his starting point.  For this aggravated rape the bottom of the sentencing range is, we assess, 6 years’ imprisonment.  As we were imposing a greater sentence on the applicant, we thought it only fair to impose on him a sentence at the bottom of that sentencing range, and this we did.

Conclusion

59.  For the reasons we have given we exercised the power granted to us by section 83I(3)(b) of the CPO and in respect of the rape conviction that is the fourth count in the indictment we quashed the sentence of the judge and in substitution for it sentenced the applicant to 6 years’ imprisonment.  We did not disturb any of the other sentences and orders of the judge and so the applicant will now serve a total sentence of 7 years’ imprisonment.  For the same reasons, we dismissed the application for leave to appeal against sentence.