HKSAR v. TAM TAK CHEUNG

HCCC 138/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 138 OF 2016

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REASONS FOR SENTENCE

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1.  On 11 July 2015, the defendant robbed and indecently assaulted a lone female in the staircase at Fai Wah House, Lok Wah South Estate, Kowloon. The offences took place in the early hours of the morning and miraculously the victim was saved from further harm by a male who heard her cries for help and came to her aid. The matter was reported to the police who through their inquiries were able to identify the defendant and put him on the stop list. On 14 July 2015, at Lok Ma Chau Control Point, the defendant was arrested when he was about to leave Hong Kong.

2.  He appeared before the Magistrate’s Court and was eventually committed for trial in the Court of First Instance on 18 March 2016 on charges of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210 (Count 1), attempted rape, contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap 200 (Count 2), and in the alterative to Count 2, indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance (Count 3). 

3.  On 4 May 2016, the defendant’s case was listed for trial to commence on 26 July 2017 with 6 days set aside, and for a pre-trial review on 11 May 2017.  By letter dated 8 May 2017, Mr David Boyton, counsel for the defendant, informed the Court that the defendant would plead guilty to the robbery and indecent assault counts.  It was later confirmed that this was acceptable to the prosecution.  The pre-trial review was vacated and the case was rescheduled for plea and sentence on 29 June 2017.  It appears Mr Boyton had written to the Department of Justice on 27 March 2017 offering the pleas of guilty that were eventually acceptable to the prosecution. 

4.  The defendant has formally pleaded guilty to Counts 1 and 3 before this Court.  Count 2 has been left on the court file and marked not to be proceeded with, without leave of the Court or the Court of Appeal.

5.  In passing sentence on the defendant, it is necessary to examine the facts giving rise to the offences in greater detail. As already mentioned, in the early hours on 11 July 2015, the victim “X”, a female aged 23 years old, returned home by a taxi after having drinks with her friends.  At about 1:22 am, she entered Fai Wah House and got into a lift to go home.  The defendant got into the lift at the same time.  When she arrived at the floor where she lived, she got out of the lift and the defendant followed. At the lift lobby, the defendant suddenly hugged her from behind and snatched her mobile phone that she was holding at the time.  It was a Samsung mobile phone valued at $5,798. 

6.  The defendant continued to hold the victim.  He told her that he only wanted money and not to make a sound.  He also told her that he had a knife on him.  She was scared because she feared he had a knife. He forcibly dragged her from behind to the staircase and told her to sit down. He sat behind the victim so that she would not be able to see his face.  She could smell alcohol on the defendant.  He told the victim that he robbed her because he needed money for his mother’s illness and his sister’s debts.  He said his mother needed $40,000 for an operation and he asked the victim to lend him $40,000.  The victim refused.  As the defendant was taking the victim from the 8^th to the 7^th floor, the victim tried to escape but she tripped over as she was going down the stairs and hurt her knees.  The defendant grabbed her and dragged her to another level of the staircase, and at that point, she gave up trying to escape. 

7.  The defendant chatted with the victim for some time and then grabbed her arms and forced her to go downstairs with him.  They stopped at the staircase on the 4^th floor where the defendant smoked a cigarette and gave the victim one as well.  He kept on asking the victim to lend him $40,000 but she refused.  Some minutes later the defendant became emotional and dragged the victim to the railing of the staircase and told her to jump down.  The victim was scared and refused to do so.  It was at that time that she saw the defendant’s face.  He suddenly told her that he liked her, and asked her to do it with him before he died.  The victim took this as meaning that the defendant wanted to have sexual intercourse with her.  She was very scared and said “No”.  He turned her body around and started kissing her on the mouth.  At the same time, he inserted his fingers into the victim’s panties and moved his fingers in and out of her vagina.  The defendant pushed the victim up against the wall and forcibly pressed his body against hers.  The victim shouted “No” and “Help” and tried to push him away but failed.  The defendant pushed the victim to the ground and started to unbuckle his pants and tried to take off her dress. 

8.  Fortunately, a male came to the staircase in response to the cries from the victim and asked what was happening.  The defendant stopped and said that the victim was his girlfriend.  Taking advantage of this opportunity, the victim ran towards the male and said that she did not know the defendant.  The defendant shouted at the victim asking her why she was not willing to lend him $40,000 and then left as if nothing had happened. 

9.  The male helped the victim to make a report to the police. 

10.  After the defendant had been arrested, he was subsequently interviewed under caution.  He stated that before the incident he had consumed alcohol during a dinner with a friend and was drunk at the relevant time.  He said he was depressed due to family problems.  He recalled entering a lift with an unknown female and took away her phone because he thought she was going to make a phone call.  He said that he perceived this as a threat to him.  He said he was not carrying a knife at the time.  As for the mobile phone, he said he threw it away.  He also recalled hugging the female from behind when they were leaving the lift but he claimed that she permitted him to do so.  He said that the female took him to the staircase where they sat down to chat.  He said the female wanted to commit the suicide with him and that she asked him if he wanted to have sex before jumping off the building. He admitted having kissed the female, and putting his fingers inside her private parts.  Notwithstanding what he said in the interview, he now admits and accepts that he robbed the victim of her mobile phone and indecently assaulted her. 

11.  As a result of this incident, the victim was taken to hospital for medical treatment.  She had sustained tenderness and redness on her right knee, and abrasion on her bilateral shoulders, back and right elbow. 

12.  The defendant is 33 years of age.  He was born in mainland China and came to Hong Kong at an early age.  He received secondary level 1 education.  He left school at an early age and worked as a kitchen worker, a mechanic, a porter and a salesperson.  It appears that he lived in the same building as the victim with his mother, younger sister and his wife. His father had passed away.  He has several prior convictions of a relatively minor nature from June 2000 to November 2002. 

13.  Mr Boyton submitted that the defendant suffers with depression and that there is a history of it in his family.  He submitted that the defendant committed the offences because of family concerns.  It appears his wife was pregnant at the time of the offence and she gave birth to a baby daughter in September 2015.  A letter from the defendant has been submitted to the Court.  He accepts his wrongdoing and apologises to the victim and to his family.  He reveals that he has had suicidal tendencies and that he has received support and assistance from the authorities whilst in custody. 

14.  The victim has made a statement which has been submitted without objection.  She briefly states that in August 2015 because of this incident she has moved away from Fai Wah House and lives elsewhere.  She states that the memory of what had happened still lingers in her mind and that she has recovered gradually. 

15.  The seminal sentencing guideline case for robbery is Mo Kwong-sang v R [1981] 1 HKLR 610.  It suggests various levels of terms of imprisonment depending on the factors that are present that aggravate the offence.  In the present case the robbery took place in the early hours of the morning in a residential building, the victim was a lone female aged 23 years, the defendant threatened the victim and claimed that he had a knife on him, the defendant used physical violence on the victim, the defendant held the victim captive and contained her in a quiet location in the building, and the victim sustained physical injuries as a result of the ordeal. He took from the victim her mobile phone. 

16.  For the foregoing factors, I would adopt a starting point of 6 years and 6 months’ imprisonment based on the guidance provided in Mo Kwong-sang.  This was a robbery that occurred in private premises in the early hours of the morning on a lone female.  The defendant held the victim captive for a protracted period, threatened her that he was armed with a knife and used physical violence on her.  Whilst I appreciate in an ordinary case of armed robbery, Mo Kwong-sang suggests that an appropriate sentence should normally be 5 years, it also suggests that sentences should be increased if there are other aggravating factors.  It is for the aggravating factors that I have identified that I am of the view that a starting point of 6 years and 6 months’ imprisonment should be imposed. 

17.  I have not included that during the robbery the defendant indecently assaulted the victim for he will be punished separately in relation to that offence.  Throughout the course of this protracted ordeal, the victim was threatened and terrorised by the defendant. 

18.  The indecent assault was particularly shocking and grievous.  In all likelihood it would have escalated into further serious sexual violence on the victim if not for the fortuitous intervention of the stranger.  The defendant had kissed and fondled the victim and inserted his fingers into her vagina, and he was clearly contemplating having sexual intercourse with her, when he pushed her onto the ground and unzipped his pants. 

19.  It is the duty of the courts to ensure that violation of a person’s modesty and dignity in cases of indecent assault is soundly deprecated.  This was a serious case of indecent assault which warrants severe punishment.  I note that the maximum penalty for indecent assault is 10 years’ imprisonment.  Mr Boyton submitted the case of HKSAR v Keita Ali,CACC 419/2015, 21 March 2017, unreported, by means of comparison where the appellant indecently assaulted an elderly woman and was sentenced to 4 years’ imprisonment.  Comparing indecent assault cases is of limited utility because no two cases are exactly alike, and the sentence to be passed will in any event necessarily involve applying the relevant sentencing principles to the particular circumstances of the case.  What makes this a serious case of indecent assault was the sexual molestation perpetrated by the defendant on the victim by kissing and fondling her and inserting his fingers in her vagina.  In light of the circumstances of the present indecent assault, I would adopt a starting point of 5 years’ imprisonment. 

20.  As a result of the defendant having pleaded guilty, he is entitled to a one third discount, and accordingly the sentence on Count 1 is reduced from 6 years and 6 months to 4 years and 4 months’ imprisonment, and on Count 3 is reduced from 5 years to 3 years and 4 months’ imprisonment.  Taking into account the totality principle, and in order to arrive at a sentence that reflects the overall criminality and to avoid any overlap between the offences, I order that 20 months of the sentence on Count 3 run consecutively to the sentence on Count 1, thus resulting in a sentence of 6 years’ imprisonment.