SECRETARY FOR JUSTICE v. TSEUNG MANG KA

CAAR 5/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 5 OF 2000

(ON APPEAL FROM HCCC 305 OF 1999)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 12 May 2000, the Respondent, aged 30, pleaded guilty in the Court of First Instance before Deputy Judge McMahon to two counts of robbery and two counts of rape. The judge, for reasons which we find difficult to understand in a case of this gravity, adjourned sentence for a background report to be prepared. On 30 May 2000, the Respondent was sentenced to terms of imprisonment amounting in all to five and a half years.

2. The Secretary for Justice (the Applicant) has applied, under the terms of section 81A of the Criminal Procedure Ordinance, Cap. 221 for a review of the sentences imposed, having been granted leave on 16 June 2000.

3. It was submitted by Mr Arthur Luk, on the Applicant's behalf, that the sentences imposed were manifestly inadequate.

Charges and sentences

4. The Respondent pleaded guilty to four counts (5, 6, 9 and 10) on an indictment which contained a total of ten counts. The remaining six counts were left on the file.

5. The robbery and rape reflected in counts 5 and 6 were closely linked. The victim was the same and both offences occurred on 22 April 1999 at the same premises in Nathan Road within moments of each other. Counts 9 and 10 were similarly linked. On 4 May 1999, just twelve days after the commission of the earlier offences, the Respondent struck again, this time in Lockhart Road, by robbing a female victim and then raping her.

6. On counts 5 and 6, the judge imposed concurrent terms of three years and three and a half years' imprisonment respectively. On counts 9 and 10, the judge sentenced the Respondent to two years five months and three years respectively. He then ordered that two years of the aggregate term on counts 9 and 10 should run consecutively to the total of three and a half years he had imposed on counts 5 and 6, making five and a half years' imprisonment in all.

Prosecution's case

7. A brief account of the prosecution's case is provided by the Summary of Facts. This reveals that the victim named in counts 5 and 6 was a prostitute who worked on her own from private premises in Yaumatei. The Respondent pretended to be an ordinary customer. After he had removed most of his clothing, revealing the large and easily identifiable tattoos on his thighs, the victim asked him to pay her a fee. The Respondent then got a paper cutter measuring about 8 inches from his trouser pocket. He grabbed the victim by the shoulder and pointed the cutter at her neck telling her that it was a robbery and to take out all her money. The victim had only $100 in her premises and she gave this to the Respondent. She was very frightened and pleaded with the Respondent not to be hurt by him. We pause here to say that a cutter of the kind held by the Respondent is likely to cause disfigurement if used, and the fear created by such a weapon quite obviously made this a most frightening situation for the victim. The Respondent then complained about the small amount of money he had been given and demanded sex. As the victim was still being threatened with the blade, she did not resist. He firstly made the victim take a shower with him. Having done so, she was made to perform oral sex on the Respondent. She was then told to put a condom on his penis. She had sex with the Respondent against her will but under threat. This lasted about 10 minutes until the Respondent ejaculated. The Respondent discarded the used condom in the victim's room. When DNA tests were later carried out, these established that the semen matched the Respondent's DNA profile.

8. Counts 9 and 10 were, for all practical purposes, offences committed in the same way on a victim who worked alone as a prostitute from private premises in Wanchai. On this occasion, however, the Respondent did not produce a blade but his behaviour was aggressive. It also has to be said that he desisted from sexual intercourse because the victim was very scared.

9. Immediately after the Respondent left the victim's flat, she telephoned the police and, with extraordinary speed and efficiency, the police were able to intercept the Respondent as he came out of the lift at ground floor level. He claimed innocence but when he was found in possession of the money he had taken from the victim's flat, he admitted responsibility for the robbery. Later, he again admitted robbery but he denied rape.

10. Two days later, on 6 May 1999, the two victims of rape and robbery identified the Respondent at separate identification parades. Additionally, the Respondent was found to have tattoos on his thighs of the kind noticed by the first victim.

Mitigation

11. The judge was told in mitigation by Mr Ross, who also appears in these proceedings on behalf of the Respondent, about the Respondent's unhappy domestic background. The Respondent's explanation for his behaviour was that he had resorted to taking "ice" and "speed". This information appears to have convinced the judge to adjourn sentencing for a background report to be prepared. We have to say, as we have had frequent cause to say before, that for offences of this gravity this was a waste of time and resources. Nothing in a background report in such a case could have assisted the judge in his task of assessing an appropriate sentence. With the benefit of hindsight, and in fairness to the judge, it seems that he later recognised that this was so. The judge considered, in the light of all he had heard, that there were only two factors in mitigation which carried any weight. These were, firstly, the pleas of guilty and, secondly, that neither victim had apparently suffered actual injury or long-term trauma. The judge went on to remark that he did not consider the Respondent's unhappy family circumstances or his self-inflicted drug abuse as amounting to mitigation. We respectfully agree with the judge's general assessment of the mitigation. However, it is far from clear on what basis he determined that the victims would not suffer long-term trauma.

Sentencing remarks

12. The judge described the offences as serious. In dealing specifically with the robbery in count 5, he said:

".... the defendant was armed with a cutter. I accept that the premises involved are private premises for the purposes of R v Mo Kwong-sang (1981) HKCLR 610, but I bear in mind that they were used substantially for non-domestic purposes at the time of the offence.

In respect of the offence the subject of count 5, I take a starting point of sentence of five years' imprisonment."

He then went on to say that he would reduce the sentence on count 5 to three years' imprisonment.

13. In relation to the robbery in count 9, the judge had this to say:

".... I bear in mind no weapon was produced in the course of this robbery and I take as a starting point of sentence four years' imprisonment. Taking into account the same factors advanced in mitigation I have referred to, I reduce that starting point to a sentence of two years five months' imprisonment."

14. Next, turning to the rapes, the judge had this to say:

"So far as the offence the subject of count 6 is concerned, I bear in mind that this rape effectively took place at knifepoint. In my view, that is a significant aggravating factor. I bear in mind again that the victim's premises, albeit private by nature, were in fact used by her for business purposes. In the circumstances of this case, I do not regard that as an aggravating factor.

If not for the production of a cutter by the defendant, I would have adopted a starting point of five years' imprisonment. That aggravating factor leads me to adopt a starting point of six years' imprisonment. I take into account the factors advanced in mitigation, that is, the defendant's plea of guilty and the fact that the victim was uninjured and apparently suffered no long-term trauma, and I reduce that starting point of sentence to a sentence of three years, six months' imprisonment.

So far as the offence the subject of count 10 is concerned, I bear in mind the rape took place again in similar premises and that on this occasion, no knife was produced, and I take a starting point of sentence of five years' imprisonment. I take into account again the matters advanced in mitigation, including the fact that the offence ended when the victim complained to the defendant about being frightened and asked him to stop. I reduce that starting point of sentence to a sentence of three years' imprisonment."

15. Lastly, the judge took into account totality in arriving at an overall sentence of five and a half years' imprisonment.

The application

16. Mr Luk, on behalf of the Applicant, submitted firstly that the judge had failed to have proper regard, when sentencing on count 5, to the guidelines in Mo Kwong-sang v R [1981] HKLR 610. The relevant passage taken from that case (at 611E-F) was as follows:

"We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years.

If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate."

17. It is apparent that the six-year guideline sentence was aimed at robberies committed on private premises of whatever kind, regardless of the use to which they are put. In our judgment, there was no justification for any departure on count 5 from a starting point suggested in the guidelines of Mo Kwong-sang, namely six years. This offence could properly be regarded as a classic case of armed robbery on private premises and the fact, as the judge expressed it, that the premises were used "substantially for non-domestic purposes" was a wholly irrelevant consideration. In this context, Mr Ross submitted that the judge's adoption of a five-year starting point was justified because, unlike the facts disclosed in Mo Kwong-sang, the offence in count 5 did not involve a "breaking" into the premises. It did involve, however, an "invasion" of premises by the Respondent using the pretext of being a genuine customer and we reject Mr Ross' argument.

18. Secondly, it was submitted by Mr Luk that the judge erred when he ordered the sentences for the offences of rape and robbery in respect of counts 5 and 6 and again in respect of counts 9 and 10, to run concurrently on the basis that they formed part of one incident in each example. Mr Luk sought to demonstrate the error in this approach by reference to a number of authorities. In R v Au Kai-wing [1988] HKC 92 at 95H-I, Penlington JA said:

"The trial judge was quite correct in ordering that the sentences for the indecent assault and rape, while concurrent with each other, should be served consecutively to those for robbery. This is an offence which by definition involves the use or threat of violence but if victims are also subject to sexual attack of any sort, the penalty for such attack must be in addition to that for the robbery and such offenders can expect substantial sentences."

Penlington JA emphasised the same sentencing approach in Attorney General v Ip Chung-hang [1989] 1 HKLR 149 at page 154D-E:

"If a robbery is committed and the victim is then the subject of further violence such as wounding or rape the sentences for such violence should be in addition to the robbery."

This approach was followed in R v Wong Kwok-keung CACC 75/1989 (unreported) where Macdougall JA at page 13 said:

"This Court has stated on previous occasions that where robbery victims are subjected to sexual assault of any sort the sentence for that attack will run consecutively to that for the robbery, and that the overall sentence will be substantial."

19. Similarly, in R v Lam Chun-po CACC 552/1990 at page 5 of the unreported judgment, and R v Sung Kwok-man & Anor. [1994] 1 HKCLR 164 at page 176, the Court of Appeal also held that the offence of rape called for a consecutive sentence to that imposed for robbery.

20. Mr Ross effectively conceded that consecutive sentences, at least in part, for robbery and rape should be imposed although he submitted that the judge was in reality seeking to achieve an appropriate sentence for each incident having regard to the principles of totality.

21. We propose to state the principle involved in the approach to sentence in this respect more starkly. Where a robbery victim is subjected to a sexual attack, there should inevitably follow a significant increase in sentence.

22. We have no doubt that the judge's approach in passing wholly concurrent sentences for the rape and robbery involved in each incident was an error of principle.

23. We have already said that the judge took into account the totality of the sentences he was imposing but, in so doing, Mr Luk submitted that the judge failed to reflect sufficiently the gravity of these offences.

24. Mr Ross submitted that even if the sentences at which the judge ultimately arrived might be viewed as lenient, the court should nevertheless refrain from making any upward adjustment unless the court was "prepared to say that a sentence of seven and a half years' imprisonment was itself manifestly inadequate". He argued that the Court of Appeal "normally gives a discount of one or two years to a respondent when the court amends a sentence on review". As support for that proposition, Mr Ross reminded us of what occurred in Attorney General v Dominic Cheung Kai-man [1987] HKLR 788 at 796I where two years were subtracted from a sentence passed by this court on review.

25. This was not an argument which found any favour with this court today. It is well known that the practice of the court in regard to giving a downward adjustment of sentence when a review has resulted in an increase of sentence has altered since 1987. When a downward adjustment is made, which is not on every review, it is usually only a token one to take into account the element of double jeopardy to which the prisoner has been subjected. The 1987 case cited by Mr Ross was irrelevant to the modern-day practice in Hong Kong. The token downward adjustment nowadays usually only applies where there has been a substantial increase in the sentence originally imposed or where the prisoner either has been or is about to be released. (See: Attorney General v To Ka-yin CAAR 3/1996 (unreported))

26. In the present case, the judge addressed the totality of the sentences to be imposed on the Respondent in the following way:

"In considering the totality of sentence, I bear in mind that the offences the subject of counts 5 and 6 effectively form part of one incident, as did the offences the subject of counts 9 and 10. I order that the sentences imposed in respect of counts 5 and 6 be served concurrently with each other. I order also that the sentences imposed in respect of counts 9 and 10 be served concurrently with each other.

Taking into account the overall criminality of these offences, I order that two years of the total sentence imposed in respect of counts 9 and 10 be served consecutively to the total sentence imposed in respect of counts 5 and 6. That is a final totality of sentence of five years, six months' imprisonment."

27. There is, of course, no criticism made of the judge that he considered counts 5 and 6 to be more serious than counts 9 and 10 because of the threats with a cutter in the earlier offences. Equally, no criticism is made of the judge's decision to pass, at least in part, a consecutive sentence for the later incident represented by counts 9 and 10. The question we have had to address is whether the sentence, taken overall, was manifestly inadequate.

28. Each incident involved the robbery, followed by the rape, of a lone woman in private premises. The first of the incidents was additionally aggravated by the production of a knife which was pointed at the victim's neck. Mr Ross drew attention to matters which he invited us to say were in the Respondent's favour. These included the fact that the Respondent had on each occasion used a condom. The Respondent had done so at his own request. It may well have been that he was thinking of himself and did this for his own protection. So far as the second rape victim was concerned, Mr Ross emphasised that the Respondent had eventually desisted from his act of rape because the victim had been so frightened.

29. R v Chan Chi-wah [1989] 2 HKLR 133 bears some similarity to the case presently before us, but whilst this provides no specific guidelines for sentence in such cases, it is to be observed that this court considered, on a review of the seven-year sentence originally imposed, that a twelve-year sentence would have been appropriate for the lower court to have imposed following pleas of guilty to one count of rape and four counts of robbery. The four victims involved were all nightclub waitresses who were robbed, and in one case raped, as they made their way home in the early hours of the morning. The offences in that case were committed either with the use of a weapon with which to threaten, or with violence, or both. The court ultimately substituted a sentence of ten years by making a two-year discount to take into account, as was the custom at that time, the fact that the court was dealing with a review.

Conclusion

30. In our view, the five-and-a-half year sentence in the present case represented what might be termed an appropriate sentence for the two robberies, where a starting point of about eight years' imprisonment after trial could not have been criticised. The allegations of rape make this far more serious than that. For two rapes of this kind, the Respondent should not in our opinion have received a sentence of less than ten years' imprisonment following trial. Having regard to totality and taking the robberies also into account, we consider that the Respondent should have received a sentence of not less than fifteen years after trial.

31. In all the circumstances, we shall allow the application having concluded, for the reasons we have given, that these sentences were manifestly inadequate. Accordingly, we shall quash the sentences originally imposed and we pass the sentences which follow in their place.

32. On counts 5 and 6, taking starting points of six years' imprisonment in each case (although we consider the starting point of six years for the aggravated rape in count 6 which was not criticised by Mr Luk to have been a very lenient starting point) the sentence on each count will be four years' imprisonment to give effect to the discount for pleas. As this is a review of sentence, instead of ordering, as we would otherwise have done, two years on count 6 to run consecutively to the sentence on count 5, we shall order that only one and a half years of the sentence on count 6 shall run consecutively to the sentence on count 5, making five and a half years' imprisonment for these offences.

33. So far as counts 9 and 10 are concerned, we shall retain the judge's original starting points of four and five years respectively. Making the appropriate reductions for pleas, these terms are reduced to two years eight months and three years four months. Taking totality into account, we shall order that only one year and four months on count 10 is to be served consecutively to the sentence on count 9, making four years in all for these two offences. This sentence is, however, to be served consecutively to the five and a half-year sentence on counts 5 and 6, making nine and a half years in all.

34. The sentence of imprisonment passed by the judge in the court below is therefore increased on this review by four years.