ATTORNEY GENERAL v. FONG MING YUEN

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J U D G M E N T

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Silke, V.P.:

1. On 6th October 1988 the Respondent, Fong Ming Yuen, was, after trial before Bewley J. and a jury, convicted of one offence of rape. The sentence passed was an order that he be detained in a Training Centre.

2. The Attorney General, by leave, now asks this Court to review that sentence on the basis that it was manifestly inadequate or wrong in principle.

3. The offence had a triad background. It was the evidence of two of the Crown witnesses, girls aged 13½ and 15 and who gave evidence under an immunity, that they were involved in the Tai Wan Shan branch of the Sun Yee On Triad Society. The victim was a member of another gang, the To Kwan Wan branch of that society. The two branches were not on good terms.

4. On 11th February 1988, the victim had a half day from school. She was aged almost 14. She went to Hunghom Square to wait for a friend. While she waited she saw two other friends, including Ng Chit Fung whom she knew to be a member of the To Kwan Wan branch. After a few moments for youths and the two girls to whom we have referred came on the scene. One of those youths as the Respondent.

5. There was the all too familiar allegation of "looking at" made by the new comers to Ng and his friends and one of those was punched by two members of the new group. The victim herself was assaulted.

6. Then all the youths fled the scene because they thought a member of the vice squad was in the vicinity. The victim was told to follow a girl who had spectacles and she did this because the girl was "fierce".

7. She went to a park in Tai Wan Road. There she was surrounded by the group from the rival branch. She was held and the girls slapped her face. They pulled her hair and they kicked her in the genitals - hardly the behaviour one would expect from girls of such tender age. The assault occurred because she was required to admit, which, at first she refused to do, that she was the girlfriend of Ng Chit Fung.

8. The four boys including the Respondent who was aged a few months short of 20, indecently assaulted the victim by squeezing her breasts and putting their hands inside her underpants and on her private parts.

9. She was asked if she were a virgin to, which she answered that she was. She was then told to strip and her body was inspected by one of the girls who gave confirmation of that virginity. The victim was, not surprisingly, crying, and this resulted in her face being again slapped.

10. The two girls went on to incite the boys to "play with" her. The youths played a game to see who could be the first to have sex with her. The youth who won that game refused; because he considered that to go on would entail loss of face.  At this point, the Respondent announced that he would do it. He approached the victim, raised his arm in a threatening gesture and told her she to strip which because she was frightened, she lid. He attempted intercourse with her in an upright position. He failed to penetrate. She was then taken to a nearby bench made to sit in his lap and he made a further attempt. This attempt succeeded to the extent that there was slight penetration and she felt pain. The Respondent desisted from further penetration because her aperture was too small. She was then permitted to clothe herself and the others left the park.

11. The Respondent's defence was alibi. The matter was left to the jury, in careful directions by the trial judge, on the haste that they could either acquit altogether, find the Respondent guilty of rape or of attempted rape or of indecent assault depending on what evidence they believed and how much of it. The jury by a majority of 6 to 1 convicted of rape.

12. Before passing the sentence he did, the trial judge called for and received reports from the Social Welfare Department and from the Commissioner of Correctional Services. We have seen those reports.

13. The Respondent had an unfortunate family background. He comes from a broken home and spent a good deal of his youth together with one of his sisters in a Home. Since then after first becoming apprenticed to a jeweller, he has held various jobs one of which lasted for any length of time. He had been a member of the Tai Wan Shan branch of the Sun Yee On. He had a girlfriend. He had one previous conviction in 1986 of theft when he was fined the sum of $500.

14. Miss Sze Kin, who appeared for the Respondent both here and at trial, has sought to emphasise the parts played by the two girls and the incitement by them to the Respondent to take the course he did. She suggested that they were the prime movers. She has drawn our attention to the concluding words of the Intake Officer Report which said:

"In the interest of his reformation, I am of the opinion that he may stand a chance of success in turning over a new leaf of life (sic) if given adequate social intervention. In this light, a course of disciplinary training couples (sic) with a period of after-care supervision would be deemed expedient for his rectification"

15. Miss Sze Kin further urges upon us that the sentencing guidelines given by Lord Lane, C.J. in Billam [1986] 1 All E.R. 985, 987: [1986] 82 Crim. App. R. 347, 350 concerned rape carried out by an adult and in a contested case. She wishes us to bear in mind, as indeed did the trial judge, the youth of the Respondent. She further submits that there is nothing on the record to suggest that the trial judge disregarded those guidelines - guidelines adopted by this Court in Attorney General v. Ip Chung Hang (Application for Peview No. 6 of 1988) where the Court described them as "every helpful". She continues that, however helpful they may be, they were guidelines only and not meant to be applied rigidly to every case. They were not to be used as rules never to be departed form.

16. Of the aggravating features to which Lord Lane made reference as having the effect to a taking sentence out of the usual normal five years she says that there was but one here - the age of the victim.

17. With respect to this last submission we do not agree. This young girl, not yet 14, was subjected to gross humilitation, violence was used upon her and sexual indignities perpetrated upon her person. There is no suggestion that the Respondent was anything other than a full participant in those events.

18. She goes on, to the suggested credit to the Respondent, that he desisted at an early stage of the rape and that penetration was but slight. She urges Chat it was within the discretion of the trial judge, who heard all the evidence and had seen all the witnesses, to take the view he did and that in so doing he has not been shown to err in principle.

19. While rape is an excepted offence nevertheless section 109A of the Criminal Procedure Ordinance entitles any trial judge to bear in mind that he should he hesitant in sentencing young offenders or young persons to imprisonment: The Queen v. Hor Wai Ming and another, Crim. App. 497 of 1984.

20. In the course of mitigation in the Court below Miss Sze suggested to the trial judge that "in the normal course of events" the Respondent would be looking at a period of around 6 or perhaps 5 to 5½ years' imprisonment. When this suggestion was made to him the judge indicated that he thought her figure was too high by at least half. Three years at the very most being the figure he had in mind. Further, he made it clear that his mind loss working on the lines of the Training Centre Order as recommended by the Intake Officer. He was unable to find a precedent for such a course where the conviction was for rape.

21. In passing the sentence he did he took into account first: that the Respondent was still a young man; second: that he had convictions sexual convictions; third: that there was no physical damage to the girl; fourth that the penetration was very slight; and, fifth, the unhappy childhood, the broken home and the Respondent's lack of education. Had he sent the Respondent to prison, he would have imposed a term of 3 years' imprisonment but thought that a Training Centre Order where, at the discretion of the Commissioner, the Respondent would be detained for up to 3 years was appropriate in all the circumstances of the case. He considered that the Respondent would benefit from the learning of a trade and by living in a disciplined environment.

22. Mr. Cross has submitted that the suggestion of 5 to 6 years' imprisonment made by Miss Sze Kin should not have been rejected out of hand by the trial judge for that was to disregard the Billam guideIines. There were, and this we accept, aggravating factors. There ryas also the extra distress caused to a girl such a tender years in having to give evidence. Further, he submits, the judge was wrong to place so much reliance upon the degree the penetration. The jury convicted the Respondent of rape and the verdict of the jury, should be honoured. He suggests that like principle should he applied to the sentencing of a youth convicted of rape as to the sentencing of a youth convicted of serious wounding or a robbery. He finally submits that, in very serious offences, it is not appropriate unless extreme youth is involved, to order detention in a Training Centre

23. Courts are required to concern themselves, as we must here, with the facts of a particular case but bearing in mind the necessity for consistency in sentencing. It is in the interests of the community that sentences should be appropriate and not excessive and we wish to make it clear that we do not accept the Crowns proposition which entails a ruling that there can never be a Training Centre order in the type of case referred to unless the offender is of "extreme vouth."

24. This Respondent was not a person of extreme youth. He was six years older and much taller than the girl. He was the eldest of his group. He was an enthusiastic participant in all that went on. We do not think that a youth of his age would be so unduly influence by girls of 13½ and, 15 that he would succumb to their blandishments to the extent of performing the acts he did. Further, young girls have to be protected from those with unfortunate backgrounds as well as from those with good.

25. We accept that to interfere as the Attorney General desires us to is to interfere with the exercise of his discretion by an experienced judge. This is not something to be lightly done. Further, because of the presumption in favorem libertatis referred to by this court in Attorney General v. Lau Chi Tak and another [1984] H.K.L.R. 23, the Court is less easily persuaded that a sentence was manifestly inadequate than it might be persuaded that a sentence was manifestly excessive.

26. This was a highly unpleasant experience for the victim. While the rape was not premeditated in the sense that there was a great deal of planning and organisation attached to it, nevertheless, the Respondent had volunteered to commit the offence and it was deliberate.

27. It is necessary when passing a sentence that all four of the "classical principles of sentencing", to which Lawton, L.J. referred in R. v. Sargent.[1974) 60 Cr. App. R. 74, retribution, deterrence, prevention and rehabilitation should be borne in mind without giving undue emphasis to any one of them. The argument here is that the trial judge erred in principle by placing too great an emphasis on rehabilitation. The public interest required that equal consideration he given to retribution, deterence and in particular prevention. Parents are entitled to believe that their daughters, however wayward, may safely walk the streets unmolested.

Lord Lane said in Billam:

"The variable factos in cases of rape are so numerous that it is difficult to lay down guidelines as to the proper length of sentence in terms of years."

28. The Court had earlier (Roberts [1982] 4 Crim. App. R. (S)(8) emphasised that rape is always a serious crime which calls for an immediate custodial sentence other than in wholly exceptional circumstances.

29. It is also clear that the English Court of Appeal considered septences to detention centre and to youth custody as custodial.

30. It was in the light of all this that the suggestion of a five year starting point in Billam was made, that to be increased where aggravating features were present.

31. An argument can certainly be advanced that here the judge would not have been wrong had he imposed an immediate sentence of imprisonment of four to five years, and not merely the three years to which he made reference.

32. The incident was, in our judgment, created to mock the rival gang and in particular Ng and the victim. The Respondent did desist before be effected full penetration, though nothing suggests that this was due to the pangs of conscience. What he did did not physically - though we are conscious of the severe degree of emotional and psychological trauma to the woman which this offence can entail harm the girl. It was in the nature, and this is not to be taken as criticising the verdict of the jury, of an aggravated and very serious indecent assault.

33. The sentence passed by the judge does entail a deprivation of liberty. In effect a custodial sentence. When the Commissioner of Correctional Services decides, it is at his discretion, that the Respondent should be released after a period not exceeding three years there will be a further period when the Respondent will be under the strict supervision of officers of the Correctional Services Department. He will also be subject to recall to the Centre if he misbehaves during the supervision period.

34. It is in the public interest and in the Respondent's own interest that his eventual reintegration - for he must at some point start to live out his life again in the wider world - into society be a gradual and assisted one.

35. The sentence passed and persuant to which the Respondent has already undergone several months of training will bring home to him the gravity of his offence and should greatly assist, by its nature, in making him a useful member of the community.

36. There are arguments which can he, and were, properly advanced that this sentence warrants review. Opinion in this Court has been finely balanced - one of the members initially was prepared to grant this application-however, in our considered judgment, while the sentence can he regarded as a lenient one we are not persuaded that it is manifestly inadequate or of a nature to indicate that in the exercise of his undoubted discretion the judge erred in principle.

37. We dismiss the Attorney General's application.