ATTORNEY GENERAL v. CHAN MING MAN

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

Application for Review No. 4 of 1993

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J U D G M E N T

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Hon Yang, CJ:

1. This is the Attorney General's application for review of sentence.

2. The respondent was convicted on his own plea of three charges, namely, Count 1 Robbery, Count 2 Rape, and Count 5 Attempted Robbery. He was sentenced to concurrent terms of imprisonment of three years, four years and three years respectively.

3. The application is made on the basis that the sentences imposed were manifestly inadequate and/or wrong in principle. In particular: -

(a) as the offences of robbery and attempted robbery were distinct and separate offences, the effect of imposing two identical concurrent sentences was such that no additional penalty was imposed in respect of the attempted robbery;

(b) an additional penalty of only one year's imprisonment in respect of the offence of rape fails to mark the gravity of the offence; and

(c) the judge erred in being "specially lenient" to the respondent "this time", because he was treated as a first offender for having only a minor conviction for gambling.

4. In passing sentence, the judge noted that the respondent found himself in financial difficulty because of his blind loyalty to his friend in helping him out, and the respondent wished also to help his father as well. The judge also gave the respondent credit for showing sympathy towards his victim in the first and third charges by returning to her about half of what he had taken from her. On Count 1, the judge adopted a starting point of five years' imprisonment and imposed a sentence of three years. On Count 2, he adopted a starting point of six years and imposed a sentence of four years. In so doing, he expressed his "regret that this is the sort of range of sentence Courts usually imposed upon rape of this nature", and he hoped "soon the Court of Appeal will revise the sentencing policy towards rape and increase the tariff". For Count 5, he again adopted a starting point of five years and likewise imposed a sentence of three years. The judge concluded by noting that all these offences could call for consecutive sentences, which would bring the total to ten years; he applied the totality principle and ordered the sentences to run concurrently.

5. The facts may be briefly stated.

6. At about 11:30 pm on 3 February 1992, the victim, a Chinese lady, had just returned in her private car to the carpark at the Tuen Mun Town Plaza. After she alighted from the car, the respondent grabbed her neck from behind and pointed a knife at her waist. He demanded money. She gave him $800. He then demanded that she should surrender all her credit cards and provide details of her secret PIN codes for the cards. Again the victim complied. He then forced her to go back into the car and drive to the bank. They arrived at a spot near two banks where the respondent succeeded in drawing $900 and $4,000 using different visa cards. He attempted to draw more money from another bank, but failed as the victim did not have sufficient funds in the account. Having drawn the money, the respondent told the victim to keep the money in her purse. They then walked to a nearby store and bought some soft drinks. There was an old man who was the store keeper there, but the victim decided not to raise alarm. Later they returned to the victim's car and the respondent took the money from the victim, but at her request gave her back $2,400. He then instructed her to drive back to Tuen Mun.

7. On arrival at the carpark at Mun Tun Town Plaza, and on the pretext of wanting to use the toilet in the victim's flat, the victim reluctantly allowed the respondent to enter the flat to go into the toilet. The victim at once went out attempting to close the iron grille. But her actions were discovered by the respondent who prevented her from doing so. The victim persisted in her act, raising a hue and cry and kept pressing the doorbell of the adjacent flat, but to no avail. The victim was then subdued by the respondent and was dragged back into the flat. The respondent then told the victim that he wanted to leave and asked her to accompany him to the carpark. When the parties arrived at the carpark, the respondent told the victim to sit on the staircase landing. It was about 1:30 a.m. at the time at the Lunar New Year's Day. The respondent then told the victim that he wanted to have sex with her. She refused but the respondent persisted and threatened her, saying they could either go to her flat or to an apartment. The victim was helpless and she took the respondent back to her flat, hoping that she might come across some people and thereby obtain some help.

8. After entering the flat, the respondent raped the victim in her bedroom. After sexual intercourse, the respondent asked the victim to accompany him to the carpark where he made good his escape. The victim then reported the matter to her friends and then to the police. The whole incident took about two hours.

9. The above formed the subject matter of Counts 1 and 3.

10. The facts on Count 5 were that at about 5:50 a.m. on 5 February 1992, a Chinese lady and her boy friend were just leaving their private car, having parked it at the carpark of Tuen Mun Town Plaza. Suddenly, the respondent and another person appeared; one person grabbed the lady's neck and the other pointed a long beef knife at her boy friend. The respondent and the other person declared robbery. Subsequently, the lady and her boy friend were allowed to leave and nothing was stolen from them.

11. The respondent was later identified by all three victims at an Identification Parade.

12. The respondent was 22 years of age at the time of the offences and single. In 1990, he worked for a few months as a customs officer, then left to become a decoration worker. At the time of his arrest, he was a decoration contractor.

13. It is argued in support of the application for a review of sentence that, whilst the starting point in the region of five year's imprisonment for one count of robbery, standing alone, where the accused carries a knife, is correct, the sentence should be enhanced where, as in the present case, there is accompanying violence to the victim: vice MO Kwong-sang v. R [1981] HKLR 610, at 611.

14. As to the offence of rape, it is contended that, where there is one single offence of rape committed by a lone offender who pleads guilt, a sentence of at least four and a half years' imprisonment should be imposed: see R v. Billam 8 Cr App R (S) 48, and AG v. IP Chung-hang [1989] HKLR 189.

15. Thirdly, it is submitted on behalf of the Attorney General that the robbery and attempted robbery, being separate and distinct offences, involving different victims and on different occasions, they did not fall within the "one transaction rule". With respect, we agree with the submissions advanced on behalf of the Attorney General in support of this application.

16. Counsel for the respondent stressed all that has been argued in mitigation in the Court below. It is contended that this is not the worst case of its type and the facts of the AG v. IP Chung-hang (supra) were referred to. That was of course a case of multiple rapes and the victim was assaulted, detained and her belongings stolen. A totality of ten years was imposed in that case. Bearing the facts of IP Chung-hang's case in mind, we are still of the view that the facts in this case are sufficiently serious to call for a very substantial sentence indeed. It is also submitted on behalf of the Attorney General that this case does not call for a "specially lenient" sentence. The fact that the respondent is treated as a first offender accounts for little in a serious case such as this. The approach adopted by the learned trial judge is in our view contrary to that expressed in the case of R v. LAM Chun-po Cr App 552/90. Previous good character counts for little in robbery and rape cases. The approach adopted by the trial judge resulted in no additional penalty for the offence of attempted rape.

17. In all the circumstances of the case and as we have indicated, accepting the arguments advanced on behalf of the Attorney General, we would for the robbery and attempted robbery adopt a starting point of five years, for the rape we would adopt a starting point of six years. Taking into account the plea in mitigation and other mitigating factors, the sentences we impose are for the robbery three years, for the rape three years, and for the attempted robbery two years, sentences to run consecutively thereby making a total of eight years.

18. The application is therefore allowed to the extent indicated.