THE QUEEN v. LEE SHUN CHUNG AND OTHERS

IN THE COURT OF APPEAL

1986 No. 359
(Criminal)

BTWEEN

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J U D G M E N T

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Kempster, J.A.:

1. On 1st July 1986 on the verdict of a jury Ho Kwok-shing was convicted on 4 counts of robbery, 2 counts of burglary, 3 of rape and one of indecent assault. Wong J. sentenced him to 10 years imprisonment, concurrent, on each count of robbery and to 12 years, concurrent, on each count of rape but consecutive to the sentences for robbery. Concurrent sentences were imposed in respect of the remaining counts and Ho faces 22 years of imprisonment in all. He seeks leave to appeal against these sentences.

2. Likewise on 1st July 1986 Lam Pak-hung was convicted on 7 counts of robbery, 7 counts of rape and one count of indecent assault. He was sentenced to life imprisonment on each count of robbery and rape and to 5 years imprisonment for indecent assault. He too seeks leave to appeal against the sentences passed upon him.

3. The general circumstances of all these offences were described by the trial judge in his Summing-Up. In practically all the cases the offences were committed in the small hours of the morning. The occupants were threatened with choppers and knives. They were tied up with coat-hangers and blindfolded. The premises were ransacked and money and valuables were stolen.

4. On certain occasions women were raped. On one occasion a young girl of 11 was indecently assaulted. Many of the occupants were also severely beaten up and sustained injuries. He also referred again to the general circumstances of these offences when passing sentence. He said that the victims were awakened from their sleep, frightened, threatened with choppers ant1 knives, tied up with metal and plastic coat-hangers and that some of them could have suffered death from suffocation. In practically all the cases where there were women or young girls they were repeatedly raped by several men, one after another, or indecently assaulted. They were all respectable and suffered multiple bruises and abrasions. One girl had ligature marks while the breasts of another bore the marks of burns from cigarette.

5. At the time of conviction Ho was aged 33 years and had a clean record while Lam, 32 years of age, had convictions only for very minor offences.

6. Having heard the evidence, particularly the evidence of the women raped, the trial judge very properly felt it incumbent upon him to express in no uncertain terms the revulsion felt by ordinary law-abiding people for the behaviour he had described. His words of condemnation to a great extent explain the severe sentences imposed.

7. Of Ho, he said:

There is no direct evidence that you actually raped any of the women; a matter urged upon us on his behalf by Mr. Dinnan. But it is quite clear from the evidence that you were an active and regular member of the gang. You played equally important roles in all these dreadful offences.

8. Of Lam, he said:

There is evidence from the 3rd accused, and I think the jury must have accepted, that you were the person who stripped the 11-year-old girl naked and you nearly raped her if the 3rd accused had not objected. I think this must be the worst case of indecent assault and I must impose the maximum sentence of 5 years which is to run concurrently with all the other sentences. You are without any doubt the leader of the gang. It was you who burned the breasts of the poor woman with a lighted cigarette. You are not only a robber, a rapist, you are also a sadist. You are totally unfit for human relationship. You are a very dangerous man, a great danger to man and society. - Such a person should not be allowed to out in the street. You must be locked up and put behind bars for good. It is very unpleasant but I must do my public duty. Decent men and women must be protected from 'maniacs' like you. The word maniacs was not used in its technical sense.

And then he imposed sentences of life imprisonment as we have indicated.

9. In relation to Ho Mr. Dinnan has submitted that 12 years is too long a sentence for rape suggesting that, for example, 7 years would be more appropriate. Had there been but a single such offence there would have been force in his submission. But the sentences of 12 years, running concurrently, reflect the overall iniquity of the applicant in this particular regard. As we have already mentioned the only other mitigating factor was taken into account by Wong J.

10. Severe as the overall term of imprisonment is heinous indeed were this applicant's crimes. Each offence was calculated to attract a sentence at the top end of the permissible range. After a night's reflection we are satisfied that it would not be right for us to interfere. Ho's application for leave to appeal against sentence is accordingly refused.

11. In relation to Lam the burden of the submission made by Mr. Sedgwick on his behalf has been that an indeterminate sentence was wrong in principle having regard both to the absence of medical evidence and to what is known about this applicant. He and his junior have provided us with a wealth of relevant authority. From these and other cases we have sought to extract authoritative guidance and would refer initially to part of the judgment of Sheldon J. in R v Laycock[1] which reads:

In general, a life sentence for offences other than homicide should not be imposed unless there are exceptional circumstances in the case, as where there is evidence of a marked degree of mental instability making the offender a danger to the public, or where he has committed grave offences of violence of which there appears, to be a substantial, risk of repetition.

And then in R v De Havilland[2] Dunn LJ giving the judgment of the court:

The question which arises for decision in this appeal is whether the judge was wrong to pass a sentence of life imprisonment on the appellant in the absence of medical evidence that the appellant was suffering from such mental instability as to be likely to be such a danger to the public as to warrant such a sentence.

Dunn LJ then mentions the citation of a passage in paragraph 5-31 of Archbold, which appears in the current edition, suggesting that medical evidence is a prerequisite for the imposition of a life sentence. In due course he concluded:

It appears to us that the cases show that it is normal practice for the judge to have the benefit of medical evidence before imposing a life sentence for rape, although he may do so without medical evidence. The ultimate responsibility for the sentence rests on the judge, and not on the doctor. But he should not pass a life sentence for rape unless he is satisfied on all the evidence, including any medical evidence, that the accused is a person of unstable character who is likely to commit such offences in the future and likely to be a danger to women for an unpredictable and indefinite period of time.

12. In the most recent English authority R v Pate[3] Lord Lane CJ said of the appellant there:

The man is plainly mentally abnormal and represents a danger to the public. So both elements were there present. We take the view that this is a case which merits life imprisonment by reason of its gravity. It is one of those exceptional cases as stipulated by Lawton LJ in R v Pither[4].

Earlier he had referred to that judgment and quoted a passage where Lawton J had referred to the fact of

One of the exceptional circumstances being a marked degree of mental instability.

So that is one circumstance. The other and alternative circumstance constituting an exceptional case is, in our view, the risk to the public at large. That is a view already adopted by this court in R v Cheung Hing Bui[5], Silke JA there described the criteria for a life sentence:

(a) here the offence or offences are in themselves grave enough to require a very long sentence - and - (c) - Where if the offences are committed the consequence to others even to one other may be specially injurious, as in the case of sexual offences or crimes of violence are both present.

Then referring to counsel for the applicant before the court:

He bases his argument on the suggested absence of criterion (b): Where it appears from the nature of the offence or from the defendant's history that he is a person of unstable character likely to commit such offences in the future.

Whether or not, and we think not, all three guidelines must be present before the imposition of an indeterminate sentence the very nature and multiplicity of the offences here is, in our judgment, sufficient to satisfy criterion (b): whatever may be the views of the psychiatrist as to the applicant's present mental instability or personality defect.

The crimes committed by the applicant merited condign punishment. The public is entitled to be protected from the depredations of a man such as this and it is the duty of the Courts in passing sentence to reflect this and also to reflect the abhorrence the community has for the nature of these offences.

13. Those guidelines were heeded and applied by Wong J. who had observed Lam in the course of a trial lasting many days which had disclosed his involvement in a series of robberies and rapes running over a period of some 18 months. On that basis he was satisfied that Lam constituted a substantial danger to the public in that repetition of grave offences involving violence was to be anticipated.

14. In those circumstances, again after careful reflection, we see no ground to interfere with the sentences of life imprisonment imposed. The application by Lam for leave to appeal against sentence is refused.

[1]  1981 3 Cr. App. R.(S) 104 at p.106

[2]  1983 5 Cr. App. R.(S) 109 at pp. 111 & 117

[3]  (1979) 1 Cr. App. R(S) 209

[4]  (1985) 80 Cr. App. R. 49 at p.354

[5]  1984 HKLR 87 at p.94