HKSAR v. CHAN WAI TUNG

CACC 121/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 121 OF 2013

(ON APPEAL FROM HCCC 428/2012)

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BETWEEN

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JUDGMENT

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.  On 11 March 2013, the applicant was convicted after trial before Beeson J and a jury of one count on an indictment which charged that on 14 June 2012 outside Ka Ping House, Ka Lung Court, Aberdeen he raped X. On 26 March 2013, he was sentenced to 10 years imprisonment.

2.  He now seeks leave to appeal both conviction and sentence.

3.  On 1 April 2014, we dismissed the application in relation to conviction and said we would give our reasons later; which we now do.  We reserved our judgment in relation to sentence.

Conviction

(1) The evidence

4.  The evidence against the applicant was constituted in the main by three prosecution witnesses: the complainant, X; and two security guards.

5.  The complainant, aged 39 years at the time of the incident in question, suffered from depression and on the night in question had decided to commit suicide.  She left her home, taking with her a large quantity of prescribed medicine in the form of pills and a can of beer, and within the precincts of Ka Lung Court, she consumed the medication.  She then felt very dizzy.  Later, according to her testimony, she was aware of a male placing her on a workman’s hand trolley.  She said that the male then tried to remove her T-shirt but she prevented that.  Nevertheless he removed her shorts and lay on top of her.  He was naked.  She felt that he inserted his penis into her and thrust forward and backward several times.  She had not consented to the sexual intercourse.  She was too weak to struggle.  She heard a woman asking “what are you doing here?” and the male answered something to the effect that he was doing it with his girlfriend.  She remembered that he then put her shorts back on to her.  The next thing she remembered was that she was taken to hospital.

6.  It was put to her in cross-examination that the effect of the drugs was such as to cause her to hallucinate and that in fact she had not been sexually assaulted.

7.  One of the security guards was a Mr Zhou.  At about 10:25 pm that evening, he saw the applicant pushing a trolley with a woman, the complainant, lying unconscious on it.  The applicant told him that he was sending his girlfriend back home for she was drunk.  Mr Zhou left the scene and fetched his supervisor, Ms Li; and they both returned to the scene.

8.  When they returned, Mr Zhou saw the complainant lying on the ground with the lower part of her body naked.  The applicant was entirely naked and he heard Ms Li ask the applicant what he was doing and the applicant replied that he was sleeping with his girl friend.  Ms Li told the applicant that it was a public place and that what was happening was inappropriate.  The applicant then put the complainant’s shorts back on her, put on his trousers and left the scene.  The complainant appeared to him not to be awake and did not move.

9.  Ms Li’s testimony was that she went to a lower part of the staircase than did Mr Zhou when she saw the applicant, naked to his knees, on top of the complainant who was lying on her back.  Her legs were apart.  The applicant was moving his whole body on top of her.  She asked him what he was doing and told him to go away but he gave no reply.  She went off but, feeling uneasy, she went back and he was standing with his trousers on but no other garment.  The complainant seemed motionless.  Ms Li told the applicant that she suspected something wrong and intended to call the police.  He, in a threatening tone, addressed her with foul language, told her not to cause any trouble, asked her to leave, and threatened that he would call friends to help.

10.  A forensic pathologist testified. He had found no recent injury to the complainant’s private parts but explained that it was well documented that vaginal penetration did not necessarily produce injuries especially in those with previous sexual experience.  He collected swabs from the complainant, urine and blood samples and sent them to the forensic scientist for examination.

11.  The forensic scientist said that she did not find any male DNA, semen or contact evidence in the swabs taken from the complainant and nothing of significance was found with respect to textile fibre examination of the applicant's and the complainant's clothes.

12.  A psychiatrist gave evidence, particularly about the effect of the drugs which the complainant had consumed.  He said that it was very rare for tactile hallucination (in other words, hallucinating about being touched) to occur as a result of an overdose of the drugs.

13.  Upon the applicant's arrest shortly after the incident in question, the applicant said: “Ah Sir, I saw the lady fainted on the ground.  I just good heartedly took a handcart nearby to push her aside.  Later she said it was hot and she removed her clothes herself.  I did not touch her.” 

14.  The applicant did not testify.  The defence advanced in cross examination on his behalf was that she had imagined what had happened.  There was no issue as to the identity of the man who had been seen by the security guards in the company of the complainant.

(2) The grounds of appeal

15.  The first ground of appeal in relation to conviction was that the judge directed the jury in relation to the forensic evidence that the inability to find contact evidence was “neutral in the sense that it does not actually help you with anything at all.”

16.  The suggestion on behalf of the applicant was that this was unfair and misleading in that the absence of that evidence was consistent with the applicant’s case that he had no sexual intercourse with the complainant.

17.  Viewed in isolation, there is force in the complaint.  But this    was not the only reference by the judge to the absence of contact evidence.  She referred at various stages to the absence of contact evidence saying in relation to the evidence of the complainant that the complainant:

“… did not know how long the man continued after the woman spoke to [him], in order to know whether he ejaculated in respect of the intercourse. But I would point out to you that what’s very important is that there was no contact evidence, there was no DNA, there was no semen found on the underwear of the defendant, or indeed on the underwear of Miss X.”

18.  Lest that comment be interpreted as referring merely to the question whether there had been ejaculation, it is be noted that there comes a passage later in the summing up, of general application, in which the judge, referring to the testimony of a forensic pathologist said, well after the passage of which complaint is made:

“He took tests to find the DNA, to check the DNA. … I have reminded [you] that in this case there was no DNA found, there was no contact evidence between the two persons found. That is something you have to take into account when you are considering the evidence.”

19.  The clear implication, as it seems to us, of that passage was that the absence of contact evidence was relevant to the case.  Given the emphasis in the closing speech of counsel for the applicant at trial upon the absence of contact evidence as supporting his client's case, and given this passage in the summing up, it is difficult to conclude that the jury were other than cognisant of the relevance to the defence case of the absence of contact evidence.  We are bound, in any event, to say that the evidence for the prosecution was, on the basis of the testimony of the security guards, overwhelming.  Both saw the applicant stark naked in the presence of the complainant; and one of them saw the applicant moving his naked body on top of the splayed legs of the complainant; the applicant himself conceding to the police that part of the clothing of the complainant had been removed - albeit he suggested that she herself had removed her clothing because she was hot.  There was no room for mistake in what they said and no possible reason for either to lie.  The suggestion that the complainant had herself removed her clothing was in the circumstances fanciful.

20.  The suggestion embraced by the next ground of appeal that the testimony of the security guards was contradictory was not a tenable suggestion.  The fact that the male security guard did not see the man pressing his naked body on top of the complainant is readily accounted for by the fact that he was not standing in the same position as Ms Li - he was up the staircase and she was at the foot of it very close to the positions occupied by the applicant and complainant.

21.  Finally, in relation to conviction, it was contended that the judge erred in telling the jury that:

“ … there is an allegation that [Ms Li] was lying about [what she saw]. You might wonder why she would bother causing trouble for herself by lying about some incident which, after all, created more work for the security guards.”

22.  The complaint was that this was a matter for the jury, not for the judge.  We were told that the allegation of lying emerged from the closing speech on behalf of the applicant, and was not put to Ms Li in cross-examination.  The comment by the judge was entirely within acceptable bounds, especially when viewed against the fact that the assertion had not been put to the witness.

(3) Conclusion

23.  Accordingly, we dismissed the application in relation to conviction.

Sentence

(1) The applicant

24.  At the date of the offence, the applicant was aged 27 years.  He was not a person of good character.  Only one month before, he had emerged from a term of imprisonment for trafficking in dangerous drugs.  Amongst the previous offences going back to 2002, was an offence of criminal damage in 2002, common assault in 2005, assault occasioning actual bodily harm in 2006 and assault occasioning actual bodily harm, again, in 2009 for which latter offence he was sentenced to a drug addiction treatment centre.  There were also offences of theft. 

(2) The complainant’s condition

25.  Upon the applicant’s conviction, the judge adjourned sentencing to await a report from a psychiatrist on the condition of the complainant.  That report said that the complainant “was remarkably less depressed compared to the prior weeks leading to the legal proceedings.  She is less troubled by the frequent ruminations of catastrophizing thoughts and is no longer overwhelmed by the immense negative cognitions.  [She] has been having improved sleep quality with less fragmentations.  There are no more flashbacks or imagery during sleep.  The improvement can be attributed to the recent news of the court case.  Patient reported good compliance to [medication].  Patient expresses a sense of direction in life and is more motivated and energized in daily routines.  She is no longer harbouring active suicidal ideations.  No overwhelming negative cognitions were raised during the interview.  Patient is assessed to be mentally fit and is currently stable and calm with gradual improvement.”

26.  Putting that into layman’s terms, we see that, as might well be expected, the complainant suffered considerable trauma as a result of the offence, but that, thankfully, the trauma has lessened after conclusion of the trial; which is not to say that she will be other than always affected by the experience.

(3) Sentencing remarks

27.  In the course of mitigation, the question was raised whether the applicant had used a condom.  Prosecuting counsel conceded that he had suggested for the jury's consideration that the applicant had used a condom, which might explain why the scientific examination found no relevant DNA contact evidence and it was noted as well that, upon arrest, the applicant was carrying condoms.

28.  In her careful and detailed sentencing remarks, the judge said that there was no evidence showing that a condom had been used, no used condom was found at the scene and the absence of contact evidence was an indicator that, perhaps, a condom had been used.  The complainant had suffered a right knee injury, perhaps caused by her legs trailing on the ground when she was being pushed on the trolley.

29.  The judge described the offence as “a very serious rape although I accept it was opportunistic rather than carefully planned.  The defendant came across a woman who was obviously in a comatose or semi-comatose state and who very obviously was in need of some care.  Without making any attempt to find out whether she was ill from a stroke or heart attack, whether she had overdosed, was drunk or dying, the defendant commandeered a trolley left around the estate and used it to transport Miss X to a quiet place where he proceeded to remove her shorts and rape her.  He lied to the guards that she was his girlfriend; said that she was drunk and that he was taking her to seek help.  He had sexual intercourse in public with a woman who was unable to consent. … He made no report to the police or to security personnel on the estate. … It is not known clearly whether or not he used a condom, but the victim would have had reason to fear pregnancy and/or a sexually transmitted disease until such time as she could receive results of tests. …  In all the circumstances of this case I consider that 10 years is an appropriate sentence.”  That is the sentence which she imposed.

(4) Analysis

30.  The complaint in the written submissions on behalf of the applicant, is that the judge erred in inferring that a condom was not used.  This is not a justified complaint for the judge did not draw that inference.  Instead, she noted, quite correctly, that the complainant herself could not, given the circumstances of the offence, know whether a condom was used and it was the fear of pregnancy or of a sexually transmitted disease which was a material factor to be taken into account.

31.  That point apart, the essence of Mr Cheng’s submissions on behalf of the applicant in relation to sentence is that, serious though the offence undoubtedly was, the sentence was manifestly excessive by comparison with sentences imposed in other rape cases of a similar or more serious kind.

32.  No two rape cases are likely to be the same and comparator cases must always be examined with care and with the knowledge that, at the end of the day, sentencing is an art and the judge must stand back and pass a sentence which is merited by the circumstances as a whole.

33.  That said, a judge sentencing for this type of offence will have regard to a generally accepted, albeit not hard-edged, starting point for a rape without any aggravating features, will then identify whether there are aggravating features and if so, the degree to which sentence should be enhanced by reason of them, and take into account, broadly, the range of sentences passed for cases – if there are any – with similar factual backgrounds and for cases where the aggravating factors are obviously more serious than in the case under consideration.

34.  In the recent decision in Secretary for Justice v Leung Yuet Hung CAAR 1 of 2014, unreported, 12 May 2014, we noted at paras 23-26, a number of judgments since 1994 which indicated that the starting point in Billam was not one which was necessarily to be followed in this jurisdiction and suggested that the time was ripe to revisit that starting point, given the gravity of the offence of rape.  Absent statistics and a modern sentencing database, and given our own experience, we proceed on the basis that five years has tended to be the starting point applied.

35.  Aggravating factors have been canvassed or identified in Billam as well as in the more recent case of R v Millberry & Ors [2003] 1 WLR 546 and they are equally applicable in this jurisdiction. They include, but are not limited to, “where rape is committed by two or more men acting together or by a man who has broken into or otherwise gained access to a place where the victim is living or by a person who is in a position of responsibility towards the victim or by a person who abducts the victim and holds her captive” (Billam at 987).  So, too, where violence is used over and above the force necessary to commit the rape; where a weapon is used to frighten or wound; where the rape has been carefully planned; where the rape is repeated; where the defendant has previous convictions for rape or other serious offences of a violent or sexual nature; where the victim is subjected to further sexual indignities or perversions; where the victim is either very old or very young; where the effect on the victim, whether physical or mental, is of special seriousness – “where any one or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point”: Billam at 980. And it will also be an aggravating feature where the victim is especially vulnerable because of physical frailty, mental impairment or disorder or learning disability and, of course, if the rape is by a man who is knowingly suffering from a life-threatening sexually transmissible disease, whether or not he has told the victim of his condition and whether or not the disease is sexually transmitted, that will be particularly serious: see Millberry at para 20; and, in any event, the failure to use a condom is itself an aggravating factor.   Repeated rapes over a course of time in relation to the same victim will require an especially aggravated sentence.  We would add to this list, which is not intended to be exhaustive, a circumstance which features from time to time in Hong Kong cases, of threats delivered to victims, of harm to themselves and/or to members of their family should they report the incident; this will be most particularly aggravating where the threat is delivered to a child or young person.

36.  There are local circumstances to take into account.  One of them is that this is a crowded city, which is a safe city by international standards, and its residents have come to expect and are entitled to expect an environment in which it is safe for a female to walk about alone and at night.  The fact of an attack in such circumstances must go in aggravation of sentence.

37.  Although the attack on the complainant was opportunistic, it was launched upon an obviously vulnerable stranger and it is clear that the applicant was determinedly and brazenly persistent in the commission of the offence.  He troubled to locate a trolley upon which he loaded the complainant; used it to wheel her to a relatively quiet place; undressed himself and when interrupted whilst having sexual intercourse, he ignored the security guard’s enquiries and directions to desist.  Upon the security guard’s return a short while later, instead of decamping, he threatened her with obtaining the help of his friends.  By reason of the consumption of beer and pills in an attempt to take over life, the complainant, though partly conscious of what was happening to her, was unable to resist the applicant or even shout for help – this helplessness was obvious to the applicant, yet he persisted.

38.  These circumstances were such as to warrant material enhancement of sentence from the starting point.  Yet, without diminishing the seriousness of the offence, there were absent many of the features which in other cases have drawn sentences in the range of 10 years imprisonment or more. We do not think that in this case a sentence in excess of nine years imprisonment was warranted and, to that extent, we judge the sentence imposed as excessive.

39.  Accordingly, we grant leave to appeal against sentence, threat the hearing of the applicant as the appeal, allow the appeal, set aside the sentence of 10 years imprisonment and substitute a sentence of 9 years imprisonment.