HKSAR v. CHENG PAK KIT

CACC 232 /2019

[2020] HKCA 555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 232 OF 2019

(ON APPEAL FROM HCCC NO 367 OF 2018)

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J U D G M E N T

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1.  On 16 July 2019, the applicant appeared before Andrew Chan J, having been committed to the High Court for sentence by a magistrate before whom he had pleaded guilty to three charges, namely indecent assault, contrary to section 122(1) and (2) of the Crimes Ordinance, Cap 200 (Charge 1); indecent conduct towards a child under the age of 16 years, contrary to section 146(1) of the same Ordinance (Charge 2); and unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the same Ordinance (Charge 3). He was sentenced on his own pleas to a total of 4 years and 10 months’ (or 58 months’) imprisonment. He now applies for leave to appeal against that sentence.

2.  In the court below, the applicant was D4 on a charge sheet involving four defendants and 10 charges.  His co-defendants, D1, D2 and D3, had also all pleaded guilty before a magistrate to the respective charges they faced[1]. Since D4 is the only applicant appealing sentence, and for the sake of clarity, I shall adopt his trial designation.

The facts

3.  Ms X was a girl born on 12 April 2004.  At the time of offences, therefore, she was 12 years and 9 months of age and a Form 1 student.  D4 was 24 years of age, while D1, D2 and D3 were 19, 19 and 23 years of age respectively.  Ms X was D1’s girlfriend and was acquainted with D2, D3 and D4, all of whom were males.  On the night of 26 January 2017, D1 invited Ms X for a drink and chat at the podium of Sun Chui Shopping Centre in Shatin (“the Shopping Centre”).  Ms X arrived at the podium at about 11 pm, where she met, chatted and drank beer with the four defendants, among others.

4.  At about 2 am on 27 January 2017, D2, D3 and D4 asked Ms X whether she wanted to go to the toilet together.  Ms X agreed.  D4 followed Ms X into the female toilets on the ground floor of the Shopping Centre, where he squeezed Ms X’s breasts and buttocks several times.  He then pulled her out of the female toilets and into the adjacent male toilets, where he again squeezed her breasts and buttocks.  These acts constituted the indecent assault charge (Charge 1).

5.  Ms X saw that D2 and D3 were also inside the male toilets at the time.  D4 then pulled Ms X into a cubicle near the entrance of the male toilets and closed the door.  As he was doing so, Ms X noticed that D3 placed a ‘Wet Floor’ sign outside the male toilets.  D2 then went into an adjacent cubicle adjacent, where he climbed up to look over the partition at what D4 and Ms X were doing.  Inside the cubicle, D4 pushed Ms X’s head down and made her perform oral sex on him.  This constituted the subject matter of the charge of indecent conduct towards a child under 16 (Charge 2).

6.  After D4 had received oral sex from Ms X for about 5 minutes, he pushed her body to one side and removed her pants, holding onto her as he did so.  He then pushed her body downwards so that her stomach was on the toilet bowl and penetrated Ms X’s vagina with his penis from behind. Having thrusted into her for about 10 minutes, he ejaculated outside her body.  This formed the basis of the charge of unlawful sexual intercourse with a girl under age of 13 (Charge 3).

7.  During this activity, D2 was watching from the adjacent cubicle.  D4 then left, whereupon D3 immediately entered the cubicle. D3 made Ms X perform various sexual acts with him, including oral sex and vaginal penetration with his penis for over 30 minutes, before ejaculating into her mouth.  While Ms X was performing oral sex on D3, D1 also entered the cubicle and penetrated Ms X’s vagina with his penis from behind.  D1 left the cubicle without ejaculating, whereupon D2 made Ms X perform oral sex on him and penetrated Ms X’s vagina with his penis from behind.

8.  Afterwards, D2 told Ms X to put her pants on and together they left the male toilets.  They went to a convenience store to buy some drinks and then returned together to the podium of the Shopping Centre, where D4 told her not to tell anyone about the incident.  D2 then accompanied Ms X to take a taxi home.  At the time of the offences, none of the defendants wore a condom.

9.  On 8 March 2017, Ms X told a social worker what had happened but refused to make a report to the police because she did not want her parents to learn of the incident.  As a result of the social worker’s persuasion, Ms X did eventually report the incident to the police on 6 July 2017.  D1, D2 and D3 were consequently duly arrested on 26 July 2017.

10.  D4 had meanwhile left Hong Kong on 28 June 2017. Accordingly, he was placed on the Immigration Department ‘watch list’.  On 8 March 2018, D4 was arrested when he re-entered Hong Kong via Lo Wu Control Point.  Under caution upon arrest, D4 said he had nothing to say.

11.  In a subsequent video-recorded interview (“VRI”), however, D4 made various admissions, including the fact that he had had sexual intercourse with Ms X, but gave a rather different account of events from that contained in the Summary of Facts which he eventually admitted before the judge[2].

Reason for sentencing

12.  Having recited the facts, the judge remarked that what happened to Ms X was a “joint effort” by D1 to D4 and was “not just a borderline rape but a borderline gang rape case perpetrated by four young men in complete disregard of (Ms) X’s dignity and emotion”[3].  The judge noted from the psychological report prepared on Ms X, that the victim suffered numbness and had tried to “blank out” the incident.  As a result, she blamed and doubted herself.

13.  The judge described D4 as “the oldest one and the most evil of all, being the ringleader and the initiator of these hideous acts”[4]. He further noted that D4 had five previous convictions for violence[5] and one for claiming to be a member of a triad society[6].

14.  In respect of Charge 3, having made reference to Secretary for Justice v Chung Yui Hung[7], the judge considered that the courts owed a duty to the public to make every effort to deter conduct such as this, which was on the borderline of rape.  He considered 5 years’ imprisonment to be the appropriate starting point in respect of Charge 3, for which offence the maximum sentence was life imprisonment.  According D4 a full one-third discount for his plea, the resulting sentence was 40 months’ imprisonment.

15.  In respect of Charge 1, the judge observed that, although it was humiliating for Ms X, it was not the most serious of the offences. Accordingly, a starting point of 18 months’ imprisonment was appropriate, duly reduced by one-third for plea to 12 months’ imprisonment.

16.  As for Charge 2, the judge was of the view that D4 pushing Ms X down and demanding that she perform oral sex was “particularly degrading”[8] for her.  He adopted a starting point of 36 months’ imprisonment, noting that the maximum penalty was 10 years’ imprisonment, which he again discounted to 24 months’ imprisonment for plea.

17.  The judge ordered 6 months of the sentence on Charge 1 to run consecutively to 12 months of the sentence on Charge 2, and both sentences to then run consecutively to the sentence of 40 months’ imprisonment on Charge 3, thus resulting in an overall sentence of 58 months’ (or 4 years and 10 months’) imprisonment.

Grounds of appeal

18.  Mr Dick Lee, who appeared for the applicant both at trial and before me, originally advanced three grounds of appeal against sentence.  First, it was said that the judge erred by not giving any discount to D4 for his voluntary return and surrender to the police in Hong Kong.  It was clear from the chronology in the Summary of Facts that when D4 left Hong Kong on 28 June 2017, Ms X had not yet made any report to the police about the incident.  That report was only filed on 6 July 2017, whilst D4 was out of the jurisdiction[9]. It was put in mitigation on D4’s behalf that he only came to know he was wanted by the police when his brother told him about it on 5 March 2018, as a result of which he returned to Hong Kong on 8 March 2018[10].  Mr Lee cited the case of HKSAR v Lam Hoi[11] for the proposition that D4 was entitled to a further discount of 4 months from his sentence, in addition to the one-third reduction for his guilty plea.

19.  The applicant’s original Ground 2 took issue with the judge’s characterisation of the incident as “borderline gang rape”.  However, Mr Lee has, in my view rightly, abandoned this particular ground of appeal.

20.  Ground 3 averred that the judge did not properly apply the totality principle when he ordered the sentences imposed on Charges 1, 2 and 3 to run partly consecutively with each other, thus resulting in an overall sentence which was manifestly excessive.  Mr Lee does not take issue with the notion that the facts in Charge 1 and Charge 2 did add to the culpability of Charge 3.  However, he argues that the judge has already taken into account the criminality of Charges 1 and 2 by adopting a starting point of 5 years’ imprisonment for Charge 3; therefore, it was not correct to impose partly consecutive sentences, which effectively punished D4 twice for his criminal conduct.

The respondent’s stance

21.  In opposing the grant of leave to appeal, Ms Audrey Parwani appears on behalf of the respondent in place of Mr Ivan Leung and adopts his written argument.  She accepts that the judge does not appear to have dealt with Mr Lee’s submission to him concerning the applicant’s voluntary surrender to the police.  Nevertheless, she submits that the judge was right in principle not to give any sentencing discount to D4 beyond the usual one-third discount. 

22.  In HKSAR v Yuen Kwok Kee[12], the Court declared that a further discount for plea where a remorseful, conscience-stricken defendant has voluntarily surrendered to authority could be given, but was the exception rather than the rule.  The reason for this, as Yeung JA (as he then was) explained on behalf of the Court[13], is:

“The customary one-third discount for guilty plea reflects the remorse of an accused and other associated factors such as saving of time, expenses and the inconvenience to witnesses who otherwise have to give evidence in court. More importantly, it is the recognition of the accused’s co-operation with the authority, which renders the administration of justice smoother and more efficient”.

Thus, the defendant who decamps from the jurisdiction, thereby delaying his trial, can hardly be said to be rendering the administration of justice smoother and more efficient.

23.  Although the respondent accepts that there is no evidence D4 fled the jurisdiction, Ms Parwani points out that D4 did not give advance notice to the authorities that he was returning to Hong Kong in order to surrender himself; nor was his subsequent conduct consistent with a person voluntarily surrendering himself to the authorities out of conscience‑stricken remorse. Rather tellingly, in his VRI taken following his return to the jurisdiction, he gave an account which was at variance with the facts he eventually accepted when pleading guilty.  For example, he claimed that D1 had suggested that they all go to the toilet together, and that it was D1 who told him to have sexual intercourse with Ms X, who was a prostitute.  The respondent submits that D4’s pointing of the finger at others and away from himself as the instigator of the offence, which the Summary of Facts clearly established and the judge indeed found, demonstrates that D4’s return to Hong Kong was not a genuine surrender to the authorities borne of remorse.

24.  On Ground 3, Ms Parwani does not agree that the judge has taken into consideration the criminality of Charges 1 and 2 in adopting the starting point for Charge 3.  Firstly, in sentencing D4 for the unlawful sexual intercourse charge, the judge expressly declared that “an appropriate starting point for this offence alone would be one of 5 years’ imprisonment”[14]. Secondly, the starting point of 5 years for Charge 3 was inadequate given the numerous aggravating features surrounding D4’s conduct: in particular, the offence was “borderline gang rape” involving four young men acting jointly and in sequence; there was a large disparity in age between D4 (24 years of age) and Ms X (12 years of age); no condom was used by D4; further degradation of Ms X was involved when she was required to perform oral sex on D4; D2 was permitted to watch what D4 was doing to Ms X; and significant psychological trauma was caused to Ms X.  In any event, it is the respondent’s position that the Court should look at the ultimate sentence, however it was arrived at, in order to assess whether it properly reflected the applicant’s overall criminality.

Consideration

25.  I have referred to the reasoning in Yuen Kwok Kee, with which I respectfully agree as a matter of logic and common sense.  If, for example, there were two defendants, one of whom immediately admitted the offence and pleaded guilty at the first available opportunity, while the other fled the jurisdiction only to return later to present himself to the police and then pleaded guilty, it would be rather illogical and unfair if the latter should receive a greater discount on sentence than the former. Having said that, it must be accepted that there was no evidence that the applicant before me fled the jurisdiction in order to avoid arrest for these offences.  But at the same time, as Mr Lee accepts, this was not a voluntary surrender for which the police were given prior notice.  The reality is that it would have been obvious to D4 what he had done to Ms X in January 2017, yet he did not return to Hong Kong, having left the jurisdiction on 28 June of the same year, until 8 March 2018.  I find it difficult to accept that he would not have known well before 8 March 2018 that D1, D2 and D3 had all been arrested over this incident in July 2017.

26.  Be that as it may, this was not a planned surrender to the police, although the applicant may well have anticipated what would happen when he arrived at the border.  His VRI rather undermines the remorse which it is said impelled him to return.  Although the judge was addressed on the issue of the applicant’s voluntary surrender, I do not think in the circumstances that he can be criticised for not giving the applicant any recognition for it.

27.  In my view, the applicant was perhaps fortunate that the judge adopted a starting point of 5 years’ imprisonment in respect of Charge 3, which was also the starting point approved in Chung Yui Hung, when it is highly arguable that the facts of this case were worse than those in Chung Yui Hung, given the number of serious aggravating features involved.  I tend to agree with Mr Leung’s written submission that 5 years’ imprisonment was inadequate as a starting point on this charge.  Subject to full argument on the point, I consider that the starting point on Charge 3 could well have been in excess of 6 years’ imprisonment.

28.  As for Ground 3, Mr Lee does not take issue with a consecutive element being ordered in respect of the other charges, at least so far as Charge 2 is concerned, since the facts of Charge 2 concern making Ms X perform oral sex on D4, which plainly added to D4’s overall criminality. However, he does take issue with the quantum of that consecutive element, given that the facts of Charges 1 and 2 must, he submits, have been taken into account in identifying the starting point on Charge 3.

29.  I do not think this a reasonable argument.  As the respondent points out, the judge expressly stated that 5 years’ imprisonment as a starting point would be appropriate for Charge 3 alone. Moreover, the facts of Charge 2 at least did add to the applicant’s overall criminality and justified a consecutive element.  In any event, the Court of Appeal would be looking at the ultimate sentence, however it was arrived at, to determine whether it was manifestly excessive and/or wrong in principle for D4’s overall culpability.  I do not regard it as reasonably arguable that 58 months’ (or 4 years and 10 months’) imprisonment on pleas of guilty is manifestly excessive or wrong in principle for the applicant’s overall criminality, particularly given the role he played, in respect of the three charges he faced.

30.  I accordingly refuse leave to appeal against sentence on both of the grounds of appeal advanced.  I advise the applicant that he has the right to renew his application for leave to appeal to the Court of Appeal, but, particularly in view of my comment as to the possible inadequacy of the starting point on Charge 3[15], I should also warn him that one of the consequences of so doing may be that the Court of Appeal could make an order for the loss of any time which the applicant has spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.