R. v. LUN KWOK KEUNG

IN THE COURT OF APPEAL

1995, No.74
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter faced three charges. The first was a charge of indecent assault it being alleged that on 26th November 1993 under the flyover of Pui To Road near Kai Man Path, Tuen Mun, he indecently assaulted a woman Li Sai-ying. The other two charges were charges of assault occasioning actual bodily harm. It was alleged in each that at the same time and place he had assaulted an arresting police officer. He pleaded guilty to both of the assault charges but not guilty to the indecent assault. He was, however, prepared, after the judge's decision in a voir dire to admit his cautioned statements, to plead guilty to the indecent assault. The trial judge sentenced him to four years on the indecent assault and to one year on each of the other two assaults and made the second and third sentences concurrent but consecutive to the first sentence. He now seeks leave to appeal against those sentences.

2. The admitted facts, which we take from the Crown opening, were as follows: At 1 a.m. on the day in question Miss Li, the victim, was walking in the vicinity of the flyover at Pui To Road. Suddenly the applicant grabbed her neck from behind, lifted her off the ground and caused her temporarily to lose consciousness. We note particularly this initial attack in which the victim was choked to the point where she lost consciousness. The applicant then assaulted her face and subsequently pressed her against the railing. She asked him to let her go and he ordered her to be silent and told her to remove her trousers. When she failed to comply he pulled down her trousers and her underpants, fondled her private parts and inserted a finger into her vagina. She protested and he then placed both hands around her neck, squeezed it again causing her to lose consciousness. When she recovered she discovered that her underpants and trousers were around her knees. She noticed two men nearby, shouted for help and cried "rape". The two men, fortuitously, were patrolling police officers. When they came upon the scene they noticed that the applicant's trousers were partly pulled down and that his buttocks were visible. They declared themselves to be police officers and the applicant then attempted to run away. The first police officer grabbed him trying to restrain him. He then put up a violent struggle assaulting both of the police officers and, in the course of the struggle, used the torch of the first officer to assault both of the officers. Police reinforcements arrived and with their assistance he was subdued. The victim was medically examined at the Tuen Mun Hospital and was found to have abrasions, bruises, bleeding, bite marks on her right tongue and an abrasion on the inner aspect of the left side of the vulva. The police officers sustained abrasions to the elbows, wrists and knees. The second officer was also found to have a laceration of the nose and abrasions around the mouth.

3. The trial judge when sentencing said:

"I say at the outset that in considering the sentence which I should impose upon this defendant his plea of guilty weights very heavily in the balance. Not only can it be taken as evidence of remorse but in this particular case (and in other cases like it) it has spared the young lady victim of the offence from what would undoubtedly have been the extremely traumatic experience of reliving - in public this time - the events of 26th November 1993 (which must have been terrifying to her) and I give the defendant credit for that."

He went on:

"... this was a particularly nasty offence of indecent assault committed at 1 a.m. in Tuen Mun - which was not only grossly indecent and highly offensive but was also in my view gratuitously violent - as was his attempt to resist his apprehension by two uniformed police constables who, most fortunately, were patrolling in the vicinity ....."

He went on:

"The maximum sentence which can be imposed by law for an offence of indecent assault is one of ten years' imprisonment. The maximum sentence which this court can impose for such an offence is seven years' imprisonment. I regard the circumstances of this offence as being among the worst that can be described as an indecent assault, principally because of the violence employed and the wholly inevitable psychological harm which must have been done to this girl. Had the defendant not pleaded guilty to this offence - but been convicted after trial I would have sentenced him to a term of six years' imprisonment. In the light of his plea of guilty I reduce that to four years' imprisonment, and add to it a term of twelve months' imprisonment for each offence of assault occasioning actual bodily harm on the police officers, such latter terms to be served concurrently i.e. the defendant will go to prison for a term of five years in total."

4. It is submitted by Mr. Mumford, with him Miss Lai, who appear for the applicant, that the sentences both on the indecent assault and the other two assaults were too severe and were out of line with sentences on similar types of case previously imposed. He submits that an appropriate sentence for the indecent assault would have been three years. He suggests that the trial judge took too serious a view of the offence when he said:

"... this was a particularly nasty offence of indecent assault committed at 1 a.m. in Tuen Mun - which was not only grossly indecent and highly offensive but was also in my view gratuitously violent."

He submits that, in the scale of this type of offence, those words would have been more appropriate to describe a much worse assault. We bear in mind his submissions but are satisfied as was the judge that this was a bad case of indecent assault. Prior to the acts of indecency there was a determined attack upon a young woman in the early hours of the morning in a isolated area during which she was subjected to gratuitous violence sufficient to render her unconscious. It must have been a wholly terrifying experience for the victim. We are satisfied that the trial judge was right to take the serious view of it which he did. Only when the applicant was disturbed, and we note that the assault was continuing at the time when the police officers arrived upon the scene, did he desist and attempt to escape. When the officer attempted to apprehend him his resistance was deliberate, sustained and was made in a determined effort to evade arrest. The courts must take a serious view of such conduct. We are satisfied that the sentences, while at the top of the acceptable range, were not outside that range. They were in short not so high that this court could properly interfere therewith.

5. The application for leave to appeal against the sentences must, therefore, be refused.

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