THE QUEEN v. LAM CHUN PO AND OTHERS

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The four applicants pleaded guilty before Deputy Judge Sharwood in the High Court to both robbery and rape. At the time of the commission of their offences, they were aged 17 years, but for the 1st applicant who was 15 1/2 years old. The first and second applicants were sentenced to three years imprisonment on the robbery count and to six years consecutive on the rape count. The third and fourth applicants were sentenced to three years imprisonment on the robbery count and to five years consecutive on the rape count. They all seek leave to appeal against these sentences.

2. The facts of the case were that an eighteen year old girl who had attended a dinner with friends in Shatin and had then accompanied them to a private house to play mahjong, took a taxi home at around 3.15 a.m. on the morning of 13th January 1990. She was accompanied by two of her friends. The four applicants, who were unknown to her, followed her in another taxi. When the girl arrived outside the building in which she lived, she alighted from the taxi, leaving her two companions to continue their journey. She then noticed that four males had arrived in a taxi behind her. Feeling somewhat apprehensive, she walked quickly to the lift and pressed the button for the 10th floor. However, before the door was closed, the four males also managed to enter the lift. One of them, the second applicant, stood behind her while the other three applicants stood in front. The fourth applicant pressed the button for the 16th floor. The second applicant seized her by the neck while the others ordered her not to cry out. The second applicant demanded that she remove her gold ring. She was unable to do so as it was too tight.

3. On reaching the 16th floor they marched her to the end of the corridor to a place next to the stairway. There she managed to remove her ring and gave it to the second applicant. The third applicant then snatched her handbag and emptied out its contents which included some $70 to $80 and a money link card. The second applicant demanded that she tell them her personal identification number. After she had complied, the fourth applicant went away, operated a nearby automatic teller machine by using the card, withdrew $600 and returned to where the others were holding her prisoner. The first applicant then guarded her while the other three went a short distance down the stairway and held a discussion. On their return, the first applicant told her that if she wanted her ring back she would have to give them something as compensation. The third applicant ordered her to take off her clothes, and threatened her that if she did not obey they would tear them off. She tried to escape but was quickly caught and held by the arms and neck. One of the applicants prevented her from calling out by covering her mouth. She was then stripped. The second applicant mounted her while the other three pressed her to the floor and held her immobile. When the second applicant failed to achieve penetration, they dragged her to the staircase where she was pinned down by three of the applicants. The second applicant then kissed her on the mouth and had intercourse with her. When he had finished the first applicant followed suit by kissing her on the mouth and having intercourse with her while the other three held her down. It was at this stage that a police officer arrived in response to a report made by a resident of a flat on the 16th floor who had heard the girl shouting and a man saying "Spread."

4. As he approached, the officer heard the girl trying to shout for help and the four males laughing. On reaching the end of the corridor he saw the first applicant having sexual intercourse with the girl. The other three were surrounding her. The officer arrested the first applicant after a struggle in which he received from him a number of blows to his head, face and abdomen. Another officer, who had received a report of the incident over his beat radio, saw two men running along the road wearing clothing which answered the description of that reported to have been worn by two of the culprits. He and three other officers pursued and apprehended them. They were the second and third applicants.

5. While the officer was performing a body search on him, the second applicant took a gold ring from his pocket and attempted to drop it surreptitiously onto the ground. It was the victim's ring. The officer who had arrived at the scene of the crime and had arrested the first applicant later identified the second and third applicants as two of the men whom he had seen surrounding the victim. The fourth applicant was arrested later. At a subsequent identity parade the victim identified the second and third applicants as two of her attackers and made what was described as a semi-positive identification of the fourth applicant.

6. Prior to being raped the victim was a virgin. Fortunately she did not suffer any serious injury in the course of her ordeal. However she did sustain several abrasions. All four applicants made statements under caution in the presence of one or other of their parents in which they admitted their respective roles in the robbery and the rape.

7. The first applicant had previous convictions for assault occasioning actual bodily harm and inducing a person to become a member of an unlawful society. The second applicant had a previous conviction for assault with intent to rob. Because of their age at the time of commission of these offences they had been sentenced to detention in a detention centre. The other two applicants had clear records.

8. Notwithstanding his indication that the offences were so serious that they called for immediate custodial sentences, the deputy judge adjourned the proceedings pending the preparation of training centre, detention centre and probation reports. The Intake Officer stated in the training centre reports that all four applicants were suitable for detention in a training centre. In passing sentence the deputy judge reiterated his view that the offences demanded immediate custodial sentences. In determining the appropriate length of sentence he took into account the applicants' pleas of guilty and stated that had they been convicted after trial they would have received at least two years more imprisonment. He considered what was said in the Attorney General v. Ip Chung-hang [1989]1 HKLR 149 concerning the facts which are relevant to sentence in rape cases. He also explained that the first and second applicant had received higher sentences than the other two applicants because they had physically raped the victim and had previous convictions for offences of violence.

9. Mr. Percy, who appeared on behalf of all four applicants in this court and had represented the first applicant in the court below, advanced several grounds of appeal. He submitted that the sentences were too severe in that the deputy judge failed to give any or any sufficient consideration to the age of the applicants and to the totality principle, and that he was wiong to have used a starting point for sentence higher than eight years. In support of this contention he referred to the guidelines for rape sentences laid down in R. v. Billam (1986)82 Cr App R347 and adopted by this court in Attorney General v. Ip Chung-hang. Mr. Percy also referred us to the facts in the latter case and, by comparison with those in the present case, sought to argue that the sentences imposed by the deputy judge were manifestly excessive. The present case, however, involved both rape and robbery. That being so, consecutive sentences were called for. This court has repeatedly said that the sentence in each case must be passed in the light of the particular facts of that case. In deciding what is the appropriate sentence to impose in a case to which guidelines apply or, indeed in any case, little, if any assistance can be obtained from a consideration of cases whose facts are different from those with which the court is immediately concerned.

10. The starting point for sentence for a rape in which there was a single act of intercourse perpetrated by one man with the assistance of one or more accomplices, is eight years. Here, however, there were two acts of intercourse, each of which was engaged in by a different applicant. It was a gang rape which was prevented from developing further by the timely intervention of the police. In Billam Lord Lane, C.J. said that in the case of a youthful offender the proper length of sentence should be that which is appropriate for an adult, "but making some reduction to reflect the youth of the offender." We repeat that previous good character is only of minor relevance both in robbery and rape cases. Taking into account all the circumstances of the rape and the robbery, and that consecutive sentences were called for, and bearing in mind the pleas of guilty and the youth of the offenders, we are not persuaded that the sentences are excessive. The applications are therefore refused.