HKSAR v. NGAN MAN LUNG

CACC460/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 460 OF 1998

(ON APPEAL FROM HCCC 4 OF 1998)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 13th August 1998, the Applicant was convicted of two offences of indecent assault (counts 2 and 3) and one offence of rape (count 4) following a trial before Suffiad J. and a jury. He was sentenced to a total of eight years' imprisonment. The Applicant has not pursued his application in relation to conviction and we have dismissed this. He now only seeks leave to appeal against the sentence of eight years imposed upon him.

2. All of the offences allegedly occurred on Saturday 18th October 1997. The prosecution's case was that the 16-year-old victim found herself in the company of a group of young men at a playground at about 6.15 p.m. They began to tease her by taking away her tie and running off with it. But this escalated to a threat by one of the group that she would be beaten if she did not become the "girlfriend" of his friend. Out of fear she then agreed to go with the Applicant.

3. The events which followed can be very briefly described. The jury acquitted the Applicant of an allegation of indecent assault in count 1 on first touching and fondling the girl. However, after this, she was indecently assaulted outside the kindergarten in the recreation park and then she was taken by the Applicant onto the staircase of a building nearby and there further indecently assaulted. She had submitted to these assaults because she was not as strong as the Applicant, and when she tried to push him away it made no difference.

4. Finally, the Applicant took the victim to his sports car and she got in, believing that she was going to be driven home. The Applicant then drove her to the top level of a public car park and there raped her in the car. She had never previously had intercourse.

5. The victim was too scared to tell her family of her ordeal at that time. However, she did receive that same night calls from two different men who apparently came from the group that she had earlier encountered. It seemed to her that these young men wanted her to go out with them. She was afraid that if she saw any of them she might come under their control. Next day, she told her boyfriend about the incident. Then other members of the family were told and the matter was formally reported to the police.

6. The Applicant in due course gave himself up to the police and made a statement in which he more or less admitted the events but said that he had the consent of the girl to do what he had done.

7. With that background of the facts, the Applicant has advanced as reasons for this application that the case was not as serious as the complainant made it out to be. He had not used violence upon her and she had no injuries to her body. He also drew to our attention a case in which another judge in the High Court passed a sentence which, by all accounts, was very much more lenient than the sentence received by this Applicant.

8. We can say straightaway that it is not for this court to consider another case decided on facts which may or may not have been very different to this. Our concentration is upon whether this Applicant's sentence was a correct one on the facts before the trial judge. We are perfectly satisfied that this sentence was appropriate. This was a very unpleasant offence committed on a young girl who was forced to submit to the Applicant out of fear.

9. The judge expressed it in his Reasons for Sentence in this way:

"The verdict clearly indicates that the jury accepted the evidence of the complainant. That evidence shows that she was put under fear by you and your group of friends, sufficient for her to suffer the indignity of being indecently assaulted by you in a public area of a housing estate, and to be subsequently raped by you in your car.

The aggravating feature in this case must be the fact that she was only just over 16 years old at the time of the incident, and the fact that she was a virgin up to the time of the rape. I accept that there was a minimum of violence used on the complainant but that, as I have already said, her submission to you came out of her fear as a result of the threats practised on her."

10. There is no merit in this application whatever and for that reason the application is dismissed and, furthermore, we propose to make an order that three months of the period served by the Applicant in custody whilst awaiting this hearing shall not count towards his sentence.