HKSAR v. CHAN KA CHUN

CACC 45/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 45 OF 2015

(ON APPEAL FROM DCCC 954 OF 2014)

------------------------

------------------------

---------------------------------------

REASONS FOR JUDGMENT

---------------------------------------

Introduction

1.  The applicant appeared before District Judge Johnny Chan (“the judge”) on 8 January 2015 on a charge sheet containing the following charges:

(1) Possession of apparatuses fit and intended for the smoking or inhalation of dangerous drugs, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134;

(2) Possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134;

(3) Indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance, Cap 200;

(4) Indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance, Cap 200;

(5) Possession of offensive weapons, contrary to section 17 of the Summary Offences Ordinance, Cap 228;

(6) Criminal intimidation, contrary to section 24(b)(iii) and 27 of the Crimes Ordinance, Cap 200;

(7) Criminal intimidation, contrary to section 24(c)(i) and 27 of the Crimes Ordinance, Cap 200; and

(8) False imprisonment, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221.

2.  The applicant pleaded guilty to charges 1, 3, 4, 6, 7 and 8 and charges 2 and 5 were ordered to be left on the court file and not be proceeded with without the leave of the court.  On 25 January 2015 the judge sentenced the applicant to the following sentences of imprisonment in respect of the charges of which he had been convicted:

Charge 1: 4 months’ imprisonment

Charge 3: 16 months’ imprisonment

Charge 4: 16 months’ imprisonment

Charge 6: 8 months’ imprisonment

Charge 7: 8 months’ imprisonment

Charge 8: 20 months’ imprisonment

3.  The judge assessed the appropriate totality for the full extent of the applicant’s criminal culpability as being 40 months’ imprisonment and to achieve this total sentence he ordered the sentences for charges 1, 3, 4, 6 and 7 to be served concurrently with each other but wholly consecutively to the sentence for charge 8. 

4.  The applicant applies for leave to appeal against these sentences. 

The background to the offence

5.  On 8 July 2014 the applicant, who was then 37 years of age, came to know the victim, who was then 16 years of age.  On 9 July 2014 at around 6 am as the victim was on her way home she encountered the applicant near the main gates of the ground floor of the building where she lived.  The applicant then followed the victim to her apartment.  After she finished getting dressed into her school uniform, she found the applicant still outside her home.  The two of them went to the rear staircases to talk, during which time the applicant indicated that he could assist the victim in finding a job and asked the victim to fill in a form.  The victim agreed and accompanied the applicant to his apartment which was located at Room 1621, Fu Sing House, Fu Cheong Estate, Sham Shui Po, Kowloon.  There was no one else in the apartment and when she entered it the victim noticed that the apartment contained apparatuses for inhaling dangerous drugs.

6.  The applicant sat on a bed in the apartment and instructed the victim to do likewise.  The applicant played a pornographic film and undressed, leaving only his boxer shorts on.  The applicant then sat behind the victim and started unbuttoning her school uniform.  The victim immediately queried the applicant’s action and buttoned herself up.  The applicant tried to unbutton her again and by then he had taken off his boxer shorts and was completely naked. 

7.  The victim indicated that she wished to leave but the applicant said that he would only allow her to do so after watching a part of the movie and he then pulled the victim back onto the bed.  The applicant used his hand to touch the victim’s right breast for two to three seconds and squeezed it twice.  The victim then pushed the applicant away and asked him to stop.  She tried to button up her uniform.  The applicant then became emotional and started to talk nonsensically.

8.  When the victim indicated again that she wanted to leave the applicant said he would give her $500 and would let her go after she quickly “do it”.  The victim insisted she wanted to leave but when she approached the front door the applicant pulled her back.  The applicant told her that he did not want to let her go and he then continued watching the pornographic movie.  The victim, who was standing, said she wanted to leave and again the applicant asked her to finish watching the movie first. 

9.  The victim then called her friend, with whom she had made plans to meet, to tell the friend not to wait for her but the victim did not mention to her friend the situation in which she found herself.  The victim then opened the front door but the applicant used his hand and body to stop the victim from leaving.  However the victim managed to leave the apartment. During the time she was asking the applicant to leave the victim was still on the phone to her friend who could hear the victim asking the door to be opened. 

10.  The applicant then seized the victim’s mobile phone, switched it off, and threw it onto the bed and asked the victim to return to the apartment.  The victim, outside the apartment, asked the applicant to return the phone.  The applicant told the victim that she could get it herself.  They maintained their respective stances but eventually the victim asked the applicant to go further into the apartment.  The victim then placed her bag on a bench outside the apartment and entered the apartment to get her mobile phone.  The stand-off between the victim and the applicant outside the apartment was witnessed by a neighbour of the applicant who called the security officer of Fu Cheong Estate. 

11.  After the victim re-entered the apartment, the applicant immediately walked over and shut the gate and used his body to block the entrance of the apartment.  Having retrieved her phone the victim tried to prevent the applicant from closing the door of the apartment but was unsuccessful.

12.  The applicant dragged the victim to the bed and tried to undress her, in the course of which he touched her inner thighs, and tried to touch her genitals but she brushed him off and managed to stop the applicant from touching her.  The victim struggled and insisted that she wanted to leave.  The applicant refused and said he would give her $500 if she performed fellatio on him.  The victim asked the applicant to stay away from her and when she tried to stand up the applicant pressed his body against her and his hand touched her inner thigh.  The victim struggled with the applicant who said he would only let her leave after she had done it on him.

13.  A security guard of the estate then arrived outside the apartment and knocked on the door, asking for it to be opened.  The security guard saw the victim’s bag on the bench outside the apartment.  When the applicant heard the knocking on the door and the request that it be opened he reached over to the cabinet next to the bed and took out from it a knife which he waved towards the door.  The victim asked the applicant to open the door but the applicant refused to do so.  Whenever there was knocking on the door the applicant would speak in foul language.  After three to four minutes the knocking stopped.  The security guard reported the incident to the police. Meanwhile the applicant asked the victim to touch his genitals and kiss him before he let her go, but the victim refused to do so.

14.  The police arrived and knocked on the door.  The applicant placed the knife on the floor and walked over to the door to look through the wide angle door viewer.  As the applicant was doing this the victim hid the knife in the bathroom and received a call from the police.  By this time the applicant was sitting in front of the door speaking foul language. The police asked the victim to lock herself in the kitchen.  The victim entered the kitchen but just as she did so the applicant realised that the knife he had earlier taken out from the cabinet had gone missing and so he went into the kitchen to get another knife.  As he left the kitchen he locked the kitchen door and the victim then used various items to block the door.  The victim then heard a few loud bangs and the applicant saying “if you continue, I will chop my friend to death.”

15.  Soon afterwards, at around 9.45 am, the police broke into the apartment and subdued the applicant. 

16.  During the stand-off between the police and the applicant, the applicant was heard saying to the victim that if she continued to make a noise he would rape her.  At one point in the stand-off the applicant had opened the front door slightly and asked the police to leave.  At this time the applicant was seen to be holding a knife. 

17.  On searching the applicant’s apartment the police found the two knives that had been held by him in the course of the incident and also found an inhaling device, a plastic bottle inserted with a straw, a glass tube shaped as a bulb at one end, all containing suspected dangerous drugs, one lighter, one electronic scale and nine empty transparent resealable bags which were of various sizes.  The suspected dangerous drugs  were a small amount of cocaine and traces of methamphetamine.

18.  The victim was later examined she was found to have two erythematous linear marks (0.5 cm and 1 cm respectively) over the dorsum of her left hand and three erythematous dots over the dorsum of her right hand.

The reasons for sentence

19.  After referring to the facts of the case the judge noted that the applicant was then 38 years of age with a criminal record consisting of 27 cases encompassing a total of 34 convictions, four of which were for wounding, one for common assault and one for robbery. The judge further noted the applicant had been sentenced to prison on many occasions.

20.  The antecedent statement of the applicant revealed that he had been suffering from psychiatric illness since 1995 and so the judge called for both psychiatric and psychological reports prior to sentencing him.

21.  The psychiatric report contained the opinion that the applicant had a serious personality problem with a concurrent substance abuse issue.  The report revealed that the applicant had been known to the mental health service since 1995 and had been hospitalized several times, mainly for complications resulting from his drug abuse. 

22.  The Clinical Psychologist of the Correctional Services Department, Ms Sherry Lam, stated in her report:

“The present offence does not appear to be committed under the influence of drug-induced psychosis. In view of his offending history with early onset of offending behavior, chronic drug abuse with drug-induced psychosis, antisocial personality disorder with impulsive and aggressive tendency, poor anger management and problem-solving, intimacy deficit and sexual preoccupation, his risk of sexual and violence recidivism is high.”

23.  The judge also indicated that he had called for a victim impact assessment report but had been given to understand that the victim refused to be interviewed and hence no such report was available to him.  However he noted that the victim was only 16 years of age and in the course of the incident had been sexually molested and put in great fear.  He said of the behaviour of the applicant and of the impact of that behaviour on the victim:

“These heinous crimes committed by the defendant give rise to a natural sense of outrage. Although I do not have a victim impact assessment report of girl X before me, I have no difficulty in finding that the victim must have suffered much at the hands of the defendant. She was kept captive until she was saved by the police, she was subjected to repeated sexual molestations, she was intimidated. To me, these findings are common-sense conclusions I can reach from the facts admitted by the defendant.”

24.  He revealed the approach he took to sentencing to be as follows:

“In my judgment, exemplary sentences are called for in the present case in order to deter others from committing the same wrongs as the defendant did and to redress the grievance of the victim, her family members and the public alike by imposing sentences that adequately and fairly reflect public detest of crimes of this sort.”

25.  The two indecent assault charges, charges 3 and 4, he said called for a starting point of 21 months’ imprisonment but because the offences were aggravated by the age of the victim he said he would adopt a higher starting point of 2 years’ imprisonment for these offences.

26.  For the false imprisonment charge, charge 8, he adopted a starting point of 3 years’ imprisonment. 

27.  For the applicant’s possession of drug apparatus, charge 1, he adopted a starting point of 6 months’ imprisonment.

28.  For the two criminal intimidation charges, charges 6 and 7, he adopted 12 months’ imprisonment as his starting point.

29.  From all these starting points the applicant was given a one third discount for his plea of guilty.  This resulted in discounted final sentences as follows:

(1) For charge 1:   4 months’ imprisonment;

(2) For charge 3:   16 months’ imprisonment;

(3) For charge 4:   16 months’ imprisonment;

(4) For charge 6:   8 months’ imprisonment;

(5) For charge 7:   8 months’ imprisonment; and

(6) For charge 8:   20 months’ imprisonment.

30.  The judge noted that the applicant’s counsel had suggested that a further discount on top of the one third for the plea of guilty should be given for the fact that the applicant, by his pleas, had spared the victim the trauma of giving evidence.  The applicant’s counsel also suggested that the commission of the offences may have been to some extent due to the “perceived encouragement” from the victim and also submitted that the victim was a working student and somebody who had experience of the world.  The judge was not attracted to these submissions and was not prepared to give the applicant any additional reduction above the one third discount for his guilty pleas. 

31.  The judge then went on to consider the totality principle and in considering the application of this principle he said that he had not taken into account on the false imprisonment charge the facts relevant to the indecent assault charges.  Although he viewed the two indecent assault charges as being part of the same course of conduct and therefore justifying concurrent terms of imprisonment, he concluded that they substantially added to the applicant’s culpability on the false imprisonment charge.  He concluded that the sentence for the indecent assault offences should run wholly consecutively to the sentence imposed for the false imprisonment charge. 

32.  He said that in his judgment a total term of 40 months imprisonment, which represented a notional starting point of 5 years’ imprisonment, adequately reflected the overall culpability of the six offences committed by the applicant.  To achieve this result, he ordered the sentences for charge 1, charge 3, charge 4, charge 6 and charge 7 to run concurrently with each other but to run consecutively to the sentence for charge 8.

The grounds of appeal

33.  There are two grounds of appeal.  The first ground of appeal argues that the starting point of 36 months’ imprisonment that was adopted by the judge for charge 8, the false imprisonment offence, is manifestly excessive.

34.  The second ground of appeal is that the judge erred in ordering the sentence of charge 8 to be served wholly consecutively to the sentences that he imposed on the other charges, resulting in an overall sentence of 40 months’ imprisonment.  By this ground of appeal the applicant also complains that the judge erred in adopting a notional starting point of 5 years’ imprisonment to reflect the overall criminality of the applicant’s offences.

Discussion

35.  The judge was perfectly correct to characterise the applicant’s conduct as “heinous crimes [that] give rise to a natural sense of outrage”.  The applicant’s conduct involved a 38 year old man preying on a 16 year old girl.  It was a premeditated course of conduct in which he cultivated a young girl in order to gain her trust, lured her back to his apartment by false promises, falsely imprisoned her there, exposed himself to her, indecently assaulted her, tried to cajole and intimidate her into performing fellatio on him and threatening her with violence.  All of this from a person with a history of violence and of mental and behavioural disorders associated with his drug abuse.  He has received psychiatric treatment and medication for his diagnoised “dissocial personality disorder and drug-induced psychosis.” 

36.  The Clinical Psychologist who interviewed the applicant concluded that “his motivation to quit drugs remained low” and noted that the applicant’s own explanation for the offence was that it was due to “his heightened sex urge after drug use and his failure to gratify sex needs.”  The clinical psychologist described the applicant as “an impulsive and aggressive individual with chronic criminal background and attitudes”.  It was her opinion that the applicant “had limited intention to change his current lifestyle”. She went on to say:

“His frequent use of violence and chronic drug abuse provides evidence of his weak self-regulation with poor anger management and problem-solving.”

37.  Because of his inability or unwillingness to overcome his addiction, his personality traits and his criminal lifestyle the clinical psychologist expressed the opinion that the applicant’s “risk of sexual and violence recidivism is high.”

38.  Faced with such an offence and such an offender the relevant sentencing considerations were punishment, denunciation, deterrence and protection of the community.  The first two would have required that the judge adopt a high starting point and the latter two would have entitled the judge to enhance that high starting point. 

39.  Ultimately the concern of the appellate court is whether the final sentence is manifestly excessive.  In my view it clearly was not.  Here, there were 4 groups of offences – one drug apparatus offence, two indecent assault offences, two criminal intimidation offences and a false imprisonment offence.  The conduct that was most culpable was the indecent assaults and the false imprisonment as aggravated by the criminal intimidation conduct.  Taking a global view of the applicant’s conduct the judge concluded that conduct of that level of gravity, committed by an offender with this applicant’s background and likelihood of re-offending, merited a starting point of 5 years’ imprisonment.  Discounted for the pleas of guilty the final sentence became 40 months.  The judge then made concurrent and consecutive orders to achieve this total.  For the reasons I have set out I do not think that the applicant has any reasonable prospect of persuading the Court of Appeal that this total sentence is manifestly excessive.

40.  However, in deference to the arguments of Mr HY Wong who appeared for the applicant I shall address his grounds of appeal.

41.  The first ground complains of the starting point for the false imprisonment offence.  There is no tariff for this offence but relevant to the culpability of the applicant is the premeditated nature of the offence, the age disparity between the applicant and the victim and the age of the victim, the predatory nature of the applicant’s conduct, the deceptive means by which the applicant lured the victim to his flat, the conduct within his flat of exposing himself to his victim and showing her pornographic videos and finally his use of knifes and verbal threats to intimidate.  These features of the false imprisonment clearly place it in the range of more serious cases. Little assistance is derived from having recourse to other sentencing decisions for this offence for all are different and the sentences imposed relate to each case’s specific factual situation, including the presence of a wide variety of aggravating features.  In the present case the judge was clearly influenced by the decision of this court in HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 which concerns a factual situation that has some similarities to the present case.

42.  The second ground of appeal asserts that the judge erred in ordering the sentence on charge 8 to be served wholly consecutively to the other sentences.  Mr Wong made it clear that he does not argue that the judge could not, as a matter of legal principle, order consecutive sentences. He accepts that that the judge was entitled to conclude that there was different and additional culpability in the false imprisonment offence and because of this to order that the sentence for this offence be served consecutively to the others.  His complaint is that the judge has not properly applied the totality principle with the consequence that the final sentence is manifestly excessive.

43.  I do not agree.  The judge specifically said he took into account the totality principle and immediately thereafter quoted from the Ngai Yiu Ching judgment.  Part of that quote was a passage in which the Court of Appeal emphasised the importance of the totality principle and set out the sentencing considerations which underlie it.  The quotation from Ngai Yiu Ching ends with the Court of Appeal stating that the emphasis of any sentence, when multiple offences are involved, “should be on a reflection in the sentence of true culpability disclosed by the offences of which the accused has been convicted.”

44.  Assessing the true culpability of the applicant was precisely the task that the judge then embarked upon and it was his assessment of that culpability which guided him to his determination of the appropriate sentence.  I can detect no error by the judge in his application of legal principle, his assessment of the applicant’s culpability or his determination of the appropriate sentence.

Conclusion

45.  For these reasons I dismissed the applicant’s application for leave to appeal his sentence.  At the conclusion of the hearing I informed the applicant of his right to renew his application before the Court of Appeal and also informed him that under section 83W(1) of the Criminal Procedure Ordinance, Cap 221, the Court of Appeal possessed the power to order that part of any time during which an applicant is in custody pending the determination of his appeal should not be reckoned as part of the term of any sentence to which he is subject.  I warned the applicant that should he renew his application for leave to appeal his sentence before the Court of Appeal, the possibility existed that the Court of Appeal might exercise this power against him.