HKSAR v. TANG CHI HO, BOBBY

CACC 70/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 70 OF 1998

(ON APPEAL FROM CASE NO. HC 277 OF 1997)

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J U D G M E N T

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Liu, J.A.:

1. The applicant stood charged on one count of rape. After trial in which he elected not to give evidence, the jury found him guilty. The judge passed a sentence of 6 1/2 years for rape. He was also sentenced to 2 years each on three counts of theft. The sentences for theft were ordered to run concurrently and the sentence for rape was to run consecutively with the sentences for theft. He has, therefore, to serve a total term of 8 1/2 years.

2. The circumstances that gave rise to these charges against him could be shortly stated as follows: Miss Lee celebrated her 20th birthday in the Lost City Karaoke with three girl-friends. When her girl-friends were on the dance floor, the applicant approached Miss Lee, introducing himself to her and told her that he was asked by one of Miss Lee's friends to keep her company. The applicant offered to take Miss Lee out for something to eat. Miss Lee agreed and they took a taxi. The taxi journey ended in Mongkok, outside the home of the applicant. With reluctance, Miss Lee went to the applicant's flat in which there were quite a number of people present. Finally, Miss Lee sat inside the applicant's bed-room, away from the rest smoking outside. She was offered some noodles to eat together with a cup of ovaltine. She took two mouthfuls and found it to be unusually bitter. She did not feel quite herself afterwards and, according to Miss Lee, the applicant forced himself upon her and raped her. Miss Lee was a virgin and in a confused state in the aftermath, she even agreed to and did move in with the applicant. The applicant relieved her of $60,000 without her consent, using her ETC card and her PIN number. The card and the number were given by Miss Lee to the applicant under the pretext that information was needed for arranging for Miss Lee to go to Canada with the applicant.

3. Miss Lee later discovered $60,000 to have been taken out of her account for which she had been issued a passbook. Miss Lee had a private conversation with one of her friends who went to the Karaoke with her the evening before, and after some six hours, a report was made to the police and the applicant was arrested and charged. Of the $60,000, half was recovered. The applicant pleaded guilty to charges of theft and he was sentenced to 2 years' imprisonment on each of those theft counts.

4. After mitigation, the applicant was given 6 1/2 years and all in all, he has to serve 8 1/2 years. Each rape case has to be judged on its own circumstances. In the overall circumstances in which Miss Lee was raped, we find 6 1/2 years as excessive, particularly when that sentence is taken together with the 2-year sentences imposed upon the applicant on the theft counts, making a total of 8 1/2 years. The term which the applicant has to serve is, on totality, much too high. For primarily the totality principle, we would reduce his 6 1/2-years sentence for rape to 5 years. That is to run consecutively with the 2-year sentences, all concurrent, for theft. We allow the application, grant leave to appeal and treat the application as the appeal proper, reduce the sentence for rape to 5 years. In the result, the applicant has to serve a total term of 7 years instead of 8 1/2.