HKSAR v. LAM TIN LUNG

CACC 212/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 212 OF 1999

(ON APPEAL FROM HCCC 2 OF 1999)

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J U D G M E N T

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Wong, J.A. (giving the judgment of the Court) :

1. The applicant pleaded guilty in the Magistrates' Court to a total of four charges. Those were two charges of robbery, one charge of assault with intent to rob and one charge of indecent assault. He was committed for sentence before Deputy Judge McMahon in the High Court, who on 9 April 1999 ordered the applicant to serve a sentence of imprisonment of 7 years and 6 months. In respect of the two robberies (Charges 1 and 4), the judge took a starting point of 7 years on each charge and reduced it to 4 years on account of plea and other mitigating factors. On the charge of assault with intent to rob (Charge 3), the judge took a starting point of 6 years and for the same reason, he reduced it to 3 1/2 years. A starting point of 4 years for indecent assault (Charge 2) was adopted, which was reduced to 2 years and 3 months' imprisonment. He ordered the sentences on Charges 1, 2 and 4 to run concurrently to each other but consecutive to the sentence of 31/2 years imposed on Charge 3, thereby bringing the total sentence to 7 years and 6 months.

2. The applicant now seeks leave to appeal against this sentence.

3. The facts, which were read out in Court and admitted by the applicant, are these.

4. The first and second charges took place at about 11 p.m. on 3 July 1998. An 18-year-old student girl, PW1, was returning home when she was followed into the lift at Block M, Chun Man Court, Homantin, Kowloon by the applicant. Inside the lift, the applicant produced a 6-inch long paper cutter and declared robbery. On the 10th floor, notwithstanding PW1's vehement struggle, the applicant managed to drag her to the rear staircase landing after he slashed her right arm with the paper cutter. The applicant then snatched a HK$500 banknote from her coinbag.

5. The applicant then held the paper cutter against PW1's neck and ordered her to undress. As PW1 was bleeding and very scared, she complied with the orders after the applicant threatened to stab her. The applicant then cut off the straps of her brassiere. He pressed his head against her left breast, bit her nipple, sucked and kissed her left breast for two minutes. He then removed his trousers and made her suck his erect penis for about 30 seconds. He further ordered PW1 to remove her trousers but PW1 told him that she was then menstruating. The applicant however went ahead to unbutton her trousers. She took the opportunity to struggle with the applicant and cried out for help. The applicant immediately fled away via the stairs. PW1 made a report to the police.

6. The third charge was committed at 4 p.m. on 14 July 1998. A 13-year-old student girl, PW2, was reading books at the Waterloo Road Library when the applicant bumped against her back several times. She immediately left the library to return home. She was followed into the lift at her residence at Man Nga Court, Nos.14-16, Homantin Street, Kowloon. Suddenly, the applicant covered her mouth with hands and forcibly dragged her out of the lift to arrive at the rear stairway of the building. She was dragged along the staircase whilst she was struggling. Her face, as well as her limbs were injured. The applicant then put his hands under her vest. He also grabbed her vest. She fainted. When she woke up, she found her vest torn and the applicant had gone. She went back to her home immediately and made a report to the police.

7. The fourth charge was committed at about 9:40 p.m. on 22 July 1998. A 25-year-old female, PW4, was returning home from work. She was followed into the lift at Shun Man House, Oi Man Estate, Homantin, Kowloon. Inside the lift, the applicant produced a 6-inch long paper cutter, slashed her chin once and declared robbery. The applicant, after taking cash HK$120 from PW4, snatched away her wallet and made off with all the coins totalling HK$7 when the lift door opened on the 19th floor. PW4 made a report to the police.

8. At about 9 p.m. on 23 July 1998, the applicant was stopped by patrolling officers outside the podium on the 4th floor of Shun Man House, Oi Man Estate, Homantin, Kowloon. He had a scar on the abdomen as described by PW1 who noticed it when the applicant forced his penis into her mouth. The applicant was arrested and cautioned.

9. Under caution, the applicant admitted committing the robbery on PW4 as well as the indecent assault on PW1. He further said that he assaulted PW2, not indecently but only with an intention to rob her. With regard to the robbery on PW1, the applicant said that he intended to rob PW1 with a paper cutter but he denied having taken any properties from her.

10. The applicant was identified in an identification parade on 25 July 1998 by PW1, PW2 and PW4.

11. As a result of the attack by the applicant, PW1 had a 2.5 cm cut wound on her right forearm. PW2 had a 2.5 cm laceration on her left upper eyelid, multiple abrasions on her nose, forehead, left face, right elbow, left hand, back of trunk and both knees as well as scratch marks on her right breast, back of her left shoulder and her right clavicle. PW4 had a 3 cm long superficial cut wound on her chin. All three of them needed suture treatment for their wounds.

12. There is no complaint as to the starting point adopted by the Judge for the various offences. The sole ground of appeal is this :

"The total sentence of 7 years and 6 months is manifestly excessive and wrong in principle in that the learned Judge effectively denied the applicant much of the benefits of his plea and mitigation by setting his total criminality at such a high level. Alternatively, such a high level criminality points to a global starting point of 13 years which is undoubtedly manifestly excessive in all the circumstances of the case."

13. In her submission before this Court, Ms Shui, who appears for the applicant before us, stresses the young age of this applicant. She submits that a much lighter sentence should have been imposed by the judge.

14. In sentencing the applicant, the judge made these observations :

"These are very serious offences. The defendant was 15 years 8 months old at about the time of the commission of the offences and is now 16 years old. In my view, even allowing for the defendant's relative youth and his clear record, imprisonment is the only appropriate sentence."

We should say at once that there is no argument advanced by Ms Shui that an immediate custodial sentence was wrong in principle. The only question is the length of the prison sentence.

15. The judge went on :

"The defendant's acts were those of a vicious young thug and constituted a substantial danger to the community and particularly young women. These offences occurred over a period of nearly three weeks. They were premeditated, quite ruthlessly carried out and each victim sustained injuries in the course of violent assaults upon them and which involved the production and use of a knife in respect of two of the three victims."

16. We agree with what the judge has said. These are callous and dreadful acts. The applicant is certainly a very dangerous young man who has posed and will continue, in our view, to pose a threat to society. His strongest mitigating factors are his youth and his early plea of guilty and in particular his young age. The judge had fully taken all these matters into account. He also took into account other mitigating factors. The judge was in fact dealing with the applicant as leniently and generously as he possibly could. He could have ordered all the sentences to run consecutively, in particular the indecent assault in Charge 2, which is clearly a separate and distinct offence. The other three offences were committed on different dates and places. If all the sentences had been ordered to be served consecutively, this should have resulted in a much longer sentence. In fact, the judge had not done so is a clear indication and he had always and foremost in mind the youth of this applicant. He also bore in mind, no doubt, the overall criminality and the totality principle when he assessed the sentence.

17. We should add that had the applicant been an older person, he would have been given a much longer sentence.

18. The sentence, although severe, is perfectly justified on the particular facts and serious nature of the offences of this case, youth of the applicant notwithstanding. The sentence is neither wrong in principle nor manifestly excessive, having regard to the particular circumstances of this case.

19. Accordingly, we refuse the application for leave to appeal against sentence.