HKSAR v. TAM KAM FAI

CACC 329/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 329 OF 2001

(ON APPEAL FROM HCCC 366 OF 2000)

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

1. On 13 August 2001 after trial before Deputy Judge Woolley and a jury, the Applicant, Tam Kam Fai was found guilty of four counts of rape and sentenced to 10 years' imprisonment on each count. The judge, no doubt observing the principle of totality, for there was other justification for the sentences to he concurrent given that each count related to a separate and distinct act of rape, ordered that these sentences were to run concurrently, making a total sentence of 10 years. The judge took a starting point of 12 years for each offence and reduced that to reflect matters raised in mitigation; particularly a contention that there was no 'strong evidence' that the victim had suffered long-lasting psychological damage.

2. The Applicant now seeks leave to appeal these sentences on the grounds that they are excessive. He has already abandoned his appeal against conviction. Mr. Walter Lau of counsel represents him.

3. The woman the Applicant raped was the young daughter of his girlfriend. The offences took place on or around 11 July 1996, 15 July 1998, 6 August 1999 and 25 September 1999, respectively, in the flat in which the victim resided with her mother and the Applicant. He was acquitted of two other counts of rape of the same girl.

4. The victim was born in 1985. She was as young as eleven at the time of first offence and only fourteen, just turned fifteen, at the time of the latter two offences. During the course of the period covered by the indictment, the victim became pregnant and underwent an abortion in a hospital in Shenzhen. It is only fair to state that the applicant was not convicted of the allegation of rape that was said to have brought about this pregnancy. Within one month of moving back home after the abortion, the Applicant raped her again. By September 1999 she had moved out of the flat, to stay with a school friend in order to avoid the Applicant and his advances. However when she returned home on her 15th birthday he again raped her.

5. Throughout the period of the offences the victim appeared to have received little support or sympathy from her mother.

6. The Applicant disputes that he was ever in 'loco parentis' and in control of the victim. This arises from the judge saying in his sentencing remarks:

"... because of the relationship with (the victim's) mother, you were in the position of a parent. While perhaps she did not always accept that, you appeared to by your evidence saying that you tried to discipline her. You had some element of control over her and you abused that position...."

7. The Applicant says that, because there was there was no evidence that he supported the victim financially, or that her mother had expressly him placed in control of her, and that his attempts to prevent her going out to karaoke evenings were rebuffed and the occasions when he attempted to discipline her all related to her lying to him, or stealing money from him, indicated that he had no control over her. He accepts that he stayed at the victim and her mother's flat at night over the period of the offences.

8. The evidence of the relationship between the Applicant and the victim can be found précised in the judge's summing up. The victim said that her mother worked shifts at a hospital and the Applicant came to their home in the evening. The victim's mother accepted that she worked shifts and that the victim and the Applicant were sometimes alone together. She said that the Applicant had moved in to live with her in 1995. The applicant himself accepted that it fell to him to discipline the victim '...about things he disapproved of'.

9. It would appear; therefore, that he was more than a mere casual acquaintance of the victim's mother and that he was habitually resident at the flat the victim and her mother shared. We agree with Mr. Madigan, for the Respondent, that it is quite apparent that the victim was left in the Applicant's charge while her mother was working shifts and that he regarded himself as her guardian and her protector.

10. The case of R v Chow Kan Shing CA 205/95 (unreported) presents facts that are very similar to those in this case. In that case their mother's boyfriend raped two girls who were sisters. The younger was twelve; the judgment does not give the age of the elder. The defendant was sentenced to a total of 10 years' imprisonment, after plea. Power (Ag) CJ said this:

"This was neither a case of excessive violence, nor was it a case of sexually humiliating conduct, but in circumstances such as obtained here it is rare to find such elements. The perpetrator of such offences conducts himself so that the child will be unlikely to make a complaint which will lead to the discovery of the misconduct. It is true that the above elements were not present but it was, nonetheless, a very bad case involving young children and appalling conduct by a person in a position of trust. He used that position to overbear the children and, in the case of the first offence, to frighten the child into silence. The behaviour was despicable. It is to be noted that there was no suggestion of any mental abnormality. The offences were carried out by a person in full control of his facilities with full knowledge of what was being done for his own sexual gratification.

In such offences the deterrent aspect must loom large. This is particularly so in our community in Hong Kong which is full of busy working parents who, countless times in any year, must entrust their children to the care of others. Such persons are placed in a position of trust. If they are proved to have abused that position the courts, when sentencing must take a very severe view of such conduct. The overall sentence was, in our view, not a day too long"

11. The guideline case on the factors a judge should bear in mind when sentencing for rape is the English case of R v Billam [1986] 1 WLR 349. The Billam principles have been accepted in Hong Kong, although the value of the suggested starting point has been doubted as it is thought that they are not necessarily appropriate in Hong Kong. See Secretary for Justice v Sukmandar Singh CAAR5 (1999) applying Secretary for Justice v Lau Yan Leung (1999) 3 HKLRD 289.

12. We paraphrase what Lord Lane CJ had to say about these principles in Billiam at pages 350 to 352 of the report:

"The variable factors in cases of rape are so numerous that it is difficult to lay down guidelines as to the proper length of sentence in terms of years.

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The crime should in any event he treated as aggravated by any of the following factors: (1) violence is used over and above the force necessary to commit the rape; (2) a weapon is used to frighten or wound the victim; (3) the rape is repeated; (4) the rape has been carefully planned; (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind; (6) the victim is subjected to further sexual indignities or perversions, (7) the victim is either very old or very young; (8) the effect upon the victim, whether physical or mental, is of special seriousness. Where any one or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.

......

The extra distress which giving evidence can cause to a victim means that a plea of guilty, perhaps more so than in other cases, should normally result in some reduction from what would otherwise he the appropriate sentence. The amount of such reduction will of course depend on all the circumstances, including the likelihood of a finding of not guilty had the matter been contested.

.......

The fact that the victim may he considered to have exposed herself to danger by acting imprudently (as for instance by accepting a lift in a car from a stranger) is not a mitigating factor; and the victim's previous sexual experience is equally irrelevant. But if the victim has behaved in a manner which was calculated to lead the defendant to believe that she would consent to sexual intercourse, then there should he some mitigation of the sentence. Previous good character is of only minor relevance."

13. In this case, the Applicant subjected the victim to repeated, though admittedly not frequent, rapes. She was raped in her own home and her own bedroom, which should be her personal domain. She was placed under psychological pressure not to divulge anything of the occurrences. She was of a very young age. The Applicant was in a position of responsibility towards her. The relationship between the Applicant and she was such that her will would have been easily overborne. The Applicant by going to trial put her through extra distress by requiring her to give evidence of what had happened.

14. With respect, we do not agree with the judge that there was no 'strong evidence' that the victim had suffered long-lasting psychological damage. Some of the evidence of the confusion and trauma she suffered over the three-year span of the offences is found in the summing up itself, where the judge said:

"She said that she knew it was not normal for a man to lie on her, to take off her trousers and put something in her vagina, but she did not tell her mother because she did not know what was happening and did not know how to tell her. She says she did not know it would offend her mother and whether it was wrong of her.

Then she said the first time she did tell her, she did not believe her, at which she felt aggrieved. She went on to say she did not know who she could trust. She admitted there was a social worker at school and they were told to take their problems to her, but did not tell her what was happening. On another occasion, she said when she was late at school her form teacher took her to the office for counselling and asked her why she was staying at a friend's flat. She said she could not recall the reason she gave, but it is clear that she did not tell him that she had been raped either.

Neither did she tell the doctor when asked, although she admitted that maybe she knew the reason she was asked, and it may have been an opportunity to tell someone."

15. There is no way of telling what the long-term effects might be on the girl's psyche. It is inconceivable that she will suffer no permanent psychological damage. A man who was effectively her stepfather repeatedly raped her. Throughout the whole time of the offences she felt that she lacked the support of her mother. The fact that she developed behavioural difficulties, such as truancy, academic inattention, drinking and staying out either late or throughout the whole night, within the period the offences took place is telling in itself. The judge was in error in accepting this foolish contention in mitigation.

16. To our minds, the greatest aggravating feature in this case is the gross abuse of trust by the Applicant on a girl of tender years. A girl of pre-teen or young teenage years does not have the confidence or authority to refuse the advances that this victim was subjected to. We echo what Power (Ag) CJ said in Chow Kan Shing, the Applicant's behaviour was despicable. He suffers from no mental abnormality. He was in full control of his facilities when on four occasions, with full knowledge of what he was doing, he raped this young girl for his own sexual gratification.

17. The deterrent aspect of sentencing for such offences must continue to loom large. When men who are placed in a position of trust over young girls are proved to have abused their position, the courts, when sentencing them for their offences must continue to take a very severe view of their conduct.

18. The starting point taken by the judge of 12 years was in the circumstances of this case the least he should have properly considered. Having selected the 12 years starting point the Judge's decision to reduce it by two years was, we consider, an inappropriate course for him to have adopted. It is inconceivable that the pattern of offences of this sort will not have scarred the victim's psychological development for the rest of her life. Accordingly, we propose to use our powers under S.83I(3) of the Criminal Procedures Ordinance, as we consider that the applicant should have received a different sentence to the one imposed in the court below.

19. We will not interfere with the individual sentences imposed on each count, but as we consider that this applicant should have received a longer period of imprisonment, we order that the sentence on Count 10, the last count, should run consecutively to the others by two years, making a total of 12 years imprisonment.