HKSAR v. LAU CHIN YU

CACC 529/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 529 OF 2005

(ON APPEAL FROM HCCC NO. 192 of 2005)

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

Background and facts

1.  On 7 November 2005, the applicant, aged 23, pleaded guilty before Deputy High Court Judge E Toh to an indecent assault (count 1) and to rape (count 3).  The offences were committed on the same victim on dates unknown between 31 May 2004 and 1 August 2004.  Two other counts were left on the file.  The applicant was sentenced to a total of 7 years’ imprisonment against which he now seeks leave to appeal.

2.  The background to the case reveals that the victim suffered from a “mild grade mental retardation”.  At the material time, she was 24 years old.  She lived with her family in a flat opposite the unit occupied by the applicant.  On occasions, the victim had been to the applicant’s flat to play computer games and the applicant had been to her flat to help her family fix their computer.  Twice, between the dates given in counts 1 and 3, the victim’s father found computer print-outs of photographs showing the victim with her breasts exposed.  These had been placed outside a window of their flat.  When it was discovered that the applicant had taken the photographs, the matter was reported to the police.

3.  It emerged that the indecent assault happened after the victim had gone to play computer games in the applicant’s flat.  The applicant then took her into a bedroom where he lifted her upper clothing and fondled her breasts, taking three or four photographs of the victim with her breasts exposed.  The victim indicated her lack of consent to these actions by saying ‘no’ but she was ignored.

4.  The rape occurred after the applicant had met the victim in a lift lobby at their housing estate.  When he asked her to go to his flat, she initially refused but, later, she followed him there.  Again, semi-nude photographs of the victim were taken by him.  He then made her lie on a bed where, using a condom, he raped her, having first removed all her clothes.  She was in pain and said ‘no’ but he carried on against her will.

5.  The Summary of Facts contained an acceptance that the victim fell within the definition of a “handicapped person” contained in section 2 of the Mental Health Ordinance, Cap. 136 and a “mentally incapacitated person” as defined in section 117(1) of the Crimes Ordinance, Cap. 200.  Section 117(1) provides as follows:

“‘mentally incapacitated person’ (精神上無行為能力的人) means a mentally disordered person or a mentally handicapped person (within the meaning of the Mental Health Ordinance (Cap 136)) whose mental disorder or mental handicap, as the case may be, is of such a nature or degree that that person is incapable of living an independent life or guarding himself against serious exploitation, or will be so incapable when of an age to do so; …”

Sentencing

6.  Passing sentence on 29 November 2005, after obtaining a psychological assessment report about the applicant and a victim’s impact report, the judge adopted a 2-year starting point on the 1^st count.  The judge then reduced this to 16 months’ imprisonment to take into account the guilty plea but later proceeded to reduce this to 12 months without giving a reason.  This represented a fifty per cent discount from the starting point for which there was no justification.  If it was, as we suspect it may have been, a neat and convenient way of dealing with the sentence on this count having regard to totality, this was not an approach to which we can give our approval.  For every offence, a sentence appropriate to the crime should be imposed, with the question of totality being dealt with separately by the imposition, when considered necessary, of concurrent or partially concurrent sentences.

7.  On the 3^rd count, the judge took a 10-year starting point and reduced this, in order to reflect the applicant’s plea, by one third.  Of the resulting 6 years and 8 months’ imprisonment, the judge ordered that 6 years of this term should run consecutively to the sentence on the 1^st count, making 7 years in all.

8.  In her sentencing remarks, the judge alluded to the fact that the victim had an “IQ of around 52”.  In regard to the applicant, the judge noted the applicant’s age and hitherto clear record and she commented on the applicant’s relatively privileged start in life.  He had received an overseas education in part.  However, the judge went on to say, with reference to the psychological report, that the applicant was someone who had “lost his way, since his teenage years, after visiting pornographic websites every day for sexual fulfilment”.  The judge found that the indecent assault was particularly serious because photographs of the victim had been taken.

9.  Turning to the rape, and having reviewed two previous sentencing authorities including R v Millberry and Ors [2003] 1 WLR 546, the judge said:

“The aggravating factor in this case is that the rape was of a mentally incapacitated person who needs protection of society and there is some breach of trust because the defendant was a neighbour of the victim and, even if [he] did not consider [himself] a friend of the family of the victim, [he] was nevertheless more than a mere acquaintance.

The victim’s impact report I had obtained thankfully shows that there has been a gradual improvement on the victim’s emotional functioning but, nevertheless, as a result of this offence, the victim has suffered from great emotional distress and she had been fearful and feeling angry about the incident and could not sleep well and cried often.  As in victims of this type of offence, the sort of impact on her future interpersonal relationships with members of the opposite sex is an unknown factor at the moment.

The victim’s younger brother had also suffered from congenital intellectual deficit and had been receiving day service at their home but, because of this crime, the family had to move away and he was deprived of this day service as he has to wait for another placement and the victim’s mother had to stop her social activities to care for the younger brother.  So the effect of what the defendant did, not only has a significant impact on the victim, but also on her family.” (Appeal bundle pp. 9-10) [Emphasis added]

10.  In addition, the judge referred to the psychologist’s recommendation in the report, dated 25 November 2005, that the applicant would benefit from treatment and could be regarded as a low risk for the purposes of re-offending.  We also observe in this report that there is reference to a “psychosexual assessment” showing that the applicant was considered to be “preoccupied with paedophilic tendency”.  Although he was classified as representing a “low risk” in terms of re-offending, the report indicated that the applicant was “attracted to both underage and grown-up female[s]” for which psychological intervention was recommended.

The application

11.  Mr Boyton, on the applicant’s behalf, raised a single ground of appeal in which he submitted that the judge, having relied to some extent on the guidance given by the English Court of Appeal in R v Millberry and Ors (above) which put the rape of a mentally impaired victim into a category of aggravated rape, misapplied what had been said in that case by taking into account “breach of trust or friendship” as another aggravating feature which justified further enhancement of the sentence.  He argued that as a result of the judge taking an approach which was wrong in principle on this aspect of the case, the ultimate sentence was manifestly excessive.

12.  Until Millberry’s case, the only authoritative guidelines in England for sentencing in cases of rape were contained in R v Billam and Ors [1986] 82 Cr App R 347 (also at [1986] 1 WLR 349).

13.  The court in Billam’s case had recommended that for a rape committed by an adult “without any aggravating or mitigating features”, a 5-year sentence was to be taken as the starting point following a trial.  The court then went on to deal with the factors which might be viewed as aggravating the crime for the purposes of sentence, any one of which would merit a starting point of 8 years.  Two further categories of rape giving rise to particularly serious features in aggravation would lead to sentences of 15 years’ imprisonment or more or, in some cases, a life sentence.

14.  As this court has said on a number of occasions those guidelines, while providing useful guidance as to the principles involved in sentencing for rape, the suggested tariffs are not necessarily to be followed in Hong Kong.  The approach of this court to Billam was reviewed in Secretary for Justice v Lau Yun-leung [1999] 3 HKLRD 289.  In that case, whilst recognising that the Billam sentencing tariffs had at one stage been adopted in Hong Kong, the court (at page 296) went on to say:

“This brings us to a consideration of the two cases which Mr Cross cited in argument as demonstrating a later change in approach to the Billam guidelines.  The first we looked at was R v Lau Yuk-ming [1994] 2 HKCLR 256 at p.258, where Silke AgCJ, sitting with Macdougall V-P and Litton JA, gave judgment on 23 August 1994.  At p.258, he said:

‘Sentences for rape in Hong Kong have tended to be on the low side but this Court has made clear that sentencing judges in Hong Kong are in no way tied to the quantum of sentence as set out by Lord Lane LCJ in R v Billam & Others (1986) 82 Cr App R 347. (Emphasis added.)’

He went on later, at p.259, to say:

‘Since the instances of the aggravating features set out in R v Billam & Others (1986) 82 Cr App R 347, and which have been adopted as [the] criteria by the courts in Hong Kong, are so varied, it is inadvisable to indicate specific guidelines save to say that, as we have indicated, the starting point in R v Billam is not one which necessarily should be used as a starting point in Hong Kong. (Emphasis added.)’

……

Similar sentiments to those expressed in R v Lau Yuk-ming [1994] 2 HKCLR 256 had in fact been stated a month earlier in R v Sung Kwok-man and Another [1994] 1 HKCLR 164 where, at p.175, Macdougall V-P, sitting with Silke V-P and Bokhary JA, said:

‘While it is correct to say that this Court is in respectful agreement with the Court of Appeal in England in R v Billam & Others (1986) 82 Cr App R 347 as to the relative gravity of different circumstances of rape and the factors which aggravate the crime, it must be borne in mind that the guidelines there laid down as to the proper length of sentence in any particular type of case are no more than general indications of what was considered to be appropriate at that time in England.  The courts in Hong Kong are entitled to take into account local conditions and to pass sentences that vary from those referred to in the Billam sentencing guidelines.

We note that passage in R v Wong Man-hung (unrep., Crim App No 480 of 1992) when the Chief Justice in delivering the judgment of the Court said at p.2:

“The general sentencing policy of rape cases is authoritatively stated in the well-known case of R v Billam & Others (1986) 82 Cr App R 347.  There the Lord Chief Justice suggested 5 years as a starting point in a contested rape case.  He also referred to a number of aggravating factors which would justify a sentencing judge taking a more serious view of the offence.”

We do not consider this passage as being intended to apply the quantum of the sentences as set out in R v Billam (1986) 82 Cr App R 347 to the offence of rape in Hong Kong.  What was being said in R v Wong Man-hung (unrep., Crim App No 480 of 1992) was, as has been said in these courts before, that the factors relative to the circumstances of the rape which should be borne in mind by judges in England are equally applicable in Hong Kong. (Emphasis added.)’”

15.  Similar sentiments were repeated (at paragraph 20) in Secretary for Justice v Sukhmander Singh, CAAR 5/1999 (unreported).

16.  Following advice in May 2002 from the Sentencing Advisory Panel in England which proposed a revision of the current rape sentencing practice, the Court of Appeal in Millberry’s case (at page 547) considered “what revised guidelines should be given” against the background of the three rape-sentence appeals which were then due for consideration.  In the course of giving judgment, Lord Woolf CJ (at page 549) said:

“8 The panel begins its proposals by suggesting that:

‘… there are, broadly, three dimensions to consider in assessing the gravity of an individual offence of rape. The first is the degree of harm to the victim; the second is the level of culpability of the offender; and the third is the level of risk posed by the offender to society.’

We accept that courts should consider each of these dimensions whenever a sentence for rape is imposed. We endorse what was stated by Lord Lane CJ in R v Billam [1986] 1 WLR 349, and repeated by the panel in its advice, that while rape will always be a most serious offence, its gravity will depend very much upon the circumstances of the particular case and it will always be necessary to consider an individual case as a whole taking into account the three dimensions to which we have already referred.”

17.  Dealing with situations where the offence of rape is accompanied by aggravating features leading to the imposition of an enhanced sentence, Lord Woolf CJ continued (at page 552) by saying:

“The eight-year starting point

20 This is recommended by the panel after a contested trial where there is present any of the following features (the first three of which were identified in R v Billam as attracting the eight-year starting point):

 ‘(i) the rape is committed by two or more offenders acting together; (ii) the offender is in a position of responsibility towards the victim (eg in the relationship of medical practitioner and patient, teacher and pupil); or the offender is a person in whom the victim has placed his or her trust by virtue of his office or employment (eg a clergyman, an emergency services patrolman, a taxi driver, or a police officer); (iii) the offender abducts the victim and holds him or her captive; (iv) rape of a child, or of a victim who is especially vulnerable because of physical frailty, mental impairment or disorder, or learning disability; (v) racially aggravated rape, and other cases where the victim has been targeted because of his or her membership of a vulnerable minority (eg homophobic rape); (vi) repeated rape in the course of one attack (including cases where the same victim has been both vaginally and anally raped); (vii) rape by a man who is knowingly suffering from a life-threatening sexually transmissible disease, whether or not he has told the victim of his condition and whether or not the disease was actually transmitted.’

21 The panel emphasises that the presence of any of the aggravating factors to which we have just referred attracts the higher starting point. The eight-year starting point is recommended either because of the impact of the offence upon the victim or the level of the offender’s culpability, or both. The panel adds that factors reflecting a high level of risk to society, in particular evidence of repeat offending, will indicate a substantially longer sentence.

……

24 The seven grounds for raising the starting point to eight years each can, depending on the circumstances, vary in gravity. In a really bad case not only can they mean that eight years is the appropriate starting point, it can mean a higher figure is appropriate.

25 The panel makes specific reference to the case where an offender is in a position of responsibility towards the victim. They point out that there is an argument for extending this category of aggravation to cover any situation where a victim had established a relationship of trust with the offender, ‘whether as a friend, client, sexual partner or in some other capacity’. The panel points out while they recognise the force of arguments which have been advanced to them, that while they have extended ‘the position of responsibility’ category to include cases where the victim has placed his or her trust in the offender by virtue of his office [or] employment, they have not gone so far as to include in this category cases where the victim and offender are friends or sexual partners. …

26 We accept the advice and comments of the panel as to starting points. This means that there is no substantial departure from the general approach laid down in R v Billam.” [Emphasis added]

18.  Taking the facts of the present case, as Mr Boyton realistically accepted, under the English guidelines an enhanced term of imprisonment was appropriate as the rape victim was “especially vulnerable because of mental impairment”.  The focus of Mr Boyton’s contention was that the starting point of 10 years taken by the judge must inevitably have involved some degree of miscalculation bearing in mind that the judge had also taken into account that there was “some breach of trust”.  In the judge’s words, the applicant was a “neighbour or friend of the family of the victim and more than a mere acquaintance” and this line of reasoning, he submitted, sounded a discordant note when placed alongside the decision in Millberry where, if this feature was to be regarded as aggravating the applicant’s offence, it could only arise “by virtue of [the applicant’s] office or employment”.  Here, there was no such relationship.

19.  There is one other passage in the Millberry judgment to which we ought also to refer having regard to the submissions made by Mr Boyton.  Lord Woolf CJ (at page 556) said:

“… we would emphasise that guidelines such as we have set out above can produce sentences which are inappropriately high or inappropriately low if sentencers merely adopt a mechanistic approach to the guidelines.  It is essential that, having taken the guidelines into account, sentencers stand back and look at the circumstances as a whole and impose the sentence which is appropriate having regard to all the circumstances.  Double accounting must be avoided and can be a result of guidelines if they are applied indiscriminately.  Guideline judgments are intended to assist the judge to arrive at the correct sentence.  They do not purport to identify the correct sentence.  Doing so is the task of the trial judge.” [Emphasis added]

We have laid emphasis on the italicised passage as we consider that the judge in the present case may not, with respect, have looked sufficiently at the circumstances as a whole and, in addition, may have inadvertently fallen into the trap of ‘double-accounting’.  We shall take each of these features of the case in turn.

20.  Firstly, with regard to the circumstances, the judge rightly stressed the trauma suffered by the victim and her family arising from these offences and, in particular, from the rape.  The seriousness of that offence is perfectly apparent and we need say no more about it.  However, when considering the propriety of a starting point as high as 10 years for such a rape, it was a necessary part of the sentencing process to consider not only the features of the case which were adverse to the applicant as the judge had done but also the other circumstances which put into perspective the kind of person the applicant was.  These emerged from the psychological report which the judge had sensibly arranged to have made available to her before deciding on the appropriate level of sentence.

21.  The detailed report, provided by Ms Sarina Lam, noted that the applicant was “shy in front of the opposite sex and never had a date.  He perceived himself as very unattractive to women and he did not know how to please them”.  These offences were said to have been the applicant’s “first sexual experience”.  The applicant’s personality assessment fitted the profile of someone with a low self-esteem and with a perception of himself as “less capable and lovable than others”.  The applicant was described as “shy and timid” despite the fact that he had “good support from his family” and had “attained post-secondary education”.  He was also, as we have indicated from the judge’s sentencing remarks, regarded as a low risk in terms of re-offending.  This is not to say that such factors render his offences other than serious and knowingly culpable and we bear in mind that the offences do not appear to have been spontaneous, but we have inevitably found ourselves comparing the position of the applicant as the perpetrator of these offences, an immature 23-year-old with a weak, timid and ineffectual personality, with that of a fully mature adult who had been shown to have asserted himself over a mentally incapacitated victim.  We are in no doubt that a heavier sentence would be called for in the case of an offender in the latter category.  However, the essential point in this case is that the starting point adopted for the applicant was on any view, as Ms Louisa Lai on behalf of the respondent in the course of her most able submissions accepted, a high one.  A starting point of 10 years for rape should be reserved for a case in a more serious category of its kind, and taking all the circumstances into account, we are satisfied that the starting point, on this basis alone, was too high.  We rather think that this starting point was reached because a double accounting approach was adopted by the judge.

22.  The judge had passed an enhanced sentence for aggravated rape for two reasons, the victim’s mental incapacity and the applicant’s “breach of trust”.  We can well understand what was in the judge’s mind, dealing as she was with an offender who had raped a mentally incapacitated person, when she spoke of “some breach of trust” as an adjunct to the main feature of the case which called for an enhanced sentence.  In particular, the applicant was very knowledgeable about computers and had repaired the computer used by the victim’s family.  It was not surprising, therefore, to find that the applicant was trusted with the victim for the professed purpose of letting her play video games on his computer.  The applicant had in this way used his apparent position of ‘friendly neighbour’ to take advantage of a mentally incapacitated woman.

23.  However, in our opinion, in the circumstances of this case, the two features which the judge regarded as aggravating the rape were virtually indistinguishable.  The applicant was, in reality, only in a position of trust because of the victim’s mental incapacity.  These two factual considerations amounted, in our view, to a single ground for adopting a higher sentence than might otherwise have been the case.  By taking them separately, the degree of aggravation was magnified in a way which produced a starting point which was manifestly excessive.

24.  In the light of these considerations, we consider that the proper starting point for the rape should have been 7 years’ imprisonment reduced to 4 years and 8 months to give effect to the plea of guilty.  Although Mr Boyton made a tentative suggestion that the 2-year starting point for the indecent assault was also too high, we disagree.

Conclusion

25.  We shall grant leave.  Treating the hearing as the appeal, we shall allow the appeal to the extent we have indicated.  The sentence for the rape in count 3 will be reduced from 6 years and 8 months to 4 years and 8 months’ imprisonment.  The sentence on the 1^st count of indecent assault was wrong.  As we have indicated earlier, the starting point of 2 years’ imprisonment was appropriate but the applicant was not entitled to a discount of more than one-third on account of his plea of guilty.  Accordingly, the correct sentence for count 1 is 16 months’ imprisonment, which sentence we substitute to be served consecutively to the sentence of 4 years and 8 months imposed on count 3.  In the result, the total term of imprisonment will be 6 years.