HKSAR v. CHEUNG TSZ HONG

CACC 256/2021

[2022] HKCA 1611

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 256 OF 2021

(ON APPEAL FROM HCCC NO 329 OF 2020)

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REASONS  FOR  JUDGMENT

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1.  By a Judgment of the Court of Appeal[1] (“the Judgment”), the applicant was ordered to be retried on two counts on an indictment. His appeal against conviction in relation to the remaining counts of the same indictment was dismissed. The retrial came before Alex Lee J (the “Judge”) on 28 October 2021. The applicant faced two counts, namely, indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200 (“Count 1”); and rape, contrary to section 118(1) of the same Ordinance (“Count 2”).

2.  Before the applicant’s arraignment and the commencement of the voir dire scheduled for 28 October 2021, the Judgment of the Court of Appeal was handed down on the same morning. The applicant then applied for an adjournment to consider his pleas in the light of the Judgment. In due course, he pleaded guilty on 1 November 2021; and accepted the Summary of Facts on 2 November 2021.

3.  The applicant was sentenced to 3½ years’ imprisonment and 8½ years’ imprisonment in respect of Counts 1 and 2 respectively, to run concurrently with each other. The Judge further ordered 4 years of that sentence to run consecutively to the 14 years’ imprisonment currently being served by the applicant in respect of Counts 3 to 7 in HCCC 379/2017 (on which the Court had dismissed his appeal). His overall sentence thus became 18 years’ imprisonment.

4.  The applicant sought my leave to appeal against his sentence. On 21 October 2022, I refused leave to appeal against sentence and said I would hand down my reasons for doing so in due course.

Facts admitted by the applicant

5.  The applicant contacted the 20-year-old victim (“X”) by Facebook on 10 December 2016. Although they had never met each other before, the applicant offered X the job of looking after his mobile telephone shop for a payment of HK$400. After she had agreed, the applicant asked X to come to his home to pick up certain goods for the shop. That was an admittedly false pretext with the purpose of enticing X to come to his home, so that he could sexually assault her there.

6.  When she arrived, X was lured into his bedroom. The applicant told X that he worked in an accessories shop and offered her a necklace as a gift, for which he asked her to turn around. When X complied, he began strangling her by looping a plastic strap around her neck, blindfolding her, covering her mouth and tying her hands behind her back. He further placed a sharp, cold, hard object against her face and threatened to cut her face if she shouted out. He removed her brassiere and underpants as well as his own clothes and then pressed his body onto her, using a vibrating sex toy on her private parts against her will. After about 10 minutes, the applicant told X to perform oral sex on him. X was frightened and complied (Count 1).

7.  Later, having pulled X towards him and kissed her, the applicant forced his erect penis into X’s vagina and thrust into her several times without wearing any protection. When she asked if he was wearing a condom, the applicant withdrew his penis, put on a condom and thrust into her again. Ignoring her attempts to resist, he continued raping X for about 3 minutes. He then withdrew again, removed the condom and, having made X touch his penis, raped her again for a further 5 minutes, without a condom. When he had finished, the applicant gave X some tissue paper to wipe herself and allowed her to go to the bathroom. She got dressed and was permitted to leave. None of the acts were consensual (Count 2).

8.  A report was made to the police and the applicant was subsequently arrested on 22 December 2016. By then he had committed other serious offences in relation to another victim (“Y”). Under caution, he denied the offences and claimed that X had consented to sexual intercourse. In subsequent video recorded interviews, he denied tying up, threatening or raping X, and claimed that she had voluntarily engaged in sexual activity with him. The applicant’s bedroom was searched and the police found, inter alia, several sex toys, plastic straps, condoms, a pair of scissors and a fruit knife.

9.  X was forensically examined. There were linear, reddish bruises on her neck consistent with a blunt impact from rubbing, scratching and compressing against the edge of an object, which accorded with X’s account. The applicant’s semen was found on her high vaginal swabs.

Applicant’s background and mitigation

10.  The applicant, born in April 1990, was 28 years of age at the time of sentencing. He was single and the only child of his parents. He had studied up to Form 4 and worked as salesman and warehouse attendant. He also operated a telephone accessory shop, which closed down in 2015. Since then, the applicant had worked as a casual warehouse attendant and offered telephone repair services on a self-employed basis.

11.  Prior to the present case, the applicant had eight previous convictions in six court appearance, including four for unlawful sexual intercourse with a girl under 16; one for indecent assault; two for theft; and one for possession of equipment fit and intended for the inhalation of drugs.

12.  The applicant’s counsel accepted that there were several aggravating features present. However, it was submitted that credit should be given for his guilty pleas, although they were entered after the Judgment was handed down on 28 October 2021.

13.  The Judge was provided with a psychiatric report[2] and a psychologist report[3] in respect of the applicant, on the occasion he had appeared before Barnes J for sentence in HCCC 379/2017. The applicant did not suffer from any psychiatric disorder but had an anti-social personality and a lack of concern for others.

Psychological report on X[4]

14.  According to the psychological report prepared on X in respect of HCCC 379/2017 on 13 August 2018, the incident had had a negative impact on X’s moral and sexual values, and caused her to feel “contaminated”. She experienced distress and became cautious in developing relationships. Psychological tests indicated that X had “emotional distress” and displayed symptoms of anxiety and depression to a moderate degree. It was observed that X’s self-esteem was very low.

Reasons for sentence

15.  In his reasons for sentence, the Judge said that on any view, the case was “an appalling one”[5]. The aggravating features present included: (1) premeditation; (2) the physical restraint and threat of violence against X; (3) the indignity of having a sex toy placed on X’s private parts and compelling her to perform oral sex against her will; (4) the applicant’s removal of a condom during sexual intercourse; (5) the applicant’s multiple previous convictions for sexual offences; and (6) the psychological trauma caused to X.[6]

16.  For Counts 1 and 2, the Judge adopted basic starting points of 2½ years’ and 7 years’ imprisonment respectively, which he enhanced to 4 years and 9 years’ imprisonment to reflect the various aggravating features[7]. Since the applicant’s pleas of guilty were entered after the case had been set down for retrial, and were tendered only after the Judgment had been handed down, the Judge granted a discount of 6 months on each count. The ultimate sentences were, therefore, 3½ years and 8½ years’ imprisonment respectively. The Judge further ordered those sentences to run concurrently, making a total sentence of 8½ years’ imprisonment[8].

17.  In respect of totality, the Judge bore in mind that the applicant was then serving a term of 14 years’ imprisonment in respect of offences under HCCC 379/2017, which were related to Y. The Judge considered that the appropriate overall sentence should be 18 years’ imprisonment. To achieve that totality, the Judge ordered 4 years of the sentence in the present case to run consecutively to the 14-year term in HCCC 379/2017[9].

Grounds of appeal

18.  In his grounds of appeal against sentence filed on 16 November 2021, and written submissions dated 11 February 2022, the applicant complained of the Judge’s refusal to accept that his guilty pleas were entered prior to the commencement of trial. He argued that since the Judgment was only handed down on 28 October 2021, he was not in possession of all the papers so as to make an informed decision as to his pleas. Accordingly, it was unfair that he should receive a lesser discount for changing his pleas only after receipt of the Judgment. He further suggested that the Judge should have held a Newton enquiry.

Respondent’s submissions

19.  Mr Ira Lui, on behalf of the respondent, submitted that the sentences previously considered by Barnes J on Counts 1 and 2 in HCCC 379/2017 were not binding on the Judge, who had appropriately exercised his independent judgment in assessing both the seriousness and culpability of the applicant’s offences. No valid complaint could be made of the judge’s approach or the sentences he invoked[10]. Mr Lui noted that Zervos JA, in his judgment at the leave application[11] from the trial before Barnes J, had refused leave to appeal against an overall sentence of 18 years’ imprisonment.

20.  With regard to Count 2, Mr Lui relied on R v Millberry & others[12], where the English Court had listed nine aggravating factors which warranted a substantial enhancement of the basic starting point, namely[13]:

“(i) the use of violence over and above the force necessary to commit the rape; (ii) use of a weapon to frighten or injure the victim; (iii) the offence was planned; (iv) an especially serious physical or mental effect on the victim; this would include, for example, a rape resulting in pregnancy, or in the transmission of a life-threatening or serious disease; (v) further degradation of the victim, eg by forced oral sex or urination on the victim (referred to in Billam, at p 351, as ‘further sexual indignities or perversions’); (vi) the offender has broken into or otherwise gained access to the place where the victim is living (mentioned in Billam as a factor attracting the eight-year starting point); (vii) the presence of children when the offence is committed (cf R v Collier (1991) 13 Cr App R (S) 33); (viii) the covert use of a drug to overcome the victim’s resistance and/or obliterate his or her memory of the offence; (ix) a history of sexual assaults or violence by the offender against the victim.”

21.  Mr Lui identified the following eight aggravating features in the applicant’s offending:

(a)  The use of significant violence and force to commit rape. It was an admitted fact that X was 159 cm in height and weighed a mere 33 kg[14]. The applicant looped a plastic strap around X’s neck, causing bruising to her neck. He covered her mouth, blindfolded her and tied her hands. Although X did not put up any resistance, he further produced a sharp, cold, hard object and threatened to cut her face;

(b)  The applicant not only threatened X with violence but used a weapon. The fear of disfigurement and loss of life would have been obvious;

(c)  The offences were not opportunistic nor were they committed on the spur of the moment. By the applicant’s own admission, they were premeditated and involved trickery[15]. He had lured X to his residence and later his bedroom under false pretenses;

(d)  X suffered “emotional distress” and “displayed symptoms of anxiety and depression to moderate level”. She felt “contaminated” and her self-esteem was “very low”;

(e)  X was subjected to the indignity of having a sex toy placed on her private parts, and being forced to perform oral sex[16];

(f)  Save for some 3 minutes, no condom was used by the applicant, thereby exposing X to health risks as well as the fear of pregnancy[17];

(g)  The applicant was a recidivist in respect of sexual offences[18]. Despite his relatively young age, he had four previous convictions for unlawful sexual intercourse with a girl under 16, and one for indecent assault, since turning 19; and

(h)  The applicant had exhibited little remorse for his conduct. He thus presented a significant risk to society; his “risk of violence recidivism is moderate and sexual recidivism is high”[19].

Mr Lui said that features (a) to (e) and (g) corresponded to factors (i) to (v) and (ix) in Millberry.

22.  The respondent argued that the failure to wear protection, thereby exposing the rape victim to the risk of pregnancy or disease, will invariably constitute an aggravating feature[20]. Moreover, the fact that the applicant is a recidivist, who poses a grave and continuing risk to society, particularly young girls, warranted a substantial enhancement of sentence[21].

23.  In the circumstances, Mr Lui submitted that the Judge was entirely justified in adopting a basic starting point of 7 years’ imprisonment on Count 2, and enhancing it to 9 years for the aggravating features present.

24.  With regard to Count 1, the respondent contended that the aggravating features identified, save for factor (f), were equally applicable to that count. There could be no valid complaint against the basic starting point of 2½ years’ imprisonment, enhanced to 4 years’ imprisonment.

Discount for the applicant’s late pleas

25.  The Judge gave the applicant a discount of 5.56% (6 months) from the overall sentence of 9 years’ imprisonment on Counts 1 and 2[22]. Relying on the decision in HKSAR v Ngo Van Nam[23], the respondent argued that when the applicant entered not guilty pleas before Barnes J in HCCC 379/2017, he was no longer entitled to a discount of 20%. That discount should have been further substantially reduced when the applicant failed in the voir dire and his reversal of pleas application[24]. As Barnes J remarked, the appropriate discount for the applicant’s late pleas “should not be much more than 10 percent”[25]. In fact, she accorded the applicant a discount of some 11.11% in respect of Counts 1 and 2, when she sentenced him in August 2018.

26.  On 22 December 2020, the Court of Appeal quashed the applicant’s conviction on Counts 1 and 2, but dismissed his renewed application to appeal against conviction on Counts 3 to 7. A retrial on Counts 1 and 2 was duly ordered[26]. Mr Lui argued that the new Judge was fully justified in further reducing the sentencing discount below Barnes J’s 11.11%. A reduced discount was called for once the applicant had indicated that he would be entering pleas of not guilty at the case management hearing on 24 August 2021, as a result of which X was informed that she would be required to testify. On the first day of the scheduled retrial on 28 October 2021, an informal identification parade had already been conducted for the purpose of the anticipated voir dire, in which fresh and additional allegations were made against the police some 5 years after the offences. These were all relevant factors which the Judge was entitled to consider in determining the appropriate discount to be given to the Applicant for his eventual guilty pleas. Considering the waste of judicial resources, the completely wasted efforts in trial preparation and the anxiety caused to X, the discount of about 5.56% could not be faulted.

27.  The respondent submitted that the applicant’s complaint that the Judgment was only available on 28 October 2021 was misconceived and without merit, because:

(i)  The applicant had made no application to adjourn or postpone his retrial pending the handing down of the Judgment;

(ii)  There was nothing “new” or novel about the Judgment. The Court of Appeal’s observations at [99] could not have provided an explanation, let alone a justification, for the late change of pleas;

(iii)  As explained in Ngo Van Nam[27], and more recently in HKSAR v So Yat Ting[28], the applicant knew full well that X had not consented to sexual intercourse or the indecent assault. He certainly did not require counsel’s advice on the implication of the Judgment in order to know whether he was guilty or not.

28.  Contrary to the applicant’s further argument, and absent any dispute as to the facts pertaining to X, there was no need for a Newton enquiry. Indeed, had one been held, and had it had been unsuccessful, the discount could have been even lower.

Totality

29.  Mr Lui argued that the proper approach in relation to the totality principle had been authoritatively stated by the Court in HKSAR v Ngai Yiu Ching[29], where it was stressed that the one transaction rule is not an inflexible rule of law governing when it is proper to impose consecutive sentences. Instead, the correct approach is to determine whether a second (or other) offence(s) adds to the culpability of the first and, if it does, then wholly or partially consecutive sentences will be appropriate, subject to the principle of totality. In a “multiple offence scenario that involves offences, different in nature or the same, committed on quite separate occasions”, the Court will invariably conclude that, in principle, it may impose consecutive sentences. But the Court still needs to assess the overall culpability of the criminal conduct for the purpose of applying the totality principle and only by doing so will it be able to arrive at a sentence that is fair to the offender, yet also properly reflects his culpability.

30.  In this case, the respondent submitted that the Judge ordered the sentences in respect of Counts 1 and 2 to be served concurrently but determined that a consecutive term of 4 years was appropriate for the two sets of offences respectively concerning X (in this case) and Y (in HCCC 379/2017). There being no renewed application for leave to appeal against the total sentence of 14 years in HCCC 379/2017, the only issue was, therefore, whether the total sentence of 18 years’ imprisonment was justified.

31.  The respondent gave the following reasons for the Judge’s imposition of sentences with a substantial consecutive element:

(i)  the two sets of offences were both extremely serious in nature;

(ii)  there was no connection whatsoever between the two sets of offences concerning victim X and victim Y;

(iii)  the applicant went on to commit offences against Y, well aware that the police were looking for him in respect of the offences against X[30]; this demonstrated a blatant disregard for the law and the applicant’s persistence in offending; and

(iv)  the applicant is a sexual recidivist who, notwithstanding his relative youth at the material time, had a very poor criminal record.

32.  In all the circumstances, Mr Lui contended that the sentences passed by the Judge were neither wrong in principle nor manifestly excessive.

Consideration

33.  This is a lengthy overall sentence, but if the particular crimes with which I am concerned in relation to X were described by the Judge as “appalling”, then the ones concerning Y were egregious in their harrowing and horrifying detail. Not only will any appellate court have little sympathy for the applicant, particularly given the protracted history of his pleas, but it will be very much alive to the fact that the applicant is, and will remain, a danger to society for many years to come. I cannot see any court doubting the correctness of an overall sentence of 18 years’ imprisonment, however that figure was arrived at in terms of consecutive and concurrent elements.

34.  Moreover, these were not the sort of crimes where the applicant needed legal advice or the Judgment of the Court to know whether he had committed the offences. As Hughes LJ (as Lord Hughes was then) said in R v Caley[31]:

“There is sometimes confusion in argument between: (i) the first reasonable opportunity for the defendant to indicate his guilt; and (ii) the opportunity for his lawyers to assess the strength of the case against him and to advise him on it. It is obvious that the second depends on the evidence being assembled and served. The first, however, frequently does not. There will certainly be cases where a defendant genuinely does not know whether he is guilty or not and needs advice and/or sight of the evidence in order to decide. We do not attempt to define them, and they do not arise in the present appeals. They might however include cases where even if the facts are known there is a need for legal advice as to whether an offence is constituted by them, or cases where a defendant genuinely has no recollection of events. There may be other cases in which a defendant cannot reasonably be expected to make any admission until he and his advisers have seen at least some of the evidence. Such cases aside, however, whilst it is perfectly proper for a defendant to require advice from his lawyers on the strength of the evidence (just as he is perfectly entitled to insist on putting the Crown to proof at trial), he does not require it in order to know whether he is guilty or not; he requires it in order to assess the prospects of conviction or acquittal, which is different. Moreover, even though a defendant may need advice on which charge he ought to plead guilty to, there is often no reason why uncertainty about this should inhibit him from admitting, if it is true, what acts he did. If he does so, normally the public benefits to which we have referred will flow.”

This passage was cited with approval by the Court in Ngo Van Nam[32].

35.  Thus, in answer to the applicant’s complaint about the judge’s discount for plea, he was perhaps fortunate in the ultimate sentence he received, which was the same length as if he had not appealed against Barnes J’s orders and had not then prevaricated until the first day of the retrial to plead guilty. I can see no reasonably arguable ground of appeal in respect of the discount or the Judge’s approach to sentence at the retrial.

36.  As for the totality of sentence, there are no reasonably arguable grounds of appeal against sentence, either with regard to the two offences before this Court, or in respect of the overall sentence resulting from the consecutive element imposed.

37.  Accordingly, I refused leave to appeal against sentence. I duly advised the applicant that he has the right to renew his appeal to the Court of Appeal, but I also warned him that the Court has the power to order the loss of any time the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.