R. v. HON LEUNG FONG

IN THE COURT OF APPEAL

1994, No. 547
(Criminal)

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J U D G M E N T

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

1. This is an application for leave to appeal against sentence. The sentence itself is one of two years and nine months' imprisonment for indecent conduct toward a child under 16, contrary to s.146 of the Crimes Ordinance, Cap. 200. It is that no longer contended on the applicant's behalf that that sentence is too long in itself. But it was made consecutive to a sentence of 15 years' imprisonment which had been imposed on the applicant earlier for manslaughter. That resulted in a total of 17 years and 9 months. And it is contended on the applicant's behalf that such punishment was excessive for the manslaughter and the indecent conduct toward a child under 16 combined.

2. In outlining the background to this case, we will, as far as possible, avoid the use of adjectives and let the facts speak for themselves.

3. The manslaughter arose out of the death on July 24, 1993, of a 21-year-old woman in an hotel room in Shatin. She was an employee of the applicant, a businessman in his early 30's. Pursuant to a plan made between him and another employee of his, a woman named Wong, the victim was lured to that room on the pretence that Ms Wong's birthday was being celebrated there. The plan called for Ms Wong to get the victim drunk and then, by the use of chloroform, to render her unconscious: so that the applicant could indecently assault her unconscious body, video-recording it all.

4. The plan was carried out. But it took a fatal turn. One bottle of chloroform, soaked in a towel applied to the victim's face, did not have the desired effect. So the applicant drove to Tuen Mun to get another bottle of chloroform. More chloroform was then administered. And then still more chloroform was administered. Then the indecent assault was committed and video-recorded.

5. But the indecency was accompanied by tragedy. The victim had been given too much chloroform. So much so that her face was burnt. So much so that she died. She was brain dead on that very night, although she was not certified dead until two days later.

6. After they failed to revive the victim, the applicant and Ms Wong sent for an ambulance. But the victim was beyond help.

7. Questioned by the police, Ms Wong soon broke down, wept and confessed. Initially, the applicant maintained his innocence. But when confronted with Ms Wong's confession, he too confessed.

8. Charged with murder, they pleaded guilty to manslaughter: which plea was acceptable to the prosecution and accepted by the court.

9. For that offence of manslaughter, Leonard J sentenced Ms Wong to seven years' imprisonment and the applicant to eight and a half years' imprisonment.

10. The Attorney General applied for a review of those sentences.

11. On November 25 last year, another division of this Court increased the sentence on Ms Wong for manslaughter to 12 years' imprisonment and the sentence on the applicant for manslaughter to 15 years' imprisonment.

12. Turning now to the circumstances of the indecent conduct toward a child under 16, what had happened was this.

13. On July 26, 1993, in the course of their investigation into the chloroform tragedy, the police seized a video tape. That tape led to the indecent conduct toward a child under 16 count to which the applicant pleaded guilty and was sentenced (again by Leonard J) on December 14 last year to two years and nine months' imprisonment.

14. What was shown in the video-tape constitutes the facts of that offence.

15. The facts agreed between the prosecution and the applicant were these:-

" This tape shows an unknown woman and an unknown male child whose age is estimated to be around one year and the [applicant].

The woman is shown engaging in oral sex with the child. Then the [applicant] is shown pressing the buttocks of the boy after putting him in a prone position against the genitalia of the naked woman who has her legs spread and lying in a supine position and simulating sexual intercourse. Later the [applicant] is shown engaging in sexual intercourse with the woman in the presence of the child.

The [applicant's] voice is recorded on the tape encouraging the woman to perform the sexual act with the child and to remove the child's trousers before oral sex was performed. The transcript of this tape is exhibit 152.

The video was made in the [applicant's] flat, Hong Kong on a day between the 12th day of September 1987 and the 24th day of July 1993."

16. What has happened to the child we do not know. No doubt, the police are making such enquiries as they can. There is no need to say more about the anxiety which any decent person would naturally feel over the fate of the child. We pass from that.

17. The maximum penalty for indecent conduct toward a child under 16 is five years' imprisonment. The judge took a starting point of four years' imprisonment. He considered it appropriate, in the light of such points as were urged in mitigation, to discount the sentence to two years and nine months. And he took the view that such sentence ought to be consecutive to the 15-year term for manslaughter subject to the totality principle.

18. He looked at how the division of this Court which had imposed a 15-year sentence on the applicant for manslaughter arrived at that sentence. What that division said came to this. The appropriate starting point was 20 years. On the basis of the mitigation available, the judge should have discounted that to arrive at a sentence of 18 years. But since they themselves were dealing with the matter on review and were increasing the sentence to a very great extent, they saw fit, in the exceptional circumstances which they perceived, to impose a sentence of 15 years.

19. As we see it, the result i.e. a 15-year sentence is what really matters. If it can be said that the "mitigation" discount from 20 years to 18 years was too small, one could equally question whether any "review" discount was called for.

20. In passing sentence on the indecent conduct toward a child under 16 count, Leonard J concluded his remarks thus:-

" Having had the opportunity of reading the reasons given by the Court of Appeal for arriving at a sentence of 15 years on the manslaughter offence, it is apparent to me that the Court of Appeal's view was that a sentence of 18 years should have been imposed for that offence by me.

In those circumstances I consider that my hands are tied and it is impossible for me honestly to say that this is a case where it is open to me in relation to the totality principle to say that the sentences should be concurrent. Therefore the normal principle must apply and this sentence must be consecutive. I therefore sentence the defendant to 2 years 9 months imprisonment, consecutive to the 15 years which he is already serving."

21. Before coming back to those observations, we would just mention one of the cases cited by counsel for the applicant, R. v. Arthur Smith (1981)3 Cr. App. R.(S)201. That is a decision of the Court of Appeal (Criminal Division) in England. At p.203 of the report one finds the following observation:-

"... this Court is of the view that when, as here, very long sentences are passed, no useful purpose is served by increasing those sentences to a small degree, as happened here. When such long sentences are passed obviously the judge must have in mind the total sentence that he is passing. As we have said, no useful purpose is served by then increasing that sentence by perhaps a few months in order, for example, to activate a previously suspended sentence."

22. In that case, the long sentences were of 12 years' imprisonment and the short sentences made consecutive thereto were of nine months' imprisonment.

23. The difference between those long and short sentences is almost three times greater than the difference between the long and short sentences in the present case. We do not think that the case of Arthur Smith(supra) is of any relevance to a case like present.

24. Reverting now to the judge's remarks which we quoted earlier, his reference to his hands being tied has been attacked by counsel for the applicant. We have considered whether that reference betokens a disavowal by Leonard J of his discretion as the sentencing judge. Our conclusion is that it does not. Only one thing which bound the judge. It is what binds every court, namely the duty to pass an appropriate sentence.

25. All things considered, we are of the view that an appropriate term for the manslaughter and the indecent conduct towards a child under 16 combined was achieved when a sentence of two years and nine months for the latter was made consecutive to the 15-year sentence for the former: giving a total of 17 years and 9 months.

26. The application for leave to appeal against sentence is dismissed.