HKSAR v. CHAN LAI SING AND ANOTHER

CACC 100/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 100 OF 2002

(ON APPEAL FROM HCCC 229 of 2001)

__________________

______________

______________

J U D G M E N T

______________

Hon Stock JA and Gall J:

1 These two applicants were convicted on 8 February 2002 after trial by Nguyen J and a jury upon an indictment which charged rape, indecent assault, false imprisonment and assault occasioning actual bodily harm. The offences took place on 11 January 2001. At the date of the offences, the first applicant (D1) was aged 17 years, and the second applicant (D2) was aged 14 years. D1 was sentenced by the judge to a total of twelve years' imprisonment; and D2 to a total of nine years' imprisonment. Each now seeks leave to appeal against convictions and sentences.

The prosecution evidence

2 The event with which we are concerned began in the afternoon of 11 January 2001. The prosecution evidence ran as follows. The complainant, a schoolgirl aged 14 years, went with some friends to a shopping mall, and there they encountered a group of several youngsters, male and female, some of whom the complainant recognised as having been fellow students of the primary school which she had attended. One of the youths accused her of staring at them, and told her that she was required to come over and discuss matters. This she was reluctant to do, but she was made to do so, someone pulling her by the hair. Others joined the group, and the labels attached by the complainant, and by the witnesses in the case, to that group as a whole clearly shows them to have been part of a triad group, or a group professing themselves to be triads. The complainant herself recognised some as being 'Big Brothers', as she referred to them, of others in the group.

3 The group then took the complainant to a pavilion nearby and when she asked to be released, D1 went to someone else whom the complainant regarded as his Big Brother. D1 then told the girl that she would be going to a hill and when she expressed reluctance, he beat her with his fists, punching her mouth and her face, and he pulled her by her hair, and tried to bang her head on a lamp-post, and she fell. Only this assault was admitted by D1 when he gave evidence. He said that he was forced by his Big Brother to assault her.

4 The complainant was then forced to follow the group further, and they took her to a block at a housing estate. There she was beaten again, and kicked.

5 From the housing estate, she was taken to a hillside opposite the estate in Tsz Wan Shan and there again she was slapped about and beaten by men and by girls of the group. By this stage, the complainant was on her own, in the sense that her friends had been told to leave and had done so.

6 She was then told that she had a choice. She could either roll down the hill, or take off her clothes. She said that she would roll down the hill, but she was then encircled and her clothes forcibly removed. As soon as this happened, members of the group started to fondle her breasts. A camera was used to pretend that photographs were being taken. She was then lifted up by her limbs, and taken to a stone bench on which she was placed. It was now dark, and there were no passers by. She told D1 that she did not want to do as they evidently wished, but several persons then held her limbs asunder, despite her struggling, and D1 raped her. The condom which he was wearing broke, and he withdrew and donned a new one, and then entered her again.

7 The prosecution case is that D2 arrived whilst the group was at the hillside, and before the first rape took place. He was there when it took place. He saw what was going on. The evidence of the complainant was that whilst the first rape took place, D2 was talking to his Big Brother. He then said that he wanted to "do it" or to "fix it up". He then had sexual intercourse with her against her will. He then withdrew, and he inserted his finger into her vagina, moving it back and forth, which she found very painful. Others were still fondling her breasts. Then D2 asked her to perform oral sex upon him, but she refused and asked to be allowed to go. Someone pulled her head back by her hair, and D2 inserted his penis into her mouth, and she bit his penis; whereupon she was beaten, one girl using a metal pipe to beat her. D2 then masturbated, and then inserted his penis again into her mouth. D1 pulled her head back and forth to facilitate the act of oral intercourse; and then D2 ejaculated.

8 At about 10 p.m., she was allowed to go. She was told that photographs of her had been taken, and that she was not to report the matter. She had by then been with the group for about six hours. The girl had never previously had sexual intercourse.

The defence

9 D1 gave evidence. He denied any act of sexual intercourse with the girl, or assisting anyone in such an act. He agreed that he was present when the girl was taken to the hillside but he says that he was told by his Big Brother to rape her, but that he refused and walked away.

10 D2's defence was similar. It was to the effect that he went to the hillside when he was telephoned by his Big Brother to go there, and that there he and others were instructed to interfere sexually with the girl, but that he refused, was punched for his refusal, and that he left the scene. He saw no rape or indecent assault take place.

The indictment

11 The allegations were manifested in six counts:

(1) That D1, at the hillside, unlawfully imprisoned the complainant against her will. He was found guilty, and on this count sentenced to eighteen months' imprisonment.

(2) That in the park (the pavilion incident) D1 assaulted the complainant occasioning her actual bodily harm. He was convicted and sentenced to six months' imprisonment.

(3) That at the staircase of the housing estate, D1 assaulted the complainant occasioning her actual bodily harm. He was acquitted on this count.

(4) That D1 and D2 raped the complainant at the hillside. This count was directed to the act of intercourse by D1, to which D2 was said by the prosecution to have been party, by his assistance. D1 was convicted, but D2 was acquitted. D1 was sentenced on this count to a term of ten years' imprisonment.

(5) That D1 and D2 raped the complainant at the hillside. This was directed at the act of sexual intercourse by D2 to which D1 was said to have been party: he was actually one of the persons holding the complainant down to enable D2 to rape her. Both D1 and D2 were convicted upon this count. D1 was sentenced to a term of nine years' imprisonment, and D2 also to a term of nine years' imprisonment on this count.

(6) That D1 and D2 indecently assaulted the complainant. This was directed at the act of forced oral intercourse by D2 upon the complainant, with D1 a party to that act by his presence and conduct. Both applicants were convicted, and each was sentenced to a term of three years' imprisonment on this count.

12 In relation to D1, the sentences on counts 4 and 5 (rape) and count 6 (indecent assault) were ordered to run concurrently, but the sentences on counts 1 and 2 were ordered to run consecutively to each other and to those on the other counts; a total therefore of twelve years' imprisonment.

13 In relation to D2, both sentences (counts 4 and 5) were ordered to run concurrently, a total of nine years' imprisonment.

Conviction

14 The second applicant has, at the hearing of this appeal, abandoned his application for leave to appeal against conviction, and that application is, accordingly, dismissed.

15 As for conviction and the first applicant, the position is that Mr Wong has been instructed by the Director of Legal Aid on behalf of both applicants but, as to conviction, takes the view that he is unable to advance arguable grounds of appeal in this case. That is a proper and very understandable view to have taken. We have in the circumstances invited the first applicant to address us on the issue of conviction and he has done so, saying that the evidence of the complainant was the only evidence against him. That is not so. There was other evidence, in particular that of an accomplice. D1 adds that there was media coverage of the case which prejudiced the fair trial. There is no suggestion of any application to discharge the jury on such a basis, and no material before us to support the complaint. There is then a complaint that the complainant failed to identify the first applicant at a subsequent identity parade. This does not assist the applicant, because there was ample other evidence that he was present and partaking in the offences.

16 We have studied the summing-up in this case, which was comprehensive and clear, and accurate as to law, and fair on the facts. We see no grounds for upsetting the conviction, and the application for leave to appeal against conviction is dismissed.

Sentence

17 In passing sentence the trial judge rehearsed the essential facts, and said that the nature and details of the offences were such as to call for condign punishment. He referred to conduct, apart from the rapes themselves, by which there was complete disregard for the complainant's dignity - stripped naked so that others, a group of about ten persons, could stare at her, and molest her; to the fact that there was no remorse shown, even at the time of sentence, by either applicant; and to the fact that there were aggravating features. He also said that the evidence which they had given had "showed up what arrogant and aggressive individuals you both are".

18 We have to say that, of its type, this was a very bad case; indeed it is one of the worst we have encountered. There could hardly be a longer list of aggravating features. The victim was young: she was aged only 14 years. She was a virgin. The episode to which she was subjected was prolonged. She was taken to a dark and secluded place. The rapes were preceded and accompanied by violence over and above the force necessary to effect the rape. The complainant was subjected to gross sexual indignities, and the indecent assault was particularly foul. The rape was repeated. The rapes were committed by a gang. Photographs were taken with which to threaten her not to report the matter. Each applicant has prior convictions for offences of violence. And the case and the circumstances have triad overtones. It cannot possibly be said that a ten years starting point for either of the rapes (including the indecent assault which was ordered to run concurrently) was at all excessive. Indeed one could not have complained had that point been a higher one.

D1

19 No written grounds have been presented by D1 in support of his application for leave to appeal against sentence. Mr Wong advanced none on behalf of this applicant. In addressing us, this applicant points to the fact that he was aged but 17 years at the time of the offence, and says that he should not have been sentenced so heavily.

20 The trial judge had the advantage of a probation report and a detention centre and training centre suitability report. We have read these.

21 D1 was aged 17 years at the date of these offences. He had already committed other offences for which he was sentenced in June 2001 to a detention centre. They were offences of assault occasioning actual bodily harm, and common assault. He was said by the probation report to be a triad follower who has exhibited no sense of remorse, and by the officer who wrote the other report as being evasive.

22 Mitigation advanced on his behalf at the time of sentence sought to touch upon the effect on this particular victim as perhaps being less than it might on others, by a suggestion that she was quite a hardened personality in that she was herself a member of a gang; had pleaded guilty to robbery; and belonged to a sub-culture of violence - the suggestion, we suppose, being that the awful offences committed upon her might not have had quite the same impact as upon someone not within that culture. Given what was done to this 14 year old girl despite her constant protests and her prolonged pleas to be let go, this mitigation counts for nought.

23 This applicant obviously took a lead role in the offences of the afternoon and evening in question. We have rehearsed the litany of aggravating features of these rapes, and we have no doubt but that the overall sentence imposed on the first applicant was the least that could have been justified; indeed, if anything, the overall sentence imposed on this applicant for the sexual offences which he committed was on the low side. It may be that the judge was moved to that course by reason of the other offences for which he was to be sentenced. Be that as it may, there is no merit in this application, and D1's application for leave to appeal against the sentences imposed on him is dismissed.

D2

24 For the offence of rape the judge took a starting point of 10 years' imprisonment and said that in view of this applicant's age at the time of the offence, namely, fourteen and a half years, and the fact that he, D2, was not the leader of the pack, he sentenced D2 to nine years' imprisonment.

25 The report before the judge, as well as the applicant's previous convictions, revealed the applicant to be a triad follower. He had prior to the offences in question committed other offences for which he was subsequently sentenced: claiming to be a triad member; inducing another to be a triad member; as well as an offence of assault occasioning actual bodily harm.

26 There can be no question but that despite the applicant's age, given the nature and details of the offences of which he was found guilty, a substantial term of imprisonment was called for. The applicant was highly proactive in the rape. He did not merely stand by offering some token assistance to those older than he, as we sometimes see in such cases. He actually asked to be allowed to do what he did; and he then used the girl with substantial violence, and with total disdain, beat her when she resisted, and then returned to the business of sexual violation and gross indecency.

27 One ground of appeal is that the judge erred in not calling for a report from the Young Offenders Assessment Panel. We can see nothing in this ground. The judge had two detailed reports about the applicant, and the inevitability of a substantial prison term was such that there was no need for such a report.

28 Much is made, understandably, of the age of this applicant; that he was aged but fourteen and a half years at the date of this offence, and it is said in addition that he must have been under the influence of those older than he, and, in this latter regard, we are taken to references in the summing-up to the presence of a Big Brother, and the fact that this applicant was seen talking at one stage to his Big Brother. We are taken to authority (R v YAU Wing-hong [1995] 3 HKC 95) which says that a person over the age of 15 years is not a person of extreme youth. Accordingly, Mr Wong says, this applicant is a person of extreme youth, the suggestion being that he has not been treated as such. The context of the remark in YAU Wing-hong must be recognised. The court there was looking at the guidelines for robbery cases laid down in Mo Kwong-sang [1981] HKLR 610 and the comment made in another case AG v Li Chi Ko [1987] HKLR 1233 that "... save in exceptional circumstances, a term of imprisonment ought to be imposed in a case of serious robbery as this one was, and youth of itself was not such an exceptional circumstance, although extreme youth might be." The court in YAU Wing-hong went on to suggest that if there were a contention of acting under the influence of older men, that is something that must be established; not just said.

29 The question of particular youth of an offender, and of the youth of this applicant, is a difficult one, and any court acting with proper regard to common sense will wish to consider with the greatest care the true culpability of someone of this age, having regard to the immaturity which normally comes with that age, and the degree to which someone of that age might well be under the influence of others more mature and to whom greater responsibility for a crime will normally attach. It is however, as has often been said, not a mathematical matter, or of some clear dividing line between, say, fifteen years or less or more than that. It is always a question of the individual, and of his circumstances and of his maturity and his conduct, and of the offence itself. Whilst the fact that the offender is particularly young may well, indeed may frequently, attract a material discount from sentence, nonetheless "... it is true that the personality of the youth or personal circumstances of the offender may pale into insignificance because of the magnitude or prevalence of the offence in question ...". See Re Application for Review of Sentence [1972] HKLR 370, 417. There is no suggestion in YAU Wing-hong, nor in the 1979 edition of Thomas' "Principles of Sentencing" to which reference is made at [36] below, that extreme youth is inevitably, regardless of the heinousness of the offence and regardless of the actual maturity of the actual offender, a ticket to particular leniency. Further, "when considering the sentence to be imposed on a young offender an important factor must be whether he has shown real remorse and genuine desire to rehabilitate himself". See R v YU Chun-hoi [1991] 1 HKLR 479, 484. Furthermore, the courts should in the context of triad group activities, such as was the setting of these offences, take care about the weight to be attached to suggestions, especially in the realm of serious crime, that the offender was a youngster in the midst of older offenders higher than he in a triad hierarchy, lest the courts give rein to those who would then be emboldened to recruit and use young persons to criminal ends; and lest it be thought by the young themselves that they will, for such a reason, be treated leniently. Nor is age a black and white determinant of maturity. Some 14 year olds are mature for their age; others not; and where, as in this case, there are clear indicia as to maturity and type, those indicia must not become subservient to a mere date of birth. We note a suggestion in the reports that he may have been eager to show himself off to others; and one report says that he was an immature and hedonistic youth. Yet, the nature of the act upon which D2 engaged, and his conduct in the course of it, as well as his past, suggests a violent youth of scant innocence. There is also to be recognised the significant fact that the trial judge saw and heard this youth give evidence and was therefore possessed of material which we do not have by which to assess his maturity and his confidence, and the degree of his susceptibility to peer pressure; and an appellate court should be slow to second-guess that assessment. The judge described him, with that advantage, as arrogant and aggressive, and the reports prepared for sentencing clearly indicated little remorse for his conduct - a contrast to the expressions of remorse in a letter to this Court. He is a youth, it is true, but a youth who was highly proactive. He volunteered himself for the act, and he engaged upon it with determination and brutality; and even though we recognise that there may well be in such conduct a strong element of 'show' for the purpose of being accepted, these are nonetheless salient facts.

30 The starting point for the two offences reflected by counts 5 and 6, of ten years and three years, is not, given especially the aggravating factors which we have itemised, an erroneous starting point. The question which we have to address is this: whether a reduction from that point of one year is manifestly inadequate to reflect the age of the second applicant, as well as the difference between his age and that of the first applicant; and whether there is too little in the comparative sentences to recognise the lesser role played by this applicant, and the fact that he took part in one rape whereas the first defendant took part in two.

31 D1's role was indeed greater than that of D2, for D1 instigated, or was party to the instigation, of the whole affair, going back to the events at the shopping mall. That however is, to a significant degree, reflected in the fact that he has received a sentence which is three years longer than that imposed upon D2. It is true also that D2 was convicted of one rape (and an indecent assault) and D1 of two rapes (and the indecent assault). It is a little artificial, perhaps, to view the rapes as entirely distinct episodes. They were one escapade; the one flowing directly after the other, and although not participating in the first, D2 was there in the course of the first, knew full well that it was taking place, and enthusiastically joined in at a stage when the girl had, in his presence, already been sexually and emotionally battered.

32 The one year reduction from the ten year starting point was said by the judge to reflect two facts: first, the fact of the applicant's age and, secondly, the fact that he was not the leader of the pack. Despite the awfulness of D2's conduct, we have very carefully considered whether this one year difference between the punishment of D1 and D2 for the sexual offences themselves adequately reflects the differences in culpability for which the judge intended to cater. It is true that D1 has received an overall sentence which is three years longer than that imposed on D2, but looking at the sexual offences alone - for they are the only common factor between the two - D1's leadership, his instigation of the sexual episodes themselves, (by which we include his direct involvement in the first act of rape), as well as the factor of age which the judge has mentioned, we are prepared to accept that there is room for a greater distinction in sentence for the sexual offences than one year; even though it might be said that D1 might have expected higher sentences than the ones imposed on him for those offences. Looking at all the circumstances in the round, however, a further reduction of one year is as far as we feel it permissible to go.

Hon Cheung JA:

33 I agree with the decision of Stock JA and Gall J on the 1st applicant's application.

The 2nd applicant

34 It is with reluctance that I differ from them on the sentence to be imposed on the 2nd applicant.

35 No doubt the 2nd applicant had committed a heinous crime, but the stark fact is that he was only 14 1/2 years of age at the time of the offence. No matter how one looks at it, the original nine year sentence or the eight year sentence now to be substituted by my colleagues is an extremely heavy sentence to be imposed on a 14 1/2 years old boy. Even for an adult offender, they cannot be described as lenient sentences.

Youth as mitigating factor

36 While the 2nd applicant has to be punished for his crime one must not lost sight of his age. As pointed out by Thomas in Principles of Sentencing 2nd Ed. at page 195 that,

"Youth is one of the most effective mitigating factors. As has been shown, the Court strongly favours the use of individualized measures for offenders under 21, a policy which has long been endorsed by statute. Where an offender in this age group is sentenced, the sentence will normally be considerably shorter than would be awarded to a man of mature years for the same offence".

37 In Hong Kong, the courts have always paid regard to the age of the offender. This applies both to situations where imprisonment and other forms of punishment are available and also to cases where imprisonment is the only alternative because of the seriousness of the offence. From the decided cases, one can see that the courts have broadly divided youth into two age groups, namely, the late teens and extreme youth.

The late teens

38 This Court in R v Lee Kong and Lee Keung (Criminal Appeal No. 556 of 1994) dealing with offenders in their late teens, stated that:

"The precise age of an offender is not always material. Overall, we are inclined to think that people in their late teens (say 16 to 19) should be dealt with differently, in circumstances such as these, from people in their early 20's and beyond." per Bokhary J.A. (as he then was).

In that case this Court was considering the appropriate length of imprisonment for some young offenders charged with the offence of burglary and robbery.

The extreme youth

39 In respect of extreme youth, the courts have generally adopted 15 to be the deciding age, although at the same time the courts have stressed that there is no inflexible rule in this regard. The relevance of this age group in terms of sentence is where imprisonment or alternative forms of punishment for young offenders is being considered. The courts have recognized that extreme youth may be considered as an exceptional circumstances where imprisonment is the norm for some serious offences. This is the age group where alternative forms of punishment, such as detention in detention or training centre are being considered, see, for example, AG v Li Chi Ko [1987] HKLR 1233, AG v Yau Wing Hong [1995] 3 HKC 95 AG v Li Ying Kuen & Anor [1995] 3 HKC 539 and R v Wong Pit Shing [1997] 2 HKC 136.

Greater discount for extreme youth

40 In a case such as this where imprisonment is the only appropriate punishment because of the seriousness of the offence, the age factor obviously becomes important in considering the length of the sentence. If an offender in his late teens merits a lesser sentence, all the more that a boy of 14 1/2 years should receive a greater discount in sentence.

Rationale

41 The rationale for this approach is clear. The young offender is not yet a hardened criminal. He may have committed the crime due to immaturity or under peer pressure. Very often he is led astray by bad acquaintances. A chance should be given to him to start afresh as soon as he has paid the penalty for the crime. A criminal obviously has to be punished. But while retribution is a factor, the rehabilitation of a young offender must also be considered as part of the sentencing principles. A period of imprisonment for a young offender should not be so long as to render reform and rehabilitation being impossible to be implemented.

Background of the 2nd applicant

42 In this case the father of the 2nd applicant was an heroin addict. He was serving sentence in jail at the time of the offence of the 2nd applicant. The lack of parental control led the 2nd applicant to be associated with the triad group which was involved in the attack of the victim. He was the most junior member of the group. He was not involved in the initial physical assault of the victim and only came to the scene later on. His subsequent conduct was unforgivable but obviously it was fueled by the violence that had taken place at the scene. As the probation officer observed "perhaps he was too eager to show his power and ability" to his peers in the group. This background may serve as a clue as to why a youth of this age would commit these serious offences.

43 When the present offences were committed, the 2nd applicant had already committed three other offences, one was assault and the other two were related triad membership offences. But as can be seen from the Detention Centre/Training Centre Suitability Report, these offences together with the present ones were all committed within a space of 18 days or so. Obviously by then he was so swept up with the triad activities that the offences were committed one after one by him with scant regard to their consequences. This is not someone who commits an offence again after he has been punished for the last one.

The starting point

44 The learned judge used the same starting point of 10 years' imprisonment on the 1st and 2nd applicants for the sexual offences. The 1st applicant in fact was involved in two rapes : one by himself and the other by aiding and abetting the offence of the 2nd applicant. He was also involved in aiding and abetting the 2nd applicant in the indecent assault of the victim. A lesser starting point should be adopted for the 2nd applicant who was involved in one rape and one indecent assault.

Conclusion

45 After considering the seriousness of the offences and the age of the 2nd applicant, I would impose an overall sentence of seven years' imprisonment on the 2nd applicant; a sentence for the rape of seven years and for the indecent assault of two years; to run concurrently.

Hon Stock JA:

46 It follows from these judgments that we grant D2 leave to appeal against the sentence, treat the hearing of the application as the appeal, set aside the sentence on count 5 and, by reason of the majority view, we substitute a term of eight years' imprisonment. The sentence on count 6 remains at three years, and the sentences on the two counts are ordered to run concurrently; a total, therefore, of eight years' imprisonment. The appeal in the case of D2 is allowed to that extent.