HKSAR v. CHAN LI FAT

CACC 308/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 308 OF 2009

(ON APPEAL FROM HCCC NO. 119 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Tang VP (giving the reasons for judgment of the Court):

1.  The applicant was convicted on two counts of aggravated burglary and two counts of rape. He was sentenced by Deputy Judge Mackintosh (as he then was) on 11 September 2009 to life imprisonment with a minimum term of 12 years on the two aggravated burglary counts and to life imprisonment with a minimum term of 18 years on the rape counts.

2.  The applicant appealed against the sentences imposed.  At the conclusion of the hearing on 17 June 2010, we dismissed the applicant’s appeal in relation of the two counts of rape, but reserved our decision in relation to his sentence on the two counts of aggravated burglary. 

3.  The maximum sentence for rape as well as for aggravated burglary is life imprisonment.  However, a discretionary life term should only be imposed if there are:

“… good grounds for believing that the offender may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence. By ‘serious danger’ the Court has in mind particularly serious offences of violence and serious offences of a sexual nature. The grounds which may found such a belief will often relate to the mental condition of the offender. …” per Lord Bingham CJ in Attorney General’s Reference No. 32 of 1996 (Steven Alan Whittaker) [1997] 1 Cr App R (S) 261 at 264.

4.  However, there may be cases where the offender is not

“… a man who has anything wrong with his mind in the medical sense – far from it. This is the case of a man who is a very skilful and dangerous criminal who has not been deterred from committing serious crimes, no matter how long the sentences which have previously been passed upon him. He comes into a very different category. No medical report was called for, and rightly. ...” per Watkins LJ in R v Easterbrook (1990) 12 Cr App R (S) 331 at 333.

5.  Thus,

“… it is well-established that there is no need for medical evidence to be led in order to show an unstable character such that the offender is likely to commit further offences of the same kind. It may be sufficient if previous offences taken into consideration show in themselves a picture of continuing danger to the public such as to indicate that element of unstable character to which we have referred ...” per Lord Taylor CJ in Attorney General's Reference No 22 of 1995 (Semper) [1996] 1 Cr App R (S) 401 at 404.

The facts

6.  On 22 March 2008, the applicant had broken into a flat.  When the female occupant returned at 2 am, he immediately threatened her with a 25cm-long knife which he had brought with him.  He then tied her up using cloth and computer cables and covered her with a blanket.  After ransacking her flat, he demanded the PINs for ATM cards he was stealing.  He used scissors to cut off the outer clothing of this woman, then he removed her upper and lower underclothing, indecent assaulting her breasts and raped her while she was tied up and blind-folded.  He did not use a condom.  Then he tied her to the headboard of her bed before leaving, having stolen the cash and other items.  It took her an hour of shouting to attract a neighbour’s attention and obtained assistance after she had bitten through the cables to get free and rolled to the front door.

7.  She was so traumatised by the attack that she moved out from her flat immediately and never returned.  She suffers frequent bad dreams.  She found it difficult to work for some months and had little contact with her friends.  Her relationship with her boyfriend was affected though he had been supportive.  She has not been able to confide to her parents.

8.  Then on 27 June 2008, again, in the early hours of the morning, the applicant entered another flat by prising open a window.  Inside there were two females: a woman in her fifties and her daughter-in-law, a woman in her late twenties.  They were sleeping in separated rooms.  The older woman woke up and found the applicant in the living room masked and wearing sunglasses.  He was armed with a 30 cm long knife which he used to threaten her.  Although she handed over her wallet, he was not satisfied and he pushed her into her bedroom and used packing tapes to tie her hands and feet and to cover her eyes and mouth.  He then ransacked her bedroom and the living room. 

9.  In order to protect her daughter-in-law, this lady lied to the applicant and said that she was alone in the flat.  But he heard the noise from the other room and then he applied more tapes to the older woman to secure her.  He then punched the trussed-up woman and threatened to kill her before he turned to the other room.  He entered the other room and woke the daughter-in-law, and then threatened her with the knife.  He tied her hands to her back and her feet with plastic straps.  He blind-folded her with tapes and ransacked her room, demanding the PINs for ATM cards.

10.  He squeezed her neck and threatened to kill her but she resisted.  He punched her heavily to her back.  She was shrieking with fear.  Then having covered her face, he removed the lower clothing of this tied-up woman.  He fondled her breasts and shouted at her.  She pleaded with him not to interfere with her, but he ignored her and raped her.  Again, he did not use a condom.

11.  At some point during the rape, her husband returned home.  Though the applicant had put the chain on the door to prevent entry, he could see the applicant through the gap, partially dressed and leaving his wife’s bedroom.  He was fearful for her life, he managed to kick open the door and chased the applicant who nevertheless escaped through the kitchen window onto scaffolding which was there at the time.  He had stolen various items including cash, but he dropped his wallet in the chase.  That was why the police was able to locate and arrest him promptly.  The knife and the chopper which was used in this attack came from the flat but he had taken the plastic straps in with him and the packing tapes which he used to tie up the occupants.  Obviously, he had gone prepared to deal with any householders.

12.  From the victim impact statements taken a year or so after the event that his conduct has had a lasting effect on their lives.  The older woman, the mother-in-law, who had to listen helpless to her daughter-in-law pleading not to be raped, felt compelled to move away from the flat, afraid to be in the premises, unable and unwilling to face the ‘kai-fong’.  She wakes up at night in the sweat.  She dare not stay alone at home.  The younger woman and husband have moved far away, but even in their new home, she is afraid to be alone, afraid to sleep without lights being on.  She has problems sleeping.  Her husband is supportive but their relationship is being affected.  She fears going out at night.  Her personal security has been substantially undermined.

13.  The above recitation of the facts is taken from the learned judge’s reasons.  On these facts, the learned judge said these were offences of the utmost gravity, and that:

“… Such conduct, even taken in isolation from everything else that is known about you, deserves nothing less than the most severe punishment.”

14.  With respect, we agree. 

15.  But as the learned judge went on to recount, the applicant was a man with a long history of violent attacks upon women, including sexual violence in the victims’ homes.  The summary provided by Mr William Tam, SADPP, appearing for the respondent, suffices for the present purpose:

1979

“when the defendant was 17, false imprisonment of a woman whose clothing was removed and who was detained for a period and indecently assaulted. A Detention Centre Order was made.”

1983

“four offences of robbery, one indecent assault and one assault occasioning actual bodily harm … one robbery involved an attack on a woman alone at home at night, threatened with a knife, tied up and gagged. Another robbery involved an evening attack on a lone woman at home, threatened with a knife, tied up and gagged, and forced to remove her lower clothing to show that her claim to be menstruating, made by her to prevent a sexual attack, was true. Another robbery involved another woman threatened with a knife and tied up. When she resisted, she was beaten unconscious. The Applicant received a term of 12 years' imprisonment, from which he was released in February 1992.”

1993

“(starting in May 1993) involved 12 counts of robbery, one of indecent assault and one of rape. They were a series of attacks on beauty parlours staffed by women, all of which involved the use of a knife or a chopper to threaten the victims, in all of which the victims were tied up, and in some of which also gagged. In one case, the Applicant indecently assaulted one woman who resisted his attack. She was tied up and her clothing removed. The Applicant laid on top of her and rubbed his penis against her vagina until he ejaculated. He could not penetrate her because she was struggling. In another case, a woman who tried to escape was tied up and indecently assaulted to her upper body and raped. The Applicant received a total term of imprisonment of 16 years. He was released in July 2004.”

2005

“the Applicant was convicted of two burglaries of domestic premises committed in October and November 2004 and sentenced to 3 years and 4 months. After the arrest on the second burglary, he was found to be in possession of a knife. He was released in April 2007, about 11 months before the first of the present offences in question.”

16.  At trial, two medical reports were produced.  On behalf of the prosecution, Dr C H Yuen of Siu Lam Psychiatric Centre, his report dated 20 August 2009 stated that:

“17. His behaviour throughout the last 30 years illustrated very well that he is a person with Dissocial Personality Disorder. A description of the disorder in the International Classification of Disease (ICD-10) is like this:

Personality disorder characterized by disregard for social obligations and callous unconcern for the feelings of others. There is gross disparity between behaviour and the prevailing social norms. Behaviour is not readily modifiable by adverse experience, including punishment. There is low tolerance to frustration and a low threshold for discharge of aggression, including violence; there is tendency to blame others, or to offer plausible rationalizations for the behaviour bringing the patient into conflict with society.

He has most of these features.

18. Psychological assessment 20 years had already pointed out that he had such personality. It had also been hinted that the prognosis is poor.

19. He is definitely a risk to the society. It is impossible to predict at this stage when it would be safe to discharge him back to the community.

20.    He does not have any active mental problem that warrants regular psychiatric treatment or follow-up.”

He also recorded the applicant saying to him that the main reason for sexually offending was that

“the opportunity should not be wasted since I’m already committing another crime.” para. 9 of the Psychiatric Report.

17.  The applicant produced a report from Dr Anita C Leung, a registered psychologist (clinical).  As the learned judge noted in his reasons for sentence, Mr Andrews, who represented the applicant below as well as before us, was offered an opportunity of calling Dr Leung to testify but he declined to do so.  He simply sought to rely on her written report.  Mr Andrews’ decision is understandable, having regard to the quality of the report, which has been subjected to cogent criticism by Mr William Tam.  The following passages in her report with emphasis added by Mr Tam should be noted:

“Dr. Leung's report

24. In her report, Dr. Leung gave this opinion:-

8.2 He confessed that he experienced a sense of regret and fear while coercing the victims to copulate with him. He told that he was conscious not to ejaculate inside their bodies, and cared to clean up for them afterwards. He did not have violent sexual fantasies, or deviant sexual desire.

…

10. Opinion

10.1 Mr. Chan has been spending much of his time in reformatory and penal institutions. However, he is not a hard-core criminal with deep-rooted criminal beliefs and values. Motivation and attempts to lead a normal life as a constructive member of the society are evident at different points of his life. He had engaged himself in continuous learning and steady employment when he had such opportunities.

10.2 Nevertheless, when he was out of work, feeling bored and lonely, he was tempted to seek excitement from gambling. Once involving himself in gambling, he could not help developing the behavioural pattern of a pathological gambler - overconfidence, chasing after his losses, resorting to anti-social behaviour, and undermining his conscience. An extract from Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition (DSM-IV) on the diagnostic criteria for Pathological Gambling is enclosed in Appendix A for reference.

10.3 The diagnostic label of Dissocial Personality Disorder used by Dr. C. H Yuen does not fit him. Though he was reported to have engaged in subversive activities against the authority and breached prison disciplines in 1984 and 1985, similar report was not noted in later years. He was believed to have learnt to hold back his frustration when provoked, and to modify his behaviour. There was no indication that he had inflicted serious bodily harm to others. He did not appear to be a violent person. Under normal circumstances, he behaved in accordance with social norms: he was able to think rationally and to problem solve; he was capable of showing concern and having empathy for others. He had some friends and a mutually supportive relationship with his wife. It was worth noting that he was visited by a friend when he was arranged for the present interview. He did not blame others for his plight.

10.4   All in all, despite his criminal record. Mr. Chan is believed to be corrigible. With further psychological intervention, he could be helped to strengthen his self-management and coping abilities in face of adversities, loneliness and boredom. Considering the absence of psychosocial risk factors such as sexual deviation, victim of child abuse, major mental illness, substance abuse, suicidal and homicidal ideation, the risk of his engaging in violent or sexually violent offences is predicted to be not high.”

18.  We are surprised that Dr Leung was able to express the view that:

“… (The defendant) is not a hard-core criminal with deep-rooted criminal beliefs and values.”

19.  As Mr Tam has pointed out, the applicant’s previous records speak for themselves.  In total: 16 offences of robbery, 2 offences of aggravated burglary, 2 offences of burglary and 3 offences of rape, 3 offences of indecent assault, 1 offence of false imprisonment, and 1 offence of assault occasioning actual bodily harm.  Most, if not all of those offences, were committed at knife point. 

20.  Dr Leung also said:

“There was no indication that he had inflicted serious bodily harm to others; He did not appear to be a violent person. Under normal circumstances, he behaved in accordance with social norms …”

“He is believed to be corrigible.”

“… risk of his engaging in violent or sexually violent offences is predicted to be not high.”

21.  Having regard to the applicant’s record, these remarks are unreal. 

22.  Mr Andrews argued for a determinate sentence, even one which would keep the applicant in prison until his mid-60s.  The applicant was 48 when he was sentenced.  By the time the minimum term of 18 years is served he would be 66.  Mr Andrews submitted, given Dr Leung’s view that he is corrigible, an indeterminate term is not warranted.  We would not rely on Dr Leung’s untested evidence.  Moreover, as the authorities show, sometimes, on the basis of an applicant’s record, one may conclude that he may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence.  This is such a case.  We do not agree a determinate sentence is appropriate. 

23.  In fixing a minimum term, the learned judge had disregarded the fact that the applicant would not have the benefit of the one-third remission for good behaviour.  In HKSAR v Cheung Lai Man [2004] 2 HKLRD 473, this Court (Woo JA, Cheung JA & Yeung JA) said obiter that in fixing a minimum term the court should have regard to the fact that there would be no deduction for good behaviour.

24.  That was also the view of Lord Bingham CJ, when he said in Attorney General’s Reference No. 32 of 1996 (Steven Alan Whittaker) at 266:

“… We fix the appropriate period to be served for the purpose of retribution and deterrence at seven years, bearing in mind that that is a period to be served as opposed to the period subject to deductions which the learned judge imposed on the offender.”

25.  That was also the view of this Court in HKSAR v Zeng Fanyong [2006] 4 HKLRD 403. 

26.  Here, the learned judge said:

“This was referred to obiter, that is in a non-binding manner, in one of the previous cases to which I have been referred, namely Cheung Lai Man, where it was said that the sentencer should take account of it. It was not mentioned by the Court of Appeal in Hui Mak Kwan.

I am bound to say that whether a prisoner will or will not be eligible for such a discount is a matter of pure speculation at the time of sentencing him. That is partly why a minimum term cannot be equated with a normal sentence of imprisonment. I am satisfied that I must ignore the fact that you will not be eligible for discounts under the prison rules, or indeed subject to review by the Long Term Prison Sentences Review Board.”

27.  Whilst it is correct that whether any discount would be earned is unknown, it must be recognised that a minimum term of 18 years is not the same as a term of imprisonment for 18 years, the latter carries with it, the probability of a one-third discount.

28.  We appreciate it is not entirely satisfactory when fixing a minimum term, a one-third discount is automatically given because the offender would have the benefit of a discount whether or not he will earn it.  The better approach which is reflected in the cases mentioned above is that in fixing a minimum term, the court should clearly have in mind the fact that a minimum term is the minimum term that has to be served and that the minimum term must not exceed what retribution and deterrence require.  In deciding what retribution and deterrence require, one should take account of the fact that ordinarily, a prisoner may earn a discount of up to one-third for good behaviour.

29.  So, on this basis, we turn to consider whether a minimum term of 18 years is justified.  We realise that 18 years is what normally a prisoner who has been given a fixed term of 27 years would serve.  Even so, we believe on the facts of this case a minimum term of 18 years is fully justified.

30.  Mr Andrews also mentioned that the applicant would not have the benefit of section 67A of Criminal Procedure Ordinance, Cap. 221.  That is so.  But the learned judge was fully aware that the 18 years’ minimum term would run from the sentence and that time already spent in custody would not count towards the minimum term.  He mentioned that the applicant who was 48 would not be released until 66, 18 years later.  Again, we believe a minimum term of 18 years running from sentence is fully justified.  This is truly a very bad case.

Aggravated Burglary

31.  We turn to consider the sentences for aggravating burglary.  We do not believe that the nature of the offence of aggravated burglaries committed by the applicant warrant a life sentence.  Mr Tam submitted that we have to take into account the other offences committed by the applicant in the course of such aggravated burglaries.  But he would be sentenced separately for such other offences.  Although given the fact that we have dismissed his appeal on the two counts of rape, the result of his appeal against sentence in relation to the aggravated burglaries is academic, we do not believe these offences warrant a discretionary life term.  Although they involved the tying up of the victims, given all the circumstances, a sentence of 10 years is adequate.  Since the applicant has pleaded guilty, there should be a one-third discount, resulting in an individual sentence of 6 years and 8 months.  We believe the appropriate total sentence is 9 years.  That could be achieved by making 2 years and 4 months of one sentence to run consecutively to that of the other.

32.  We would order the total sentence of 9 years to run concurrently with the minimum term of 18 years on the rape counts.

33.  We would allow the appeal against sentence in relation to the charges of aggravated burglary, and substitute in relation to each count a sentence of 6 years and 8 months.  The second of such sentence to run consecutively to the first, making a total sentence of 9 years.  The total sentence of 9 years to run concurrently with the life term imposed in relation to the two rape charges.