HKSAR v. KO CHI WAI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 564
(Criminal)

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J U D G M E N T

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

1. The Applicant was charged with three charges. The first was for rape. The second which was in the alternative was for unlawful sexual intercourse with the girl under the age of 16 and the third was for arson. There were discussions between those advising the Applicant at the time and the prosecution concerning the possibility of pleas of guilty to the second and third charges. This was based on the fact that the Applicant accepted in general terms that the incidents in question had taken place. He did not accept that he had raped the victim who was a 14-year-old girl. He did however accept that he had had sexual intercourse with her but that this had been with her consent. He also accepted that he had caused the fire in question but he claimed that it had been an accident.

2. In the facts which the prosecution were prepared to agree they did not agree that the girl had willingly consented to sexual intercourse or that starting the fire had been an accident.

3. It was however agreed that the Applicant would plead guilty to the second and third charges and that a Newton Inquiry would be conducted by Madam Justice Beeson, the trial judge. It was further agreed that the form that the inquiry would take would be that the judge would hear evidence from the girl and from the Applicant and that she would then determine the facts upon which she would sentence the Applicant. The judge was prepared to acquiesce in this and the hearing proceeded on this basis.

4. The brief facts which the prosecution was prepared to agree were these:

"1. At around 1630 hours on 3.2.97, PW1 met the Defendant at the lobby at Ground floor, Fu Shun House, Fu Shan Estate, Wong Tai Sin when she returned home. The Defendant was the elder brother of PW1's former boyfriend and they both lived at the same building. Both PW1 and the Defendant got into the lift with two other persons.

2. When the lift reached the 13th floor, PW1 intended to get out but was stopped by the Defendant. The Defendant waited for the other two persons to leave the lift before he approached PW1. PW1 pressed the 13/F button inside the lift again. The Defendant then asked PW1 if she was afraid of him. When the lift reached the 13/F, the Defendant walked out and PW1 followed him.

3. Defendant asked PW1 if she knew who he was. Defendant also touched PW1's face with his right hand and tried to kiss PW1. PW1 pushed the Defendant away but the Defendant kissed PW1 once on her forehead. Defendant then suggested to go to the rear staircase where PW1 should talk to him. PW1 was frightened that the Defendant would hit her, so she followed him to the rear staircase.

4. At the rear staircase, Defendant hugged PW1 and told her that he loved her. Defendant asked PW1 to be his girlfriend but PW1 refused. Defendant told PW1 that she left his brother so she should apologise to him as well. Defendant told PW1 to follow him to his home. PW1 was afraid of the Defendant so she decided to go with the Defendant. While they were walking down the stairs, Defendant asked PW1 if he was forcing PW1, PW1 said no.

5. On arrival at Defendant's home, Defendant asked PW1 to take off her clothes. When the Defendant saw PW1 did not follow his instruction, he removed all PW1's clothes, leaving her underpants and shorts. Defendant told PW1 to go to bed. Defendant then took off his clothes and drank some beer.

6. Defendant climbed on the bed and took off PW1's shorts and underpants. Defendant kissed PW1 on her face, breasts and private parts. Defendant then inserted his penis into her vagina and moved inside her for about 10 minutes or so. Defendant then withdrew his penis and rested beside PW1.

7. About 20 to 25 minutes later, Defendant kissed PW1 again and inserted his penis again into PW1's vagina. Defendant moved inside PW1 for several minutes and then rested again. The whole act was repeated twice when PW1 cried and asked the Defendant to let her go. Eventually, Defendant agreed.

8. Before the Defendant released PW1, he told her to go with him downstairs to a store to change a can of beer as the one he got was not cold enough. PW1 did so. Defendant then ordered PW1 to accompany him to find a friend which PW1 also complied. After that Defendant escorted PW1 to return home.

9. About 15 minutes after PW1 returned home, Defendant knocked on PW1's door and told her to go out with him. When PW21, PWl's grandmother, opened the door, Defendant told her that he was an employee of cable television and he asked her to open the door. When PWl's grandmother refused to let the Defendant in, Defendant left.

10. About 15 minutes latter, Defendant knocked on PW1's door again and asked her to go out with him. Despite being told by PW1 that the gate was locked and she had no keys, the Defendant insisted PW1 to go out with him or else he would set fire to PWl's home.

11. About 20 to 25 minutes later, PW1 heard some noise outside her door. So she climbed up her bunk bed and looked through the ventilation window to the corridor outside her home. PW1 saw the Defendant held a tin of petrol and poured it over and under the door. PW1 then opened the door and saw the Defendant held a piece of cloth and lit it. PW1 closed the door and called the police immediately. At that time, only PW1 and her cousin (PW2) were inside the house. PW2 also saw petrol running into the flat through the gap of the door. Then the doorway was on fire and it soon spread from the doorway to the sitting room inside the flat.

12. Both PW1 and PW2 were sent to the hospital. Only PW1 was injured. The flat and properties therein, as particularized in the indictment were damaged.

13. At 2135 hours on 3.2.97, police arrived at the ground floor of Fu Shun House, Fu Shan Estate. At around 2141 hours on the same day, PC 53241 (PW5) saw the Defendant ran away when he saw PW5. PW5 immediately called PC 33614 (PW6) to assist him to chase the Defendant as he suspected the Defendant was connected with the present case.

15. The Defendant was searched by PW6 with four lighters found from the front right pocket of Defendant's trousers. In addition, PW6 noticed smell of petrol on the Defendant's hands. When PW5 asked the Defendant why he had so many lighters with him, Defendant answered, 'Sir, I set fire on the 13/F. Give me a chance.'

16. Under caution, Defendant said, 'Sir, I was playful at the time. The girl ignored me, I just want to frighten her.'

17. Defendant and the exhibits were taken to Wong Tai Sin Police Station on the same day. When the Defendant was interviewed by the police, he admitted he bought 4 litres of petrol from a Caltex Petrol Station nearby before he went to PWl's home. Defendant intended to frighten PW1 only by pouring petrol at her door. Then Defendant accidentally dropped a cigarette on the floor thereby causing a fire. Defendant said that he had sexual intercourse with PW1 under her consent.

18. Cashier of Caltex Petrol Station at Fu Shan Estate, Po Kong Village Road (PW4) was interviewed. He remembered at around 2100 hours on 3.2.97 when he was working in his shop, a man, later known to be the Defendant, approached him for he wanted to buy some petrol. PW4 asked the Defendant if he had a container for the petrol, to which the Defendant answered in the negative. PW4 then got a container (with the word Caltex written on it) to contain the 2 litres of petrol for the Defendant. According to the company's instruction, PW4 asked for the identity of the Defendant and recorded it in his sales record. Defendant's HKID card no. was recorded."

5. PW1 gave evidence concerning her lack of willingness to have sexual intercourse with the Applicant. The Applicant then gave his version of the incident. In cross-examination he agreed that he had previously made a statement to the effect that after the girl had reached his home, she took off her clothes and skirt with "half consent and half refusal". He experienced some difficulties in reconciling this statement with his evidence. In examination in chief when the subject of sex had been raised he had said that the girl had said "there would be no problem".

6. The Applicant also had difficulties concerning his evidence in relation to the fire. As could be seen from the uncontroversial facts the Applicant had deliberately purchased a quantity of petrol and taken it to the girl's residence and that this was after he had threatened the girl that he would set fire to her home if she did not come out with him.

7. Perhaps not surprisingly in these circumstances the judge found that essentially the facts were as recorded in the brief facts according to the prosecutions contentions. The judge obtained psychiatric and psychological reports and later proceeded to sentence the Applicant to 2 years' imprisonment on the second charge and 5 1/2 years' imprisonment on the 3rd charge. He ordered that 18 months of the sentence on the second charge should be served consecutively to the sentence on the third charge thus making a total sentence of 6 years 10 months.

8. In his application the Applicant has sought leave to appeal against his convictions. In his grounds of appeal he states:

"In the trial proceedings, I denied an important part of the facts of a charge. However, there was no jury in the trial and I felt the woman judge was biased to the woman victim, resulting in a trial which is unfair to me. In the light of the above, I hope that my appeal will be granted."

9. He also seeks leave to appeal against the sentence imposed upon him on the second charge.

10. It would appear that the Applicant is labouring under a misapprehension. He agreed to plead guilty to these offences and that there should be a Newton Inquiry in the form which was adopted. It is also true to state that the consent of an underage girl does not constitute a defence to the charge and that even on the basis of what the Applicant is now contending he was rightly convicted of this charge. The judge after the Newton Inquiry held "I accept that the Crown case in this matter has been established by the evidence of P.W.1. I am satisfied that she was coerced into this intercourse. Also, by the fact that this is a man of 26 and she is a girl of fourteen-and-a-half, and she was obviously pressured into this whole incident."

11. It is however permissible to consider the question as to whether the judge was right to hold for the purposes of sentence that the girl had been "pressured into the whole incident".

12. In this connection the judge had before her the evidence of the girl and the highly equivocal evidence of the Applicant. The judge also bore in mind the considerable disparity in the ages of the Applicant and the girl. The Applicant was aged 26 at the time of the offence and the girl was aged 14.

13. In addition to this there was the opinion expressed in both the reports that one of the explanations for the Applicant's behaviour was that he had been under the influence of alcohol at the time of these offences.

14. We do not think that the judge can be faulted for coming to the conclusion that the sentence on the second charge should be based upon the fact that the girl was "pressured into this whole incident". Equally it would appear that it was inevitable in the circumstances that the judge would sentence the Applicant on the basis that he had deliberately started the fire.

15. Mr. Kwong who represented the Applicant on the application before us to appeal against sentence. This was limited to the application for leave on the second charge. His main complaint was that the starting point of 3 years' imprisonment was excessive. In his written submissions he speculates that the reason for the judge adopting such a high starting point may have been that the judge was influenced by the Applicant's record.

16. There had been a previous incident when the Applicant had attempted to press his attentions on another girl and when his attempts were unavailing had made a malicious and false report to the police. There is no reason whatever to believe that the judge who is an experienced judge would have been influenced by this other than not treating him as a person of good character.

17. What needs to be borne in mind in this case is that it was a very bad case of unlawful sex with a girl under the age of 16. Indeed the pressure used rendered the offence perilously close to rape which would of course have attracted a much more severe penalty. It can also be said that the Applicant was extremely fortunate to get a 1/3 discount for his plea bearing in mind that as a result of the Newton Inquiry the girl was subjected to the indignity and embarrassment of having to give evidence concerning the incident. These applications are wholly without merit and are dismissed. We order that 3 months of the time he has served will not count towards his sentence.