MAHAL HARPREET SINGH v. HKSAR

CACC 462/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 462 OF 2010

(ON APPEAL FROM HCCC375/2009)

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BETWEEN

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JUDGMENT

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Hon Wright J (giving the judgment of the Court):

1.  The applicant was convicted after trial, before Beeson J and a jury, of one count of rape and one count of indecent assault: the former by a majority of 5:1; the latter unanimously. He was sentenced to undergo imprisonment for a period of 7 years 6 months and 6 years, respectively, the sentences to be served concurrently . He seeks leave to appeal both conviction and sentence. He is unrepresented in respect of the application relating to conviction: he is represented by Mr McGowan of counsel, who also represented him at trial, in respect of the application relating to sentence.

2.  When sentencing the applicant the judge gave an overview of the evidence which had been before the jury, which we quote:

The accused and the complainant were introduced by a mutual acquaintance who believed that each was looking for a romantic relationship. The accused and the complainant exchanged telephone calls from 25 June 2009, after which they met on 27 June 2009 for lunch. After the meal, the accused talked the complainant into going to an hourly hotel to chat. She was reluctant to do so, but the accused promised her he would not take advantage of her, so she consented and the room was rented for one hour.

Once in the room, the accused and the complainant hugged and kissed each other, but when the accused tried further intimacies, and in particular, when the accused tried to undress her, the complainant broke away and made it clear to the accused that she did not want to go any further. On that occasion the accused complied and, soon after, the accused and the complainant left the building together.

The complainant believed that she had come to an agreement with the accused that there was to be no sexual activity or relationship without her explicit consent. The accused told her he would abide by such an agreement. It was in those circumstances that the complainant forgave the accused, and the relationship continued to develop, with meetings, telephone calls and messages.

On 2 July 2009, quite late in the day, the accused arranged to meet the complainant who had been shopping with her friend, (who gave evidence as PW2), according to a pre-existing engagement. The complainant left her friend at about 9:30 pm and went to meet the accused, who was waiting for her outside the building where his flat was.

The complainant did not know this flat was his, and the accused tricked her into going upstairs with him under the pretext that he had to leave something at the flat for a friend whose flat he said it was.

The complainant initially waited outside the door of the flat, but eventually was drawn into it. After telling her he had waited so long for her, the accused then forcibly undressed her, and, despite her refusal, her resistance and her protests, the accused forced her to perform oral sex on him and then, after that, despite her continued struggle and protests, the accused had sexual intercourse with the complainant without her consent.

Initially the accused wore a condom, but he removed it at the time the oral sex took place, and thereafter the accused did not wear a condom for the intercourse, although he ejaculated outside her body.

Soon after, the accused told the complainant to stop crying as it was not her first time, and she made her way home. On the way, she telephoned a friend, PW2, and told her what had happened. PW2 arranged to meet the complainant, and later gave evidence that the complainant was very distressed at the time she met her. She stayed with the complainant at the complainant's family home that night and tried to comfort her. In the morning, she convinced the complainant, who showed some reluctance to do so, that she should report to the police, and a report was made to Yuen Long police station.

The accused was arrested about 10 days later and charged.... At trial, he contended that the complainant was a willing and enthusiastic participant who had consented to the oral sex and the intercourse on 2 July. He gave graphic and detailed evidence about the relationship, and also alleged that the complainant had taken the sexual initiative.

CONVICTION

3.  The applicant prepared home-made grounds of appeal against conviction and subsequently wrote a three-page letter which, he said, contained his written argument. The four grounds of appeal were:

first, the judge erred in discharging one juror and continuing with a jury of six when she should have empanelled a new jury of seven;

second, the judge erred in permitting the prosecutor to cross-examine him about an "uncharged act";

third, the judge failed adequately to direct the jury on an "uncharged act"; and

fourth, he was prejudiced in that, during closing submissions, the prosecutor had mentioned that he had "bad behaviour with the police".

4.  In his subsequent letter, he introduced an additional ground which related to a request by the jury to view a CCTV film, which request subsequently was withdrawn. We shall deal with this as the fifth ground.

Ground 1: discharge of juror.

5.  Provided that there remain at least five jurors on the jury, whether to discharge a juror and continue the trial with a reduced number of jurors or whether to discharge the entire jury and start afresh is a matter upon which the trial judge will exercise his or her discretion. The fact that another judge has exercised the same discretion differently in other, unrelated, proceedings is irrelevant.  We note, particularly, that in this matter the complainant had already testified extensively by the time the juror was discharged. Given the nature of the offences about which she was testifying it is entirely understandable that the judge exercised her discretion in the manner she did. The juror was discharged due to a prearranged journey scheduled to commence on the last day listed for trial: the judge, understandably, was concerned that that fact may put pressure on that juror or on the jury as a whole. There is nothing before us which impeaches the judge’s decision.

Grounds 2 and 3: uncharged act.

6.  These grounds may be addressed together. The "uncharged act" to which the applicant refers is the conduct which the complainant described as occurring in the hourly hotel after lunch on the first day when they met, 27 June 2009. She made no complaint to the police. It was quite clear, in the context of her evidence as a whole, that she was simply setting the scene and explaining to the jury, first, how that event set the parameters of the relationship between her and the applicant and, second, why she continued to associate with the applicant thereafter. Indeed, the complainant’s testimony regarding the applicant's willingness to comply with a request to desist from further advances may be thought to be favourable to him. An objection to cross-examination concerning this issue is misconceived. The judge dealt with it appropriately and in context in the summing up.

Ground 4: bad behaviour with police.

7.  This appears to relate to the evidence concerning the applicant’s conduct relating to the premises where the offences occurred. There was evidence, which was unchallenged, before the jury that he had arranged to move into another room and did so move very shortly after the day of the offences: this arrangement, however, had been made prior to the commission of the offences. On the day the police went to the premises, the applicant emerged from his room only when, apparently, he thought the police had left; he encountered a police officer who was quietly waiting outside; the applicant then concealed the fact that it was he who previously had been in occupation of the room where, and at the time when, the offences had occurred. He did not reveal his identity to the police officer but offered to help him locate the previous occupant of the room where the offences had occurred after they had gone downstairs to the lift lobby. Once there, the police officer had become suspicious and the applicant only then had revealed his true identity and the fact that he had previously occupied the room where the offences had occurred. He gave an explanation before the jury which was that he had been harassed by others and had even made a complaint relating to criminal intimidation: he said that he wished to conceal his present whereabouts so as to avoid a repetition of that conduct.

8.  We also have had the opportunity of perusing a transcript of the prosecutor’s closing speech: it was moderate and appropriate. No impermissible prejudice was occasioned to the applicant. This was all material which was relevant.

9.  The jury was carefully reminded of the applicant’s evidence on this issue with the judge suggesting that the jury may find the applicant’s explanation plausible. In particular, the judge highlighted to the jury the applicant’s testimony regarding how he had wished to change rooms because of difficulties with water; how he had been waiting for the flat into which he moved to be renovated before he moved; how he had turned down a flat which was available earlier on the floor above. The judge specifically indicated to the jury that they were not to take the move to another flat being a consequence of the offences. In addition, the judge was careful to point out that even though the applicant may not have been forthcoming when he went upstairs, when he arrived downstairs he showed the police his identity document and "made no attempt to escape."

Ground 5: the jury's question regarding a  CCTV recording.

10.  The jury had the opportunity of viewing a CCTV recording apparently showing the accused and the complainant entering and leaving the building on 2 July. The jury viewed the recording on more than one occasion in court during the trial. The defence asserted that the jury would be able to see the body language of the applicant and complainant from that recording and that it was material to the defence case. After they had retired, they informed the jury usher that they would like to view the recording again. The matter was conveyed to the judge, apparently orally. The jury had earlier been told by the judge during the summing up that if they required any assistance with matters of law or to be reminded of any of the evidence the parties would be recalled and the request attended to in court.

11.  Apparently, after their request they were told by the usher, on the instructions of the judge, that there would be a delay as it was necessary for the court to be reconvened and the recording would be played in court. Specialised equipment, which is not available in court as a matter of course, is necessary to play the recordings of this kind to the jury. The jury indicated to the usher that they no longer wished to see the recording. When the jury later came into court in connection with an unrelated matter the judge enquired whether, notwithstanding their indication to the usher, they still did wish to see the recording. She was informed immediately by the jury foreman that they did not, that all they required was some further time to deliberate.

12.  In this context, three matters arise: first, the request to view the recordings apparently was made orally, not in writing; second, the judge communicated with the jury without the knowledge of counsel, only advising them ex post facto of the request and her response to it; third, the communication was made through the usher.

13.  The judge had indicated in her summing up that if the jury required assistance on a matter of law or wished to be reminded of some part of the evidence a question or request should be in the form of a note to be handed to the usher for delivery to the judge. This course apparently was not followed in the present matter. The immediate effect is that this court is deprived of the opportunity of seeing the precise terms of the request or enquiry by the jury which, as a matter of principle, should be available to it: a written request which would be retained on the court file and available in the event of an appeal. A further, potentially more serious, consequence is that there is no record of what in fact the usher actually told the jury when conveying the judge's response. Was the jury told simply that they could not view the recordings? Were they told that they could only be viewed in court but that no equipment was available? Were they told that there would be a delay which deterred them from pursuing their request? There is simply no record in existence.

14.  This court, differently constituted, in HKSAR v LEUNG Wai-hung CACC52/2006 (unreported, 26 January 2007) considered the appropriate course to be followed where a judge receives a request or question from the jury.  In doing so it adopted the "basic principle" enunciated in R v Green (1950)34 Cr App R 33 at 34 where Goddard LCJ said:

This court and the Divisional Court has said on more than one occasion that any communication between a jury and the presiding judge must be read out in court, so that both parties, the prosecution and defence, know what the jury are asking, and what is the answer.

The appropriate course for the judge to have followed in this matter would have been to recall counsel to court, to have brought the jury back into court and then to have explained to them that their request could be accommodated but only in the courtroom and once the necessary equipment had been made available.

15.  That said, on the specific facts of this matter, we are satisfied that the later enquiry by the judge of the foreman and his clear indication that the jury no longer wished to view the recordings resolved any potential issue there may have been in regard to the course followed by the judge.

16.  There is no merit in any of the grounds of appeal in regard to conviction. The application for leave to appeal conviction is dismissed.

SENTENCE

17.  The applicant's initial single home-made ground of appeal has been replaced by five perfected grounds of appeal drafted by Mr. McGowan, the fifth being the catchall ground that, generally, the sentences are manifestly excessive and/or wrong in principle.

Grounds 1 and 2: erroneous starting point,  not in accordance with current sentencing practice.

Ground 4: taking into account material not made available to the applicant.

18.  The first two grounds may be taken together as each is predicated upon the submission that the starting points of  8 years imprisonment in respect of the rape and 6½ years imprisonment in respect of the indecent assault were manifestly excessive. It is necessary also to consider the fourth ground at this stage as it affects the starting point.

19.  Historically in regard to sentencing for the offence of rape, in R v LIU Ping-kin [1993] 2 HKC 192 this court, comprising Power VP, Penlington and Litton JJA, made it clear that in A-G v IP Chung-hang  [1989] 1 HKLR 149 it previously had adopted both the starting point of 5 years imprisonment for the offence of rape as then had been adopted in England in R v Billam (1986) 82 Cr App R 347, as well as the matters identified by the English Court of Appeal in that decision to be treated as aggravating features. Subsequently, it was indicated that courts in Hong Kong are entitled to take into account local conditions and to pass sentences that vary from those referred to in the Billam sentencing guidelines: see, for example, R v SUNG Kwok-man and Another [1994] 1 HKCLR 164 at 175;  R v LAU Yuk-ming [1994] 2 HKCLR 256; Secretary for Justice and LAU Yun-leung [1999] 3 HKLRD 289; Secretary for Justice v Sukhmander Singh, CAAR 5/1999 (unreported).

20.  This court has had regard to a further decision of the Court of Appeal in England reported as R v Millberry and Ors [2003] 1 WLR 546. Millberry noted at §19 that the report of the Sentencing Advisory Panel, which it was considering, recorded that the five-year starting point after trial referred to in Billam is:

... appropriate for a single offence of rape on an adult victim by a single offender manifesting none of the features identified below that attract a higher starting point.

21.  That Court then went on to consider, at §32, nine factors,  of which five were previously identified in Billam, which were aggravating and would justify enhancing the five-year starting point. The court indicated that it specifically agreed with those factors which are:

(i) the use of violence over and above 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 transmission of life-threatening or serious disease; (v) further degradation of the victim, e.g. by forced oral sex or urination on the victim...; (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 years starting point); (vii) the presence of children when the offence was committed...; (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...

22.  The court observed, at §34, that:

... we would emphasise that guidelines such as we have set out above can produce sentences which are inappropriately high or inappropriately low if sentencers merely adopt a mechanistic approach to the guidelines. It is essential that having taken the guidelines into account, sentencers stand back and look at the circumstances as a whole and impose the sentence which is appropriate having regard to all the circumstances. Double accounting must be avoided and can be a result of guidelines if they are applied indiscriminately. Guideline judgments are intended to assist the judge arrive at the correct sentence. They do not purport to identify the correct sentence. Doing so is the task of the trial judge. [Emphasis supplied]

23.  The applicant correctly, as the respondent accepts, referred to the three aggravating features identified by the judge: that, first, there was a degree of planning to secure the complainant's trust in order to trick her into the situation where she was raped and indecently assaulted; second, the applicant abandoned the use of a condom after the complainant performed oral sex on him , with sexual intercourse thereafter continuing unprotected; and, third, there was a degree of force used to overpower the complainant in excess of that necessary to effect the rape. Consistent with Millberry , on the testimony of the complainant, which the jury must have accepted, the judge was justified in identifying these three features as aggravating sentence.

24.  The applicant advanced seven factors the absence of which he suggested the judge failed to take into account when considering the three aggravating features upon which she relied or in arriving at sentence. It is submitted that because none of these features was present, the gravity of the applicant’s conduct was such as not to justify the starting point taken by the judge. In our view, this does not assist the applicant.

25.  It is only the first of the features referred to by the applicant which requires any specific comment by us. It suggests that "even though the sex was unprotected" the judge failed to take into consideration the fact that the applicant ejaculated outside of the complainant's body. The judge made particular reference to this feature. She plainly took it into account when sentencing.

26.  The Ontario Court of Appeal in R v Kennedy 1999 CarswellOnt 3599; 29 C.R. (5th) 133, 126 O.A.C. 307, 140 C.C.C. (3d) 378 has recognised the aggravating aspect of failing to use a condom as follows:

In this case there were many serious aggravating factors surrounding the commission of the offence which should be taken into account when assessing and determining the need for general deterrence and the reflection of denunciation in the level of sentence imposed.

Those factors included: 1) … 2) the respondent had full intercourse with the complainant and ejaculated; 3) he did not wear a condom thereby exposing her to the risk of pregnancy and disease; 4)…

27.  Had any of the remaining six features referred to by the applicant been present they would have amounted to further aggravation which may have justified the selection of a higher starting point. The judge accurately assessed the applicant’s conduct and there is nothing in her sentencing remarks that suggests that she was under any misapprehension that the conduct of the applicant was worse than she had set out or that she had sentenced on any basis other than that she had described. The fact that there was an absence of additional aggravating features, any one or all of which may theoretically have been present, does not mitigate the gravity of the applicant’s conduct.

28.  Once the judge had correctly identified the aggravating features then the sole question became whether the sentences either were manifestly excessive or wrong in principle, not whether they may have been different had other features been present.

29.  Before the trial judge and also in support of the submissions, especially on Ground 2, the applicant referred to a number of cases relating to sentence previously decided either on appeal or at first instance. This court, variously constituted, has said consistently and with regularity over the years that reference to sentences imposed in other cases, other than where sentencing tariffs have been laid down, is of limited utility given the infinite factual variations, some gross some subtle, which occur.

30.  There was a further feature which the judge took into account when considering the appropriate starting point: her doing so gave rise to the fourth ground of appeal. Although it is said that this ground is no longer argued as a specific ground of appeal, it raises an issue which is important and which we need to address.

31.  After the conviction of the applicant proceedings were adjourned. The judge heard mitigation several weeks later. In the course of mitigating Mr. McGowan made an assertion to the effect that it appeared that the complainant has had further relationships since the offence. The following exchange took place:

Court: Well, I have a victim impact report that indicated otherwise.

Mr McGowan: Was there a victim impact...?

Court: I asked for a victim impact statement. The psychologist indicated in the report in August that she:

"Suffered from post-traumatic stress disorder with recurrent intrusive thoughts, irritation and sleep difficulties. Perception towards herself and trust in males was damaged. She was worried in case the offender would retaliate and her need for psychological treatment facilitating her to cognitively and emotionally process this traumatic experience is therefore indicated"

Mr McGowan: My Lady, I haven't seen that. I don't think my learned friend has either, otherwise I wouldn't have said what I just said.

Court: No. Well, the report was sent to me, and I don't think it was actually sent on to counsel, but those were the findings, anyway.

Mr McGowan: Yes. Well, perhaps I should withdraw what I've just said, my lady, on that particular aspect.

32.  For reasons which are unclear to us, the judge did not make available a copy of the report she had obtained to either the prosecution or, more particularly, those representing the applicant. It is also unclear to us why, when the existence of the report was revealed in the exchange to which we have referred, counsel did not immediately ask the judge for access to it.

33.  It should hardly need to be said that, as a basic principle, an offender is entitled to know the factual basis upon which he is being sentenced. If one of the factors to be taken into account in assessing sentence is the effect of his conduct on his victim, and there exists a report detailing that effect, the offender is entitled to a copy of it in order to be in a position to make any representations to the judge he may wish. If for any reason the judge is unable to supply the offender with the report, for example where the victim has specifically directed that this not be done, then the judge should disregard the report entirely.

34.  The added factor in the present case is that applicant was made well aware, during the course of mitigation on his behalf, of the existence of the report. It would have been apparent to him, or those representing him, from the fact that the judge quoted openly from that report that she intended to or may take its contents into account. The judge should have been asked to make a copy available to, at least, the applicant: had she declined, argument could have been addressed to her as to whether or not she was entitled to rely on the content of the report. This did not happen.

35.  The extract which the judge quoted during mitigation is the essence of the report but when she sentenced the applicant she went beyond that passage saying:

I sought a psychological report about the impact of the rape and the indecent assault offences on the victim. Some psychological tests were administered, but the victim was the only interviewee, and that is a matter I bore in mind when I considered the report. Two years after the offences the victim still suffered from some after-effects. Her initial intense distress had subsided, but it was stirred again in the months after the trial proceedings, a process that was no doubt exacerbated by her being required to give evidence.

The psychologist suggests she had a form of post-traumatic stress disorder, which encompassed recurrent disturbing memories of the rape, avoidance of matters that reminded her of it, and physiological effects such as trembling and heart pounding when she is reminded of what happened. She now fears South Asian men as a group and consciously avoids contact with them. Since the rape she has avoided dating anyone and is pessimistic about her chances of marriage and is less active socially. She fears retaliation of some sort from the defendant and considered changing her job to prevent the defendant from locating her, and a psychologist considered that she had a need of some psychological treatment so as to cognitively and emotionally deal with the traumatic experience.

36.  In our judgment the starting point in respect of each offence was manifestly excessive. Taking a basic starting point of 5 years imprisonment for the count of rape we consider that the judge should have enhanced it by a period of 2 years to cater for the aggravating features which she correctly identified. That results in a pre-mitigation figure of 7 years imprisonment.

37.  In regard to the sentence for the count of indecent assault, the judge noted that it involved forced oral sex, specifically pulling the hair of the complainant, which took the offence into what she described as "... a fairly serious level of indecent assault". We accept that characterisation but judge that the appropriate starting point, after trial, was one of 5 years and 6 months imprisonment. The judge correctly recognised that the sentences should be served concurrently with one another.

38.  The judge allowed a reduction of 6 months imprisonment from each starting point, taking into consideration other matters which are addressed in a separate judgment. We judge that to have been appropriate.

39.  The application for leave to appeal sentence is granted. Treating the hearing as the appeal proper, the appeal is allowed: the sentences imposed are set aside and sentences of 6 years 6 months imprisonment and 5 years imprisonment on Counts 1 and 2 respectively are substituted therefor, the sentences to be served concurrently with one another.

Stock V-P.

40.  I wish to add to the judgment of Wright J, which is the judgment of the court, a few words arising from the judgment of Hartmann JA in HKSAR v CHUNG Chi Wing (unreported CACC81/2009, 31 May 2010). This is in addition to the comments made by me in respect of that judgement in HKSAR v NGAI Yiu Ching (unreported CACC107/2011, 3 October 2011).

41.  I see featured in the submissions on behalf of the applicant in this case the assertion that the judge failed to take into consideration that the complainant "knew where she was at all times. She was not taken, against her will, to somewhere completely unknown to her; further and in the alternative [she] was not violated in her own home."

42.  The first limb of that submission seems to echo the remarks of Hartmann JA in CHUNG Chi Wing - the case where a schoolgirl aged 13 years was raped in a vehicle parked outside school - that the sentencing judge should have taken into account the fact that "the victim was not... driven off to some other place which would have magnified her uncertainty and fear. The vehicle remained parked opposite the school. She knew where she was."

43.  Those comments in the judgment of Hartmann JA are not to be taken as suggesting that rape of a girl or woman in a place familiar to her is less serious than rape elsewhere. As Mr. McGowan's alternative submission recognises, violation of a girl or a woman in her home or at any other place which has been taken by the victim as a personal sanctuary safe from the intrusion of outsiders (such as at or outside of school) is a serious matter indeed. The home and the school are places to which the householder and the schoolchild, respectively, come and go on a daily basis, places where they feel and are entitled to feel comfortable and are places to which, unless forced by the experience to change home or school, the victim will be returning day by day after the violation of her person, a constant reminder, therefore, of the drama visited upon her by the act of rape.