Fong Lung Fai v The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.206 OF 1968

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DECISION

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1. This is a difficult and in many ways a repellent and sad case, repellent because of the injuries that have been done to a number of small girls, and sad because of the consequences which these injuries may ultimately have for them, and must have for the appellant.

2. The first ten charges, to which he has pleaded guilty, involved carnal knowledge of small girls under thirteen, and in many instances the actions of the accused were accompanied by violence. There are several features about the case that are puzzling because the accused, until these occurrences, seems to have led an honest, decent, respectable and creditable life - coming from humble origins and a difficult family background in China - having apparently been transferred or sold by his natural parents at an early age to foster parents, of whom the father was most of the time out of the country and unable to give him much care and attention.

3. Since he came from China some years ago, the accused has earned an honest living, and the readiness with which he admitted his guilt and his whole attitude towards these unfortunate occurrences might lead one to think that there was a possibility of finding in his mental condition some indication of diminished responsibility or something of that kind. The psychiatric report, which was made available to the judge in the court below and which has been made available to us, does not disclose anything of the sort. As a result, counsel, who has argued the case with his customary vigour and has brought to it a most commendable measure of concentration industry and hard work, has found himself unable to do more than to suggest that the occurrences with which we are here concerned arose from a distorted sense of values on the part of the accused.

4. Clearly, the judge had a difficult task in assessing the appropriate sentence for the first ten charges before him. Counsel for the appellant has criticised his response to that problem on the grounds that the accused should have been treated as a first offender, and, instead of this, had been given the maximum penalty on the first charge, that is life imprisonment, a sentence which counsel says is entirely wrong in principle. In making this criticism, counsel has accepted that, at the time the judge imposed this sentence, he was of course aware that the accused had pleaded guilty to 12 other offences, 9 of them of a similar character; but, counsel argued, in determining whether a man is or is not a first offender the essential criterion is whether he has previously been exposed to a charge, conviction and punishment for an offence so that he has experienced the restraint, the deterrent weight, of a conviction and has, nevertheless, gone on to repeat his previous error. Counsel maintained that repetitive acts, which had not yet been subjected to the law's restraint, did not take him out of the category of first offender. Counsel also argued that, in determining a sentence of this kind, a life sentence was inappropriate, and that the judge in the court below should have fixed a determinate period.

5. We are not satisfied that the accused in this case should have been treated as a first offender. When a man appears before a court and pleads guilty to ten charges of the serious nature revealed by the first ten charges in this case, it would be, we think, quite unreal to talk of him as a first offender. Had the judge felt that the appropriate punishment for the offences with which he had to deal was a determinate sentence it would of course have been possible for him to have fixed a sentence for the first offence which was appropriate to that offence alone, then to have taken the second offence, possibly imposing a higher sentence in regard to that, making the sentence either concurrent or consecutive as he thought appropriate, and then proceed to deal with the other offences in a similar fashion but bearing in mind that the cumulative effect of the consecutive sentences should not be out of all reason and excessive. He has chosen to deal with it in a different way and to impose the same sentence in respect of each offence, namely a sentence of life imprisonment.

6. The circumstances in which a sentence of that kind can be justified have been the subject of consideration by the courts in England, and our attention has been directed to a number of authorities of which we think we need only mention at this stage the case of R. v. Gunnell⁽¹⁾. During the course of argument we drew counsels' attention to the recent decision in the case of R. v. Hodgson⁽²⁾: the headnote reads:

"A sentence of life imprisonment is justified when