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CACC 107/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. CACC 107 OF 2011
(ON APPEAL FROM DCCC NO. 773 OF 2010)
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BETWEEN
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HKSAR |
Respondent |
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and
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Ngai Yiu Ching (倪耀偵) |
Applicant |
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Before: Hon Stock VP, Hon Fok JA and Hon McWalters J in Court
Date of Hearing: 2 September 2011
Date of Judgment: 3 October 2011
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J U D G M E N T
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Stock VP
1. This is a judgment to which each member of the Court has contributed.
Introduction
2. This is an application for leave to appeal against sentence. The applicant was convicted after trial in the District Court of one count of false imprisonment for which he was sentenced to 3 years imprisonment and 3 charges of indecent assault for which he was sentenced to 3 years imprisonment on each count. The sentences for each offence of indecent assault were ordered to be served concurrently with each other but consecutive to the sentence of 3 years for the false imprisonment. Thus the total sentence imposed on the applicant was 6 years imprisonment.
The Grounds of Appeal
3. There are two grounds of appeal, but the second ground, which is that the final sentence is manifestly excessive, flows from the first. The first ground of appeal is that the District Judge erred in not ordering the sentences for the indecent assaults to be served concurrently with the sentence for false imprisonment. Counsel for the applicant submits in support of this ground that the four offences were all part of the one transaction and consequently it was an error of principle not to order them all to run concurrently with each other.
The Background to the Offences
4. These offences took place in the evening of 22 May 2010 at which time the applicant was 69 years of age and a widower of 12 years. The victim of these offences is a 30 year old married woman who worked as a cashier at a supermarket. The applicant first came into contact with the victim when, in January 2010, he started shopping at the supermarket where she worked. The applicant attended the supermarket quite regularly and became friendly with the victim. At some stage the applicant told her that he wanted her to become his sworn daughter and after the applicant bought her a mobile phone in February 2010 the victim agreed that they could be sworn father/daughter. Thereafter they occasionally met privately and dined together. In the course of their acquaintanceship the applicant told the victim that he owned two steel companies and at the beginning of May 2010 he took her to a premises which he claimed was one of them. He asked her to come and work for him. She agreed, resigned her job at the supermarket and intended to start working for the applicant on 1 June 2010.
5. In truth the applicant owned no steel companies and the premises to which he had taken the victim at the beginning of May were simply the warehouse premises where he was employed as a caretaker. He was in no position to offer the victim any employment.
6. At around 7 pm on 22 May the applicant telephoned the victim and persuaded her to come to what she believed were the steel factory premises where she would be later employed. He lured her to the premises by promising to give her $1 million that could be used by her parents to build a house in Mainland China. He also said that at this office he would introduce her to a woman called Ah Mei and they would later have dinner together.
7. The victim travelled to the applicant’s office which was located in a quite secluded area. She arrived at about 7.30 pm but there was no Ah Mei to be seen. The applicant reassured her that Ah Mei would arrive shortly. When Ah Mei had not come by 8.45 pm the victim became frightened. When the applicant closed the door of the office and switched off the light the victim became even more frightened and she asked the applicant to be allowed to leave. He replied that he would only let her go if she allowed him to kiss her. When the victim refused the applicant grabbed her right arm and tied her hands behind her back with a nylon rope. The victim said she tried to run away but the applicant blocked her with his right arm.
8. The false imprisonment lasted for between 6 and 7 hours with the victim not being able to escape until about 2.15 am on 23 May 2010. In the course of this imprisonment the three episodes of indecent assault took place. Although quite properly describing this whole course of criminal conduct as “a terrifying ordeal” for the victim the judge has not set out the evidence in the detail needed properly to appreciate what the victim had to endure. As we do not have the victim’s evidence before us we enquired of the applicant’s counsel whether the Summary of Facts that is in the appeal bundle accurately reflected what the victim told the court. She assured us it did. That description of the events of the evening of 22 May, is as follows :
“8. At about 2045 hours on the same day, the Defendant pretended to phone the watchman of the warehouse and tell him to have dinner. The Defendant then locked the office door. PW1 immediately told the Defendant that she wanted to leave but the Defendant said he would let her go if she allowed him to give her a kiss. PW1 refused. The Defendant took out a nylon string from the drawer of a desk and tied PW1’s wrists from behind. The Defendant pushed PW1 onto a desk and lifted up her upper garment and bra. He kissed PW1’s breasts for about 2 minutes. He then squeezed her breasts and sucked her nipples. PW1 struggled but in vain as the Defendant had pressed his body against hers. PW1 shouted for help and continued to struggle. The Defendant gagged PW1 with a piece of cloth. He told PW1 that he was impotent and it was nice to kiss her like that. He then removed PW1’s jeans and his own trousers but both of them were still wearing their underpants. The Defendant began kissing PW1’s inner thighs for about 5-6 minutes. PW1 begged the Defendant to let her go. The Defendant took away the cloth and continued to kiss PW1’s thighs. PW1 noticed that the Defendant was very excited. PW1 told the Defendant that she wanted to urinate. The Defendant took her to the dustbin at the corner of the office and told her to urinate into the dustbin. The Defendant pulled down PW1’s underpants to let her urinate. Thereafter, the Defendant helped PW1 to put on her underpants, let her sit on a chair and rested his head on her thighs. PW1 kept chatting to the Defendant to distract his attention and at the same time tried to untie the rope (Charge 2).
9. At about 2330 hours on the same day, PW1 managed to loosen the rope but the Defendant discovered that. He told PW1 that he would not allow her to leave that night and she had to sleep there until 8 o’clock. PW1 asked the Defendant to tie the rope to the front and promised him that she would not run away. He did accordingly. The Defendant then pushed PW1 onto a desk in the office and lifted up her shirt and bra like the first time. The Defendant kissed and fondled her breasts and kissed her thighs for about 5-6 minute before taking a rest. PW1 begged the Defendant to let her go but he refused (Charge 3).
10. Having rest for an hour, the Defendant pushed PW1 onto a desk in the office again and kept kissing PW1’s breasts and thighs for another 5-6 minutes. The Defendant then placed PW1 back to a chair and took a rest (Charge 4).
11. Some time after 0100 hours on 23 May 2010, PW1 begged the Defendant to let her go. She also told the Defendant that she would return the mobile phone to him and they would act like strangers thereafter. The Defendant agreed to that proposition. PW1 then loosened the string with her mouth, walked to a desk, put on her jeans and placed the mobile phone which the Defendant had given her on a desk. When PW1 was about to leave the office, the Defendant extended his right hand to prevent PW1 from leaving. PW1 grabbed and bit the Defendant’s finger. The Defendant pulled PW1’s hair to stop her from leaving. While PW1 was opening the office door, the door hit the Defendant’s forehead and injured him. PW1 used some tissue papers to stop his bleeding. When PW1 tried to leave the warehouse, the Defendant opened the main door for her.”
9. After leaving the premises where she had been imprisoned the victim walked along a road where she encountered a taxi. The taxi driver testified that the victim was walking hastily along the road, looking frightened. It was an admitted fact that when the taxi driver stopped his taxi the victim, who was speaking on a mobile phone, asked him the address of the area and handed to him the phone so that he could inform the person on the other end of the call of the address. The taxi driver did so and found he was speaking to a police officer. The victim got into the taxi and whilst she was sitting in the passenger seat she was crying and the taxi driver noticed that her hands were red and swollen.
The Reasons for Sentence
10. In sentencing the applicant to 3 years imprisonment for the false imprisonment offence the judge took into account the duration of the false imprisonment (which he described somewhat generously to the applicant as “in the region of 5 hours”), the fact that the victim was tied and gagged, that the applicant lured the victim to the premises by taking advantage of her trust and naivety. He was referring here to the lies the applicant told the victim about himself and his offer to her of $1 million and a job. The judge also took into account the applicant’s betrayal of the trust that the victim had placed in him as a consequence of the sworn father/daughter relationship.
11. The judge treated all indecent assaults the same and sentenced the applicant to 3 years imprisonment on...
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