THE QUEEN v. WONG MAN HUNG

IN THE COURT OF APPEAL

CRIMINAL APPEAL
NO. 480 OF 92

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J U D G M E N T

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Hon. Yang, CJ

1. This is an application for leave to appeal against sentence. The applicant was originally charged with two counts of rape.

2. In the course of the hearing and before the victim gave evidence, the applicant pleaded guilty to attempted rape, which is the count now under consideration, i.e. Count 2. The trial in relation to Count 1 proceeded but he was acquitted by the jury. Upon his plea of guilty on Count 2, the judge proceeded to assess the appropriate sentence to be imposed upon him on that count. Unfortunately, he did not ascertain the full facts, but proceeded to pass sentence on the basis of this being an attempted rape committed on a young girl of eleven years of age, with a screwdriver being used by the applicant to threaten the victim. These are the facts which are agreed at the hearing before us. Although the judge in his Reasons for Sentence referred to some other act of sexual abuse, i.e. fellatio, there is in fact no evidence to support this observation and we disregard this aspect of the case completely.

3. The facts before us are therefore as stated, i.e. an attempted rape was committed by the applicant upon a young girl of eleven years of age, and the applicant used a screwdriver to threaten her for the purpose of the offence. We have had the opportunity of considering, apart from counsel’s submissions, a cautioned statement which supported the facts agreed upon before us and also letters written by members of the applicant's family. In our view, the expression of contrition in the cautioned statement appears to us to be genuine. In assessing sentence we take that into account. It would also appear from the letters written by the applicant's wife and two daughter that he still has the support of his family.

4. The general sentencing policy of rape cases is authoritatively stated in the well-known case of R v Keith Biffam [1986] 82 Cr App. R 347. There the Lord Chief Justice suggested five years as a starting point in a contested rape case. He also referred to a number of aggravating factors which would justify a sentencing judge taking a more serious view of the offence.

5. Having heard counsel we have arrived at the conclusion that, in all the circumstances of this case, we would adopt a starting point of would also give a generous discount for the plea of guilty. The effect of the plea was to protect the victim from the trauma of having to live through the unfortunate incident in public. All the mitigating factors alluded to by his counsel are taken into consideration and, in the light of all the mitigating factors, we would give a discount of four and a half years, the result is therefore one of five and a half years' imprisonment. For the reasons given above, we treat the hearing of the application as hearing of the appeal. We allow the appeal and reduce the sentence of ten years to one of five and a half years.