R. v. LIU PING KIN

1993, No. 143
(Criminal)

H E A D N O T E

Rape - appropriate starting point for sentence - 5 years as set out in R. v. Billam is correct but social conditions and moral standards in Hong Kong should be considered.

IN THE COURT OF APPEAL

1993, No. 143
(Criminal)

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J U D G M E N T

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Penlington J.A.:

1. This is an application for leave to appeal against sentence passed on the applicant by Deputy Judge Chan, as he then was, on a charge of rape to which he pleaded guilty.

2. The facts were agreed. On the 30th April 1992 the victim of the charge, who was then aged 19, was staying with the applicant's daughter who was her girlfriend at the home of the applicant's daughter's "sworn father" which we understand to mean the equivalent of a godfather. The applicant, who was aged 42, arrived shortly after midnight and watched videos with the victim in the living room of the flat. At about 2 a.m. he asked the victim to switch off the video as he wished to sleep. The applicant and the victim then settled down to sleep in separate beds made up in the living room.

3. After a short time the applicant asked if he could embrace the victim, a request which was ignored. He then placed his hand on the victim's breasts. She unsuccessfully tried to push his hands away. The victim then said if the applicant did not stop she would shout. He did not stop and the victim struggled to get free.

4. The applicant then held the arm of the victim behind her back and removed her panties. As the victim lay pinned beneath the applicant's body he unzipped his own trousers and took out his penis. The victim continued to struggle but was unable to free herself. The accused then inserted his penis into the vagina of the victim without her consent.

5. The victim cried out and as a result her girlfriend came into the living room. She was told to leave by the applicant and she did. The victim then again cried out as the applicant penetrated her again without consent.

6. The applicant then lay beside the victim who put on her panties and ran to the bedroom where her girlfriend was. The victim picked up a pair of scissors and when the applicant entered the room a struggle took place between them resulting in the victim falling on a bed. The applicant then left the room and the victim was taken to the toilet by her girlfriend. After she left the toilet she went onto a balcony which she climbed over and stood on the eaves threatening to throw herself into the street. The applicant carried her back inside and then went to sleep. He had been drinking before coming to the flat.

7. The victim after discussing the matter with her girlfriend and the girlfriend's sworn father reported the matter to the police.

8. We would only say at this stage that there were matters which should have been in the summary of facts and, in particular, whether or not the girlfriend's godfather was present in the flat at the time.

9. Although the agreed facts were quite properly read in open court there was no statement by defence counsel of agreement thereto nor was there any formal endorsement on the statement itself indicating that it has been agreed by defence counsel pursuant to s. 65C of the Criminal Procedure Ordinance or a passage in the transcript showing that being done in open court. One or other of those two courses should have been followed.

10. The trial judge considered a considerable volume of authority in reaching what he considered to be a proper sentence, and in particular the leading English authority of R. v. Billam [1986] 82 CAR 347. In Billam a number of other cases were considered and it was treated as an opportunity for the Court of Appeal in England to go into the factors which should be taken into account in assessing sentence for rape. It was also an opportunity to re-consider the level of such sentences due to a considerable amount of public agitation in the United Kingdom at that time as to those levels. There was undoubtedly a widespread belief that they were too low.

11. Billam was referred to in A.G. v. Ip Chung Hang [1989] 1 HKLR 149 and this Court adopted the dicta of the learned Chief Justice Lord Lane as to the factors which should be taken into account. Lord Lane also stated that a starting point, before considering aggravating or mitigating factors, after a contested trial for rape, should be five years' imprisonment.

12. Mr. Bruce here very properly and helpfully has suggested to us that while we adopted the principles which should be taken into account we did not specifically also adopt that level of five years as a starting point. Having however considered the case we feel that even if we did not perhaps make it as explicit as we should have, for which I apologise, it being my judgment, I am satisfied we did also adopt five years as a starting point for the offence of rape.

13. It is quite true, as the trial judge had said, that conditions in Hong Kong are different from those in the United Kingdom in that the great bulk of the public in Hong Kong lives in considerably more crowded conditions and there is also the factor that sexual morals in Hong Kong are different to those in the United Kingdom but nevertheless we do not see that as a reason to change that level of five years as a starting point for sentences for rape. Living conditions vary a great deal and we consider that there would need to be evidence as to moral standards and full consideration in this Court before changing the level of sentences.

14. The trial judge said that he took into account as aggravation several factors, one of which was that the applicant was to some extent at any rate in loco parentis in that although he was not of course related directly to the victim - he was the father of her girlfriend - he appears to have been the adult in charge of the premises and that he therefore owed the victim a duty of trust because he was responsible for her welfare to that extent. We think in the circumstances here that was correct. He also took into account the fact that although she was not very young the victim was only 19 and she was not a mature woman. He also took into account that there was evidence of a psychological effect of the offence on the victim in that she apparently threatened suicide immediately after the events had taken place. It has been suggested that we do not know whether psychological damage was merely temporary or whether it had any long term effect. In these cases one cannot postpone sentence indefinitely. One must take the facts as they were and we think again the trial judge was right to take into account the fact that at any rate on the evening in question the victim was severely psychologically affected by what had been done to her. We consider that taking into account those factors the starting point of five years should have been increased to one of seven years.

15. We then take into account the mitigating circumstances and the main one in this case was that the applicant pleaded guilty and, as was said in Billam, a plea of guilty in cases of rape does count for more than in other cases because it does mean that the victim is spared the traumatic experience of having to give evidence and should be encouraged. We consider that a discount of two years should have been given for that.

16. The applicant has a good background and has worked hard all his life. He has no previous convictions and the offence seems to have been out of character. He apparently has a problem with alcohol but we do not consider that is a mitigating factor. In any event it would seem that there was quite a long time between his arrival back at the flat and the actual commission of the offence. But taking the applicant's background and clear record into account we consider that a further discount of six months was appropriate, leaving a sentence of four-and-a-half years' imprisonment.

17. The application for leave to appeal against sentence is therefore granted, we treat this as the hearing of the appeal and the sentence is reduced from six years to one of four-and-a-half years' imprisonment.