HKSAR v. GURUNG LAXMAN

CAC C 254/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 254 OF 2011

(ON APPEAL FROM HCCC NO. 333 OF 2010)

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

Introduction

1.  On 15 June 2011, following a trial in the Court of First Instance before Mr Justice Macrae and a jury, the applicant was convicted of the crime of rape and sentenced to imprisonment for a period of six and a half years.  The applicant initially sought leave to appeal both his conviction and sentence but abandoned his application in respect of conviction which was formally dismissed.  Accordingly, the applicant now seeks leave to appeal sentence only.  He does so on the basis that it is wrong in principle and/or manifestly excessive.

The background facts

2.  On the afternoon of 27 June 2010, the complainant, who at that time was aged 22, attended a party held on a beach in Sai Kung.  The complainant was accompanied by three of her girlfriends.  The complainant and her friends travelled to the party by boat.

3.  A large number of young people attended the party.  The complainant drank far too much alcohol to the extent that she was unable to stand or walk and was described as having passed out.  The complainant was conveyed back to the boat by her friends and taken down to a cabin where there was a bed.  In a state of apparent unconsciousness, the complainant was laid on the bed by her friends in order to rest.  The friends remained with her for a time but then went up on deck.

4.  Some 15 minutes later, concerned as to her welfare, two of the complainant’s friends went back down to the cabin.  There was a man outside the cabin door, a stranger to them, who attempted to prevent them entering.  He told them that his friend was inside.  Alarmed, the complainant’s two friends pushed past him and entered the cabin.

5.  Both friends saw the applicant, also a stranger to them, in the act of sexual intercourse with the complainant.  When he withdrew, his penis was seen to be erect and it was further seen that he was not wearing a condom.

6.  The applicant said that the complainant had asked him to have sex with her.  That was the basis of his defence at trial, a defence that was unanimously rejected by the jury.

7.  After the applicant had left the cabin, the two friends attempted to rouse the complainant.  They were unable to do so.  The complainant remained unresponsive despite being shaken and even slapped.

8.  The complainant herself had no recollection of the act of rape.  The following morning, however, she experienced an unusual discharge and considerable discomfort in her private parts.  Having made enquiries with her friends, she discovered what had taken place.  A report was then made to the police.

The applicant’s personal circumstances

9.  When he committed the rape, the applicant was 20 years of age.  He was recognised by the judge as being a person of previously good character from a close-knit family.  Although the applicant, who had been employed to assist with arrangements for the party, had himself consumed a certain amount of alcohol, the judge found that, when he committed the rape, he knew exactly what he was doing.

Aggravating features

10.  In determining a sentence of imprisonment of six and a half years, the judge took into account what he considered to be the following aggravating factors.

11.  First, the applicant had taken advantage of a girl, a stranger to him, who was at that time unconscious and thereby “completely defenceless”.

12.  Second, even though the offence may have been opportunistic, it involved a measure of planning: hence the positioning of somebody at the door of the cabin to prevent the applicant being disturbed.

13.  Third, the applicant did not wear a condom thereby creating the risk of pregnancy and/or the transmission of disease.

The first ground of appeal

14.  In identifying as an aggravating feature the applicant’s failure to wear a condom when he raped the complainant, Macrae J said that this reflected society’s concern as to the consequences for the woman should she fall pregnant or discover herself to be afflicted with a sexually transmitted disease.  In short, the lack of protection exposed her to the risk of pregnancy and disease.

15.  Mr Beel, applicant’s counsel, has taken issue with this.  It is his submission that any enhancement of sentence should reflect what has happened and not what might have happened.  Provided the victim has not become pregnant, he argued, nor infected with disease then any enhancement of sentence based on the fact that sexual intercourse took place without protection should be nominal.

16.  We disagree.  The fear on the part of a victim that she may have been made pregnant or that she may have been afflicted with disease (including the possibly mortal affliction of AIDS) compounds the degradation suffered by the act of rape itself.  Until medical tests can be conducted such fears must be capable of creating the most profound anxiety on the part of a victim.

17.  It is now well settled that the failure to wear a condom thereby exposing the rape victim to the risk of pregnancy or disease will invariably constitute an aggravating feature both because of the risk created and the anxiety on the part of the victim that flows from the knowledge of that risk.

18.  A case of relevance in that it also involved the rape of a woman who had been rendered unconscious after the consumption of too much alcohol, is R v Kennedy (1999) 140 CCC (3d) 378.  In that case, the Ontario Court of Appeal, in a review of sentence, listed a number of matters integral to the commission of the crime which it considered should be taken into account as “serious aggravating factors”.  Among them was the fact that the appellant did not wear a condom thereby exposing the victim to the risk of pregnancy and disease and in addition the fact that he had taken advantage of a woman who when raped had been plied with so much alcohol that she had fallen unconscious.

19.  There are a number of judgments of this Court to the same effect, the most recent being HKSAR v Singh [2012] 1 HKLRD 517 in which Wright J, giving the judgment of the Court, recorded that the judge at first instance had been correct to identify as an aggravating feature the fact that sexual intercourse had been unprotected.

20.  In seeking to support his submission that enhancement of sentence should not be based on risk alone, Mr Beel asserted that, as there was no ‘victim’s impact report’ before the court at the time of sentencing, it was to be taken that the complainant had suffered no short-term or long-term harm.

21.  This assertion was based on an observation by myself in HKSAR v Chung Chi Wing [2010] 5 HKC 75, at 80, an appeal in which a 13-year-old girl, on leaving her school, had been enticed into the back of a van that was parked nearby and then raped.  The offender was only arrested some nine years later.  In assessing sentence, the judge at first instance, in looking to the totality of the aggravating features, had adopted a starting point of 15 years, reducing it to 10 years as a result of the guilty plea.  It was an unusual case, the interval between the commission of the rape and the apprehension of the offender being of such duration that the victim had in that time grown from a girl of tender years into a young woman.  It was within this context that I made my observation:

“As to the degree of harm suffered by the victim, regrettably no victim’s impact statement was put before the court even though a period of some nine years had passed since the event. Accordingly, there was no evidence before the court of either the short-term or long-term effects of the ordeal on the young victim. In the absence of such evidence, it had to be assumed, in favour of the applicant, that there were no profound short-term or long-term effects.” [my emphasis]

22.  It is regrettable that in a number of subsequent appeals this observation has been taken to mean that, absent an impact report, it can be assumed that the victim of rape, whatever her age, has suffered no particular harm.  The observation was intended to convey no such message and, insofar as it may have done, it was plainly incorrect.

23.  In this regard, in the subsequent decision of HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690, paras 40 – 44,Stock VP sought to put aside any such misconception when he said:

“We do not agree with the message apparently conveyed by that paragraph.

…

It takes no more than experience of life to understand the type of inevitable trauma occasioned to a 13-year-old girl who was raped, let alone raped in the circumstances of that case.  It is, with respect, contrary to common sense and to long established practice to suggest in such a case that a victim impact statement is necessary before one can assume profound effects.  The suggestion expressly made in the judgment that it was regrettable that there was no victim impact assessment report is to suggest that it was necessary to go to the girl years after the event to ask what we are not sure, and is to suggest an exercise that would have served only to agitate painful memories.  We cannot think that the court could possibly have intended that.”

24.  Stock VP was correct: there was no such intention.  Rape of a woman of any age will bring with it the deepest trauma; a sense of degradation that will perhaps live with her the rest of her life.  No expert report is needed for that to be understood.

The second ground of appeal

25.  In giving his reasons for sentence, Macrae J said that it was evident that the rape had not happened “on the spur of the moment”.  This was because a person had been stationed outside the cabin door to prevent the applicant being disturbed.  Mr Beel has taken issue with this finding.  The applicant, he has said, denied that he knew that anyone was guarding the door.  In any event, even if it was arranged that somebody should guard the door, that in itself did not mean that the offence was planned.

26.  We reject that submission.  Having regard to the circumstances, it would be fanciful to suggest that the man guarding the door had done so without any form of communication with the applicant.  Clearly, the offence can be described as opportunistic.  But, in light of the jury’s unanimous verdict, the judge was fully entitled to hold that, before its commission, the applicant had arranged with the man for him to guard the door, preventing entry.  

27.  The applicant himself had come across the complainant lying unconscious and alone in the cabin.  This was not a case where, for example, there had been consensual intimacy which the applicant had – on the spur of the moment – escalated into a rape.  The applicant had formed the intention to rape her and had arranged for the second man to guard the door while he did so.  To this extent, even though opportunistic, it was a premeditated, callous crime.

The third ground of appeal

28.  Under this ground, Mr Beel has criticised the judge for his failure to specify a starting point.  In the result, he has submitted, it has not been possible to determine whether any reduction for good character or enhancement to reflect the aggravating factors were or were not appropriate.  In the circumstances, the sentence was wrong in principle.

29.  It is correct that a starting point should normally be stated.  A defendant is entitled to be made aware of the extent of any credit accorded to him for matters raised in mitigation just as he is entitled to be made aware of the extent of any addition to his sentence reflecting features of his offence that have aggravated his culpability.

30.  That being said, it is well established that an otherwise proper sentence will not be vitiated solely because of the sentencing judge’s failure to indicate a starting point: see, for example, R v Wong Cho Chop, unreported, CACC 517/1990, para 5, in which Macdougall JA said:

“Although this Court has said that it is desirable that judicial officers should indicate the starting point for sentence, we should like to make it plain that a failure to do so will not of itself found an appeal for the reduction of an appropriate sentence.”

31.  As to the assessment of aggravating features, this Court has observed that it is often unhelpful to attempt to put each such feature in a separately identified box.  Often it is possible only to assess their cumulative effect. 

32.  Standing back and looking at the circumstances of this offence as a whole, we are satisfied that the sentence that was imposed fell well within the judge’s parameters of discretion.  In no way whatsoever can it be said to be manifestly excessive nor, when looked as a whole, can it be said to be wrong in principle.  The application for leave to appeal against sentence is therefore dismissed.