R. v. LAM TSZ WAH

IN THE COURT OF APPEAL

1995, No. 747
(Criminal)

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. On 5th August 1994 the applicant was convicted by Deputy Judge Yeung (as he then was) in the High Court on his own plea of guilty to a charge of rape contrary to s.118(1) of the Crimes Ordinance, Cap. 200. He was sentenced to imprisonment for a term of 4 years. He now seeks leave to appeal against that sentence.

2. The facts are as follows. The victim was at the time a 17-year old, 5th form student. At about 10 p.m. on 8th March 1994, the victim and a female friend fetched up at the Clock Tower, Tsim Sha Tsui. Whilst there, they were approached by two males who began chatting with them. Shortly before, the victim had taken a tranquilliser known as "Rohypnol". The four eventually ended up sitting on a staircase leading to the first floor podium of the Hong Kong Museum of Art, Tsim Sha Tsui. There they were joined by three male friends of the two who were with them. All seven chatted together, drinking beer until about 1 a.m. By this time, the victim appeared drunk and had to be supported in order to walk.

3. One of the five males and the female friend of the victim then walked off from the group to the other side of the podium. Meanwhile, the applicant left the group to go to the toilet. When he returned, he saw two of his friends squeezing the breasts of the victim. He was told to go back down the staircase to act as a lookout. After about 10 or 20 minutes, the applicant returned up the staircase and saw the victim on the ground. Her trousers had been removed, her shirt rolled up exposing her breasts. Two of his friends were standing beside the victim.

4. The applicant was invited to have sexual intercourse with the victim by one of his friends. The applicant did so in the presence of three of his friends and had full intercourse. After the applicant had finished, another one of his friends had intercourse with the victim. After that, the victim was helped back into her clothes.

5. At the material time of the sexual intercourse, the applicant could see that the victim was drunk and could make no response to the acts perpetrated upon her.

6. A passer-by had witnessed the rape from a distance. He called the police. The police arrived at the podium shortly afterwards and saw the applicant, his friends and the victim on the podium. They arrested him.

7. Under caution, the applicant admitted the offence.

8. Mr Michael Poll, who appears for the applicant, raises three points in his submission that a larger discount should have been allowed. First, he says, that the applicant immediately cooperated with the police. He admitted his part in his cautioned statement. Second, he says, that the applicant made an early plea of guilty. Third, he says, that the applicant has given considerable assistance, which, it is not disputed, he has done. He gave evidence against two of the others involved, and the fact that they were acquitted does not detract from the assistance given. Upon that basis, Mr Poll submits that the discount he was given, from the starting point of 6 years adopted to the final sentence of 4 years which represents a third, was the normal discount for an early plea of guilty. This, he submits, does not reflect fully the applicant's initial plea or, indeed, his subsequent cooperation which is acknowledged. One might also mention his previous clear record. That submission, accordingly, is not resisted by the Crown.

9. We have given careful consideration to the total discount we should give. Having given that consideration we consider that the total discount should be such as to reduce his sentence to a sentence of 3 years imprisonment. We accordingly grant leave and treating this as the hearing of the appeal order his sentence to be reduced to one of 3 years imprisonment.