LAU YUK MING v. R.

IN THE COURT OF APPEAL

1993, No. 492
(Criminal)

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J U D G M E N T

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Sentence : Rape : observations on sentencing levels.

Silke, Acting C.J.:

1. This is the judgment of the court.

2. Lau Yuk Ming appeared for trial before His Honour Judge Yeung, sitting as a Deputy Judge of the High Court, on an indictment containing three counts. The first alleged kidnapping contrary to common law and its particulars stated that on 22nd July 1992 at San Choi Street, Sheung Shui, New Territories, the applicant unlawfully and by force took or carried away Cheung Choi Fan against her will. The second, with which we are not concerned, was attempted rape. The third count was that the applicant did, on 22nd July at Fanling, rape Cheung Choi Fan.

3. To the first and third counts, the applicant pleaded guilty. Upon his plea of not guilty to the second count of attempted rape, the Crown offered no evidence and the applicant was acquitted.

4. He was sentenced on the first count to 5 years' imprisonment and on the third to 8 years' imprisonment, the sentences being set to run consecutively, giving a total of 13 years' imprisonment. He now seeks leave to appeal against those sentences.

5. The facts admitted were that at about 12.15 a.m. on 22nd July the girl, aged 17 years, was at a 7-Eleven store at San Tsoi Street waiting for her younger sister. They were to return home together. While she waited she saw a magenta coloured 4-door private car coming towards her. The applicant got out of that car and sprayed an irritant in her face - this was from a can of WD40. He then grabbed her and pushed her into the back seat of the car. The girl struggled and called for help. The applicant tied her hands behind her back with a piece of string and drove away. Near Kim Kui Square the girl indicated that she wished to urinate and the applicant stopped the car. Upon promising not to run away, the girl was allowed to leave the car. She took the opportunity to run off. The applicant pursued her for some 70 metres before catching her. He forced her back into the car, made her sit in the front passenger seat and strapped her in with the seat belt. He drove on in the car.

6. Twice during the journey, when the girl said that she wished to urinate, he stopped his vehicle first at a refuse point but later at an open space surrounded by zinc fencing. On both of those occasions the girl refused to avail herself of the opportunity.

7. Telling the girl that the car was too small and that he would get a van which would be more comfortable, the applicant drove to a private car park where three goods vehicles were parked. The applicant had the keys of one of those vans as part of his employment. He entered it, started it and forced the girl out of the car and into the rear compartment of the van. He drove the van to a public car park near Lam Tin Wai in Fanling. There he parked and drew the curtains. He removed the girl's shoes and socks and stripped himself. He directed the girl to remove her own clothing but she said she could not do so as her hands were tied. He then removed her jeans and underpants and untied one of her hands. He threatened the girl and then removed the rest of her clothing, retying her hands behind her back.

8. Having forced the girl to perform fellatio, the applicant used abusive language to the girl and he tried unsuccessfully to penetrate her. He then sexually assaulted her after which the girl pretended to fall asleep. The applicant again tried to penetrate her but the girl struggled. The applicant forcibly separated her legs and at one point knelt on her legs. Eventually he did penetrate her, ejaculating outside her having withdrawn his penis.

9. The applicant then dressed himself, untied the girl's hands and allowed her to dress herself. He drove her to a bus stop near Cheung Wah Estate and released her. The girl immediately telephoned a girlfriend and upon being collected by that friend was taken to Sheung Shui Police Station where she made a report. The applicant was arrested on 24th July. Upon his arrest, he made confessional statements under caution.

10. A medical examination of the girl showed that there were bruises on her left lower eyelid and right hand, ligature marks on both wrists and a small abrasion on the inner surface of the left labium minus near the hymen. From external and internal examination of samples taken from the girl including a blood sample and samples, including a blood sample, taken from the applicant, a DNA profiling test was carried out. That result was that it was "extremely likely" that the defendant was the source of semen on the genital swabs taken from the girl and "almost certainly" the source of semen stains on the underpants worn by the girl.

11. That DNA evidence was not available to the defence until the morning set for the trial. With respect to those concerned this was unfortunate. The defence should have been made aware of its existence at a much earlier time. However, the effect of it seems to have been the plea of guilty then entered by the applicant.

12. It is the contention of Miss Woodcock, who appeared for the applicant in this court, that, first, the sentence was wrong in principle in that the kidnapping and the rape sentences were made to run consecutively. Second, that the kidnapping sentence itself was manifestly wrong and excessive, the maximum period of imprisonment available to the court in respect of that offence being 7 years. She complains that the trial judge did not indicate his starting point. Third, that the judge was in error in concluding that this was, as he put it, "one of the worst case of the type". Fourth, that the judge did not take into consideration that the victim suffered no physical injury. And fifth and finally, that there was no indication of the discount which was given for the plea of guilty, in particular bearing in mind that the victim was spared the ordeal of giving evidence before the court.

13. We do not consider that the offence of kidnapping should have been treated as part of the rape and not as a distinctly separate offence. Here, having been picked up by the applicant, who was clearly cruising the area for a victim, she managed to momentarily escape before being apprehended again. While the applicant no doubt had in mind a sexual assault on the girl, these were two deliberate apprehensions. We think the trial judge was quite right in the circumstances, bearing in mind totality, to make the sentences consecutive.

14. While the sentencing judge made no reference to his starting point, he did bear in mind the nature of the counts, the facts, the plea of guilty and the question of totality. We are not minded to think that the individual sentence imposed in relation to the kidnapping should be interfered with.

15. With respect to counsel, the judge was by no means inaccurate in describing this as "one of the worst case of the type". This applicant, who had a previous conviction in 1982 for attempted rape, was cruising the area seeking his prey. He inflicted injuries and sexual indignities upon the girl over a period of time which must have been a very horrifying experience for her. This was no spur of the moment effort. It was well planned and well executed. The girl, who was a virgin prior to this attack, must have suffered great psychological trauma, although there was no evidence of any lasting effect, as well as the physical injuries which were discovered upon her person.

16. Sentences for rape in Hong Kong have tended to be on the low side but this court has made clear that sentencing judges in Hong Kong are in no way tied to the quantum of sentence as set out by Lord Lane LCJ in Billam (1986) 82 Cr App R 347.

17. Mr. Reading, who appears for the Crown, has presented to us a document containing statistical information relating to the crime of rape for the years 1990 to 1993. While these are of general interest, they do not indicate whether the charge of rape was allied to any other charge. We note that in 1990 the range of prison sentences was between 3 and 8 years; in 1991, it ranged between 5 and 11 years; in 1992, it ranged between 3 and 12 years and in 1993, it ranged between 3 1/2 and 15 years. Since the instances of the aggravating features set out in Billam, and which have been adopted as a criteria by the courts in Hong Kong, are so varied, it is inadvisable to indicate specific guidelines save to say that, as we have indicated, the starting point in Billam is not one which necessarily should be used as a starting point in Hong Kong.

18. It must be borne in mind that starting points are for sentence after trial. Undoubtedly, pleas of guilty merit a greater discount in cases of rape than perhaps they do in any other types of offence for the obvious reason that the victim is not subjected to the pressures of giving evidence in a public court. Therefore, pleas are to be encouraged. There were pleas here. The totality of 13 years imprisonment imposed must have envisaged a starting point in the region of 16 to 17 years. In our judgment, bearing in mind all the factors of the offence and the offender, that would have been too high. Further, we considered that the discount given by the trial judge here was insufficient to reflect the fact of a plea to a rape offence. We did not interfere with the individual sentences as we saw nothing wrong with them as separate sentences. But we did interfere with the totality. The sentences imposed remained consecutive but we ordered that two years of the sentence imposed on the rape count should run concurrently with that imposed on the kidnapping count thus reaching a totality of 11 years' imprisonment which we think to sufficiently reflect the public abhorrence of a crime of this nature and to properly take into account all the matters to which we referred.

19. We therefore gave leave, treated the hearing of the application as the hearing of the appeal and allowed the appeal against sentence to the extent indicated.