THE QUEEN v. PANG SIU HONG

IN THE COURT OF APPEAL

1995, No. 698
(Criminal)

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J U D G M E N T

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Bokhary JA:

1. This is an application for leave to appeal against sentence.

2. The applicant is a man of previous good character in his mid 20's.

3. On September 28, 1995, he appeared before Wong J on an indictment containing three counts: the first being of robbery; the second being of rape; and the third being of indecent assault.

4. He pleaded guilty to the robbery. He pleaded not guilty to the rape but guilty to attempted rape. That plea was accepted by the prosecution. No evidence was offered on the indecent assault count. So he stood convicted, on his own pleas, of robbery and attempted rape.

5. The judge adjourned for background and psychiatric reports. The reports show an unexceptional background and an absence of any mental illness.

6. Sentence was passed on October 12, 1995. For the robbery, the judge took a starting point of 7 years and discounted that term to 4 years for the mitigation available to the applicant, being principally his guilty plea. For the attempted rape, the judge took a starting point of 12 years and discounted it to 8 years for the same mitigation. The two terms were made consecutive, giving a total sentence of 12 years' imprisonment.

7. Shortly stated, the facts were these. On the afternoon of March 16, 1995, a little girl, who was still one month short of her 11th birthday, was getting out of the lift on the ground floor of the block in which she lived in Tuen Mun. As she was doing so, the applicant rushed up and pushed her back into the lift. Inside the lift, he produced an 8-inch long knife. He forced her to lead him back to her home. Inside the premises, he prised open a number of drawers. From those drawers, he abstracted $1,600.00 in cash and gold ornaments worth just over $10,000.00. That was the robbery.

8. As far as the attempted rape was concerned, the circumstances were as follows. Threatening to scratch her face with his knife if she refused, the applicant ordered the little girl to remove her clothes. Under that threat, she did so. He then ordered her to lie down on the bed. She refused. Instead, she knelt down by the bed. Not even that pitiful sight deterred this man from attempting to rape this child. He made that attempt. Fortunately, his attempt to penetrate her failed. Unfortunately, he then forced her to perform oral sex upon him.

9. Before fleeing, he threatened her with death if she reported what he had done to her. Fortunately, she did not heed that threat.

10. Of course, he must not be sentenced for indecent assault when no evidence was offered on the indecent assault count. But his counsel, who had very ably taken every point available to him, has ( in reliance on the decision of the Court of Appeal in England in R. v. Billam (1986) 82 Cr App R 347 at p. 351 ( made the point that the sentencing starting point for rape should normally be less than the one for the completed offence, especially if the offender desisted at a comparatively early stage. What the applicant did when he desisted from attempting penetration is therefore relevant.

11. The perfected grounds of appeal against sentence filed on this applicant's behalf read:

"(1) The total sentence of twelve years imprisonment was manifestly excessive.

(2) The learned judge erred in taking a starting point of twelve years for the attempted rape.

(3) The learned judge failed to give sufficient discount for sentence for the attempted rape offence."

12. Now, the total is what really matters. And we will come to it at the end.

13. As far as the starting point of 12 years for the attempted rape is concerned, we consider that this is so bad a case that that starting point is warranted.

14. We can see the force of the argument that the discount for the guilty plea in respect of the attempted rape should have been more than the one-third allowed by the sentencing judge. That is because it is the sentencing policy of the courts to give particularly generous "guilty plea" discount in such cases so as to encourage pleas which spare victims from having to relive their ordeal by recounting the same in the witness-box.

15. But then the discount allowed by the judge in respect of the robbery was well over one-third. And, certainly, no complaint can be made on behalf of this applicant against the 7-year starting point taken for the robbery.

16. Lifts are one place in which robbery victims are particularly vulnerable, and their homes are another such place. And here a knife-man waylaid a child in a lift, adducted her and at knife point forced her to give him entry to her home.

17. As far as the sentences being consecutive is concerned, that is appropriate. There were only two consecutive terms to deal with. And there was no need to contract them in the interest of totality.

18. All things considered, we think that the generosity of the robbery discount cancels out the lack of generosity of the attempted rape discount. The total sentence passed was well within the range of appropriate punishment in this case; and we refuse leave for appeal against sentence.