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HCCC 327/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 327 OF 2015
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| Date: |
18 November 2015 at 4.09 pm |
| Present: |
Mr Michael J B Arthur, on fiat, for HKSAR |
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Mr Kevin Egan, instructed by Haldanes, assigned
by DLA, for the accused
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| Offence: |
Attempted rape (企圖強姦) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant is charged with one count of attempted
rape. He pleaded not guilty and was convicted by the jury after
trial: five to one.
The defendant is a young man of 27. He was born in Guinea, and the family migrated to Hong Kong in 2005. Then his family moved to the United States, leaving the defendant behind on his own in Hong Kong. The defendant had received education in Hong Kong up to Form 4 but his counsel said that he preferred to speak in French.
The victim, PW1 in this case, is a woman in her 60s. She can be described as a fragile person who was on welfare and collected unwanted carton boxes. But after this incident, I understand from PW2 that she no longer would return to the supermarket to collect boxes. Perhaps it is understandable as what she was made to go through that evening must have been a real trauma for her.
According to PW1, she had done nothing to provoke the defendant, except perhaps telling him to go somewhere to urinate. Then the defendant started to assault her and press her onto the ground, grab her neck, cover her head, remove her pants, raised her leg and attempted penetration. He even slapped her private part several times.
The defence, on the other hand, put up a case that there was actually no attempted rape, only an assault which happened due to the defendant’s misunderstanding about his bag.
The jury obviously rejected the defendant’s account and accepted PW1’s evidence. Based on what PW1 had said, it would be quite a frightening attack that had taken place in that dark lane on the day in question. As a woman of her age, she would also feel very humiliated by the defendant’s conduct, and this was an attempted rape where, as the prosecution had stated, the defendant was very close to being successful to complete the crime.
In a way, I share Mr Egan’s view about the defendant’s behaviour. There is something odd about him. But the psychiatrists did not find anything wrong mentally with the defendant.
In assessing sentence, I have to consider the harm and injuries that the defendant had inflicted upon PW1. She had suffered physically and psychologically. PW1 also had to go through the agony once more when she had to come to court to testify.
But I will say one thing: Mr Egan did cross-examine PW1 dutifully and put the defence case to her, but he had not gone beyond what was necessary, making it even more embarrassing for PW1.
There is no tariff on the offence of attempted rape and I must consider what would be the appropriate sentence in the circumstances of this case. It is not easy to decide what is the right sentence in a case like this. But having assessed the situation, I have decided to adopt a starting point of 6 years. I really cannot find any valid mitigating factors, and there being no remorse shown on the part of the defendant, hence, the sentence is 6 years.
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