SECRETARY FOR JUSTICE v. LAU YUN LEUNG

CAAR3/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 3 OF 1999

(ON APPEAL FROM HCCC 289 OF 1998)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

Background

1. On 9th March 1999, the Respondent pleaded guilty in the Court of First Instance before Deputy Judge Z.E. Li to a charge of attempted rape, contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap. 200. The offence was particularised as having been committed on 3rd July 1998 at an "unnamed path outside Man Yee Wan Heung Lap School (near lamp-post EA 1012-3), No. 25 Man Nin Street, Sai Kung". Prior to sentence, the judge ordered probation and psychological reports and, for this purpose, the case was adjourned to 30th March 1999, when 30 months' imprisonment was imposed.

2. On 21st April 1999, the Chief Judge granted the Secretary for Justice leave to apply to the Court of Appeal to review the sentence under the terms of section 81A of the Criminal Procedure Ordinance, Cap. 221.

Prosecution's Case

3. The victim of this offence was 19 years old. She was walking home at about 2.30 a.m. when she saw the Respondent walking towards her. The Respondent became very aggressive, apparently because there had been eye contact, and he asked the victim what she was looking at. She had never met the Respondent before. He then attacked her. The Respondent began by pulling the victim's head down and, using his knees, hit her four or five times in the face. He then dragged her into some thick grass just off the pathway and pushed her to the ground where he squeezed her breasts. He then pulled the victim's jeans and underclothing down to her knees.

4. It was at about this moment that two uniformed police officers on patrol in Man Nin Street spotted the Respondent while he squatted at the victim's knees. He was punching the victim's head with his fist. As he turned towards the officers, they were able to see that the Respondent's trousers were open and unzipped and that the victim's hips were exposed. The Respondent immediately fled, but he was quickly captured. He smelt strongly of alcohol. When he was asked what had happened, he replied: "She gazed me. I then kicked her." He then said he was unable to remember what had happened after this. He admitted to drinking earlier on when he had been in Tsimshatsui.

5. Subsequent medical examination of the victim revealed multiple bruises and abrasions to the face, head, neck, arms and legs. The doctor found no less than 37 areas of injury.

Respondent's Background

6. The Respondent is 27 years old. The only blemish on his past character was that in 1992, he was bound over to keep the peace for two years for possessing an offensive weapon. He had been unemployed for a number of months before the present offence. He was, at the time of the offence, living in Sai Kung with his girlfriend and her family. He stated in the details he gave police for the purposes of antecedents that he did not take drugs and that he had no medical problems. However, so far as this last detail is concerned, the transcript reveals a passage which occurred during mitigation when the judge was expressing concern as to whether the Respondent was a man of violent disposition. In order to answer this, defence counsel said:

"... the whole reason why he can't recollect what happened is that he, on my instructions, was heavily intoxicated at the time. So the effect of alcohol may have made him into a person that he's not usually like.

Court: Is he an alcoholic?

Defence Counsel: He describes himself as an alcoholic, yes."

7. It seems that this information led the judge to order both the reports to which reference was made earlier. These confirmed a serious problem with alcohol which appears to stem from events in mid-1998 which had led to feelings of depression following his failures with regard to employment. The assessment result from the "psychological and psychosexual evaluation" revealed no indication that the Respondent was a "psychopathic aggressor or a paraphiliac who would resort to violence to satisfy his sexual needs". He was found to be overwhelmed by "feelings of worthlessness and hopelessness" but was motivated towards receiving psychological help.

Mitigation

8. In the light of the reports, Mr. Ross who also appeared in the court below, mitigated along the lines that alcohol was the key element in an offence that was out of character. He argued that prevention and rehabilitation should be the principal sentencing considerations, rather than retribution and deterrence, as the Respondent had the support of his family and was prepared to seek treatment. It was further argued that five years' imprisonment was the tariff for rape in the absence of aggravating factors, that there were no "real" aggravating factors in the present case and that, in such circumstances, the sentence for attempted rape should usually be less.

9. In the latter submission, Mr. Ross relied on the English decision in R v Billam and others, (1986) 82 Cr.App.R. 347; (1986) 8 Cr. App. R.(S) 48, where sentencing guidelines were given by the Court of Appeal for cases concerned with rape. These were as follows:

"For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years.

At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime upon a number of different women or girls. He represents a more than ordinary danger and a sentence of fifteen years or more may be appropriate.

Where the defendant's behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time, a life sentence will not be inappropriate.

The crime should in any event be treated as aggravated by any of the following factors: (1) violence is used over and above the force necessary to commit the rape; (2) a weapon is used to frighten or wound the victim; (3) the rape is repeated; (4) the rape has been carefully planned; (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind; (6) the victim is subjected to further sexual indignities or perversions; (7) the victim is either very old or very young; (8) the effect upon the victim, whether physical or mental, is of special seriousness. Where any one or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.

The extra distress which giving evidence can cause to a victim means that a plea of guilty, perhaps more so than in other cases, should normally result in some reduction from what would otherwise be the appropriate sentence. The amount of such reduction will of course depend on all the circumstances, including the likelihood of a finding of not guilty had the matter been contested.

The fact that the victim may be considered to have exposed herself to danger by acting imprudently (as for instance by accepting a lift in a car from a stranger) is not a mitigating factor; and the victim's previous sexual experience is equally irrelevant. But if the victim has behaved in a manner which was calculated to lead the defendant to believe that she would consent to sexual intercourse, then there should be some mitigation of the sentence. Previous good character is of only minor relevance.

The starting point for attempted rape should normally be less than for the completed offence, especially if it is desisted at a comparatively early stage. But, as is illustrated by one of the cases now before the Court, attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence."

10. Mr. Ross then continued his mitigation by citing R v Cheung Ming-lim, (1989) 1 HKLR 415 which, he submitted, was an example of a more serious attempted rape than the present case. In Cheung's case, where there had been a plea of guilty, this Court reduced a six- year sentence to four years where the circumstances were that the victim had been hospitalised for four days after the appellant had badly assaulted her. He had entered the victim's room in his mother's flat, where he was also an occupier, using a spare key to gain entry to her room. Rather more significantly, Macdougall J., who was sitting with Silke V.-P. and Power J.A., in giving judgment said that the English sentencing guidelines in Billam were "of assistance" thereby giving the appearance of having adopted them.

Sentencing

11. In the present case, when passing sentence, the judge had this to say:

"Now in this case, the defendant was caught red-handed in the process of trying to rape the victim. Now, (the) medical report shows that the victim had numerous bruises and cuts all over her body. There is clear authority from the Court of Appeal in the case of Queen v Cheung Ming-lim, to the effect that the starting point for a basic completed rape offence should be five years, and if there could be a basic attempted offence, then the starting point for the basic attempted rape should be lower.

Now, I accept what Mr. Ross for the defendant says, that there are no real aggravating features in this case. Now, the bruises and cuts on the victim, although appearing to be the result of excessive violence on the victim in the attempt to undress and subdue her, but they could also be the result of a simple physical assault under the influence of alcohol, rather than assault with sexual motivations. I also bear in mind the generally favourable reports from the probation officer and the psychologist. I'll use three and a half years as the starting point, and the defendant is entitled to credit for the plea of guilty, so for that I would reduce the sentence to 30 months.

And the defendant has a prior record, although it is not a particularly bad record, but I can't really give him any credit for previous good character. I should also say that I have not given the defendant the full one-third discount for the plea of guilty because, as I see, the evidence against the defendant is really very strong. So having taken all factors and circumstances into account, I'll fix the sentence for the defendant at 30 months' imprisonment." (Emphasis added.)

Application for Review

12. It was submitted on behalf of the Secretary for Justice that the sentence imposed was manifestly inadequate. In support of that proposition, Mr. Grenville Cross, S.C. began by reminding the Court of two authorities which are indicative that the five year starting point in England for a rape without any aggravating features under the guidelines in Billam should not necessarily be adopted in Hong Kong. Following a consideration of these two cases, it soon became apparent in the course of argument that the Court of Appeal's decisions in Hong Kong had not remained consistent with regard to the approach to be taken to sentencing in rape cases. It was this factor which caused us to reserve our decision.

Approach to the Billam guidelines in Hong Kong

13. Taking, firstly, a case which was cited to us by Mr. Ross, in R v Liu Ping-kin, (1993) 2 HKC 192, this Court adopted the Billam guideline of five years' imprisonment for rape without aggravating circumstances. The judgment of the Court was given by Penlington J.A. sitting with Power V.-P. and Litton J.A. and, at 194, he said:

"The trial judge considered a considerable volume of authority in reaching what he considered to be a proper sentence, and, in particular, the leading English authority of R v Billam, (1986) 82 Cr.App.R. 347. In Billam, a number of other cases were considered and it was treated as an opportunity for the Court of Appeal in England to go into the factors which should be taken into account in assessing the sentence for rape. It was also an opportunity to reconsider the level of such sentences, due to a considerable amount of public agitation in the United Kingdom at that time as to those levels. There was undoubtedly a widespread belief that they were too low.

Billam was referred to in A-G v Ip Chung-hang [1989] 1 HKLR 149, and this court adopted the dicta of the learned Chief Justice Lord Lane as to the factors which should be taken into account. Lord Lane also stated that a starting point, before considering aggravating or mitigating factors, after a contested trial for rape, should be five years' imprisonment.

Mr. Bruce, here, very properly and helpfully has suggested to us that while we adopted the principles which should be taken into account, we did not specifically also adopt that level of five years as a starting point. Having, however, considered the case, we feel that even if we did not perhaps make it as explicit as we should have - for which I apologize, it being my judgment - I am satisfied we did also adopt five years as a starting point for the offence of rape.

It is quite true, as the trial judge had said, that conditions in Hong Kong are different from those in the United Kingdom in that the great bulk of the public in Hong Kong lives in considerably more crowded conditions; there is also the factor that sexual morals in Hong Kong are different to those in the United Kingdom but, nevertheless, we do not see that as a reason to change that level of five years as a starting point for sentences for rape. Living conditions vary a great deal and we consider that there would need to be evidence as to moral standards and full consideration in this court before changing the level of sentences."

14. Whilst there is no need to refer to any of the judgment in AG v Ip Chung-hang, cited in the passage which has just been read, it is pertinent to observe that the court in that case included Penlington J.A. and Macdougall J. (as he then was).

15. This brings us to a consideration of the two cases which Mr. Cross cited in argument as demonstrating a later change in approach to the Billam guidelines. The first we looked at was R v Lau Yuk-ming, (1994) 2 HKCLR 256 at 258, where Silke, Acting C.J., sitting with Macdougall V.-P. and Litton J.A., gave judgment on 23rd August 1994. At 258, he said:

"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, L.C.J. in R v Billam (1986) 82 Cr.App.R. 347."

16. He went on later, at 259, to say:

"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." (Emphasis added.)

17. Whilst Cheung Ming-lim (above) was not cited in the judgment in Lau Yuk-ming, we feel confident that the change in the court's approach was well appreciated as two members of the court had been in both cases. Equally, Liu Ping-kin (above) was also not cited in the judgment but one member of the court in Lau Yuk-ming was common to both.

18. Similar sentiments to those expressed in Lau Yuk-ming had in fact been stated a month earlier in R v Sung Kwok-man and Another, (1994) 1 HKCLR 164 where, at 175, Macdougall V.-P., sitting with Silke V.-P. and Bokhary J.A., said:

"While it is correct to say that this court is in respectful agreement with the Court of Appeal in England in R. v Billam (1986) 82 Cr App R 346 as to the relative gravity of different circumstances of rape and the factors which aggravate the crime, it must be borne in mind that the guidelines there laid down as to the proper length of sentence in any particular type of case are no more than general indications of what was considered to be appropriate at that time in England. The courts in Hong Kong are entitled to take into account local conditions and to pass sentences that vary from those referred to in the Billam sentencing guidelines.

We note that passage in R v Wong Man-hung Crim App No.480/1992 when the Chief Justice in delivering the judgment of the court said, at p.2:

'The general sentencing policy of rape cases is authoritatively stated in the well-known case of R v Keith Billam (1986) 82 Cr App R. 347. There the Lord Chief Justice suggested five years as a starting point in a contested rape case. He also referred to a number of aggravating factors which would justify a sentencing judge taking a more serious view of the offence.'

We do not consider this passage as being intended to apply the quantum of the sentences as set out in Billam to the offence of rape in Hong Kong. What was being said in Wong Man-hung was, as has been said in these courts before, that the factors relative to the circumstances of the rape which should be borne in mind by judges in England are equally applicable in Hong Kong." (Emphasis added.)

19. The two cases cited by Mr. Cross were not brought to the attention of the trial judge in the present case. This implies no criticism of Mr. Ross, who was presumably unaware of them at the time he mitigated. Equally, no criticism is implied of the judge for proceeding on the basis that a five-year starting point for rape necessarily applied to cases of rape in Hong Kong where there were no aggravating factors. We consider that these later cases properly reflect the approach to be taken in Hong Kong towards sentence in rape and attempted rape. It may well be that some cases will call for a higher starting point than five years, even in the absence of aggravating factors, depending on all the circumstances.

Factors in Aggravation of Attempted Rape

20. However, Mr. Cross' principal submission is that the judge fell into error by failing to take into account two factors which aggravated the present offence. These were (1) the violence used by the Respondent over and above that which was necessary to carry out his intended purpose and (2) the time and place in which the offence occurred which must of itself, he submitted, have added to the mental trauma and distress of the unfortunate victim.

21. Dealing with the first of these points, the court in R v Ng Yuk-wing (unreported) CACC 406/94 confirmed what had been said by Lord Lane C.J. that any of the eight aggravating features he had set out in Billam would "substantially" increase the starting point.

22. Mr. Cross submitted that the judge had passed the injuries off as being the possible result "of a simple physical assault under the influence of alcohol, rather than assault with sexual motivations". Mr. Cross submitted that the suggestion that because the Respondent was acting under the influence of alcohol, this might in some way lessen the gravity of the assault in the context of an attempted rape, cannot be allowed to pass.

23. We entirely agree. It made no difference that the Respondent had taken drink or that this was an attack which he had not planned in advance. The courts have just as much a duty to protect women from the unwanted, drunken attentions of such men as this Respondent as from men who act in similar fashion when sober.

24. If drunkenness is a factor which leads to violence over and above the force necessary to commit rape, drunken violence will nevertheless aggravate the offence with the result that the sentence will be increased.

25. The Respondent may well have been able to put this matter out of his mind as he purported to do when asked what he had done to the victim. For the victim, this will obviously have been a terrifying event that she is unlikely to forget for the rest of her life. It is hard to imagine, realistically, that she will ever be able to go out at night again on her own without being concerned for her safety having regard to the traumatic effect this event must inevitably have had upon her. The Respondent had committed a sustained attack on the victim right up to the point when police arrived at the scene. We cannot, therefore, accede to Mr. Ross' submission that this was not an aggravating feature. This was an aggravating feature which called for a substantially higher sentence than would otherwise have been passed.

26. It follows from what we have said that the trial judge erred by concluding that the offence was not aggravated because the assaults could have been "a simple physical assault under the influence of alcohol, rather than assault with sexual motivations". This was a wholly artificial distinction to have made in circumstances where attempted rape was admitted.

27. In the same context, it has been further submitted on behalf of the Applicant that whilst it may be right to say that an offender charged with attempted rape will generally receive a lower sentence than would be received by someone who had committed the full offence because the trauma suffered by the victim may be less, this was not a case where the Respondent desisted from his actions out of a sense of remorse for what he was doing. He was unable to complete the offence only because of the remarkably fortunate and timely arrival of police at the scene. Mr. Ross does not argue otherwise. Mr. Cross reminded us that the judge, having taken this case as one of "basic" attempted rape without aggravating features, said that the starting point for the "basic attempted rape should be lower" than "the starting point for a basic completed rape". We endorse what was said in Cheung Ming-lim's case (above) at page 417 that although this would normally be so, particularly "if it is desisted in at a comparatively early stage", an "attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence". We emphasise that there was in the present case no question of the Applicant voluntarily desisting from the conduct he had embarked upon. It was only the intervention of police which brought the incident to an end.

28. Turning to the second aggravating factor which we have had to consider, this was on any view a violent and cowardly sexual assault on a lone woman under cover of darkness and at a time of the night when very few people would be expected to be in the vicinity. Whilst time and place (other than the residential address of the victim) are not amongst the aggravating features mentioned in Billam, these could not have been intended to be exhaustive. There may well be other factors in addition to those listed in Billam which may aggravate the offence. We are satisfied that the circumstances of this case in relation to time and place taken together in combination were factors which aggravated the offence. Although we accept that the path where the victim was first attacked is close to a road which is a busy part of Sai Kung during normal hours, the plain fact is that the offence occurred in long grass just off the path in the very early hours. We think that it flies in the face of common sense not to describe this as an aggravating factor.

29. The courts owe a duty to the public to show that such grave conduct will not be tolerated and to reflect the abhorrence of right-minded people towards this kind of offence. Not only do such offenders need to be punished but others must be deterred from committing similar offences. In the present case, it seems to us that the judge may have allowed the gravity of the case to become obscured from his view by considerations that were almost exclusively favourable to the offender.

30. For these reasons, we consider that the sentence imposed was manifestly inadequate. In our judgment this was a case in which, having regard to the degree of violence used and the time and place of the offence, a proper starting point, if the full offence of rape had been committed, would have been in the order of ten years. This was an attempted rape and, despite the fortuitous way in which this was prevented from being the full offence, we feel that this could properly be reflected by taking a lower starting point of 8 years. The Respondent is, of course, entitled to a full discount for his plea of guilty which would reduce the sentence to 5 years and 4 months' imprisonment. As this matter comes before us as a review and this represents more than double the sentence which the Respondent received, we feel we can make a further, small reduction.

Conclusion

31. Accordingly, this application must succeed. The sentence of 30 months' imprisonment is quashed. In substitution, we impose on the Respondent a sentence of 5 years' imprisonment.