ATTORNEY GENERAL v. MAU MAN YIU

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J U D G M E N T

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Cons, Ag. C.J. delivered the judgment of the Court:

1. This is an application by the Attorney General to sentences passed in respect of two counts of rape and one count of assault occasioning actual bodily harm. It is brought with the leave of the Chief Justice.

2. The facts of the matter may be found in the judgment we gave this morning in Criminal Appeal No. 33 of 1989. We also indicated there the view we think the jury may have taken of what really happened that evening in the hotel, a view which entails discounting to some extent the violence suggested by the victim:

3. In passing sentence the judge below had the benefit of a very full and conscientiously prepared report by a probation officer. It showed the Respondent to be a self made man, who had, by many. year's of hard work, established a successful business together with his brother in the garment trade. It showed also that he was a happily married man, with three young children and a wife who still continues to give him her support.

4. The judge accepted that on the evening in question the Respondent' d consumed a fair quantity of alcohol which had led him into conduct which would normally have been out of keeping with his character. The judge also observed that the lack of physical harm to the victim enabled him further to reduce the sentence. We think by that the judge must have meant lack of lasting physical harm, which is probably quite correct But, with respect to him, he overlooked the other effects that this incident must necessarily have had upon her. We accept that she has remained in a similar occupation, albeit changing clubs but we have to observe that there is nothing to suggest that any other avenue of employment is open to her.

5. Mr. Alderdice, who appears today for the Respondent, has stressed that the circumstances in which the two men met the girls and bought them out of the club were such as to haven led the Defendant, to believer that Mimi would in due course agree to sexual intercourse, a circumstance which normally attracts some reduction in sentence There is force in that argument, although it must be remembered; that the evidence of both girls was that their having been bought out that evening was solely for the purpose of having drinks. There is, of course, no discount for a plea of guilty although, in view of the not guilty plea of the Taiwanese friend, a plea by the Defendant may not in fact have brought much consolation to Mimi.

6. In the case of R. v. Billam [1986] 1 All E.R. 985 the Lord Chief Justice of England set out a useful list of factors which the courts there would be likely to take into account in aggravation of the offence. Included in that list are two matters which are certainly present in this case one is the involvement of more than one man, and the other the subjecting of the victim to further sexual indignities. The Attorney seeks to add yet a third, that the rape was repeated. Admittedly there was more than one act of sexual intercourse, but Mr. Alderdice asks us to look at the whole evening as just one incident. That has a lot to commend it in the circumstances, but we cannot forget, that whatever view might be taken of Mimi's evidence, it is quite clear that had it not been for the arrival of Con, the mamasan and the hotel staff, she would not have been allowed to leave that room until the Defendant's desires had been fully satisfied.

7. These then are the material circumstances in which we have to consider whether the total sentence of three and a half years was manifestly inadequate. We have to say that in our view it was. The judge, with respect, started too low, having regard to the circumstances, - this was not a simple rape without aggravating features -, and after that there was really little or nothing by way of mitigation. A proper sentence, in our view, would have been one of six years, which has to be reduced to five years because of the nature of these proceedings. We therefore allow the application and order accordingly.