HKSAR v. KAEWPRASERT TAVAN

CACC 169/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 169 OF 2008

(ON APPEAL FROM HCCC NO. 273 of 2007)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.  This is an appeal against sentence, the leave of the single judge having been given on 6 November 2008.

2.  The appellant was charged with two counts of attempted rape, contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap. 200.  On 21 April 2008, following a trial before Tong J and a jury, he was acquitted on the 1^st count but convicted on the 2^nd count.  On 5 May 2008, the appellant was sentenced to 5 years’ imprisonment.

3.  The appellant’s homemade grounds of appeal are as follows:

“1) There was no actual use of force in the attempted rape.

2)  There was no breach of trust involved in my case, as it involved parties who were friends.

3)  I draw the Court’s attention to another attempted rape case HCCC 249/2008, in which another Thai national was sentenced to 4 years.

4)  I am deeply remorseful for what happened and would like to apologize to the victim through the Court for what I did and for all the hurt and trauma I so caused.”

4.  Dealing with the last point first of all, it is plain that the appellant has demonstrated little or no remorse.  Even after he had been convicted, he was still maintaining his innocence to the probation officer who prepared a background report about him.  At trial, the complainant was subjected to the embarrassment of repeating what the appellant had done to her and also to allegations that everything which happened between herself and the appellant were with her full consent.  Those allegations were unsupported by any evidence as the appellant chose not to testify.  In today’s proceedings, the appellant still maintained that he had not done anything inappropriate to the victim.  This ground of appeal was bereft of merit.

5.  Nevertheless, as the judge stated when sentencing, it was possible that the appellant had been acquitted on the 1^st count because the jury had given him the benefit of the doubt as to whether the complainant had consented to what was taking place at the earlier stage of events.  However, as the judge went on to say, by the time the second attempt at sexual intercourse took place, the jury must have found that the appellant realized she was not consenting.

6.  Before turning to the 1^st and 2^nd grounds of appeal, but with those grounds in mind, it is right to say that the appellant and the complainant were clansmen from Thailand.  The complainant had worked in Hong Kong for a number of years and one day she encountered the appellant in the street.  They exchanged telephone numbers. 

7.  The judge, when he continued with his sentencing remarks, covered in summary form the way the offence took place by saying:

“… The circumstances as described by the victim show that she had gone with the … defendant to the apartment thinking she would be doing some ironing work for him but actually what the … defendant had in mind was sexual intercourse with her. The victim did not want to do so and had to use all sorts of methods and excuses to avoid actual intercourse. She had been kept in the room for about an hour and it must have been a frightening experience for her. Eventually, she found an opportunity to escape and because of her fear she had to run through the streets almost naked.”

Pausing here, one of the ways the complainant tried to avoid having sexual intercourse with the appellant was by performing oral sex on the appellant after an earlier attempt by the appellant to have intercourse.  This, and what happened thereafter, was described in the judge’s summing up as follows:

“… PW1 [the complainant] then told [the defendant] she was not in the mood and asked him to [lie] down. She caressed him and used wet tissue paper to cleanse his penis. She even performed oral sex for him.

  Then [the defendant] threw her onto the bed, accusing her of trying to delay and appeared to be angry. He even mentioned that he would punch her and would tie her up. PW1 saw [the defendant] pick up some towel from the floor and started tearing the towel, so she said she would surrender. He came on top of her again and was trying to put his penis into her private parts. At that stage, she reminded him to use a condom. She pretended to reach for the condom but she secretly pushed it onto the floor.

  She asked [the defendant] to release her as she was naked and could not go away. She pretended she could not find the condom, then [the defendant] got up and tried to locate it. PW1 said she seized that opportunity to escape. …”

8.  Returning to the judge’s sentencing remarks, he continued with these words:

“This is a case where the … defendant was very close to having committed the full offence of rape. However, I have to accept what counsel said in mitigation that the defendant had not used much violence on the victim, but on the other hand the defendant did threaten the victim when she was not co-operating. Now the defendant has to face a substantial term of imprisonment and, I am also told, the possibility of repatriation back to Thailand.”

It was in these circumstances that the judge adopted a 5-year starting point. 

9.  In R v Billam [1986] 1 WLR 349, which has provided useful guidance to the courts in Hong Kong as to the approach to be taken to sentence, although not necessarily to the appropriate levels of sentence to be imposed, the English Court of Appeal stated (at page 351) that:

  “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 a person who abducts the victim and holds her captive, the starting point should be eight years.”

10.  Later (at page 352), the court went on to say:

“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.”

11.  This last point was taken up in Secretary for Justice v Lau Yun Leung [1999] 3 HKLRD 289 at 299 where this court, in a review of sentence, said:

“… 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 R v Cheung Ming Lim [1989] 1 HKLR 415 at p. 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 respondent voluntarily desisting from the conduct he had embarked upon.  It was only the intervention of police which brought the incident to an end.”

12.  In the present case, it was the complainant’s escape from the premises to which the appellant had taken her, when she had only a towel with which to cover herself, that brought the offence to an end.

13.  These features of the case, together with the planning involved, were plainly factors in aggravation and, subject only to the 3^rd ground of appeal, we can see no basis for criticising the starting point adopted by the judge.

14.  The 3^rd ground of appeal contains a complaint that another defendant, in a similar position to the appellant, received a sentence in HCCC 249/2008 which was a year less than that imposed on the appellant.  That case has not come before the Court of Appeal as there is apparently no appeal against the sentence imposed.  In any event, we cannot emphasise strongly enough that we are not concerned with the propriety of a sentence imposed in another case when deciding the appropriateness of the sentence based on the facts in this case.  Having said this, Mr Lee, SC, for the respondent, has examined the case file in HCCC 249/2008 and has discovered that, while there were several obvious similarities between the two cases, the complainant in that case was not forced into having to perform oral sex in order to avoid having sexual intercourse nor were threats of being tied up made as they were in the present case.  It is plain that the complainant in the case now before us was lured to an apartment where she was detained against her will for about an hour before escaping into the street when practically naked.

15.  It is apparent, therefore, that if a comparison between these two cases is made, the instant case was the more serious of the two.

16.  We have not been provided with any reason to interfere with the sentence imposed.  Accordingly, this appeal is dismissed.