SECRETARY FOR JUSTICE v. SUKHMANDER SINGH

CAAR 5/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 5 OF 1999

(ON APPEAL FROM HCCC 280 OF 1998)

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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):

Introduction

1. On 1 June 1999, the Respondent was convicted of rape following a trial in the Court of First Instance before Deputy Judge L. Tong and a jury. He was sentenced to four and a half years' imprisonment. On 26 June 1999, the Acting Chief Judge granted the Secretary for Justice leave to apply to the Court of Appeal to review the sentence pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221. The present application has been put forward on the basis that the sentence was manifestly inadequate.

Prosecution's Case

2. PW2 (the victim), aged 21, lived in Kowloon with other members of her family including her father-in-law and two sisters-in-law. The victim was married and had a son. Her husband and her son were in India on 18 February 1998 when she was raped at her address by the Respondent. Shortly before the rape, the victim, who was on her own at her address, had undressed to take a bath. The Respondent, who was a distant relative from her husband's side of the family, let himself into the flat while the victim was in the bathroom. The victim had only met the Respondent once before. This was when she went to the airport to say goodbye to her husband and her son who were travelling to India. When the victim became aware that the Respondent was inside her flat, she got dressed again. She went out and asked the Respondent how he had managed to get into the flat. He replied that he had used a telephone card. The victim in her evidence at trial said that because the Respondent was a relative, she owed him her respect, but she had no idea what his "personality" was like. She did not ask him to go away because he was a relative. After a short period of conversation, the Respondent forcibly got hold of the victim. He raped her despite her struggle and her shouts for help. In the course of the rape, he used his foot and his knees to subdue the victim and in due course he removed her trousers which were torn in the process. She was unable to push him away and, in the course of the rape, the Respondent made a number of dire threats as to the consequences which would ensure should she tell anyone about what he had done.

3. After the rape, the Respondent further threatened the victim by making her put her hand on a photograph of her husband and son and swear she would tell no one, saying that he would kill her family and would kill her as well if she told anyone what he had done.

4. After the Respondent left the victim's flat, the victim discovered a set of keys which she recognised as being the property of her husband which the Respondent appeared to have left behind him. It seems, therefore, that the Respondent's story of having entered the flat by means of a telephone card is unlikely to have been true. Whatever the situation may be, the Respondent's entry to the flat was uninvited and came at a time when he knew that the victim's husband and son were in India.

5. The victim immediately reported what had happened to her and, having first informed her family, the matter was reported to the police.

Defence Case and mitigation

6. The jury rejected the Respondent's case that the victim had become attracted to him when she met him at the airport and that this had led to a brief liaison between them leading to consensual sex at the flat. The Respondent was 26 years old at the time. He lived with his wife and his parents in Shanghai Street. Defence counsel mitigated on the basis that there were no aggravating circumstances which would justify the judge taking a starting point of more than five years. It was particularly emphasised that the victim had not been threatened with a weapon and had received no physical injuries of any kind. Furthermore, it was argued that a discount of six months could be given to the Respondent for his previous good character. The judge was also informed that the Respondent's mother was seriously ill.

7. There was, however, one other matter of considerable significance. It was something that was going to affect the Respondent for the rest of his life and it had occurred after the rape. Rightly or wrongly, the Respondent was allowed to have bail despite the gravity of the offence, the strength of the evidence against him and the emotional upheaval created by a family member being accused of such a dreadful sexual act. On 27 August 1998, the Respondent was attacked by a number of people who he believed were the victim's husband and some of his friends. The Respondent received multiple chop wounds on the neck, back and upper limbs.

8. It was submitted in mitigation to the trial judge that the effect of this attack would render the Respondent unlikely ever to commit such an offence again. The judge was asked, in view of the severity of the attack, to give some discount to the Respondent in order to take into account the retribution already meted out by the victim's family which had left the Respondent with some residual disability in his left hand.

Aggravating Circumstances

9. The prosecutor was allowed to address the judge after the speech in mitigation to identify what were realistically three aggravating features of the rape in this case. These can be summarised as gaining entry to private premises, the use of keys which the Respondent had no right to have in his possession pointing towards this having been a planned offence, and the potentially severe psychological impact on the victim.

10. Added to those features of the case, there were two other factors which can be said to have a bearing upon sentence, namely, some degree of breach of trust on the part of a relative, and death threats to the victim during the course of the rape and immediately afterwards.

Reasons for Sentence

11. In passing sentence, the judge referred to rape as "always a very serious offence". The judge went on to refer to the Respondent's mother as having an "inoperable" condition and to the descriptions given by his mother and his wife, both of whom painted the Respondent in a favourable light. The judge remarked that the offence appeared to have been "an isolated incident" and that it was unlikely the Respondent would ever see his mother again in view of her medical condition. The judge took R v Billam, [1986] 82 Cr App R 347, as providing a useful guideline for the selection of an appropriate starting point after trial in rape cases. He accepted the prosecution's contention that there were aggravating features to the case, but he did not adhere to the suggestion that the psychological effects on the victim had been very severe. On this aspect he said:

"However, regarding the psychological impact of the offence on the victim, I can only base my observation on what had taken place during the trial and the evidence heard. It appears that after the incident the victim could remain calm. She was in tears when she was complaining to her father-in-law, but afterwards she was able to face the situation, including the police investigation and the doctor's examination, calmly.

At the trial, she did appear to be in distress when she was asked about the details of the rape but, otherwise she remained well composed. It is, perhaps, comforting to note that her father-in-law and her sister-in-law, who have both testified in court, remain supportive of her and her status. Indeed, the traditional family had obviously not been affected. The husband, now wanted for questioning for the case of attempted murder on the defendant, had left home, but apparently not because he wanted to abandon the victim for the incident, and the victim continued with her usual work. I cannot say that the offence had created a severe psychological impact on the victim, fortunately, if I may add."

12. The judge went on to select seven years as a suitable starting point before he discounted this by just over 35% to take into account good character and the brutal attack which had been made on the Respondent following the rape. The judge specifically stated that he was discounting the sentence by twelve months for good character and what he termed "family condition", which seems to have been a reference to the Respondent's mother's terminal illness, and a further eighteen months for what he described as the "private revenge attack". This left the Respondent with a sentence of four and a half years.

Applicant's submissions

13. Against that background, Mr. Grenville Cross, SC, on behalf of the Applicant, submitted that since 1994, following two reported cases (see: The Queen v Lau Yuk-ming (1994) 2 HKCLR 256 and The Queen v Sung Kwok-man and Another (1994) HKCLR 164), the courts in Hong Kong have not necessarily been bound to follow the starting point of five years' imprisonment suggested in Billam for a rape where there are no aggravating or mitigating features to be taken into account. Mr Cross submitted that, even adopting the Billam guidelines as the judge in this case seems to have done, the starting point should have been a minimum of eight years because the Respondent had gained unlawful access to the victim's place of residence, leaving aside all the other aggravating factors.

14. Mr Cross also argued that the judge had been unduly influenced by the medical condition of the Respondent's mother because it is a well-settled practice in this court that where the crime is one which is serious in nature, the family circumstances of a defendant can have little relevance to the sentence which is imposed. He submitted also that the substantial discount given to the Respondent, in a case where he had demonstrated no remorse and had instead caused the victim to undergo the trauma of re-living her ordeal, could not be justified. The previous good character of the Respondent was of minor relevance and the revenge attack, leaving the Respondent with a small degree of residual injury could not, he submitted, form the basis for a further discount of eighteen months. In this context, Mr Cross reminded the court of what was said in R v Gooley (1996) 87 A Crim R 209, a decision of the Court of Criminal Appeal in South Australia where the principle was considered as to whether subsequent injury inflicted upon a defendant can have any impact on the sentence imposed by the court. Doyle CJ, at 211, said:

"In fixing a non-parole period I have regard to the reasonably good prospects of the appellant mending his ways. I would fix a non-parole period of 12 months. In arriving at this conclusion, I have considered the fact that the appellant was apparently beaten quite badly by persons connected with the victim on the morning after the offence and the fact that the appellant was later twice assaulted while in custody, apparently as a result of publicity his case received, and will probably have to serve his sentence in protective custody.

I do not consider that ordinarily illegal acts of other people can affect the punishment which an offender must receive. The law must do what it can to protect the appellant, as must prison authorities.

The conduct of the victim's friends or family cannot reduce the appropriate sentence, in my opinion. To allow it to do so would be to allow private revenge or punishment to replace punishment by the State."

Respondent's submission

15. On behalf of the Respondent, Mr John Wright, who did not appear in the court below, relied on The Queen v Liu Ping-kin (1993) 2 HKC 192, where the Court of Appeal allowed a discount of six months' imprisonment for good character in a case of rape. Dealing firstly with this point, whilst we do not say that a discount on this basis for a crime as serious as this will never be applicable, we do confirm what was said in Billam which, on this particular point was not referred to in Liu Ping-kin, and what has since been said by this court on a large number of occasions, that previous good character is a factor of minor or peripheral relevance. In the present case, where the Respondent has shown no remorse of any kind, we cannot see any justification for a discount on the basis of good character.

16. Mr Wright also attempted to support the judge's view that the revenge attack on the Respondent was likely to deter him from committing future criminal acts and he relied on The Queen v Chak Shui-chung [1989] 2HKLR 81 at 84 for the proposition that, while injuries received in the course of committing criminal acts would not generally be a factor for consideration as regards the length of sentence to be imposed, where the injuries were very serious and were likely to deter future criminal involvement, and amounted to personal punishment of great severity, it was proper for the sentencing judge to take this into account. In Chak's case, the appellant had lost both arms in the course of dismantling a bomb and his sentence on this account was reduced by two years.

17. In the present case, the Respondent's injuries were far less serious, but we are nevertheless, as an act of mercy, inclined to the view that some discount was appropriate on this account in the exceptional and highly unusual circumstances of the attack made after the rape on the Respondent. The Respondent used to be a manual worker. Although the permanent injury he has suffered as a result of the attack on him affects only his left hand, he is nevertheless disabled to a large extent in that hand and his future employment prospects will clearly be greatly limited.

18. Mr Wright has also placed some emphasis on what the judge said in passing sentence so far as it concerned the psychological impact of this crime on the victim. With respect to the judge, we have found it hard to equate his assessment of what he believed to be the slight psychological impact on the victim with some of the evidence given by the victim to the effect that her life had been "ruined", that "all the joys of mine and my husband have been taken away" and that the Respondent had "spoiled (her) name and made (her) infamous in Hong Kong and as well as in India". In any event, the psychological impact and horror of being raped by a man who was a member of her own family, who the victim trusted and respected for those reasons must, to an extent, speak for itself.

Conclusion

19. Having carefully considered the very able submissions from both sides in this application, we have concluded that the judge erred in a number of respects relating not only to the factors for which he gave a discount, but as to the starting point also. It may well be that the judge placed such great emphasis on the features put before him in mitigation that he allowed himself to lose sight of the obvious gravity of this crime.

20. As this court has said on previous occasions, while Billam provides helpful guidance to a number of factors relating to what may aggravate the crime of rape, albeit not providing an exhaustive list (see, for example, the very recent decision in The Secretary for Justice and Lau Yun-leung (1999) 3 HKLRD 289), the guidelines as to starting point are not necessarily appropriate. Some cases may well call for a higher starting point than five years in cases where there are no aggravating or mitigating features to be taken into account.

21. The offence in the present case was principally aggravated by virtue of having been committed in the privacy of the victim's own home. Added to this, there were threats to kill the victim and later threats to the victim that she and members of her family would be killed if she identified the Respondent as the offender. There was a degree of planning involved, in the sense that this was not an offence committed on the spur of the moment. It was done whilst the victim's husband was away to the knowledge of the Respondent and, it appears, in some way or another which has never satisfactorily been explained, he had acquired the keys to enter the flat. Obviously, the psychological trauma to the victim will have been considerable and long-lasting having been raped by a member of the family, albeit by marriage.

We are satisfied that the sentence was manifestly inadequate.

22. In all the circumstances, bearing in mind the wrong approach which we consider was taken by the trial judge to sentence, we propose to take a starting point of ten years' imprisonment. The only factor which we consider can reduce this sentence is the long-term injury to the Respondent which has resulted from the attack upon him to avenge the rape. As we have said already, in the exceptional circumstances of this case, we propose to make a discount as an act of mercy and do so by twelve months. Additionally, we take into account what was said by Silke V-P in Attorney-General v Wong Kwok Wai [1991] 2 HKLR 384, as to the discretion the court undoubtedly has to make some reduction in sentence where the sentence imposed by this court is greatly in excess of the original sentence. We consider that the sentence can be further reduced by six months.

23. Accordingly, we shall allow this application. We quash the sentence of four and a half years' imprisonment and substitute a sentence of eight and a half years' imprisonment.