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CACC000087A/1996
| IN THE COURT OF APPEAL |
1996, No.87 |
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(Criminal) |
| BETWEEN |
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THE QUEEN |
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AND
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CHEUNG MAN-TSAN @
CHEUNG MAN-WAI |
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Coram: Litton, V.-P., Bokhary, J. A. & Stuart-Moore, J.
Date of Hearing: 13 March 1997
Date of Judgment: 13 March 1997
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JUDGMENT
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Stuart-Moore, J. (giving the judgment of the Court):
1. On 17 January 1997, Litton V.-P. delivered the judgment of this court when we dismissed an application for leave to appeal against conviction on a charge of attempted rape. The facts are fully set out in the judgment and it is unnecessary to recite the background again. At the conclusion of those proceedings, we adjourned the present application for leave to appeal against the sentence of six years' imprisonment. This was in order to allow time for a fresh report to be prepared as to the Applicant's suitability for detention in a Training Centre. However, the Applicant has today indicated a strong lack of enthusiasm to be considered for training, and we have taken the view that it would be inappropriate to consider taking this course.
2. We have in mind, as the learned trial judge undoubtedly did, that the crime of rape is one of great seriousness. Lengthy custodial sentences are often imposed. These sentences are intended not only to punish offenders, but to mark the gravity and public disapproval of this crime. Such sentences act also as a warning to others as to the consequences of their actions which, in turn, serves to protect women.
3. This case was one of attempted rape. In R. v. Billam, [1982] Cr. App. R. 347, the English Court of Appeal recognised that the infinite variety of factors in cases of rape made sentencing guidelines extremely difficult. The Court equally recognised that while some examples of attempted rape may be even more serious than some cases where the full offence has been committed, normally the sentence for attempted rape will be less than for the completed offence.
4. We are faced with the very real difficulty, which no doubt exercised the mind of the learned trial judge also, that there were two aggravating features apparently involved in this attempted rape. While judges in Hong Kong are not bound by the Billam guidelines on sentence, (see R. v. Lau Yuk-ming [1994] 2 HKCLR 256 and Bui Due Hiep [1995] 2 HKCLR 165), on the face of it these factors make this attempted rape a serious one. Firstly, the victim was thirteen years old at the time of the offence. Secondly, this Applicant was assisted by another person (D3 in the trial) who helped to hold the victim down while the Applicant attempted to rape her.
5. D3 was aged 15 when he was given a sentence of detention at a Training Centre for his part in this attempted rape. He had also contested the case.
6. The Applicant was sentenced on 30 January 1996 when he had just attained the age of 18. The learned judge took into account several factors in deciding the appropriate length of the prison sentence. He referred to the aggravating features of the case, and rightly described the Applicant as the instigator of the crime. He also referred to the Applicant's previous convictions from which, despite the chances he had been given by the imposition of probation orders for some of his past offences, the Applicant appeared to have learned nothing.
7. We consider that there are two additional factors to be borne in mind.
| (1) |
We have allowed the appeal of Cheung Yuen-chung (D1 at trial) against his conviction for attempted rape. When the learned judge described the Applicant presently before us as the instigator, he had in mind that the jury had found D1 guilty of attempting to rape the victim before the Applicant took his turn. As our earlier judgment demonstrates, the factual basis on which the jury convicted the Applicant of attempted rape is far from clear. There were conflicting accounts given by the victim who was an unsatisfactory witness in several respects. In addition, if the jury had been able to rely wholly upon the confession statement made by the Applicant, the jury would have convicted him of rape. In those circumstances, the only reliable aggravating circumstance is the age of the victim. |
| (2) |
In assessing the gravity of this offence, as Litton V.-P. pointed out on 17 January 1997, the victim spent the remainder of the night in the container on the ground floor which was occupied by this Applicant, as well as D3 and other young people. When the victim got up, she went shopping in Fanling with her female friend, Cheung Pui-fan. She then returned to the container yard and spent a second night in the same container. It was in this location that she, together with Cheung Pui-fan, the Applicant and D3 had participated willingly in the sniffing of thinner immediately prior to the offence. |
8. With these matters in mind, we have come to the conclusion that the sentence of six years' imprisonment was manifestly excessive.
9. Accordingly, we shall grant leave to appeal and, treating this hearing as the appeal, we shall quash the sentence of six years' imprisonment and substitute a sentence of four and a half years' imprisonment.
| (Henry Litton) |
(K. Bokhary) |
(M. Stuart-Moore) |
| Vice-President |
Justice of Appeal |
Judge of the High Court |
Representation:
Miss Denise Chan, S. C. C. for the Crown/Respondent.
Mr. John Mullick (D. L. A.) for the Applicant.
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