COURT: The defendant is charged with one count of ‘Attempted Rape’. He pleaded not guilty and was convicted after trial by the jury, on a majority verdict of 5 to 2. I adjourned the case for the obtaining of a victim impact assessment report.
The defendant, a night shift taxi driver, attempted to rape Ms X on 16 May 2020, near Hong Kong Parkview. Ms X, who was then a 16-year-old school girl, had spent a Friday evening drinking with her friends in Stanley. By the early hours of Saturday morning, she was clearly drunk. She was dropped off by her friend near the front entrance of Villa Cecil. Later, she got into the defendant’s taxi in a state of intoxication. There was evidence that Ms X was noticeably drunk. According to Ms X, she did not remember anything after 10.30 that night.
When she awoke the following morning, Ms X found herself in a bed at a hotel room with the defendant lying by her side with his arms around her. She did not know what had happened and she screamed. She asked the defendant who he was, then asked for her telephone and her bag, she then left the hotel immediately and telephoned her mother. She was later taken to the hospital. This matter was reported to the police.
The defendant was eventually arrested and told the police under caution that he was driving a taxi that night and did pick up Ms X outside Villa Cecil, and that he saw that she was very drunk. During the two video-recorded interviews with the police, the defendant admitted he had some intimate sexual acts with Ms X but maintained that she had consented to sex and had initiated it. In this regard, the jury obviously rejected the defendant’s account that Ms X consented or that he genuinely believed that Ms X consented. Further, the defendant also accepted that sexual activity had taken place at a location near Parkview. The defendant admitted that he had rubbed his penis against the private part of Ms X until getting an erection before having sex, but during the rubbing, he said he ejaculated prematurely.
Background and Mitigation
The defendant is now 54 years old. He is single and lived with his elderly mother. He had no previous convictions for sexual offences. He had previous road-traffic-related offences in 1994. However, as the English Court of Appeal said in Attorney General’s Reference No. 36 of 2006 (Imtiaz Hussain) [2007] 1 Cr App R(S) 38 at paragraph 11, not a great deal of credit can be given for the absence of previous offences of this kind.
In mitigation, Mr Leung said that the defendant was the sole caretaker of his mother who is 88 years of age and suffers from chronic illnesses. The defendant has two elder brothers and three elder sisters. Mr Leung also places before me mitigation letters written by the defendant’s mother and his siblings. It was said that the defendant is a loyal son and a responsible person to his family, and he takes good care of his senile mother. Mr Leung also draws my attention to the following authorities: Secretary for Justice v Leung Yuet Hung [2014] 3 HKLRD 304 and HKSAR v Lai Yuk Man [2020] HKCFI 3138.
During the trial, the defendant had a heart attack and was diagnosed to be suffering from acute myocardial infarction on 13 January 2022. Mr Leung has urged upon me in his mitigation to take into account the defendant’s health condition but that he also rightly recognised that medical condition cannot be given too much weight in mitigation. As was held in Yip Kai Foon v HKSAR [2000] 3 HKCFAR 31, 35, under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity. And McMahon J also made the point in HKSAR v Tam Yuen Tong [2007] 1 HKLRD 894, 896 that:
“Ill health generally will not normally operate as a mitigating factor. That is because prison medical facilities are regarded as adequate to deal with prisoners’ physical complaints. As a matter of reality most prisoners receive medical attention in prison of an equal or better standard than they would otherwise receive.”
In my view, the defendant’s medical condition does not amount to a mitigating factor for any significant reduction of the sentence to be imposed.
Consideration of the sentence
As would be the position in a case of rape, deterrent sentence is warranted in attempted rape. It must reflect the disapproval of the society against this kind of offence and must address the humiliation suffered by the victim. I must bear in mind that this was a contested case.
As disclosed in the evidence, the defendant chose to drive to Parkview, knowing that Ms X was in a very drunken state and did not have the ability to give her consent, he attempted to have sexual intercourse with the victim. Mr Leung submits that it was a case where the defendant misinterpreted or misread Ms X’s conduct and led him to think he could be friends with Ms X. He also submits that the court should bear in mind the subsequent conduct of the defendant in renting a hotel room for her to stay until the next morning, that it would indicate that he tried to make friends with Ms X. I do not accept that as a mitigating factor. As I have said earlier, by their verdict, the jury clearly rejected the defendant’s account that Ms X consented or that he had misinterpreted or misread Ms X’s conduct, and I reject any suggestion that the victim had by her behaviour misled the defendant into sexual intercourse with her consent.
As a taxi driver, the defendant’s only duty was to transport Ms X wherever she wanted. Instead, he callously took advantage of her state of inebriation and molested her in the most repugnant of ways. These I find to be aggravating features. Mr Leung submits that the offence was an opportunistic one as he had just happened to pick up Ms X, and that in her drunken state, he tried to have sexual intercourse with her. He submits it is not a case where the defendant was driving around preying for vulnerable victims. I consider that the offence was committed at a time when a female passenger was intoxicated tends to emphasise the interest of society to pass deterrent sentence, as is recognised in the case of HKSAR v Ho Tung Yuen (15 September 2011, unreported, CACC 59/2011).
In this case, the defendant did not use a condom. According to his own statements in the video-recorded interviews, he said he ejaculated or emitted some fluid albeit not inside the victim. Mr Leung submits that the lack of safety measures only went to show it was a spur-of-the-moment decision as opposed to a premeditated act. However, the evidence revealed that after picking up Ms X, the defendant was driving his taxi for more than half an hour from Villa Cecil to Wanchai, then to Kennedy Town before heading to Parkview where he sexually assaulted Ms X. The suggestion that the defendant acted on the spur-of-the-moment would somehow lessen the gravity of the assault in the context of attempted rape cannot be allowed to pass.
Mr Leung also submits that the failure to wear a condom would only become relevant when there is actual penetration. However, the cases suggest that the rationale behind this is that it exposes the victim to the risk of sexually transmitted disease or pregnancy as well as the anxiety on the part of the victim that flows from the knowledge of that risk. In the case of Secretary for Justice v Mahmood [2012] 2 HKLRD 1203 at paragraph 29, the Court of Appeal observed that in a case where the defendant was convicted of attempted rape, the failure to use a condom could make the case worse.
The Impact Report on Ms X
A victim impact report was obtained. To protect the privacy of Ms X, I will not relate too much of the contents of that report. Suffice it to say that the clinical psychologist who interviewed her found that Ms X is suffering from an array of traumatic impacts even though it has been two years since the incident occurred. There are post-traumatic stress symptoms including panic attacks, poor concentration and anxiety. The traumatic impacts are highly suggestive that Ms X is likely to be suffering from post-traumatic stress disorder and/or a dissociative disorder. It is revealed that she felt an intense level of anxiety since May 2021. Ms X continues to see a private therapist. Continued therapy work, with particular caution to her dissociative experiences is suggested. The impact on the victim is also an aggravating factor.
Sentence
Whilst the customary starting point for a rape or attempted rape offence would be 5 years’ imprisonment, this might be enhanced where any one or more of the aggravating features identified in the case of R v Billam [1986] 82 Cr App R 347, at 351F-G are present. Lord Lane CJ (giving the judgment of the court) stated the crime should be treated as aggravated by any of the following factors which include “the victim is very young” and “the effect upon the victim, whether physical or mental, is of special seriousness”. Where these aggravating features are present, the sentence should substantially be higher than the figure suggested as the starting point.
In HKSAR v Chan Kim Kwan (22 June 2005, unreported, CACC 405/2004), the Court of Appeal accepted the three dimensions mentioned in Millberry [2003] 1 WLR 546 that whenever a sentence for rape is imposed: the first is the degree of harm to the victim; the second is the level of culpability of the offender; and the third is the level of risk posed by the offender to society.
In Millberry, one of the aggravating factors identified by the court was the offender being someone in whom the victim had placed her trust. A taxi driver was specified to be in such a position. It seems to me that this is particularly so when the victim is evidently very drunk, as in the present case: see Attorney General’s Reference No. 36 of 2006 (Imtiaz Hussain)(above) at page 210, paragraph 11.
Upon the sentencing exercise, counsel for the prosecution points to the following aggravating features: (i) Ms X was 16 years and 1 month at the time of the offence; (ii) the age difference and the relationship between the defendant and Ms X (ie taxi driver and passenger) and that the defendant had taken advantage of the very drunken state of Ms X in committing the offence; and (iii) the psychological trauma on Ms X and the impact on the family of the victim.
Looking at the facts of this case, the most serious aggravating factor in this case is that the defendant, who was a taxi driver, was entrusted with certain responsibilities. Passengers must be protected from untoward conduct from taxi driver. See HKSAR v So Tsz Yeung (31 July 2004, unreported, CACC 201/2013), at paragraph 74. The Court of Appeal also held in Ho Tung Yuen (above), CACC 59/2011, at paragraph 29 that:
“The interest of the society demands deterrent sentences against taxi drivers who molest drunken female passengers, irrespective of their previous good character. The sentence must be adequate to mark the public abhorrence of the crimes and redress the grievance suffered by the victim... It is hoped that such an approach would maintain and restore people’s confidence in using taxi services.”
In Secretary for Justice v Leung Yuet Hung (above), at 315, paragraph 30, and Secretary for Justice v Lau Yun Leung [1999] 3 HKLRD 28, at 299C-D, it was recognised that an offence of attempted rape could, by virtue of certain aggravating features, be even more serious than the completed offence.
Sentence for this kind of case is fact-sensitive. I bear in mind the aggravating features and mitigating circumstances proposed in the authorities cited. Good character of the defendant is of minor relevance in this type of cases.
In Hong Kong, the Court of Appeal in Lau Yun Leung (above) held that while Billam (above) provided useful guidance as to the principles involved in sentencing for rape, the guidelines as to the starting point were not necessarily appropriate. The courts in Hong Kong are entitled to take into account local conditions and not follow the Billam guidelines on sentence. At page 299H, Stuart-Moore VP also said that:
“The courts owed a duty to the public to show that such grave conduct would not be tolerated and to reflect the abhorrence of right-minded people towards this kind of offence. Not only did such offenders need to be punished, but others must be deterred from committing similar offences.”
And in Lau Yun Leung (above), the Court of Appeal held at page 299A-D that the starting point for a “basic” attempted rape, ie one without aggravating features would normally be lower than the starting point for a basic completed rape, particularly if the defendant desisted at a comparatively early stage. However, it might be made by aggravating features into an offence even more serious than some examples of full rape. Mr Leung also referred to Leung Yuet Hung in which the Court of Appeal stated at paragraph 29 that it is not safe nor logical to assume that an attempted rape is necessarily less serious than the full offence, and as with all sentencing, everything depends on the facts of the case, to be looked at in the round.
In the present case, the defendant took advantage of the drunken condition of the victim. His conduct was despicable. Although the defendant did not use any violence on Ms X, violence was totally unnecessary for perpetrating this crime in view of the circumstances of this case. The lack of violence did not mitigate, albeit there was no aggravation either.
In sentencing the defendant, I have taken into account the facts of this case, the background information of the defendant, all the matters placed before me in mitigation by Mr Leung and all the matters urged on the defendant’s behalf by Mr Leung, including the conduct of the defence and the fact that Ms X was not subjected to extensive cross-examination, as well as his medical condition.
In light of the facts of this case and the precedents, a starting point of 5 years’ imprisonment is appropriate. This was an attempted rape where the defendant was very close to being successful to complete the crime. The defendant desisted only because he learnt that Ms X was on her period. The case was aggravated by the following matters:
(i) the age of Ms X;
(ii) the attempted sexual intercourse was unprotected;
(iii) the defendant had taken advantage of a very drunken young girl;
(iv) the relationship between the defendant and Ms X, being a taxi driver and passenger; and
(v) the trauma that the incident has left Ms X and her family.
In my judgment, given the aggravating features that I have identified, I will increase this starting point by 1 year, coming to 6 years’ imprisonment. Taking into account the mitigating factors mentioned, I reduce his sentence by 4 months, making the sentence to which the defendant shall serve to be one of 5 years and 8 months’ imprisonment.
I thereby sentence the defendant to imprisonment for 5 years and 8 months.