Read the full judgment text of CAAR 000002/2002 on BabelCite. This Court of Appeal judgment was delivered on 28 May 2003 before Stuart-Moore V.P., Stock J.A. and Seagroatt, J..
Criminal law – rape – gang rape – abduction – evidence – accomplice witness – direction to jury to ignore evidence – whether evidence probative or prejudicial – sentencing – manifestly inadequate – starting point for rape – aggravating features – Court of First Instance review of sentence – Criminal law – rape – abduction of 21-year-old Indonesian virgin during Chinese New Year – three men lured victim from Tsim Sha Tsui, forced her into taxis after her friend called police, took phones to prevent contact, took her to Kam Tin guest house and raped her successively while third Defendant also indecently assaulted her and first Defendant slapped her – whether trial judge erred in directing jury to totally ignore second Defendant's evidence because part touched on uncharged conduct including alleged rape of another woman in the adjoining room and theft of phones and money – held evidence was admissible as probative on consent and defendants' intentions, including evidence of third Defendant's conduct in the next room which was part of the immediate factual matrix and showed his attitude to the women and lack of consent – probative value outweighed prejudicial effect under D.P.P. v P 1991 2 AC 447 – applications for leave to appeal against conviction dismissed because trial counsel made deliberate tactical decision to consent to the direction and did not seek discharge of jury, and no further reference was made to the accomplice's evidence in speeches – Secretary for Justice's application for review of sentence allowed – trial judge erred in adopting 6 years as starting point based on misreading of HKSAR v Kong Ka Chun & Others No. 311 of 1997 (10 March 1998) and accepting that this was not the worst rape of its kind – appropriate starting point was 10 years – aggravating features including planning, public abduction, concerted gang rape, degradation beyond rape, and severe cultural trauma to a young virgin – reference to R v Billam & Others [1986] 82 Cr. App. Rep. 347 and Secretary for Justice v Lau Yun Leung [1999] 3 HKLRD 289 on aggravating features and adaptation of English guidelines to local conditions – sentences substituted: first Defendant 9 years 6 months on rape, 9 years 6 months concurrent on aiding and abetting rape, 4 months consecutive for theft, total 9 years 10 months; third Defendant 9 years 6 months on rape, 1 year concurrent for indecent assault, total 9 years 6 months; second Defendant 4 years 9 months on rape after 50 percent guilty plea discount – first and third Defendants also failed in leave to appeal against conviction.
Legal issues: Admissibility and treatment of accomplice's evidence involving uncharged conduct · Whether applications for leave to appeal conviction should be granted · Adequacy of sentences for gang rape of a young Indonesian victim
Outcome: Applications for leave to appeal against conviction dismissed. Secretary for Justice's application for review of sentence allowed; sentences on all three Defendants increased as manifestly inadequate.
Cited by 3 cases · Cites 1 case