Read the full judgment text of CAAR 000003/1999 on BabelCite. This Court of Appeal judgment was delivered on 10 September 1999 before Nazareth, V.-P., Stuart-Moore, V.-P. and Keith, J.A..
Criminal law – sentencing – rape and attempted rape – application by Secretary for Justice to review sentence under section 81A of the Criminal Procedure Ordinance, Cap. 221 – whether sentence of 30 months' imprisonment for attempted rape is manifestly inadequate – applicability of the English Billam five-year starting point for rape in Hong Kong – whether drunken violence over and above the force necessary to commit the offence is an aggravating feature – whether time and place may aggravate the offence – whether attempted rape necessarily receives a lower sentence than the completed offence – complete stranger attacked lone 19-year-old woman walking home at about 2.30 a.m. in Sai Kung after taking offence at eye contact, punching her face, dragging her into thick grass, squeezing her breasts, and pulling her jeans and underclothing down to her knees – victim suffered at least 37 areas of injury – offence only interrupted by arrival of police – Respondent smelt strongly of alcohol – guilty plea entered to attempted rape contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap. 200 – Court of First Instance imposed 30 months' imprisonment – whether the Billam five-year starting point for rape necessarily applies in Hong Kong: held no – Hong Kong courts are not tied to the Billam quantum and may take local conditions into account, following R v Sung Kwok-man and R v Lau Yuk-ming – whether drunken violence is an aggravating feature: held yes – intoxication does not lessen the gravity of the assault in the context of attempted rape and the courts owe a duty to protect women from drunken sexual attacks – whether time and place can aggravate: held yes – the Billam list is not exhaustive and a violent attack on a lone woman in the early hours in long grass off a path is an aggravating factor – whether attempted rape warrants a discount where there was no voluntary desistance: held no in this case – attempted rape may be made by aggravating features into an offence more serious than some examples of the full offence, per R v Cheung Ming-lim – sentencing calculation: starting point for the full offence 10 years; 8 years to reflect attempted rape; full one-third discount for guilty plea reducing to 5 years 4 months; further small reduction because the matter is a review and the new sentence is more than double the original 30 months; final sentence 5 years' imprisonment – application for review allowed, original sentence quashed and 5 years' imprisonment substituted.
Legal issues: Applicability of the Billam five-year starting point for rape in Hong Kong · Whether drunken violence aggravating the offence was properly taken into account · Whether time and place can aggravate the offence of attempted rape · Whether the offender's failure to desist voluntarily reduces the gravity of attempted rape
Outcome: Application for review of sentence allowed; the original sentence of 30 months' imprisonment is quashed and a sentence of 5 years' imprisonment is substituted.
Cited by 10 cases