R. v. Bui Duc Hiep

CACC000448/1993

IN THE COURT OF APPEAL

1993, No. 448
(Criminal)

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Coram : Hon. Macdougall, V.-P., Penlington & Liu, JJ.A.

Date of hearing : 14 February 1995

Date of judgment : 14 February 1995

Date of handing down of judgment: 22 February 1995

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J U D G M E N T

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Liu, J.A.:

1. The applicant was convicted on one count of rape after trial before Deputy Judge W. Wong and a jury and was sentenced to 15 years' imprisonment. He later applied for leave to appeal against both conviction and sentence. The application in respect of conviction was refused. This judgment is solely concerned with the application relating to sentence.

2. The facts of the case were as follows. On 14 January 1991 the applicant, who was 18 years of age, had lunch with the victim and her father in Hut 2C Section 6 of the Whitehead Detention Centre. After lunch, the father left the hut to wash the dishes. The victim, who was then 91/2 years old, went to sleep on her bunk in the hut. The applicant retired to the adjacent bunk. The victim was later awakened when she became aware that the applicant had placed his hand on her private parts. The applicant then crept over to her bunk, pulled down her pants and inserted his penis into her vagina. Later, when the victim descended from her bunk to go to the bathroom, another occupant of the hut, noticing that she was bleeding profusely, summoned her father. The victim was then taken to the clinic where she claimed that she had been attacked by the applicant, whom she called uncle Hiep. Officers of the Correctional Services were alerted and the applicant was arrested.

3. When questioned by the police, the applicant admitted the offence. In a further statement under caution, he told the police that he had inserted his penis into the victim's vagina for about 30 seconds.

4. Medical examination of the victim revealed that she had a 2 cm long tear which extended from the posterior fourchette to the hymen. It was this tear which caused the bleeding. She sustained no other injury. After spending four days in hospital she was certified fit for discharge and no arrangement was made for follow-up treatment.

5. Mr Percy, who did not appear for the applicant in the court below, submitted that 15 years' imprisonment was manifestly excessive and was a sentence reserved for offenders who engage in what might be described as a campaign of rape against a number of women or girls. He further contended that the deputy judge allowed insufficient discount for the applicant's youth and his previous good character and that he focused too much on the tender age of the victim and the harm inflicted upon her.

6. We were referred to R. v. Liu Ping Kin (1993) Cr.App. No.143/93 where the starting point suggested in R. v. Billam (1986)82 Cr.A.R. 347 had been adopted. However, in R. v. Lau Yuk Ming (1993) Cr.App. No.492/93 (unreported), in delivering the judgment of this Court, Silke Acting CJ had this to say:

"Sentencing for rape in Hong Kong have tended to be on the low side but this court has made clear that sentencing judges in Hong Kong are in no way tied to the quantum of sentence as set out by Lord Lane LCJ in Billam (1986) 82 Cr App R 347", and later,

"Since the instances of the aggravating features set out in Billam, and which have been adopted as a criteria by the courts in Hong Kong, are so varied, it is inadvisable to indicate specific guidelines save to say that, as we have indicated, the starting point in Billam is not one which necessarily should be used as a starting point in Hong Kong."

7. This was affirmed in 1994, in R. v. Sung Kwok Man Cr.App. No.426/93 (unreported), by a differently constituted division of this court in these terms:

"While it is correct to say that this court is in respectful agreement with the Court of Appeal in England in R. v. Billam (1986) 82 Cr.App.R.347 as to the relative gravity of different circumstances of rape and the factors which aggravate the crime, it must be borne in mind that the guidelines there laid down as to the proper length of sentence in any particular type of case are no more than general indications of what was considered to be appropriate at that time in England. The courts in Hong Kong are entitled to taken into account local conditions and to pass sentences that vary from those referred to in the Billam sentencing guidelines."

8. In general, youth and the previous good character of the offender are only of minor relevance when deciding the appropriate level of sentence in cases of rape. The applicant took advantage of his familiarity with the victim and her family. We accept that the offence was more opportunistic than premeditated, having been committed in the cramped accommodation provided in the detention centre. Moreover, the applicant did not inflict any gratuitous violence on the girl or subject her to any further sexual indignities or perversions. However, by his plea of not guilty and his continued refusal to admit his guilt in this court, the applicant has demonstrated no remorse for what he did.

9. The manifest aggravating feature of the applicant's conduct was that he perpetrated this offence on a child of tender years. In our view, however, that merited a sentence of no more than 12 years' imprisonment. The sentence of 15 years' imprisonment in the circumstances of this case was manifestly excessive. Accordingly, we allowed the application for leave to appeal and, treating it as the appeal proper, reduced the applicant's sentence from 15 years to a term of 12 years' imprisonment.

Representation:

Mr Ducan Percy (instructed by D.L.A.) for the Appellant

Mr D. G. Saw, SACP (Crown Prosecutor) for the Respondent