Mok Tai-pang v. The Queen
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CACC000750/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 750 OF 1973 -----------------
----------------- Coram: Huggins and McMullin, JJ. Date of Judgment: 12th December 1973. ----------------- JUDGMENT ----------------- Huggins, J.: 1. This case has given us some anxiety. The Appellant was indicted for attempted rape and indecent assault. He pleaded Guilty and was sentenced to four years' imprisonment on the first count and one year's imprisonment concurrent on the second count. 2. The Appellant and his victim were resident in the same flat: they having neighbouring cubicles. The victim was a young widow. The Appellant saw her returning to her cubicle somewhat scantily clad and in a moment of passion he attacked her. He slapped her on the face, pushed her into her cubicle and there made three attempts at rape, after which he forced her to have oral intercourse. Apparently when the police come on the scene he ran away and was arrested some five months later. 3. The Appellant is aged 25 years. He has six previous convictions: three for larceny from the person, for which he was placed on probation for 18 months; one for robbery with violence, for which he was given nine months' imprisonment; and there are outstanding at this moment two suspended sentences of three months' imprisonment for being a member of a Triad Society and for possession of writings of a Triad Society, these not having apparently been considered by the learned judge. 4. We will deal first with these suspended sentences. It is reasonably argued on behalf of the Crown that membership of a Triad Society at least indicates a willingness to be associated with violence and, to that extent, is a relevant offence when dealing with an attempted rape. However, we are of opinion that there is sufficient distinction between the two offences for us to make no order in relation to the suspended sentences. 5. As I think will appear from what has already been said, there was no premeditation in this case. The learned judge rightly rejected the argument that the close proximity in which the two parties were living was some mitigating circumstance, and we agree with his view that in this overcrowded community women must be protected in their own homes, but it was said in the court below that there had been a number of occasions on which the Appellant had seen this woman scantily dressed, on one of those occasions she being in her underwear only. One must expect in conditions such as exist in Hong Kong that people will not always be fully dressed when they move about the shared parts of a flat but for a woman to move about among strangers in her underwear is, as the learned judge accepted, a temptation to a man who is weak. We would say that there was no evidence before the court as to this allegation made by the Appellant and it may well be that in a case of this nature it is reasonable not to force the victim to go into the witness-box, upon the matter of sentence, in order to clear up disputed facts, assumed that the woman does dispute them. For the purposes of this case, however - and only for the purposes of this case - we must accept the facts as they were alleged by the defence and it is clear that these previous occasions may well have contributed to the temptation which was before him on the day of the offence. 6. The learned judge in passing sentence made reference to an English case where a woman was attacked in a public park, robbed and an attempt made to rape her. She was violently assaulted and had a tooth broken. The accused in that case had not been to prison before but the offence was very much more serious than that in the present case. The sentences which were upheld in that case were five years' imprisonment for the attempted rape and three years' for robbery, and we think that the learned judge in the present case sought to relate the sentences which he was imposing to those sentences. While it might be arguable that the sentences in the English case were, on the facts, unduly lenient we nevertheless think that the learned judge did not draw sufficient distinction between the two cases, particularly bearing in mind that in the English case the offender and victim had apparently not been acquainted before and there was no question of a cumulative temptation. 7. In all the circumstances we shall reduce the sentence on the first count to one of three years' imprisonment. The sentence on the second count will stand. 12th December 1973. Representation: |