Secretary for Justice v. Rashid Mahmood

CAAR 4/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 4 OF 2011

(ON APPEAL FROM HCCC NO. 35 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.The respondent (Rashid Mahmood) was charged with rape.  He pleaded not guilty and stood trial before Bokhary J sitting with a jury.

2.On 2 June 2011, the jury acquitted the respondent of rape, but convicted him of the lesser offence of attempted rape.  The judge sentenced the respondent to 4½ years’ imprisonment.

3.The applicant (the Secretary for Justice), applied, under section 81A of the Criminal Procedure Ordinance, Cap 221, for a review of the sentence on the basis that the sentence imposed by the judge was unduly lenient as it fell outside the range of sentences which the judge, applying her mind to all the relevant factors, could reasonably consider appropriate.

4.On 24 June 2011, Cheung CJHC granted leave to the applicant with an extension of time to file the substantive application.  On 3 April 2012, we granted the application for a review and increased the respondent’s sentence from 4½ years to 6½ years.  We indicated that we would hand down our reasons in due course and this we now do.

The Facts

5.On 7 September 2010 shortly after 4 am, the victim, a 32-year old woman, was on her way to a friend’s nearby house to stay for the night after having had drinks at a bar in Central.  The victim entered a quiet pedestrian subway at Glenealy at the junction of Upper Albert Road and was talking on the phone to her friend.

6.The respondent, a total stranger to the victim, suddenly appeared and attacked the victim.  He pushed the victim against the wall of the subway, threw away her mobile phone and pinned her down on the ground, trying to kiss her.  The respondent then took off the victim’s shorts and underpants, and then pulled down his own trousers and underwear.  The victim screamed and put up a struggle, but the respondent forcefully thrust his penis at the victim’s private parts.

7.The victim’s friend heard the commotion on the phone and arrived at the scene.  He saw the respondent on top of the victim, using one hand to force his penis into her.  He kicked the respondent off the victim and then struggled with the respondent until he was short of breath.  The respondent then got up, walked to the victim and smacked her across the face when she was trying to call the police.  The respondent took the victim’s phone and threw it on the ground before leaving the scene.  The respondent left behind his trousers and wallet containing his identity card which led to his arrest shortly before 12 noon on the same day.

8.The victim said that there was contact of the respondent’s external genitalia with her external genitalia.  Medical examination of the victim revealed an abrasion to her vaginal vestibule near the hymen.  There were also multiple bruises and abrasions over her head, neck, face, shoulder, waist and limbs.  The bruises and abrasions over her lips were consistent with a struggle with blunt force over her face.  The victim’s friend also suffered multiple abrasions over his forehead, knees, elbows and back.

The Respondent’s Background and Mitigation

9.The respondent was 32 years old at the time of the offence.  He was married and his wife and three children lived in Pakistan.  Very little was said about his background in mitigation, but it was admitted that the respondent was sentenced to one month’s imprisonment on 4 October 2010 for indecent assault.

10.The respondent was charged with indecently assaulting a woman in Tsuen Wan on 17 July 2010.  The evidence showed that the respondent grabbed an 18 year-old woman on a footbridge from behind and squeezed her breast once before he was stopped by a passer-by.  The respondent pleaded not guilty to the charge, but was convicted on 4 October 2010 and sentenced to one month’s imprisonment.  The respondent committed the present offence when he was on bail in respect of the indecent assault offence.

11.Counsel for the respondent at trial referred to R v Billam (1986) 82 Cr App R 347 and argued that the aggravating factors identified therein did not exist.  It was suggested that the starting point for attempted rape should be less than that for the completed offence as the indignity of an actual rape was not there.

The Judge’s Approach

12.The judge pointed out that the only reason the respondent did not commit the full offence was because he was interrupted by the victim’s friend.  Nevertheless, the judge considered it appropriate to impose a less severe sentence than if the respondent had committed the full offence of rape.  Without further elaboration, the judge simply said she considered the appropriate sentence to be 4½ years’ imprisonment.

The Application

13.Mr Zervos SC, for the applicant, suggested that rape should attract a starting point of 5 years’ imprisonment or more even in the absence of aggravating factors.  Mr Zervos further suggested that in some instances an attempted rape can be more serious than the completed offence if there are aggravating features.

14.Mr Zervos emphasized that the respondent did not voluntarily desist from the conduct he had embarked upon, but was only stopped by the timely arrival and intervention of the victim’s friend.

15.Mr Zervos pointed out the following aggravating features in the case, namely (1) that the offence was a violent and cowardly sexual assault on a lone woman under the cover of darkness in an isolated place at a time of the night when very few people would be in the vicinity; (2) that it was a case of a complete stranger trying to rape a woman in a public place; (3) that it was a sustained attack on the victim until the respondent was stopped by the victim’s friend; (4) that the respondent had used violence on both the victim and her friend; (5) that the respondent did not use a condom; and (6) that the respondent had committed the present offence whilst on bail in respect of the offence of indecent assault.

16.Mr Zervos relied on S for J v Lau Yun Leung [1999] 3 HKLRD 289 in which the Court of Appeal considered a starting point of 8 years’ imprisonment appropriate for a defendant who attempted to rape a 19-year old victim by hitting her before dragging her into long grass off the pathway where he squeezed her breasts and pulled her jeans and underwear down.  The defendant only stopped when two police officers spotted him.

The Respondent’s Position

17.Mr Jeffrey Fenton, for the respondent, suggested that Lau Yun Leung (supra) was a much more serious case when the defendant dragged the victim to the long grass and repeatedly punched her face, causing her serious injuries.  Mr Fenton emphasized that the victim in the present case did not suffer serious injuries as she was discharged on the same day.

18.Mr Fenton argued that “ ‘stranger rape’ is of equal seriousness to ‘relationship rape’ and ‘acquaintance rape’ as rape is rape, and cannot be divided into more and less serious offences”.

19.Mr Fenton pointed out the doctor’s evidence that the abrasion to the victim’s vaginal vestibule near the hymen was consistent with other causes and to the extent that such injury might not be caused by the respondent, it should be ignored for the purpose of sentence.  He suggested that when the jury convicted the respondent only of attempted rape, it meant that they did not accept that there was penetration and therefore, the failure of the respondent to use a condom should not be considered as an aggravating factor.

20.Mr Fenton further suggested that the indecent assault for which the respondent was sentenced to 1 month’s imprisonment was not a serious offence and should not aggravate the offence of attempted rape.  Mr Fenton pointed out that in Mahal Harpreet Singh v HKSAR [2012] 1 HKLRD 517, the Court of Appeal increased the starting point for rape from 5 years to 7 years because of the following aggravating factors, namely (1) the offence was planned and the victim’s trust was exploited; (2) the defendant did not use a condom; and (3) excessive force was used.

21.Mr Fenton argued that the sentence on the respondent should be less as he was only convicted of attempted rape.  He accepted that the 4 ½ years’ sentence imposed on the respondent was on the low side, but argued that it was not manifestly inadequate.

Discussion

22.Rape is the most serious of all sexual offences as it is the physical violation of the victim’s body in an intimate way and it also involves a severe degree of emotional and psychological trauma with continuous fear of disease or pregnancy on the part of the victim.

23.The Court of Appeal in Hong Kong has consistently adopted the sentence approach in Billam (supra) that for rape committed by an adult without any aggravating or mitigating features, a starting point of not less than 5 years’ imprisonment should be adopted.

24.The starting point for attempted rape should normally be less than that for the completed offence, but aggravating features may turn the attempt into an offence more serious than some examples of the full offence. (See The Queen v Cheung Ming-lim [1989] 1 HKLR 415 at p417F and S of J v Lau Yun Leung [1999] 4 HKC 1 at p10D)

25.It may not be too useful to compare sentences in different cases as the facts in each case differ, but we wish to emphasize, as it was so emphasized by Stuart-Moore VP in Lau Yun Leung (supra) at p10E, that “there was in the present case no question of the respondent voluntarily desisting from the conduct he had embarked upon.  It was only the intervention of…which brought the incident to an end”.

26.It was suggested on behalf of the respondent that none of the aggravating factors identified in Billam (supra) existed against him.  We did not agree and there were, in our view, clear aggravating factors as identified by Mr Zervos, including the use of gratuitous violence on the victim and the trauma that she suffered.

27.Further, as pointed out also by Stuart-Moore VP in Lau Yun Leung (supra), the aggravating features mentioned in Billam (supra) could not have been intended to be exhaustive and there may well be other factors in addition to those listed in Billam (supra) which may aggravate the offence.

28.Indeed, it is possibly beyond the imagination of any decent person that a man would try to rape a woman, who is a total stranger, in a pedestrian subway in the way that the respondent did.  We wish to repeat what was said by the English Court of Appeal in R v Millberry [2003] 1 WLR 546, at 550F-H:

“The court has the task of balancing any circumstances of mitigation against the aggravating circumstances. In drawing the balance it is not to be overlooked, when considering ‘stranger rape’, that the victim’s fear can be increased because her assailant is an unknown quantity. Is he a murderer as well as a rapist? In addition, there is the fact (not referred to specifically by the panel) that when a rape is committed by a stranger in a public place, not only is the offence horrific to the victim it can also frighten other members of the public.”

29.We were persuaded that the respondent’s violent and cowardly attempt to rape a lone woman, who was a total stranger, in a pedestrian subway at 4 a.m. was itself a serious aggravating factor.  The failure to use a condom and the violence on the victim and her friend made the case worse.  The fact that the respondent committed the present offence whilst on bail for indecent assault demonstrated the respondent’s total disregard for the law.

30.The respondent’s conduct must be deterred and members of the public, in particular female members, must be allowed to feel safe to move about in public albeit in a quiet place at any time of the day.  We wish to repeat the following comment by the Court of Appeal in HKSAR v Chan Ching Ho [2000] 3 HKLRD 476 at p482 D-E:

“In short, we consider the judge had recognised three important sentencing consideration in cases of this kind, namely the need to deter others, the need to mark the public abhorrence of such crimes and the need to redress the grievance suffered by the victim, her relatives and friends.”

31.In our view, the judge had failed to give sufficient regard to the gravity of the respondent’s offence and the 4½ years’ imprisonment she imposed on him fell outside the range of sentences which the judge, applying her mind to all the relevant factors, could reasonably consider appropriate: per Lord Lane CJ in Attorney General’s Reference No 4 of 1989 (1989) 11 Cr App R(S) 517 at p521.

32.We were of the view that the proper starting point should be 7 years’ imprisonment and there was no mitigating factor.  Bearing in mind this was a sentence review, we discounted the starting point by 6 months.

Conclusion

33.We therefore allowed the review application and increased the respondent’s sentence from 4½ years to 6½ years’ imprisonment.

Mr Kevin P Zervos SC, DPP and Ms Irene Fan, SPP of the Department of Justice for the Applicant.

Mr Jeffrey Fenton instructed by Hoosenally & Neo assigned by the Director of Legal Aid for the Respondent.