Secretary for Justice v. Leung Yuet Hung

CAAR 1/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 1 OF 2014

(ON APPEAL FROM HCCC NO 42 OF 2013)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.This is an application for review of sentence pursuant to leave granted by the Chief Judge on 14 January 2014. 

2.On 19 December 2013, the respondent to this application was convicted after trial before Deputy High Court Judge Woo and a jury of the offence of attempted rape.  He was sentenced to four years’ imprisonment. 

3.The offence was committed on 26 July 1993 upon a girl who lived in a housing estate in Tsing Yi.  She was then aged 12 years 11 months.  The respondent was then aged 21 years.  He lived in an adjacent estate, but the two were unknown to each other before the incident in question.  At the date of the offence, he had no previous convictions.

4.Nineteen years passed before the respondent was arrested for the attempted rape.  His connection with the offence came to light in June 2012, shortly after his conviction for an offence of theft in the form of shoplifting.  In connection with the 2012 theft conviction, his palm prints were taken and his right palm print was found to match a palm print in the apartment in which the girl had resided at the time of the offence.  On the day of the attempted rape, the girl reported the facts to her mother who in turn called the police and they lifted a palm print from the floor of the living room.  Shortly after the attempted rape, semen stains were recovered from the girl’s high vaginal, low vaginal and external vaginal swabs and from the underpants and pair of shorts which she had been wearing at the time of the offence.  The respondent’s DNA matched the DNA recovered from those swabs and from that clothing.

5.It follows that, at the time of trial, the complainant was aged 32 years.  She testified.  Her account of the incident was not in dispute.  What was in dispute was whether the respondent was the assailant.  His defence was alibi, a defence rejected by the jury.

6.The assertion by the applicant is that the sentence of four years’ imprisonment was manifestly inadequate.

The facts

7.At the time of the offence, the respondent worked as a technician in a telephone company, repairing telephones in the Tsing Yi area.  The girl was on her school summer vacation.  On the day in question, she returned home shortly before noon, after attending a tutorial class.  As she entered the lift on the ground floor of the building, the respondent followed her into the lift but pressed no button for any floor.  He followed her out of the lift and walked past her towards the staircase.  She entered her home.  None of her family was there.  

8.A few minutes later, the respondent knocked on the front door and falsely represented that he was a staff representative from Town Gas and was there to take a meter reading.  At his request, the girl checked the reading on the gas meter in the kitchen and, through the closed front iron grille, told him what it was.  He said that she had omitted to read the red figures so she went to check the reading once more.  She reported back, but he said that the reading was incorrect.  So she went to check for a third time and, yet again, the respondent said that it was incorrect.  He asked if there was any adult at home and requested entry to read the meter.  She allowed him in.

9.He went into the kitchen on the pretext of going to read the meter.  He came out and asked for the gas bills.  He then told her to go into the kitchen herself to look at the meter.  As she entered the kitchen, he grabbed her neck and pointed something sharp against her waist from behind.  He pushed her to the floor, told her to keep quiet and said that he only wanted money.  Then he pulled her T-shirt over her head.  She did not see what was happening.  He removed her brassiere, shorts and underpants.  He fondled her breasts.  He removed his trousers.  He stroked her breasts and kissed them and then told her to spread her legs wider.  He asked her for her name and where she went to school.  He then asked whether she wanted to be taken away by him and she said “No”. 

10.His penis was erect and he moved his penis around and about her private parts.  He asked whether she had done this before, by which she understood him to allude to sexual intercourse.  She said that she had not.  She shouted in protest several times but he hit her head with his hand in order to keep her quiet. This caused her pain.  She tried to resist him by pushing him away but in vain. 

11.Her home telephone rang and she told him that her father would be coming home at noon, upon hearing which, he became nervous.  Yet he still lay on top of her and continued to move his erect penis around her vagina for several minutes before getting up and leaving the flat.

12.Penetration had not taken place but he had ejaculated in the region of her vagina.

13.The girl had been very frightened, as well one might expect from such circumstances, and upon the respondent’s departure, she at once telephoned her mother and asked her to come home.  She then took a shower because she felt very dirty.  The mother returned and called the police.  The girl was crying.

14.Later, the girl was medically examined. Swabs were taken.  There were red bruises to her upper left front chest, bruises to her right breast, haemorrhage on the inner surface of her lips and reddish spots on the inside of her mouth.

15.The girl attended an identification parade in June 2012 and could not identify anybody.

The sentencing exercise

16.Upon the sentencing exercise, counsel for the prosecution drew the attention of the judge to the cases, in particular to those features which go in aggravation of offences of rape (and therefore of attempted rape) particularly those adumbrated in R v Millberry [2003] 1 WLR 546.

17.From the discourse between counsel and the judge, it would appear that the judge was of the view that there was but one aggravating feature, namely, that the respondent had gained access by false pretences to a private dwelling.

18.Mitigation was brief and concentrated on the fact that the offence occurred years previously and that the respondent was, at the time of sentence, a person who lived a decent life, had married in 2000, was the devoted father of two children, and was a filial son and a committed Christian. A letter was produced from a senior pastor of the church attended by the respondent.  It spoke of his devotion to his family, his active pursuit of Christianity and his continued insistence upon his innocence.

19.The judge’s sentencing remarks were brief.  He said:

“The attempted rape took place over 20 years ago. It affected the girl...at the time. And when she is required to give evidence to prove the offence, she wept. That means the offence still affects her.

It is not an offence long gone and forgotten. But on the other hand, a long time has passed.

The defendant has not committed any offence throughout his life, except in 2012 he was found guilty of committing theft. I do not know whether he pleaded guilty or he was found guilty, but apparently the offence was a very minor one because he was only fined $500. He has never tasted prison.

But this offence of which he is found guilty is a very serious one.

What is most damaging for the girl is that she lost the sanctity of her own home because he represented to her, falsely, to be a gas man so as to gain entry. She was already very careful, but the defendant was extremely cunning so that he was able to gain entry and getting to know that there was no adult at home.

The jury has found that he attempted to rape her, but I do not know why you desisted. The offence was not completed - that means there was no rape - otherwise it will affect the girl very much more.

I have been shown some authorities on sentencing in this sort of matter. The usual sentence for rape itself, a completed rape, is 5 years without aggravating factor.

Now, I do not know why you desisted in completing rape. You may have been interrupted, or you did not want to do it eventually. I do not know. But, apparently, only a small amount of violence was used. You hit the girl on the head in order to make her submit or to make her keep quiet, and that is only a small amount of violence. But, still, you gained entry by false pretences into her flat - her home.

In the circumstances, I think the appropriate sentence that should be passed on you is 4 years’ imprisonment.

In adopting that sentence, I have already taken into account what has been said by your pastor about you in a letter to this court. It appears that after this offence, you have not committed any other offence and you have become a staunch believer. And it is represented that you have been living a normal life - you are a responsible father, son, and husband.

I have taken all those into account and, therefore, I pass a sentence of 4 years of imprisonment on you.”

Comment

20.Cases of sexual offending which are prosecuted many years after the event - either because they do not come to light until long after the offence or, as in this case, because the offender is not apprehended until long afterwards - present sentencing judges with a difficult sentencing task in the sense that there may be an inclination in some cases to baulk at the notion of sentencing an offender to a long term of imprisonment where the offender has, in the meantime, led a lawful existence and has, in addition, married and fathered children.  It is likely, we think, that this is what motivated the judge in this case to take what, in our judgment, was a substantially over-lenient view.  In the event, we are satisfied that the sentence imposed was manifestly inadequate and that the judge, in his approach to sentence, erred in several respects, most particularly:

(1) he failed to identify a starting point;

(2) he failed to take into account a number of serious aggravating features;

(3) he failed to give proper consideration to the correct sentencing principles in cases of historic sexual offences, that is to say, sexual offences where the offender is brought to justice long after the event;

(4) he paid too little regard to the effect of the offence on the victim;

(5) he paid too little regard to the need to deter others from such offences and therefore to the public interest;

(6) in the circumstances of this case, he placed too much weight on the fact that the respondent desisted from the rape itself; and

(7) he accorded insufficient weight to the violence used against the girl.

The starting point

(a) Generally

21.The judge said that “the usual sentence for rape itself, a completed rape, is 5 years without aggravating factors”. 

22.In this jurisdiction, the tendency at one stage was to follow the starting point guideline in R v Billam [1986] 1 All ER 985, in so far as Lord Lane CJ said that: “For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as a starting point in a contested case”.  He then proceeded to identify a series of factors which should be treated as aggravating the crime and to these, we shall return.

23.A number of judgments in this jurisdiction, starting as long ago as 1994, have echoed the statement that “the starting point in Billam is not one which necessarily should be used as the starting point in Hong Kong” (R v Lau Yuk Ming [1994] 2 HKCLR 259 at 258-259) and that the guidelines in Billam were “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 take into account local conditions and impose sentences that vary from those referred to in the Billam sentencing guidelines”: R v Sung Kwok Man and another [1994] HKC 161 at 172.  See also HKSAR v Lau Chin Yu [2007] 1 HKC 104.

24.But what these judgments have not done is to identify whether, as a general rule of thumb, the starting point in this jurisdiction for rape committed by an adult without any aggravating or mitigating features should be higher than five years and, if so, what that higher starting point should be.  We do not have the advantage of research as to the starting point generally used in this jurisdiction; but our assessment is that it still tends to be in the order of five years.

25.If in fact five years is the starting point still in use, the question whether that adequately reflects the gravity of the offence of rape in this jurisdiction is one which may require consideration at some other time, but it is relevant in the context of this case to remind ourselves of the nature of the crime.  In this regard, the Lord Chief Justice in Billam, at pp 49 - 50, cited a passage from the Criminal Law Revision Committee’s 15th Report on Sexual Offences, 1984:

“Rape is generally regarded as the most grave of all the sexual offences. In a paper put before us for our consideration...the reasons for this are set out as follows: ‘Rape involves a severe degree of emotional and psychological trauma. It may be described as a violation which, in effect, obliterates the personality of the victim. Its physical consequences equally are severe: the actual physical harm occasioned by the act of intercourse, associated violence or force and in some cases degradation; after the event, quite apart from the woman’s continuing insecurity, the fear of venereal disease or pregnancy. …Rape is also particularly unpleasant because it involves such intimate proximity between the offender and victim. We also attach importance to the point that the crime of rape involves abuse of an act which can be a fundamental means of expressing love for one another and to which as a society we attach considerable value’.”

26.None could sensibly disagree with that description.  We will address later the particular horror for a child and for a child victim’s parents – but, given that broad analysis and its validity, it may be thought that the time is ripe to revisit the starting point guideline.  This, however, is not the occasion to do so.

(2) For this attempted rape

27.In taking as the general rule a five year starting point for rape without any aggravating features, the judge may have taken a slightly generous view of the matter but, be that as it may, four years for this attempted rape was too low even had it been only the starting point.

28.What the judge did, as it seems to us, is to assume that an attempted rape is necessarily less serious than the full offence and to give too little weight to the nature of the attempt in this particular case.

29.The assumption made, that an attempted rape is necessarily less serious than the full offence, is not a safe or logical assumption.  As with all sentencing, everything depends on the facts of the case.  Cases must be looked at in the round and we respectfully endorse the comment of the Court of Appeal in R v Matthews [2012] 2 Cr App R (S) 33 at p. 186 that: “Sometimes...attempted rape can be as bad as some examples of the full offence” and, in that case, the offences were described as “as close as one can get to the full offence”.  That is an echo of a passage in Billam, at p. 51, that:

“The starting point for attempted rape should normally be less than for the completed offence, especially if desisted at a comparatively early stage. But...attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence.”

30.In Secretary for Justice and Lau Yun Leung [1999] 3 HKLRD 289, the judge at first instance had stated that the starting point for the “basic attempted rape should be lower” than “the starting point for a basic completed rape”.  As to that, this Court commented at p. 299 that:

“We endorse what was said in R v Cheung Ming Lim [1989] 1 HKLR 415 at 417 that although this would normally be so, particularly ‘if it is desisted at a comparatively early stage,’ an ‘attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence’.”

31.Against that background, let us consider what happened in this case.  Putting aside, for this immediate purpose, the many aggravating features and looking to the act itself, there was no question in this case of early desisting; no question of mercy to the girl who was pleading against what was happening to her; no question of desisting even when the home telephone rang and he was told that her father would be coming home. He sucked her breasts so that they became bruised; he pressed his erect penis around her vagina several minutes thereafter and ejaculated in the region of her vagina.  This nightmare for the girl went on for about 15 to 20 minutes. This too was as close as one can get to the full offence.  That is not to suggest that had there been penetration, the offence would not have been still more serious.  It would have been, for the short and long-term trauma to the girl and her family would have been greater, but sentence should have been passed on the basis that the circumstances of this offence were very close to the full offence of rape.

32.One way of testing the matter in this case is to ask whether four years’ imprisonment after trial, without aggravating features, would have been an appropriate sentence had only the offence of indecent assault been charged for this ugly conduct.  We think not.  This was cruel conduct, grossly intrusive of the victim’s person, her space, her decency, her cleanliness and her legitimate expectation that any physical (though not, of course, sexual) contact with her was the preserve of those close to and loving of her.

33.It is to be noted that the sentence of four years’ imprisonment at which the judge arrived was the sentence which he deemed appropriate after taking into account such aggravating features as he thought applied.  The one aggravating feature which he identified was the fact that the respondent had gained entry to the premises by false pretences.  He did not identify a starting point without that suggested aggravating feature, so we presume that, without it, he would have sentenced to a still lower term of imprisonment.

34.In our judgment, an appropriate starting point before aggravating features was five years’ imprisonment.

The aggravating features

35.Aggravating factors to which the cases (Billamand Millberry above, and HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427) allude include, but are not restricted to, the following:

(1) the victim is very young;

(2) a weapon is used to frighten the victim;

(3) the sexual offence has been carefully planned;

(4) violence is used over and above the force necessary to commit the sexual offence;

(5) the offender has broken into or otherwise gained access to the place where the victim is living; and

(6) the offender has used no safety measures in sexually abusing the victim so as to avoid transmitting venereal disease or causing pregnancy.

36.The judge did not even mention the age of the victim as an aggravating feature.  Had he given that fact proper effect, he could not, in our respectful submission, conceivably have arrived at the sentence which he imposed.

37.The age of the victim was a major aggravating feature.  In HKSAR v Kong Yun Chiu [2007] 4 HKC 391 at 395, this Court said:

“It should go without saying that children are particularly vulnerable members of society...the deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly. The trauma caused to a child by an indecent assault, and the long-term adverse impact, is difficult to calculate but trauma may safely be assumed in the vast majority of cases, perhaps all. Similarly, trauma and distress, immediate and long-term, is not confined to the child. Parents of child victims will almost certainly be haunted by images of what has been done to the child and, in addition, will nurture a deep sense of guilt either for having entrusted the child to the company of someone who breaches the trust or, in other cases, having left the child unguarded for the odd moment. …Whilst the range of offences within the category of indecent assault is wide, the fact that the victim of such an offence is a child is always a severely aggravating feature.” (Original emphasis).

38.We thought, before hearing Miss Lai’s oral submissions, that it was a surprising fact that in this case no victim impact assessment report was ordered.  However, she informed us that it was not considered appropriate in this particular case to put the complainant through the additional stress of a further interview for the purpose of such a statement.  Given Miss Lai’s skill and sensitivity as a prosecutor, we understand and accept the course she took, though we note that it was not an issue raised by the judge.  We would say that, in general, and subject to case-specific considerations, it is fundamental in considering sentence in cases such as these, for the sentencing court to accord careful consideration to the impact of the crime upon the victim. 

39.In this case, the judge said that when the complainant testified 20 years after the event, “she wept. That means the offence still affects her”. No doubt that is correct.  In general, however, an appropriate sentencing exercise will require an assessment of greater depth than that.  The impact of such an event in childhood is almost certainly bound to have a long-term effect but such an effect will vary from person to person and may, in some cases, manifest itself more seriously than in others.  Sentencing in such cases is not a mechanistic exercise.  Individual justice must be done not only to the accused but to the victim and also to the public interest in deterring those who might commit such offences.  Otherwise there is a danger, as expressed in AG’s Reference No 37 & others [2004] 1 Cr App R (S) 499, at para 9, that “too great a weight [is] attached to the interests of the offender and insufficient weight to the victim’s proper interests and the interests of the public at large”.  In historic or “cold” cases – cases of offences committed long before the conviction - “the evidence may show that the impact of the crime years after it was committed is still disturbing and painful to the individual who is now an adult” - R v Hall and others [2012] 2 All ER 340 at para 13.  In such cases, “...careful judgment of the harm done to the victim is always a critical feature of the sentencing decision”.  In our judgment, a victim impact assessment report should, subject of course to the consent of the victim and the sensible assessment of prosecuting counsel, always be obtained and produced in such cases.

40.As for violence and the use of a weapon, the reference by the judge to “only a small amount of violence” is to underplay what happened.  This was a girl who was grabbed by the neck, by an assailant who had a weapon, or something which had the feel of a weapon, which he placed against her body and she was hit on the head when she protested at what was happening, hit so that she felt pain.  This was violence over and above that necessary to commit the sexual offence and must in itself have terrified, let alone pained, the girl.  We would not categorise it in context as “only a small amount of violence”.  It seems evident that the judge did not take it into account as an aggravating feature.  With respect, he should have.

41.Allied to the use of physical violence in this case was the threat implicit in asking this 12-year-old girl whom he was about to abuse sexually, for her name and her school and whether she wished to be taken away by him.  It is not difficult to imagine the added terror that these questions created.  They do not seem to have been accorded any weight.

42.This attempted rape was planned.  The judge referred to the respondent’s conduct as “cunning” but does not seem to have given aggravating effect to that fact.  The respondent followed the girl, had formulated a plan by which to secure entry into the flat, made sure she was alone, and persisted in sending her back and forth to read the meter.

43.The judge mentioned the aggravating feature of gaining access to private premises, but it is difficult to see what effect, if any, he gave to that factor.  It was indeed a further aggravating factor.  In Mahal v HKSAR [2012] 1 HKC 146 at 158, this Court said that:

“...violation of a girl or a woman in her own home or at any other place which has been taken by the victim as a personal sanctuary safe from the intrusion of outsiders...is a serious matter indeed. A home and school are places to which the householder or schoolchild ... come and go on a daily basis, places where they feel and are entitled to feel comfortable and places to which, unless forced by the experience to change home or school, the victim will be returning day by day after the violation of the person, a constant reminder, therefore, of the drama visited upon her by the act of rape.”

44.One might add that it is common in this territory for both parents to go out to work, the majority of whom do not have the luxury of home help or relatives to look after children who come home alone from school to get on with their homework or other tasks until their parents come home.  Parents have come to trust the relatively safe, albeit crowded, environment in which they thus conduct their daily lives and there is therefore required in cases such as the present a strong deterrent component - meaning a need to deter others who might be minded to take advantage of that setting, sexually to abuse children left at home on their own.

45.The respondent moved his penis about the girl’s vaginal area with an exposed penis; in other words, with no protection. When prosecuting counsel pointed this out to the judge as a fact “now recognised by the court these days as an aggravating feature in the consideration of sentencing,” the judge said, “I know but that is a completed rape mainly”.  He did not mention this factor in his sentencing remarks.  His remark is to ignore the risks occasioned to a victim by ejaculation in the area of the vagina, whether or not there is penetration, and one notes in this case that semen was found in several vaginal swabs.

46.Aggravating features are not reflected in sentence according to some mathematical formula for each factor; it is a question of overall and sensible assessment.  In our judgment, there were significant aggravating features in this case which, putting aside for the moment the question of the lengthy delay between offence and sentence, warranted a sentence after trial of not less than nine years’ imprisonment.

The historic or ‘cold’ case factor

47.We turn now to the question of the historic or ‘cold case’ factor.  It is evident to us that the judge was much influenced by the fact that 20 years had passed since the commission of the offence and that, the theft conviction aside, the respondent had lived a law-abiding life and had become a family man.  The judge did not say in terms whether he viewed that as a mitigating factor though it is implicit from his comments that he did; yet we are left rather in the dark as to the weight he attached to it.

48.Cases in this category, that is to say, cases of sexual offences where much time has passed between offence and sentencing, will vary significantly as to the nature of the sexual abuse; the relationship (or the absence of one) between offender and victim; the reason why the offender has not been apprehended within a reasonably short period after the commission of the offence; the impact on the victim; and the conduct of the offender in the interim.  What must be remembered is that the nature of the offence itself, particularly but not only where the victim is a child, gives rise to a greater possibility than in other categories of offence that the offence will not be reported or discovered soon after its commission.  “In cases of sexual crime, in particular sexual crime involving children or boys and girls who have recently reached puberty, it is a common feature and where it appears, effectively integral to the impact on the victim of crime, that he or she is ashamed, shy, hesitant, fearful, terrified, or as a result of the combination of all these considerations, reluctant or unable to make a complaint at or close to the time of the offence.  On occasions those who do complain within the family and school environment are ignored or rejected and thereafter feel powerless to help themselves.”: Lord Judge LCJ in R v Hall [2012] 2 All ER 340 at paras [6] and [7]. 

49.Those who sexually prey on child victims count on the fact that their victims may well not report the offence or may be prone to unreliable recollection of detail, including identification.  That is one reason why the offender should not stand to gain from the passage of time before disclosure of the offence or apprehension.  Furthermore, the fact that many years have passed before the offender is apprehended creates the danger that, at the time of sentence, too great an emphasis may be placed on the interests of the defendant because he has long since moved on with his life and, in some instances, has acquired a family of his own whose members are greatly distressed at the revelation which has come out of the woodwork and by its threatened consequences and too little attention paid to the interests of the victim and, further and importantly, to the important interest of the public in conveying a strong deterrent message to erstwhile offenders in this category of offence.  This is not to say that the conduct of the offender in the intervening years is irrelevant but it is to warn against the adverse consequences of allowing the fact of the intervening years to accrue too much significance. 

50.The variety of factors which may present themselves and the principles to be followed may be gleaned from a study of several judgments on the subject.

51.In the context of cases came to trial many years after the offence and where the defendants were, at the time of sentence, in their late 50s or 60s and one in his 80s, we see the following comments of Kay LJ in Attorney General’s Reference Nos 37 and others at para 11:

“In other types of crimes it is very much the exception to come across offenders of such ages but since sexual offending may not come to light until many years after the event, they are far from uncommon in these types of offences. They present a particularly difficult, and often painful, task for the sentencers who are confronted by a man of such an age frequently accompanied by his distraught family. It would lead to a clear sense of injustice if there was not a consistency of approach to sentencing in such cases and specific guidance was given in Millberry as to this factor, which we emphasise is just as applicable in other sexual offences as it is in rape offences. At para [17] of the judgment, the Lord Chief Justice said:

‘A matter which was raised before us...was the position in relation to ‘historic’ cases where the offence is reported many years after it occurred and where the offender at the time of sentencing can be even in their eighties.  In these cases also we consider the same starting points apply.  The fact that the offences are stale can be taken into account but only to a limited extent.  It is after all always open to an offender to admit the offences and the fact that they are not reported earlier is often explained because of the relationship between the offender and victim which is an aggravating factor of the offence. A different factor that could cause the courts to take a more lenient view than it would otherwise is the consequences which result from the age of the offender.  In these cases, the experience is that the offender may be only a danger to members of the family with whom he has relationship.  So this is a dimension that can be taken into account if there is a reduced risk of re-offending.  In addition, the court is always entitled to show a limited degree of mercy to an offender who is of advanced years because of the impact that a sentence of imprisonment can have on an offender of that age.’ ”

52.The instant case is not one of an accused person of advanced age at the time of sentence, but the passages in the judgment to which we have referred are nonetheless relevant in so far as they refer to the need to take the same starting point as if there had been no lengthy interregnum, and because they point to the limited effect of the fact that the offence is stale and to the need to have regard to the fact that, in this type of offence, the delay is often the product of the nature of the offence itself.  The judgment is also relevant for its reminder, at para 8, that:

“...it is clearly undesirable for many reasons that courts should pass sentences that are out of line with proper sentencing practice. To do so can only cause public concern and affect the confidence of the public in the system. It runs the risk that people may feel that sexual offenders have not received proper punishment thereby increasing the danger that extrajudicial punishment may be meted out. An inadequate sentence frequently adds to the anguish of the victim, who feels that society has not recognised his or her suffering, particularly when they have had to steel themselves to speak of offending against them that they might have chosen not to rehearse publicly. Nor is such a sentence any kindness to an offender, who will in all probability be subjected to a reference to this Court with the unnecessary anguish of having to start the sentencing process all over again.”

53.The theme that in cases of sexual offending, delay between the offending and the sentencing is not of itself significant is an echo of what was said by the New Zealand Court of Appeal in R v Tutty [1998] 3 NZLR 165, a case in which the complainant was abused by her stepfather from the age of 5 to 12 years and did not report the matter to the police until she was aged 28 years, some 17 years after the last offence.  The Court said at pp. 168 - 169 that: 

“We reject Mr Atkinson’s principal contention that the long delay between the offending and punishment should of itself mitigate the sentence. In R v Carruthers (Court of Appeal, Wellington, 10 April 1995) this Court stated, at p. 4:

‘In looking at the case in the round, due regard must be had to the lapse of time. It is of course a common feature in the cases of sexual abuse of children which are coming before the courts in such numbers. Of itself, it is not necessarily a factor of any significance at all. Where for example disclosure has been suppressed by the offender, or by pressures from the very environment, such as the closeness of the family, which enabled the commission of the offence in the first place, plainly the offender can claim no credit. ... But where in the years that have intervened the offender has demonstrated that he has overcome his earlier proclivities, and has settled into a normal and law-abiding life, that fact must be recognised.’

Again, in R v D (Court of Appeal, Wellington … 5 September 1995) the Court said at p. 5:

‘The length of time since offending is not itself a strong ground for a lesser sentence. Offenders must recognise that to escape detection for a period is not to reduce the sanction for criminal conduct when it comes. Deterrence in a general sense still is important. However, the fact that there has been no intervening offending of similar kind does bear upon sentencing in that concern for the safety of others is a less significant factor.’

While, therefore, a delay between the offending and sentencing is not in itself significant, matters which have transpired during that time may be pertinent. Thus, if the offender has not offended since the offending, he will have a longer unblemished record to put before the Court. Similarly, his conduct over the years may count in his favour. He may have faced up to and acknowledged his problem, demonstrated genuine remorse, obtained counselling or treatment where necessary, or in some other way sought to reform himself and atoned for his misdeeds. He may have obtained assistance for his victim. He may have made amends in many ways and be able to show that he has led an exemplary life since his early offending. In all such cases, it is these factors rather than the lapse of time in itself which will be taken into consideration on sentencing. While in such circumstances the need to deterrence in the case of the offender him or herself may have diminished or disappeared altogether, the need for a sentence which will serve as a general deterrent to such offending remains. So too, the need for a sentence to mark society’s denunciation and abhorrence of such offending is unaffected.

In this instance, Mr Tutty was able to claim that he had no convictions since his offending in 1968 and that a period of 17 years had elapsed since the offending in issue.  That record is to his credit.  Mr Tutty has also proved himself to be a hard-working and reliable employee.  As against these factors, however, Mr Tutty denied the offending, other than in relation to the one incident observed by his wife, and continues to proclaim his innocence of the charges on which he was convicted.  There is no indication of remorse or understanding of the harm he has caused his victim.  On the contrary, with the seeming connivance of his wife, Mr Tutty has managed to cover up the offending throughout the intervening 17 years.”

54.In R v Hall and other appeals, above, Lord Judge LCJ said, at para 47 that:

“(c) As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus. Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender’s culpability. If, for example, the offender was very young and immature at the time when the case was committed, that remains a continuing feature of the sentencing decision. Similarly, if the allegations have come to light many years earlier, and when confronted with them, the defendant admitted them, but for whatever reason, the complaint had not been drawn to the attention of, or investigated by, the police, or had been investigated but not been pursued to trial, these too would be relevant features.

(d) In some cases, it may be safe to assume that the fact that, notwithstanding the passage of years, the victim has chosen spontaneously to report what happened to him or her in his or her childhood or younger years would be an indication of continuing inner turmoil. However, the circumstances in which the facts come to light varies and careful judgment of the harm done to the victim is always a critical feature of the sentencing decision. Simultaneously, equal care needs to be taken to assess the true extent of the defendant’s criminality by reference to what he actually did and the circumstances in which he did it.

(e) The passing of the years may demonstrate aggravating features if, for example, the defendant has continued to commit sexual crime or he represents a continuing risk to the public. On the other hand, mitigation may be found in an unblemished life over the years since the offences were committed, particularly if accompanied by evidence of positive good character.

(f)  Early admissions and a guilty plea are of particular importance in historic cases.  Just because they relate to facts which are long past, the defendant will inevitably be tempted to lie his way out of the allegations.  It is greatly to his credit if he makes early admissions.  Even more powerful mitigation is available to the offender who out of a sense of guilt and remorse reports himself to the authorities. Considerations like these provide the victim with vindication, often a feature of great importance to them.”

55.Our own researches have uncovered the latest guidelines issued on the subject by the Sentencing Council for England and Wales, effective from April 2014.  In relation to the approach to sentencing historic sexual offences, it is suggested that:

“4. The seriousness of the offence, assessed by the culpability of the offender and the harm caused or intended, is the main consideration for the court. …

…

6. The court must assess carefully the harm done to the victim based on the facts available to it, …. Consideration of the circumstances which brought the offence to light will be of importance.

7. The court must consider the relevance of the passage of time carefully as it has the potential to aggravate or mitigate the seriousness of the offence. It will be an aggravating factor where the offender has continued to commit sexual offences against the victim or others or has continued to prevent the victim reporting the offences.

8. Where there is an absence of further offending over a long period of time, especially combined with evidence of good character, this may be treated by the court as a mitigating factor.  However ... previous good character/exemplary conduct is different from having no previous convictions.  The more serious the offence, the less weight which would normally be attributed to this factor.”

56.Applying these various considerations to the history of this case, one notes that:

(1) the respondent was young at the date of the commission of the offence but nonetheless an adult who had, by the time of the offence, been in the workplace for two years, so he cannot pray in aid particular youth or immaturity;

(2) the respondent cannot pray in aid voluntary surrender or any form of remorse; indeed, he disputed his culpability even in the face of overwhelming scientific evidence;

(3) there has, in the interim, been no intervening offending of a similar kind so that concern for the safety of others is not, in this case, a material factor;

(4) the respondent has, since the commission of the attempted rape, led an almost blameless life, though he cannot pray in aid a positive good character; and

(5) it is difficult to assess with accuracy the long-term effect on the victim because of the circumstances we have described that led to the decision not to secure a victim impact assessment report, though we do note that even after all these years, the incident evidently greatly upset her.

The appropriate sentence

57.In Millberry, at para 34, Lord Woolf LCJ warned against adopting a mechanistic approach to guidelines for sentencing in rape cases.  “It is essential,” he said, “that having taken the guidelines into account,  sentencers stand back and look at the circumstances as a whole and impose a sentence which is appropriate having regard to all the circumstances”. 

58.That is an imperative which we respectfully endorse.  It requires full regard, of course, to the guidelines, to the need for consistency in sentencing for like cases, and to the need to do individual justice to the accused, the victim and the public at large, taking into account the facts of the offence itself, the degree of harm to the victim, the level of culpability of the offender, the level of risk posed by the offender to the public and, in the light of the principles we have traversed, the effect, if any, that the passage of time should have on the ultimate sentence.

59.This was an ugly offence of its kind, planned by an intruder on a girl alone at home with violence in addition to that “required” for the offence itself, persisted in despite the girl’s cries and attempts to ward him off, and with unprotected ejaculation.  Ignoring the issue of the passage of time, this was an attempted rape which warranted a sentence of nine years’ imprisonment. 

60.In all the circumstances which we have described, the passage of time of itself is of some but not much significance. It is of some significance because for a period of 19 years since, at a relatively young age, this respondent committed the offence, he has led a blameless life (the offence of theft was rightly described by the judge as minor and is, for present purposes, of scant relevance) and the concern for the safety of others which otherwise would be a material factor is not now a factor.

61.Standing back and looking at matters in the round, we are of the view that the appropriate sentence was one of 8 years’ imprisonment.

Result

62.It follows from our analysis and our conclusion that the sentence imposed by the judge was well outside the range of sentences which the judge, had he applied his mind to all the relevant factors, could reasonably have considered appropriate and, accordingly, we allow the application for review of sentence.

63.In HKSAR v Raymond Ng Chun To and another, CACC 178/2010, unreported, 31 July 2013, the question was raised whether the courts in this jurisdiction have accorded proper recognition in review of sentence cases to the principle of double jeopardy, and reference was made by the Court to the judgment of Lord Phillips in AG’s reference Nos 14 and 15 of 2006 [2007] 1 All ER 718.  We have not, for the purpose of this case, conducted the considered analysis, portended by our comments at para 174 in Ng Chun To, of past cases in this jurisdiction, but it is nonetheless helpful to remind ourselves of the principled consideration at stake.  Lord Phillips said that:

“[57]... Almost from the start it has been the practice of the court, when considering whether to substitute a heavier sentence and, if so, the length of the sentence, to have regard to the fact that the procedure subjects the defendant to anxiety which should normally be reflected by some discount in the sentence which would otherwise be imposed. This consideration has been described as ‘double jeopardy’. In rare cases double jeopardy has been instrumental in leading the court to decide not to alter the sentence. ...

…

[60] Having regard to double jeopardy is but one aspect of the task of this court when considering, in the exercise of its discretion, whether and how to intervene where an unduly lenient sentence has been imposed. Where a defendant has had no responsibility for the fact that he has been given a sentence which is unduly lenient, we consider that it accords with justice that, when substituting a weightier sentence, this court should have some regard to the distress and anxiety experienced by the defendant as a consequence of having a sentence reopened and increased. The degree of distress and anxiety and thus the size of the discount will depend on the facts of the particular case.

[61] The distress and anxiety is likely to be particularly great where the decision of the court results in a defendant being placed in prison where originally no custodial sentence was employed, where a custodial sentence has been completed, where the defendant is young and immature or where the defendant was about to be discharged from prison. In all of these cases, the distress and anxiety caused by the double jeopardy is likely to be significant when weighed against the original offending. …

[62] Where a defendant’s offence was so serious that he still has a lengthy period of imprisonment to serve at the time of the [review] any distress and anxiety at the prospect of the sentence being increased will be much less significant.”

64.We respectfully endorse that approach.

65.Applying those principles, we take into account the anxiety visited upon the respondent by the fact of this review. There is a further material factor which is that the sentence which we have said is appropriate is double the sentence imposed in the court below.  In the context of lengthy sentences, this is a particular blow and is an illustration of the fact that sentencing judges provide a kindness to no-one if they impose sentences wholly out of line with proper sentencing practice.  This is not to discourage judges from doing individual justice and it is not to encourage them to be mathematical in their approach at the expense of applying to the sentencing process their ‘feel’ of the case and a rounded stand-back assessment.  It is merely to point out the damage done when the sentence is outwith acceptable parameters.

66.To give effect to the double jeopardy considerations in this particular case, we have decided that the sentence that should be imposed is one of 7 years 6 months’ imprisonment.

67.Accordingly, we grant the application for review, set aside the sentence imposed in the court below and substitute therefore a sentence of 7 years 6 months’ imprisonment.

Miss Anna Y K Lai, SADPP and Miss Claudia Ng, SPP (Ag) of the Department of Justice, for the Applicant

Mr John Marray, instructed by K Y Lo & Co, assigned by DLA, for the Respondent