Guinean man has sentence cut after Hong Kong Court of Appeal replaces attempted rape conviction with indecent assault
Judge argues that trial jury should have been allowed alternative verdict; court reduces sentence from six years to just over four years
The Court of Appeal sentenced Ali Keita, 28, to four years and two weeks after finding the trial judge had erred in not agreeing to a defence offer that an alternative verdict should be left to the jury.
The victim had testified that the man grabbed her neck and pressed her throat, before stuffing a plastic bag in her mouth and pulling another over her head.
The court also heard that she felt he attempted penile penetration and struck her private parts with the palm of his hand three to four times at a rear lane near a ParknShop supermarket in Kowloon City at around 9pm on January 9, 2015.
The woman stopped collecting cardboard from the supermarket the following day.
Defence counsel Kevin Egan said in mitigation on Tuesday that he accepted it was a serious assault. But he added: “Clearly it was a spontaneous attack, and secondly, there was no lasting effect on the victim.”
He had argued during trial that an alternative verdict of indecent assault should be offered in case the jury was not satisfied on the evidence that there was attempted penile penetration but was certain that he attacked her with a sexual intent.
But Mr Justice Louis Tong Po-sun only directed the jury to consider the charge of attempted rape.
In a written judgement on Tuesday, vice-president Mr Justice Michael Lunn of a three-judge panel noted that the trial judge seemed to have given “undue weight” to the prosecution’s case of “attempted rape or nothing” despite there being “a realistic evidential basis” to consider the alternative.
“That gave rise to a wholly unnecessary risk that the jury might have been persuaded to convict the appellant rather than acquit him altogether,” the judge wrote. “That risk would have been obviated if the judge had directed the jury, as he should have done, that the alternative verdict ... was available.”
