HKSAR v. TSANG UE-SUM

HCCC239/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 239 OF 2009

-----------------

-----------------

---------------------------------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------------------------------

COURT: You have been convicted by the jury of the alternative count of indecently assaulting Miss Chan Wing-hung on 1 September 2008 at your home in Tsz Lok Estate.

  The evidence before the court was that in the early evening of 1 September, you were chatting to Miss Chan, who was then aged 20, on an internet chat site. You had never met her before. During the course of the conversation with her, you told her that you had a collection of over 2,000 disks and you invited her to come round to your home so she could look through them.

  She arrived at your flat, which was near her own home, at around 6.45 pm. You were alone in the flat. After an initial conversation, she started to look through your VCDs. During the course of doing so, she drew attention to the fact that she had found some category 3 movies amongst them. That appears to have prompted you to say that her breasts were big and you offered to measure them for her. You then started to tickle her from behind. Despite her attempts to collect her belongings and leave, you blocked her way and continued to tickle her.

  She told the court that she told you to stop playing and that she wanted to go home. You moved her backwards towards an area where there were two beds. You then pushed her onto a bed which at that time had a white cover. She tried to get up but you pushed her down. Then, using one hand to hold her down, you used your other hand to pull her underpants down to her knees.

  She said that she struggled to prevent you doing this and begged you to let her go. She was crying. You told her that even if she cried, nobody would be able to hear her. She did, however, manage to stand up and pull up her pants. She says that she begged you to allow her to go. Your response was to tell her that she had three options, either to masturbate you, to have oral sex with you, or to have sexual intercourse with you.

  Despite her obvious desire to leave your flat, she was later pushed by you onto a second bed which had a blue cover and was alongside the first bed. Miss Chan’s evidence was that, prior to doing so, you had removed your own lower garments and put on a condom. She said that she tried to get past you but you blocked her way. She had tried hitting you and kicking at you but you had caught hold of her leg, causing her to fall back against the wall.

  After pushing her onto the bed with the blue cover, you had then lain on top of her. While she was struggling to resist you, you lifted her bra, kissed her breasts and forced her underpants down to her knees again. She attempted to stop you by grabbing hold of a nightlight and hitting you with it. She was crying and begging you to let her go. You only desisted when she appeared to have difficulty breathing.

  It was on the basis of that evidence as to what had happened on the bed with the blue cover that the prosecution alleged that you had attempted to rape her.

  The jury, by their verdict, were obviously not satisfied that you had done so. It is not clear from their verdict the basis upon which they reached that verdict, whether it was because, while they accepted the evidence of Miss Chan, they were not satisfied that your acts went beyond acts preparatory to committing the offence of attempted rape, or that they had doubts as to certain parts of Miss Chan’s evidence. For that reason, I shall assume the situation most favourable to you and proceed on the latter basis.

  Even on your own account, you had taken out a condom, but had not yet unwrapped it. You admitted lying on top of her and kissing and touching her while she was on the bed with the blue cover. In your statement to the police, you admitted to exposing her breasts and kissing them and touching her private parts under her underpants, but you did allege that those incidents had occurred on the first bed.

  I have no doubt that you did force her onto the second bed and continue to sexually molest her when it was abundantly clear from her distress that she was not consenting. It is clear even from your own account that it was only the vehemence of Miss Chan’s reaction that caused you to desist. You admitted that she started to yell.

  Her account, of course, was that she was sobbing so much that she appeared to have difficulty in breathing and that caused you to be scared as to what might happen to her. In any event, you permitted her to go to the bathroom and wash and, thereafter, she left your flat and almost immediately made a 999 call.

  When she was later examined by a doctor, she was found to have swellings on her scalp. I am satisfied that those swellings were caused by her hitting her head during the course of your attack.

  At the time of the incident, you were 23; she was only 20. It would have been apparent to you that she was not a girl of great sophistication. In such circumstances, you clearly decided that she was somebody that you could use simply as an object for the gratification of your sexual urges, regardless of her wishes. You used force to persist in your attack when she had made it clear she would not consent to any intimacy with you. She was obviously very distressed by what had occurred and sustained the fortunately not very severe injuries to which I have referred.

  I bear in mind that you are a young man of previously good character. You were hard-working and, at the time of the offence, had a respectable job with a bank and were a member of the Civil Aid Services. These are not factors which justify a substantial reduction in sentence when it comes to an offence of this nature.

  I am prepared to assume that this was not a premeditated offence and that, initially, your approaches may have been triggered by Miss Chan finding the category 3 movies in your drawer and making reference to them. That did not excuse what occurred when she indicated that she was not interested. I also bear in mind that, ultimately, you desisted when she was obviously greatly distressed.

  It appears, from what I have been told by Mr Wong this morning, that this offence was out of character. I hope that your involvement with the police and the courts makes it unlikely that you will ever commit this sort of offence again. A sentence of imprisonment is necessary to send a message that this sort of conduct is totally unacceptable.

  On the facts of this case, I adopt a starting point of 2½ years’ imprisonment. I have taken into account all that has been said by Mr Newman Wong on your behalf, the background report from the Probation Service and the letters that have been handed to me. I am prepared to reflect what I have heard about your previous character, indeed, even positive good character, by giving you a discount of 3 months from the starting point to which I have referred.

  I am satisfied that there are no circumstances that warrant any further discount from the starting point. You have exhibited no remorse. As a result, Miss Chan had to testify both in the committal proceedings and at the trial. That does not aggravate your offence or your sentence but it would have been a factor in mitigation of sentence if you had accepted responsibility for what you had done.

  I accordingly sentence you to 2 years 3 months’ imprisonment, in other words, 27 months.