COURT: The defendant pleaded guilty to one count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap 200. The defendant pleaded not guilty to a 2nd count of robbery and that count was ordered to be left on file and not be proceeded with without the court’s leave.
The Summary of Facts as accepted by the defendant reveals the following. The rape occurred 40-odd years ago on 20 January 1983, the victim, X, was then a 13-year-old girl studying Form 1 in secondary school.
The rape occurred in a flat, which I will refer to as “the flat”, in Sun Fat Estate in Tuen Mun. The flat was resided by X’s elder sister and her then husband. X’s sister and her husband had to go to work during the day, where they gave X the flat’s key to allow her to go to the flat for break during her school lunch hour, which X occasionally would.
On 20 January 1983 at about 11.35 am, X went to the flat, she noticed that the defendant, a total stranger to her, was at the staircase and followed behind her. As she opened the door to enter the flat, the defendant pushed her inside and shut the door behind him.
The defendant threatened X that he carried a knife and demanded X not to shout. He then tied X’s hands behind her back with the scarf she was wearing, covered her mouth with a pair of sports pants and tied her legs with a pair of jeans.
The defendant then lifted up X’s skirt, removed her shorts and underpants, and pushed her onto the bed. He touched X’s vagina and molested her breasts, while asking X if she was a virgin. X replied in the affirmative and pleaded him to leave her alone.
Despite X’s pleas, the defendant continued to lower his pants to his thighs and put a rubber on his penis. He laid on top of X. He rubbed his penis against X’s vagina, but failed to penetrate. He then demanded X to turn to face the bed, and he spread her legs apart after untying them.
The defendant then raped X from behind by inserting his penis into her vagina and thrusting for three to four times. He then pulled out his penis and dressed his pants. He helped X to untie her wrists and then left the flat.
X then went to the nearby police station to report the incident. She told the police officer receiving her, that her vagina was painful and was bleeding afterwards. The officer noticed that X was crying and emotional, with tousled hair and injuries at the corner of her mouth.
Upon X’s reporting, police arrived at the flat for investigation. Police seized various items from the flat, including some blood-stained tissues which were later found to contain semen after forensic examination.
Police also lifted a palm print on a chest drawer inside the flat. Police also accompanied X to search the neighbourhood but they could not locate the culprit. The palm print was also unidentified at the time. Police had further investigated into the crime afterwards but to no avail.
For many years, the culprit remained unidentified. That was until the computerisation of the police fingerprint matching system in about June 2008. The palm print lifted from the flat in 1983 was then identified to belong to the defendant. The defendant was then placed on the police wanted list and watch list.
On 15 August 2021, the defendant was intercepted by patrolling police in the Tsuen Wan area leading to his eventual arrest for the crime he committed almost four decades ago.
In a video-recorded interview taken with the defendant under caution, the defendant admitted that in about 1983, he would look for random targets and to gain access to residential units to ransack for money.
He admitted that he might have pushed a student girl into a flat and ransacked in it about 30 to 40 years ago but he could not recall whether he raped the girl or not.
The Defendant’s Background
The defendant was born on 8 January 1963. He had just turned 20 years old when he committed the rape. He is now 60 years old. He was educated up to Form 1. At the time of the offence in 1983, he was an aluminium window worker. Prior to his arrest two years ago, he was working as a kitchen worker, earning roughly $20,000 per month.
The defendant is divorced. He had two former marriages and two daughters, one from each marriage. Since 2002, he had been living with his current girlfriend, who is a waitress until the cohabitation was interrupted by the present period of remand upon his arrest for the rape. I am told that his girlfriend would still visit him often during his current remand.
Prior to January 1983, the defendant had one conviction record for objects dropped from height. After the current offence, in the 17-odd years between 1983 and 2000, the defendant was further convicted on five occasions, none of which were sexual offences.
His last conviction on 3 August 2000 for offences concerning assault with an intent to rob and resisting a police officer in due execution of his duties for which he was sentenced to a total term of 3 years’ imprisonment. That last assault with intent to rob conviction also involved the invasion of a set of private premises and violence being committed against a female victim.
The defendant submitted five mitigation letters, including one from his girlfriend of 20 years and others from friends and relatives. It would appear from the letters that the defendant has led a reformed and stable life since his release from prison in 2002 until August 2021 when he was arrested for the present offence and was then remanded in custody.
One of the letters submitted by the defendant spoke to the defendant volunteering to help neighbours and the elderly by doing volunteering work. I have also taken note of the medical condition of the defendant’s girlfriend and her dependence on the defendant for emotional and physical support.
The Appropriate Starting Point
I turn now to consider the appropriate starting point for the circumstances of the present offence. Counsel for both the prosecution and the defence took this court through the authority of Secretary for Justice v Leung Yuet Hung [2014] 3 HKLRD 304, which also concerned the rape of a young girl in a residential unit and which occurred around 20 years prior to the date of sentence.
In the circumstances of that case, the Court of Appeal considered that a starting point of 9 years’ imprisonment was appropriate. Mr Joseph Lee for the defendant compared the circumstances of the Leung Yuet Hung case with the present case and submitted that the present case was less serious and therefore invited this court to adopt a starting point of 8 years’ imprisonment.
In considering Mr Lee’s submissions, I bore in mind the remarks of the Court of Appeal in Leung Yuet Hung at paragraphs 39 and 46, that sentencing in such cases is not a mechanistic exercise and that the aggravating features are not reflected in the sentence according to some mathematical formula for each aggravating factor.
The question for this court is one of overall and sensible assessment. There are obviously a number of serious aggravating factors in the present case.
Firstly, the victim’s young age is a serious aggravating factor. The Court of Appeal stated in HKSAR v Kong Yun Chiu [2007] 4 HKC 391 at 395 that:
“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 a 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 had 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 breached 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.”
Secondly, the offence has had a serious impact on X. As stated in the Summary of Facts, after the incident, X was depressed and had emotional problems. X dropped out of school after Form 5 and was taken by her family to see a doctor. She was then referred to Castle Peak Hospital where she sought medical consultations and was prescribed with medications. From that time onwards, she required repeated admissions to the Castle Peak Hospital.
On 7 April 1999, that is 16 years after the offence, she was discharged home from the Castle Peak Hospital for a short vacation. She committed suicide on the same day by jumping off a building. For that reason, no victim impact statement is available to the court.
According to the witness statement of X’s sister, before X’s death she had been single all along and had never dated anyone. She had to stay frequently in Castle Peak Hospital which affected her ability to take on a regular job.
Although the direct cause of X’s suicide is unknown, it is obvious that the trauma the defendant caused on X has prevented X from having a normal life.
Thirdly, there was some violence used on X. X’s hands and legs were tied up and her mouth was covered with a pair of sports pants. The defendant had threatened X that he had a knife and demanded X not to shout. Although it did not appear that a knife was actually shown to X.
X had pleaded with the defendant to leave her alone but that was ignored by the defendant. When X turned up in the police station shortly afterwards, her vagina was painful and bleeding, and there were injuries at the corner of her mouth.
Fourthly, the offence took place in the private residence of X’s sister, a place at which X must obviously have felt safe and the defendant invaded that space. As stated by the Court of Appeal at paragraph 44 of Leung Yuet Hung, there must be a strong deterrent component in order to deter others who might be minded to take advantage of that setting.
There appears to be a small degree of planning in respect of the defendant preying on vulnerable victims with a view to rob, but I accept the submission of Mr Lee that insofar as the rape of X was concerned, that appeared to be impulsive. I therefore do not consider this to be a separate aggravating factor.
I do not however, accept Mr Lee’s submission that the circumstances of this case are less serious than that in Leung Yuet Hung. Both cases exhibit some similar features but also contained their own differences which cannot be considered or compared in a mechanical way.
For example, in Leung Yuet Hung at paragraph 31, the Court of Appeal noted that there was ejaculation in the region of the victim’s vagina but without penetration. And the Court of Appeal commented that this was “as close as one can get to the full offence.” However, that observation was immediately followed by the statement that:
“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.”
That was exactly what happened in the present case, where there was full penetration and the short and long-term trauma on X and her family were far more serious and long lasting.
The defendant deprived a young girl the opportunity to have a normal life and that is something that this court must denounce in the strongest of terms. Considering the matter in the round, in my judgment the appropriate starting point in the present case is 10 years’ imprisonment. I turn next to the mitigating factors.
Firstly, the guilty plea discount. The defendant was committed to the Court of First Instance for trial and had indicated his plea of guilty around three months prior to the start of trial. It is therefore necessary to traverse the procedural history in order to determine the discount that should be given to the defendant for his guilty plea.
The defendant initially pleaded not guilty in the Magistrates’ Court and was then committed to the High Court for trial on 20 February 2023. Legal aid was granted on 21 February 2023. Parties confirmed on 21 March 2023 and the case was required to be listed for trial.
The trial was then fixed to take place on 8 to 17 January 2024. Additional trial dates were later fixed at the case management hearing on 27 September 2023. On 13 October 2023, the court was informed that the defendant intended to plead guilty to rape and the plea in sentence hearing was fixed to take place on 28 November 2023.
The defendant’s guilty plea came after the fixing of trial dates but before the first day of trial. According to HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, the appropriate discount is between 20 to 25 per cent. I accept that despite the defendant’s late plea. The defendant has exhibited genuine remorse and his plea had the effect of saving X’s sister from reliving the trauma of what happened to her sister 40 years ago.
In the circumstances of the present case, I consider a discount of 22 per cent to be appropriate. This reduces the sentence to 7 years and 9 months after rounding down.
The Historical Nature of this case
The present offence is undoubtedly an old offence. Although the defendant have had some criminal offending between 1983 and 2000, none of which were sexual offences. He has appeared to have led a reformed life for around 19 years between the date of his last release from prison in 2002 and the date of his arrest in August 2021.
Whilst the defendant represented a continuing risk to the public due to his repeated offending between 1983 and 2000, one of which also included an intrusion into private premises, he no longer poses a continuing risk.
As observed in some of the passages cited by the Court of Appeal in Leung Yuet Hung at paragraphs 47 to 58 of the judgment, despite the long passage of time, the need for the sentence to serve as a general deterrent to the serious offending remains. So too the need for a sentence to mark society’s denunciation and abhorrence of such offending is unaffected.
To take into account the passage of time of 40 years and the defendant’s ability to reform himself in the latter part of those 40 years, I will further reduce the sentence by 9 months. I sentence you to a term of 7 years’ imprisonment.