HKSAR v. FUNG HOI YEUNG

HCCC 156/2018

[2019] HKCFI 598

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 156 OF 2018

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

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COURT: Fung Hoi-yeung, you were found guilty after trial of the rape of your Indonesian domestic helper who had been working for your family for just 5 days when the incident took place. You were just 26 at the time of the offence and your domestic helper was 25 years of age. This was the first time she had been to Hong Kong. Indeed, it was the first time she had left her own country. She left behind a husband and a young two year old baby daughter and she placed herself in the care of your family. The trust she placed in your family was wholly misplaced then and now.

You and your family occupied two units at Rooms 1008 and 1009 of Tsz Fai House and it appears that the helper was employed primarily to look after your daughter, to clean the two flats, to wash clothes for the five of you and to assist with cooking. You say you were not happy about this as you had not been consulted by your mother before she employed the helper. You said you argued with your mother about it. You took your unhappiness out on the maid as you were verbally abusive to her even before you decided to rape her. You treated her with total disrespect, as did your sister. The extent that you sought to belittle, demean and undermine a national of another country simply for being a domestic helper, did not aid your case in front of the jury. You planned this attack. I do not believe it was a spur of the moment incident. You took the opportunity of your mother being away. There would have been no one, whom the maid could have naturally run to for help after the rape.

In the early hours of the morning of 21 October 2017, you knocked on her door in order to get her to unlock it. You spoke to her but she did not understand you and she took the opportunity to go to the toilet. She walked past you. On her return, she walked past you again to get back into her room, but you were waiting for her, you grabbed her arms and eventually you pushed her back into her room and onto her bed where you raped her.

You entered her so forcefully that you caused her to bleed significantly. She was still bleeding when examined by a doctor much later that day. Her blood got onto your T-shirt and your boxer shorts and, because of that, you took them off and you washed them to get the blood out of them, but you left them in the washing basket and that is where they were recovered by the police. What you did not do was to wash her clothes or her bed clothes because they contained your DNA. There was no reason at all, on your case, why your DNA would be upon the victim’s pyjamas and bedsheets as it was found to be, unless, of course, the offence had been committed as she said it was.

The victim in this case knew no one but your family and a lady in the employment agency. From 3 o’clock in the morning on 21 October til 9 o'clock, she tried to contact somebody to seek help. The audio messages and the text messages clearly show how distraught she was. But despite this, and knowing you had gone to work, she did not abandon your little baby daughter in order to seek first aid or to go to the police. She continued to take care of her whilst trying to explain to someone else what had happened and to the only people she knew who were actually strangers to her.

What followed, after the complaint of rape was made known, is not to your credit. Nor is it to your credit and the credit of your mother or your younger sister who came to give evidence in your defence. As is your right, you remained silent upon arrest. As is your right, you put the victim through a trial. You put the prosecution to proof. But you went beyond that. You, through your counsel, suggested this rape did not occur at all. There was no sexual intercourse. This was a woman, you said, who merely sought to obtain severance pay from you. That argument was without any merit from the outset but you persisted with it. You maintained she knew her contractual rights sufficiently to know that if she was fired by you, then she would receive a flight home and a month's pay. When it became clear that the employment agency had not, in fact, properly advised her of her rights, you suggested that she wanted the money to pay off a loan until it became clear that the loan in question had been taken out by the employment agency without the helper's knowledge.

Thereafter, you tried to suggest that the blood found on her clothing and her sheets were because she was menstruating. You had your mother take pictures of used sanitary towels in a waste bin despite the fact that there were other women using the flats and there was no way of establishing the provenance of the photographs and the examining doctor said she was not menstruating at the time. Not surprisingly that evidence was disallowed.

You had your mother suggest she was unhygienic and disgusting with soiled underwear that was not washed and that she had to be told when to wash her clothes. Then you sought to undermine her credibility by adducing social media content from her mobile phone until it became clear on her evidence that the mobile phone had been given to her by her husband secondhand and in all likelihood the social media content belonged to him and not her.

You also had your sister come and give evidence some 18 months after the event that she now recalled that the officers had not changed the white A4 paper upon which they had photographed the exhibits and therefore you said, the DNA must have been transferred as a result of their sloppy procedures. As each avenue of defence was destroyed or undermined, you introduced another, including what was suggested to the court were photographs of the helper's room only for the court to find that the so-called photographs were in fact digitally altered images. Yet still you persisted in your denial.

Worst of all was the suggestion that this naïve domestic helper, who had been in your home for just five days, had taken your boxer shorts from the wash bin in order to wet them and spread your dried semen onto her clothes and bedsheet, because opportunistically, you had had a wet dream on the previous evening.

Mr Fung, it is your right to put the prosecution to proof, but the manner in which you defended this case, shows absolutely no remorse. Your counsel has not suggested today that you are remorseful. Your attitude indicated the utter disdain that you had not only for the victim of this rape but also for the criminal justice system. This is not a game, Mr Fung. Those who appear on your behalf are supposed to challenge the evidence of the prosecution, but at times they came dangerously close to being less than proper in the manner in which they did so.

There appeared to be an expectation by the defence that this court would turn a blind eye to the rules of evidence and that there was no requirement to ensure that evidence adduced on your behalf was properly disclosed for what it was. You will not be penalised for that.

I have read the letters from your two sisters and from your friend which indicate you are a good father and son and friend. You are a man of previous good character but good character as you have heard, in and of itself, is a factor of lesser importance when considering the appropriate sentence for a crime as serious as this. This was a significant breach of trust of somebody who was in Hong Kong for a very short time and entrusted with the care of your very young daughter. Not only did you violate her in a way she will never forget and put her through a trial but you showed utter contempt for her throughout.

There are no tariffs for the offence of rape. It is the most grave of all sexual offences because it includes an exceptional degree of both emotional and psychological harm and trauma as well as physical abuse. That is simply because the facts vary very greatly from case to case.

I have considered the authorities put before me including Secretary for Justice v Singh [2000] 2 HKLRD 187, HKSAR v Chan Tung Hing, Band [2010] 3 HKC 301 and HKSAR v Lo Cheung On CACC 335/2001. I have also considered Secretary for Justice v Leung Yuet Hung [2014] 3 HKLRD, and I consider that in this case a starting point of 8 years is appropriate.

At paragraph 35, the Court of Appeal in Leung Yuet Hung, identified a list of aggravating features which is, of course, not an exhaustive list, and which includes, but is not limited to:

(a) the age of the victim;

(b) whether a weapon was used;

(c) whether the offence was planned;

(d) whether violence or force was used;

(e) whether the offender has broken into or gained access to a place where the victim was living; and

(f) the lack of safety measures to ensure against sexually transmitted disease.

I would add to that the psychological impact upon the victim which we have seen includes the fact that she was terrified of the repercussions to her of her Muslim husband finding out and her concern that she may have become pregnant. Indeed, she was so traumatised that she could not initially bring herself to seek another position in Hong Kong and she managed on the most basic of financial means whilst awaiting trial of this matter. A trial that has taken some 15 months to get to court. This has been a painful 15 months for her in more ways than one. She has been separated from her young daughter, had to answer for this incident to family and friends and has had to give evidence before a jury on truly intimate matters. The court noted the trauma of her giving evidence, which she did with an astonishing bravery given the suggestions being put to her by the defence.

In this case, there was a gross breach of trust in respect of the employer/employee relationship for you were de facto her employer as she was there to take the sole care of your young daughter. You gave her instructions and you scolded her when she appeared to be in the wrong. The victim was foreign to this jurisdiction and reliant upon your family and you to keep her safe. She was vulnerable without family or even friends to turn to when disaster struck. She was entrusted with the care of your daughter and continued to ensure your daughter came first even after the attack upon her by you.

This was pre-planned. You grasped an opportunity when your mother was away and then you had sex with her against her will and you used sufficient force to cause a tear in the victim's private parts. You knew you had done her physical harm because you approached her the next morning with pain killers, no doubt in belated remorse, remorse which you did not replicate in this court either then or now.

Finally, and worst of all, you did not use a condom. You were reckless about her continued sexual health and the possibility of her becoming pregnant, a fact which would have resulted in an even worse outcome for her as a married Muslim.

For all of those aggravating features, taking into account the evidence which I have heard, which includes your previous good character but also your complete lack of remorse, and your willingness to allow members of your family to come to court and perjure themselves on your behalf, I consider the starting point of 8 years’ imprisonment should be increased by a further 2 years to 10 years.

As you chose to have a trial, as is your right, but as the jury found you guilty of this offence by a majority of 6:1, you will go to prison for 10 years.