HKSAR v. HUNG HING LUEN

HCCC 83/2023
[2023] HKCFI 3287
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 83 OF 2023
________________________
HKSAR
v
HUNG HING LUEN (孔慶聯)
Defendant
________________________
Before:
Deputy High Court Judge Douglas Yau
Dates of Trial:
10-13, 16-19 October 2023
Date of Sentence:
14 December 2023
Date of Reasons for Sentence:
14 December 2023
________________________
REASONS FOR SENTENCE
________________________
1.
The defendant was convicted after trial of one count of Rape (Count 1)  and one count of Indecent Assault (Count 2).
SUMMARY OF FACTS
BACKGROUND
2.
X was born in March 2007. As a result of family circumstances, X would stay with a foster family on weekdays and return to stay with her birth mother on weekends. X addresses the foster mother as auntie (姨姨). The defendant is the husband of auntie. The two offences took place in auntie’s home where they lived together.
3.
On one weekday evening in the summer of 2016, auntie had to leave home for some personal reasons, leaving X home alone.
4.
The defendant came home from work and went to take a shower while X was in the living room. After the shower, the defendant told X to go into his room. When X was inside, the defendant closed the door and sat on the edge of the bed while X stood facing him.
5.
The defendant turned X around and asked if X had grown into a young lady (係咪大個女)  and said he will do a physical examination of her body. X did not answer and ignored him.  While X had her back towards the defendant, he started to touch X’s body over her clothes with both hands, starting at the upper body and went down to her waist. X did not like to be touched like that and drew back, thinking that the defendant was really doing a physical checkup.
6.
Then the defendant took X’s clothes off and turned her around to face him and embraced her. X drew back but the defendant’s legs were strong and X could not move. Then the defendant took off X’s underpants, stood up and told X to lie down on the bed. X was naked at this point but still had her glasses on.
7.
X did as she was told and lay down on the bed, looking towards the defendant who was standing on her right with his back to her. X then used the quilt to cover herself. While she was doing that, the defendant sat onto the bed on the right side of X.
8.
The defendant touched X’s left hand and slipped under the quilt and lay opposite X. X’s legs were initially closed. The defendant knelt down between her legs and pushed her right leg aside with his left knee. The defendant’s head was on her left and was on top of X. The defendant’s left hand seemed to be pressing against X.
9.
At this point, the defendant was completely naked.  X suddenly felt painful outside her vagina. She did not then know what that was, but remembered saying “no” and “it hurt so much”. The defendant shushed her and said, “Auntie will be back soon, stop making so much noise.”
10.
X explained in court her private part was hurting so much because the defendant’s penis “kept going into my vagina”. At this point, X was lying in bed and the defendant was on top of her, using his forearm to support his upper body. X’s legs were drawn apart and the defendant used his left hand to slightly lift up her leg.
11.
When X wanted to push him away, her hand touched his shoulders. The defendant ignored her and continued. X felt so painful again, a feeling she had never had before, she described it as an intense tearing.
12.
The pain continued while the defendant had his penis inside X and was moving back and forth. X cried, wanting to push the defendant away, saying ‘no’ or something like that.
13.
The defendant did not stop and pinned down X’s hands next to her head. X could feel the defendant’s penis inside her vagina and then suddenly felt a burning sensation inside. It was only when she was older that she realized that the burning sensation was the defendant ejaculating inside her.
14.
X was not sure how long the rape lasted, but estimated it was probably a few minutes. After that burning sensation, the defendant pulled his penis out. X did not look at it and did not have the courage to do so. The defendant got out of bed and grabbed some tissue and wiped X’s vagina.
15.
X grabbed her clothes and went to the bathroom. She remembered how much it hurt even just walking there. She wiped herself up and saw blood and was frightened. There was also something “sticky, like glue, yellowish and whitish” on the tissue, which she flushed down the toilet.
16.
X went out of the bathroom and later on saw the defendant took the rubbish out from the kitchen to the refuse collection chamber for disposal. X sat in the living room for a while and cried. The defendant told X not to tell anyone, that it would be a secret between them. X fell asleep for a bit and then auntie came back.
17.
It is X’s evidence that she never told anyone until in August 2022 when she got drunk at a friend’s home and confided to her then girlfriend about the rape. The Police was not involved until one month later when X got drunk again and had a breakdown, trying to jump off a building. The Police arrived and X was taken to hospital where she told a woman Police officer about the rape. This would subsequently lead to the arrest of the defendant.
THE INDECENT ASSAULT
18.
Around one week after the rape, probably no more than 10 days, the indecent assault happened in the kitchen in auntie’s home at night between around 9 and 10 o’clock.
19.
X was copying lines as punishment on the counter top of the kitchen when the defendant entered, seemingly to get some hot water from the dispenser that was behind X. They were alone in the kitchen.
20.
After getting the water and while X was standing against the counter top writing, the defendant stood behind X and reached around X to put his hands on the counter top, bending down. The defendant asked if X had told anyone about the rape. X shook her head and carried on writing. The defendant then stood up straight and in doing so used his penis to touch X’s buttocks. X said she felt just one touch by a “very stiff thing” for about 1 to 2 seconds, and then she immediately drew back and walked out of the kitchen to stare at the defendant who was standing inside the kitchen.
X’S PSYCHOLOGICAL REPORT
21.
Clinical Psychologist Ms. Lam examined X and informed the court that X is still suffering from the aftermath of the rape. X displayed a strong sense of insecurity towards men to the extent of avoiding physical contact. She perceived them as mainly interested in having sex with women only. X still feels distressed about the rape, affecting her mood and daily functioning. She suffers from depressive mood, so severe as to reach a clinically significant level. She also has episodic sense of emptiness and dissociative features in her daily life. Clinical psychological service is recommended by Ms. Lam to facilitate her rehabilitation.
PREVIOUS CONVICTION
22.
The defendant is of previously clear record.
BACKGROUND AND MITIGATION
23.
The defendant is 60, married and educated up to secondary school level. He has been working as a bus driver for nearly 15 years. He is the sole breadwinner of the family (although the evidence is that the mother of X was paying auntie for X to stay with her).
24.
The defendant has been married to auntie for nearly 40 years. They have a 31 year old daughter, who gave evidence on behalf of the defendant at trial.
25.
Mr. Shaw points out that the defendant had a clear record. He has always been a “cautious, meticulous and eagle-eyed” bus driver. He is a loving, caring and responsible husband and father, and would shoulder most household responsibilities and contributes his entire income to his family.
26.
Auntie had a fall in the street in November 2023 and had to receive 5 stitches to her head. During the defendant’s detention, auntie had lost his financial support and someone who could take good care of her. Their daughter has now become her primary carer.
27.
Mr. Shaw refers to the case of
HKSAR v KKK
[2013] 2 HKLRD 676 where the father of 3 girls, X, Y and Z, raped and indecently assaulted them. X was raped on 4 occasions when she was 12, 13, 13 and 14. Y was raped on two occasions when she was 10 and 11. The applicant indecently assaulted Z when she was about 9.
28.
Mr. Shaw relies on the passage of the judgment where the Court of Appeal was of the view that in cases where there has been a gross breach of trust and the victim was only 12 years old, and the offender did not use any protection during the rape, a starting point of 12 years’ imprisonment is appropriate. He submits that the facts in
KKK
are comparable to the present case, save that the victim is not the offender’s biological daughter. Mr. Shaw points out that X had continued to stay with auntie’s family for a few more years and there had been no further accusations of rape against the defendant, and invites the court to adopt a starting point of 12 years’ imprisonment for count 1.
SENTENCE
29.
The maximum sentence on conviction upon indictment for count 1 and 2 are, respectively, life and 10 years’ imprisonment.
30.
In the case of
HKSAR v Kong Yun Chiu
[2007] 4 HKC 391, the Court of Appeal said this in relation to sex offence cases involving children:
“(1)  Children are vulnerable members of society. It is too easy for those who would prey on their naïveté and trust to succeed, for children are by nature trusting and 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.
(2)  The trauma and distress, immediate and long-term, is not confined to the child: parents are also affected.
(3)  Children are much more likely than adults to suffer trauma in silence rather than report, particularly in cases of breaches of trust. Where there are threats levelled at the child not to report, whether the threats are express or implicit, fear is added to the initial offence and the culpability is that much greater.”
31.
There are no sentencing guidelines but the Court of Appeal have identified factors to be considered when sentencing cases involving sexual assault on a child in the case of
HKSAR v Tsang Chiu Tak
[2013] 1 HKLRD 427; CACC 386/2011:
“
The Sentencing Principle
8.
The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.
9.
The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:
(1)  The age difference between the defendant and the victim;
(2)  The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;
(3)  Whether the defendant had used threats or inducements to make the victim succumb;
(4)  The number of occasions of committing the offences and the duration of the offences;
(5)  Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;
(6)  Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;
(7)  Whether the sexual abuses have caused physical or psychological trauma to the victim;
(8)  Whether the offences have impact on the family members of the victim;
(9)  Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and
(10)  Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.”
32.
There the applicant and the 15 year old victim had a 25 years age difference. The applicant was the boyfriend of the victim’s mother and they lived in the same flat, with the victim addressing the applicant as ‘sworn father’, with a special relationship of trust between them. The applicant had bullied the victim to have sex with him, and there had been a previous attempt, even engaging the mother to force the victim to succumb. The applicant did not use any protection although he did not ejaculate. The victim suffered tremendous psychological and physical trauma.
33.
The Court of Appeal found that 12 years’ imprisonment was a severe sentence, but it was an appropriate sentence in accordance with the facts of the case.
AGGRAVATING FEATURES
34.
Coming back to the present case, I find there are the following aggravating features:
a)  X was 9 years old at the time of the offences while the defendant was 46. There is an age difference of 37 years.
b)  X started staying with auntie’s family in September 2012 when X was 5. The offence took place in 2016. In the 4 years that X had been with auntie, she would spend every week day with their family, including the defendant and their grown up daughter. X only went back to live with her mother after they were allotted public housing in 2018. I find that there was a certain degree of breach of the trust that X no doubt had in the defendant, as the husband of the person who was “like a second mother” to X and living in the same household.
c)  The defendant committed the rape with unprotected penetration and ejaculation, exposing X to the risk of venereal diseases.
d)  X suffered psychological harm as a result of the rape as disclosed in the psychologist report.
OTHER FACTORS CONSIDERED
35.
I find that there is no evidence to suggest that the defendant had threatened or induced to make X succumb. He had taken advantage of his position to commit the offence and this feature has been incorporated in the breach of trust factor.
36.
There is no evidence to suggest that there was any inappropriate and unnecessary violence used to cause harm or discomfort to X.
37.
There had not been other inappropriate behaviors such as inviting people to watch or recording the rape.
38.
There is no suggestion that the defendant is psychologically imbalanced and pedophilic, and the likelihood of re-offending cannot be said to be high.
MITIGATING FACTORS
39.
I find that there are no meaningful mitigating factors in relation to the defendant.
40.
Taking into consideration the aggravating features, in particular the age of X when she was raped, I find that an appropriate starting point for count 1 is that of 11 years’ imprisonment.
41.
The defendant is convicted after trial and there is to be no discount. He is sentenced to 11 years’ imprisonment on count 1.
COUNT 2
42.
The same considerations mentioned in the case of
Tsang Chiu Tak
apply to cases of indecent assault involving child victims.
43.
The assault lasted a matter of seconds and it was just one touch over clothing. Yet it was committed against a 9 year old by a much older man who was in a position of trust.
44.
I adopt a starting point of 12 months’ imprisonment for count 2.
TOTALITY
45.
The indecent assault took place days after the rape and the defendant was asking X if she had told anyone about the rape shortly before he pressed himself against her. There can be no complain by the defendant if the sentences were made consecutive.
46.
However, the 11 years sentence imposed on count 1 is already a severe punishment on the defendant, particularly so given his age.
47.
Taking a step back, I will order the sentences to run concurrently.
48.
The defendant is, therefore, sentenced to 11 years’ imprisonment for the two counts.
(Douglas Yau)
Deputy High Court Judge
Ms Diane CREBBIN, Counsel on fiat for the Prosecution / HKSAR
Mr Gibson SHAW, instructed by Messrs. Kevin L.H. Kwong & Co, for the Defendant