COURT: The accused was convicted of the offence of rape by the unanimous verdict of the jury on 31 July this year.
In respect of the facts of this case, the victim was a 13-year-old student at the material time while the accused was 21 years old. They came to know each other through Instagram.
On the day of the offence, that is 25 August 2021, the accused arranged to meet X and her girlfriend Y in Tsim Sha Tsui. Then he invited X to go to his home in Yau Ma Tei for a chat. X went up to his home alone. While she was staying there, the accused asked her to drink some alcoholic drink, that is some beer that he bought earlier, and also to take some puffs of herbal cannabis. Then he started kissing her ear and her neck and pushed her to the corner of the bed, sucking her breasts despite her protest. Then he attempted to remove her pants. Being scared, X, the victim, offered to conduct or perform oral sex for him so that she could avoid to have sexual intercourse. But still, after she performed the oral sex, that did not stop him and he started to touch and rub her vagina. Eventually despite her struggle and protest, he raped her against her will until her private part was bleeding.
No condom was being used during the course of the rape and the victim cannot tell whether he ejaculated or not during the course of the intercourse.
The accused is now 23 years old. He is a Pakistani male who came to Hong Kong in March 2015. He has received secondary school education in Pakistan, and that before his arrest he worked as a hairstylist earning around 15,000 income per month. After his arrest, I was informed by defence counsel Mr David Boyton that he worked in the airport. He was married and at the time of the offence, he was living together with his wife.
Despite that he did not come to Hong Kong until March 2015, he had four criminal convictions for the offence of indecent assaults. On the 11th day of July 2017, he was convicted of four counts of indecent assaults despite he was only at the age of 16 at the material time. He was sentenced to probation order for a total of 12 months for those four convictions.
I was informed by counsel that all those convictions of indecent assault related to touching of ladies’ bottom or other intimate part of the ladies in public place. Those offences were obviously committed within two years upon his arrival in Hong Kong.
I have adjourned sentence to wait for a victim impact report. According to the psychological report prepared by Ms Janet Tso, the clinical psychologist, the victim had wanted to forgive the accused based on the principle of her belief in the Islamic religion so that she could let go of the incident. The test profile did not indicate that X had significant problematic behaviours or negative emotions in the past six months. The psychologist concluded that she had manifested various post-traumatic symptoms and after the offence, she had distressing recollections of the incident and related dreams recurrently disturbed her. She blamed herself for the offence, and she had suicidal thoughts. However, her faith and her support from other people were important factors to help her to go through the sufferings, and at the present X can follow daily routine and her emotion is stable in general. But still her lacking of trust towards others and her being scared of men may impinge her ability to enjoy satisfying relationships with others. She was recommended to continue her treatment, psychotherapy treatment, to deal with the impact about the offence.
To this regard, defence counsel urged me not to enhance the sentence of the accused because no long-term traumatic effect was suffered by the victim.
In his mitigation, counsel emphasised the fact that not much violence or threat was used in the course of the rape and no excessive violence was being used. He urged this court to take into account that the case is not the most serious of its kind, that there is no evidence of ejaculation and asked for a lower starting point.
However, counsel also responsibly accepted that there is the aggravating feature of unprotected sex, that is no condom was being used at the time of the offence.
Now the courts have repeatedly emphasised that sexual assaults on children are very serious offences which warrant deterrent sentences to show the abhorrence of the public and also to redress the grievance suffered by the victims and their families.
I have read all the authorities submitted by the prosecution and the defence. Needless to say there is no particular guideline or tariff for the offence of rape. Usually if there is no aggravating feature the normal starting point after trial would be one of 5 years’ imprisonment.
In this particular case, I am of the view that the case is aggravated by the following features. First of all, a very young victim was involved. X was only 13 years old at the material time, but the age difference between X and the accused was not very huge. He was 21 years old at the time.
Secondly, there was no safety precautions being taken and no condom was being used at the time of the offence, therefore exposing the victim to the risk of pregnancy and other venereal diseases.
Thirdly, I consider that there was a certain degree of planning in the case. In fact he had arranged to meet X and her girlfriend earlier, that he bought the beer and then he invited her to go to his home for a chat. Upon arrival, he also asked her to drink the beer and to take some puffs of the herbal cannabis.
I take into account the submission of counsel and agree that no excessive force or threat was being used in the course of the rape. However, she was forced to perform oral sex for him in order to avoid the sexual intercourse or being raped by him.
Other than the circumstances of the offence, I also bear in mind the circumstances of the accused himself, that he arrived in Hong Kong in March 2015. However, in 2017, at age of 16, he had already been convicted of four counts of indecent assault. Apparently he did not learn his lesson from all those punishment even though he was given probation for 12 months, and the present offence was committed in year 2021 against a very young girl.
Bearing in mind all those aggravating features, I consider that an appropriate starting point after trial should be one of 7½ years’ imprisonment.
The accused was convicted after trial. There being no other mitigating circumstances, I sentence him to 7½ years’ imprisonment, and that is the sentence that I impose.