COURT: On 6 January 2022, the jury rendered their verdict on the indictment faced by Amir Aftab (hereafter “the accused”) alleging that on 8 October 2019, he raped a 9-year-old girl named X. The jury found the accused not guilty of rape. That verdict was unanimous. They found the accused guilty of attempted rape by a majority of six to one. Following that verdict, the accused was convicted of attempted rape.
The accused falls to be sentenced for the offence in respect of which he has been convicted.
Facts of the Offence
The conduct, the subject of the conviction, occurred on 8 October 2019 in a room occupied by the accused at a guesthouse in Chungking Mansions in Tsim Sha Tsui. In order to understand how X came to be at that guesthouse, it is necessary to examine the background. X has a twin brother, B. The mother of X and B, Ms A, came to Hong Kong from Mongolia in 2015. She had four children, including X and B, who were twins. They were born on 19 August 2010. At the time of the event, the subject of the indictment, that made them both 9 years old. The older children were aged 25 and 19.
Ms A made a torture claim to the Hong Kong Immigration Department in March 2016. That is an Admitted Fact. Since then, pending the determination of that claim, she was permitted to stay in Hong Kong.
Ms A testified at trial that when she came to Hong Kong, the twins were being looked after by their father in Mongolia. It appears that their father died. After that, they were looked after by their older son.
It is also an Admitted Fact that X and B were brought to Hong Kong from Mongolia on 12 July 2018 by their elder brother. Their elder brother left X and B with A and returned to Mongolia. X and B were permitted to stay in Hong Kong for 14 days. Ms A said, in effect, that there was no one in Mongolia to take them back. Ultimately, in March 2020, Ms A made a torture claim to the Hong Kong Immigration Department on behalf of X and B.
Ms A testified that she looked after her children after they were left with her in Hong Kong. They had been granted visas to remain in Hong Kong for 14 days and it is clear that at least Ms A thought they had no legal status in Hong Kong from that point on. After the event, the subject of the indictment, came to the attention of the authorities, a care and protection order in respect of X and B was sought and granted by a magistrate of the Juvenile Court. Since then, X and B have lived under the care of the Social Welfare Department and at the Po Leung Kuk. During the period from when they arrived in Hong Kong until the time when this case came to the attention of the authorities, the children, X and B, did not attend school. They do now.
X is mentally handicapped. She was assessed by a clinical child psychologist employed by the Social Welfare Department about four months after the event, the subject of the indictment. She was found to have a mental age of about 3 years. The clinical child psychologist provided a report. In that report, she was careful about estimating the intellectual age of the child because, apparently, she had little or no schooling at the time of the assessment. She indicated that may affect her findings.
By 8 October 2019, Ms A lived with her boyfriend Mickey who was a Bangladeshi torture claimant. They lived in Mirador Mansions and the twins were with them. On 7 October 2019, Ms A had a domestic dispute with her boyfriend and she went to the residence of the accused. Initially, she left the children at the place where they were living in Mirador Mansions.
Although the details are not perfectly defined, it appears that the accused was a friend of A’s boyfriend and knew Ms A. They had known each other for at least a year and addressed each other as brother and sister. Ms A went to the residence of the accused at the guesthouse in Chungking Mansions. The accused had a room in the guesthouse. She also wanted to do some clothes washing, and the accused allowed her to do that. At sometime on the 7th, the accused agreed to go to Mirador Mansions to pick up the two children and bring them to the guesthouse where the accused had a room. There was an issue at trial as to whether or not, and if so, to what extent the children knew the accused prior to the event, the subject of the indictment. In his VRI, the accused said they did, and although one of the features of the testimony of B was that he did not know the accused, the video recording in the lift in Chungking Mansions when the children arrived shows them behaving in a friendly manner towards the accused. Whilst B was a very impressive witness both in his video-recorded interview, which was recorded when he was 9, and his CCTV testimony at trial, at which stage he was 11, was generally very impressive, the one topic of that testimony which I did not believe B is that he did not know the accused. I am sure that he did, and while the children were not on close, intimate terms with the accused, they knew him. He was known to both the children as Uncle Jo Jo.
The intentions of Ms A and her children as to where they would stay on 7 and 8 October 2019 are not entirely plain. The accused in his video-recorded interview under caution said there was no plan for them to stay overnight. I disbelieve that. I am sure that whatever the position at the outset of the arrival of Ms A and the later arrival of the children at the room of the accused, as 7 October wore on, it became plain that they would sleep at the room of the accused.
Whatever the precise nature of their plans, as the 7th turned into the 8th, Ms A was still doing washing and cleaning and the children were in the room of the accused. There was a metal bedframe with a mattress on it and a mattress underneath the metal bedframe. It is clear that B was lying on the mattress on the floor underneath the metal bedframe. B testified that he was lying on the mattress, playing with his mobile phone. It looks like X was originally on that mattress. There came a time when she got onto the mattress occupied by the accused. That was on the metal bedframe. The circumstances in which she came to be on that bed occupied by the accused were not clear. The implication of the video-recorded interview of the accused given to the police is that she wanted to get up onto the bed. I am not in a position to resolve that issue. It could well be, as Mr Beel has submitted, this was done as a result of mother separating two young children who had been fighting.
In any event, there did come a time when X got into the bed of the accused. At that stage, B was still on the lower mattress, playing with his mobile phone. At that stage, I am sure that Ms A was outside the room, engaging in washing and/or drying clothes. B heard his sister cry out. He got up to see what the matter was. He said that Uncle Jo Jo and his sister were both naked below the waist. At trial, there became an issue of whether B saw that. Certainly, when Ms A came into the room later, she says both of them were naked below the waist. So that is an issue I do not have to resolve. I specifically believe Ms A’s testimony on that topic. There is also an issue of whether there were any lights on in the room. B testified that the main light of the room was off but there was a light coming from the toilet area. I am sure that is true.
Shortly after B heard X cry out, he asked her what the matter was and she made a complaint to him. X told him in the room that Uncle Jo Jo was touching the part between her legs and he had sucked her cheek and shut her mouth. He said he heard X say that the uncle was getting on top of her. There was a chair in the room next to the bed and B sat on that chair. The accused told him to go back onto the mattress under the bed. He refused. He told the accused that he would sit there until his mother came. I am sure that he was sufficiently anxious for the safety of his sister that he refused to budge. I am sure that he was acting in a commendable and brave manner.
A few minutes later, Ms A came into the room. I am not able to say how long it was between the time B got up and sat on the chair and when she came in, but I am sure it is safe to estimate that as something of the order of five minutes later. B told his mother what he had heard, and she pulled up the covers on the bed where the accused and X were lying and saw that they were both naked from below the waist. She was shocked and upset. She told the court and I accept as true that she put the underpants of her daughter back on. She then had the presence of mind to take some photographs of X. Those photographs show the underpants of X just below her ankles, and when that is taken with the Admitted Facts about DNA, there was a bloodstain on the underpants of X which came from X. I am sure this ties with the injury to the posterior fourchette of X identified by the forensic pathologist. I will come back to that topic later in these reasons.
The other photographs taken by A show the private parts of X substantially reddened. She said they had never been red like that before. She testified, and I accept, that both she and her daughter were crying.
Ultimately, Ms A and her two children left the guesthouse. Nevertheless, they were there for about two hours before they left to go back to Mirador Mansions. There is an issue at trial as to why that was, but I am satisfied that while it is certainly true that two hours elapsed before they departed, that was partly taken up by packing up clothes. Whatever its cause, it has no impact on the sentence in this case.
Ms A and her two children returned to Mirador Mansions and spoke to some people. It was not until 10.30 am on the 8th that the two children were taken to Tsim Sha Tsui Police Station. The mother did not go with them at this stage. There is a controversy as to why that was. Mother said that her feet and legs were in pain. She added she was worried about the fact that the immigration status of her children was a difficulty. I do not know the true answer to that. For what it is worth, it is probably a combination of factors. In any event, initially, it was the children who were taken to the police station, and the investigation started from there.
Both X and B were taken by the police to the Queen Elizabeth Hospital where they were examined by, amongst others, a forensic pathologist who testified at the trial. He found a number of injuries on X. The most significant of those injuries was a 0.2 cm tear at posterior fourchette on the labia minora of X. It was slightly bleeding. The opinion of the forensic pathologist is that that injury could have been the result of penetration by an erect penis or by a finger fondling the private parts of X.
What the forensic pathologist did point out was that the hymen of X was intact. He said that in a 9-year-old girl, any force applied to the hymen by, say, an erect penis would cause that hymen to rupture. As would shortly appear, I am in no doubt that this was an important matter for the jury in their determination to find the accused not guilty of rape but guilty of attempted rape.
The next day, both X and B were interviewed. They were video-recorded and both were played at trial as the examination-in-chief of X and B respectively. The interviewer in the case of X was a clinical psychologist. She questioned X in English and that was translated into Mongolian. X answered in Mongolian. It is no understatement to say that this interview is not easy to follow, but it is clear that X was saying that her vagina was penetrated by the penis of the accused. She said it was a slight penetration. She also spoke of the accused removing both her underclothing and his underclothing. She said that the accused got on top of her. She said that he fondled her with his hands both in her vaginal area and also her anal area. She marked both areas on diagrams of a naked young woman. She also said that the accused at one stage put his hand over her mouth. She told the interviewer she pushed the accused away and she did not want him to do what he was doing to her.
The video-recorded interview of X was a plainly difficult ordeal for her. She was, broadly, responsive although it was plain she was mentally handicapped. Indeed, the interpreter said she had real linguistic difficulties in Mongolian, and that is something which is obvious even to a non-Mongolian speaker. It is also obvious that as the interview wore on, X became increasingly more tired. The interviewer, despite commendable resourcefulness and got X to do some exercises to wake her up. Towards the end of the exercise, it was clear that X was not just flagging but she was pretty close to the end of her rope.
X also testified at trial via CCTV. That was plainly a very difficult ordeal for her. She was responsive to some questions but for others, particularly but not limited to, topics concerning the sexual encounter with the accused, she was non-responsive. She did not expressly refuse to answer the questions. What she did was simply become non-responsive when certain questions were asked. It was clearly a stressful experience for her, and many of her answers placed her in a position and the position of her assailant in such a way which would have made the sexual encounter impossible. She did give responsive answers to some questions, but most of the questions about more sensitive matters about the sexual encounter she was simply non-responsive. She reiterated that she did scream.
B gave a video-recorded interview about the events in the guesthouse. He also gave a video-recorded interview about the circumstances in which he had identified the accused in identification parade as the basis for his identification. At trial, he testified by CCTV. He was, on any view, an impressive witness and presented as mature beyond his years. Almost certainly one of the reasons for that is that Ms A, the mother of X and B, seems to have had very little contact with the children since they were placed in the Po Leung Kuk. I should add this lack of contact was despite efforts by the case officers of X and B at the Social Welfare Department to get her to see the children. It would be an overstatement to describe her as having abandoned the children but it is not far away of the mark. Some of that might have been caused by the fact that Ms A was convicted of handling stolen goods and was sent to prison. It is not plain precisely how long the term of imprisonment was but it was either a sentence of 6 months’ imprisonment or she served 6 months’ imprisonment. It is plain that part of the maturity of B is brought on by the fact that in some respects he has taken responsibility for the care of his sister.
While the circumstances in which X and B are now cared for sometimes made for painful listening, none of that can be held against the accused. It is largely down to the failings of Ms A. Whatever might be said about the accused, he cannot be responsible for that.
Antecedents and Mitigation
The accused was born in Pakistan but came to Hong Kong many years ago. He is the holder of a Hong Kong permanent identity card. He is aged 57 and has one previous minor conviction for gambling at a gambling establishment. For that, he was fined $1,000. I propose to ignore that conviction for the purpose of sentence.
He was educated to Form 6 and then went to Pakistan and studied mechanical engineering. He is married. He has nine children: five sons and four daughters, ranged from 9 to 33. They live in Islamabad.
The accused worked as a cook in a restaurant in Chungking Mansions. He was formally a partner in that restaurant but he sold his share. Even though he was no longer a partner, he worked part-time on a salary of something of the order of $20,000 a month.
I have had my attention drawn to the fact that whilst he was remanded in custody, having been denied bail for this charge, he suffered very badly from pneumonia, and combined with the other difficulties, this has prevented counsel being able to take instructions from him. There were other delays caused by circumstances affecting Hong Kong, and the result of this has been that this trial took as long to get on as it did. Normally, high priority is allocated to the fixing of trials alleging sexual misconduct of this kind.
Sentencing Principles
The crime of rape is an offence by section 118 of the Crimes Ordinance, Chapter 200. It attracts a maximum penalty of life imprisonment.
One of the clear objectives of the imposition of sentence for this crime is deterrence and to show the abhorrence of the community towards such conduct. The offence is based on an underlying concern for the protection of the vulnerable and for the privacy and personal integrity and dignity of women. There is also a concern for the psychological and physical impact of such a sexual assault. Sentencing authorities underline these principles.
For many years, the starting point of the courts for consideration of the appropriate sentence for the crime of rape was an examination of the R v Billam and others [1986] 82 Cr App R347. In that case, the English Court of Appeal (Lord Lane CJ, Mann J and Sir Roger Ormrod) observed:
“For rape committed by an adult without any aggravating or mitigating features, a figure of 5 years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be 8 years.
At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime upon a number of different women or girls. He represents a more than ordinary danger and a sentence of 15 years or more may be appropriate. Where the defendant’s behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time, a life sentence will not be inappropriate.
The crime should in any event be treated as aggravated by any of the following factors: (1) violence is used over and above the force necessary to commit the rape; (2) a weapon is used to frighten or wound the victim; (3) the rape is repeated; (4) the rape has been carefully planned; (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind; (6) the victim is subjected to further sexual indignities or perversions; (7) the victim is either very old or very young; (8) the effect upon the victim, whether physical or mental, is of special seriousness. Where any one or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.
The extra distress which giving evidence can cause to a victim means that a plea of guilty, perhaps more so than in other cases, should normally result in some reduction from what would otherwise be the appropriate sentence. The amount of such reduction will of course depend on all the circumstances, including the likelihood of a finding of not guilty had the matter been contested.
The fact that the victim may be considered to have exposed herself to danger by acting imprudently (as for instance by accepting a lift in a car from a stranger) is not a mitigating factor; and the victim’s previous sexual experience is equally irrelevant. But if the victim has behaved in a manner which was calculated to lead the defendant to believe that she would consent to sexual intercourse, then there should be some mitigation of the sentence. Previous good character is of only minor relevance. The starting point for attempted rape should normally be less than for the completed offence, especially if it is desisted at a comparatively early stage. But, as is illustrated by one of the cases now before the Court, attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence.”
Initially, Hong Kong courts tended to follow Billam and others (above).[1] However, by the time of Secretary of Justice v Lau Yun Leung [1999] 3 HKLRD 289, the Court of Appeal comprising Nazareth and Stuart-Moore VPP and Keith JA held that the courts of Hong Kong were by no means bound by the factors articulated in Billam and others (above) or the levels of sentence propounded there. The Court of Appeal held that it was entitled to take into account factors local to Hong Kong. The court also held that the factors in Billam and others (above) were not exhaustive. The wisdom of Billam and other (above) should, nevertheless, not be ignored.
Child Victims of Rape and Related Offences
In HKSAR v Kong Yun Chiu [2007] 4 HKC 391, Justice Moore Ag CJHC and Stock JA held that: The fact that the victim is a child is always a severely aggravating feature.
(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.
That was specifically endorsed in HKSAR v Tsang Chiu Yu [2012] 3 HKLRD 568 by the Court of Appeal comprising Yeung VP and Chu JA.
HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427, the Court of Appeal comprising Cheung CJ, Tang VP and Cheung JA considered how a court should approach the sentencing of persons convicted of rape where the victim was a child. The court listed a series of considerations germane to such an issue. Cheung JA observed:
(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 used threats or inducement to make the victim succumb;
(4) the number of occasions of committing 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 an impact on the family members of the victim;
(9) whether the defendant is involved in other inappropriate behaviour such as inviting other people to watch or to 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.
In Tsang Chiu Tak (above), the accused was a person aged 40. He was convicted of the rape of a child of 15 who was the daughter of the woman with whom he was cohabiting. He entered her bedroom and tried to fondle her. She resisted. He asked his cohabitee to persuade the victim to enter their bedroom. The accused raped her in the bedroom. He asked a few days later for her to go to the bedroom. She refused. She was forced into the bedroom and raped again. One of the features of the case was the psychological trauma suffered by the victim was clearly of substantial duration. For this offence, the accused was sentenced to 12 years’ imprisonment. The Court of Appeal recognised the sentence was a heavy one but declined to interfere in the sentence.
Victim Impact Statements
As to the impact of the conduct on the victim, the general approach of the court is that the trauma, distress and psychological harm caused to young sexual victims could be assumed without victim impact assessment reports, and for that I cite HKSAR v Lee Kwok Wai[2]. In Lee Kwok Wai, the Court of Appeal comprising Justice Stock VP, Fok JA and McWalters J held that the failure to present a victim impact statement report did not mean that the court was unable to draw common-sense conclusions of the effect of the sexual offence on the victim. They observed:
“It takes no more than the experience of life to understand the type of inevitable trauma occasioned to a 13-year-old girl who was raped, let alone raped in the circumstances of that case. It is, with respect, contrary to common sense and to long-established practice to suggest in such a case that a victim impact statement is necessary before one can assume profound effects. The suggestion expressly made in the judgment was that it was ‘regrettable’ there was no victim impact assessment report is to suggest that it was necessary to go to the girl years after the event, to ask about what we are not sure, and to suggest an exercise which would serve only to agitate painful memories. We do not think the court could possibly have intended that.”
The court added:
“Whilst no authority should be needed for the common sense of the matter, we see from HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354 the comment of Ma CJ, as he then was, saying that in the context of exploitation of young children that in the vast majority of cases the trauma, distress and psychological harm can be assumed without the benefit of psychological reports.”
Attempted Rape
There is a suggestion in some of the authorities that a conviction for attempted rape should be treated for sentencing purposes on a more lenient basis than a conviction for the full offence. This appears in Billam and others (above). In that case, the Court of Appeal held:
“The starting point for attempted rape should normally be less than the completed offence, especially if it is desisted at a comparatively early stage. But, as is illustrated by one of the cases now before the court, an attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence.”
The Court of Appeal in the Secretary for Justice v Lau Yun Leung (above), the court held that an attempted rape could be made by aggravating features even more serious in some examples than the full offence. The court held while it might be that an attempted rape might normally attract a lesser sentence, particularly if it is desisted in at a comparatively early stage, there would be circumstances where the aggravating features may take the offence to an even more serious level than the full offence. It is to be noted that there is a distinction between the accused person desisting and one being interrupted. In that case, the interruption was by the police discovering the accused.
In Secretary for Justice v Leung Yuet Hung [2014] 3 HKLRD 304, [2014] 5 HKC 68, the Court of Appeal (Yeung Ag CJHC, Stock VP and Lunn JA) held that there was an error in assuming that an attempted rape was necessarily less than the full offence. In Tsang Chiu Yu (above), attempted rape was considered to be particularly serious where the offence was premeditated or there were inducements offered to the victims and they were sexually assaulted at their first meeting. I do not take the items mentioned by the Court of Appeal in this case as exhaustive. They simply give the flavour of the kind of concerns which apply especially, in attempted rape of young girls. As the Court of Appeal said in that case, the selection of young girls is serious because they could be so easily manipulated.
Application of Sentencing Principles to the Present Case
The victim in the present case was aged 9. She was substantially mentally handicapped. In addition to that, she was vulnerable, being a stranger in a strange land.
The accused admitted in his video-recorded interview under caution that he appreciated the victim was aged 9. He said that he did not appreciate she was mentally handicapped, and the mother with whom he was more familiar had not mentioned it. In my opinion, it could not have escaped the accused that this girl suffered from a mental handicap. I do not now doubt that he may not have appreciated the full details of it or the severity of the handicap but he could not have failed to understand that she was mentally handicapped - as well as being only 9.
There was a substantial age difference between accused and victim. That was, on any view, substantially exacerbated by the mental handicap suffered by the victim.
Not simply because courts of high authority have said so but because it is self-evident, this victim has suffered psychological impact which is deep and complex. For the purpose of sentence, one could not have failed to notice that when X gave her testimony through CCTV at a time which was just over two years following the event, the subject of the indictment, she appeared to manifest that impact. The most obvious example to me was in the number of questions asked of her which in different ways went to the core of the event for which the accused must now be sentenced where she was non-responsive. As I mentioned earlier in these reasons, it was not simply that she did not wish to answer the question. She was non-responsive. To those observing her silence when being asked such questions was a harrowing part of the process of CCTV. It is appropriate to reiterate that not all of the questions asked by counsel for the accused which resulted in the victim being non-responsive were questions which went to the heart of the case. However, on any view, the vast majority were such questions and the relationship between the questions and the non-responsive answers was evident to all.
Pausing there for a moment, no criticism attaches to counsel for the accused for the manner in which he conducted his cross-examination of the victim. Quite the opposite. It was sensitive and the questions were asked in an entirely appropriate manner. I must confess (1) my admiration for the series of questions asked that had been in cross-examination as to the manner and content; (2) my agony of trying to balance the right of the accused to have a fair trial - in this case by reason of the right to cross-examine - and the need to minimise the obvious pain to X. While it is right to say that no mitigation arises from the fact the victim had to be brought to this court to go through this ordeal, it is appropriate that I make it plain that the sentence I will shortly impose contains no component of aggravation because of that conduct. Any sentence to be imposed for the crime of rape or attempted rape of a person or the victim in this case must necessarily take account of the fact that she has had to live and re-live the ordeal through watching her video-recorded interview given just over 24 hours after the incident, the subject of the indictment, and be subjected to questioning over that subject matter. However, nothing aggravates that sentence to a level that it would have been otherwise had that event not occurred.
The impact on the victim is something which can be readily imagined and understood based on the experience of life. As Justice Stuart-Moore Ag CJHC and Stock JA observed in HKSAR v Kong Yun Chiu (above):
“Children are much more likely than adults to suffer trauma in silence than report, particularly in cases of breach of trust.”
That must be more so even in cases where there is a mental handicap. The handicap of X will almost mean, even allowing for schooling, that her linguistic abilities may well inhibit her from expressing to anyone else what she undoubtedly felt at the time of the offence and, as demonstrated by her presentation in the CCTV exercise during trial, feels now.
The authorities also recognise that there is to be considered possible trauma to parents and others. As far as the parent of X, mother of X is concerned, it is not that she was cut off from all contact. However, as far as I can see, that is pretty close to it. I think a highly reasonable hypothesis is that part of the presentation of the mother in her testimony in court is that there was a good deal of guilt and remorse in her. In some respects, so there should be. I, nevertheless, think that she is a very self-centred person and I have to say an inadequate mother. However, as certain as I am of the consequences for X, I am equally uncertain about her mother. I think there is a danger of speculating as to the harm done to mother. There is certainly some harm. However, the nature and extent of it is something I do not think I can safely determine.
So far as the brother of X is concerned, as I have mentioned already, his presentation at age 11 via CCTV demonstrated a young man mature beyond his years. I strongly suspect that apart from him being a young man of obvious intelligence, he has probably carried a great deal of the burden in terms of his sister. He carries it lightly and with dignity. His courage in standing up to Uncle Jo Jo shortly after his sister cried out in pain cannot be ignored. He was told by an adult, a person in a position of trust and a person who was the occupier of the room, to go back to the mattress under the bed. He refused. He said he would stay there until his mother came. I am sure that this has affected B and will affect him for a long time, and I take it into account.
While I perfectly accept the powerful arguments which place common sense and experience of life as a basis for saying a victim impact statement is unnecessary because the consequences can be so readily seen and imagined, it would be dishonest of me not to say that a victim impact report could have been of great assistance. I think the insight of a victim impact report that may have availed itself to the court in this case could have been immense. The written advice of professionals is, to my mind, something which could at least supplement the experience of members of the courts of Hong Kong faced with these sentencing problems.
Speaking more generally, Hong Kong can do better in this regard. I hope the time is soon where the advice of professionals is available to supplement the knowledge and experience of those in the judiciary who are faced with the difficult task of sentencing in cases such as this. I acknowledge that wisdom and experience. I do not doubt it. I simply say we ought to be in a position, where appropriate, that such knowledge and experience can be supplemented.
The accused, Uncle Jo Jo, was in a position of trust. He was an adult friend of the mother of the victim. That must have been obvious to the victim and B. It is said by X that Uncle Jo Jo asked her to get into the bed where he was located. She had been, so it appears, on the mattress below the bed on which the accused was located. I am not sure, having reflected on the matter, how that was caused. I was initially of the view that it aggravated the matter. I am not so sure now, and I do not take it against the accused.
On the verdict of the jury, it is clear that they had at least some reasonable doubt as to penetration - even slight penetration. It follows as a matter of logic and anatomy that the injury to the posterior fourchette of the victim must have been because the accused applied his finger to the vaginal area of the victim. I am sure that it was this injury which caused her to cry out. I am also sure that the description of the event taken together with the fact that the accused and X were seen naked below the waist within a short while of her crying out that the accused had attempted to rape her, and it was her cry followed by the conduct of B which interrupted this process. But for that, I am sure, that the accused would have gone on to penetrate the girl if he possibly could have. The interruption was not through the sudden outpouring of remorse or respect for the sexual integrity of a young girl with an intellectual or mental disability. The interruption in the process was simply because of the crying out and the reaction of B. I wholly agree that with the verdict of the jury and the implications of their acquittal of the accused of the full offence of rape, in my opinion, while they were undoubtedly correct, the difference between an attempted rape and the full offence was almost certainly in this case a difference of seconds in terms of time and centimetres in terms of distance. The consequence of that is that while I perfectly accept there will be cases where a lesser sentence will be imposed for an attempted rape, the circumstances of the present case are such as to make the seriousness of the conduct on the part of the accused very close to indistinguishable for sentencing purposes between rape and attempted rape. I can conceive there might be slight differences (including long-term consequences) for X, but the emphasis in this sentence will be on the word “slight”.
I do not think that there were threats to X. I am not sure whether there were any inducements. There may have been, but applying the ordinary principles as to matters of aggravation, I cannot be sufficiently sure about this matter to consider it a matter of aggravation.
These events occurred on one occasion. They were not repeated offences. There were a number of offences other than attempted rape which occurred. They were acts of indecent assault. The touching of the vaginal area and the anal area and the removal of the underwear of the victim are but three of these criminal acts. It is, nevertheless, appropriate to take them into account in sentencing for the attempted rape. That said, the event, the subject of the indictment, with the touching of the vaginal area, the anus and the assaults on other parts of the body, the removal of the underclothing and so on must have taken some minutes at least to achieve. That must have been a very frightening time for X.
One of the considerations suggested in the authorities is whether unnecessary or inappropriate violence was inflicted to harm or discomfort the victim. I take that to mean inappropriate or unnecessary violence above and beyond the sexual conduct itself. If I am correct about that, then it cannot be said it was unnecessary or inappropriate violence.
No safety measures were used by the accused to prevent the transmission of sexually transmitted disease. The fact that the victim was of an age where the accused almost certainly could not have made her pregnant is not a matter of mitigation. It is simply a matter of biological fact and on no account assists the accused for the purpose of sentence.
The offence was done in darkness or semi-darkness, and the conduct was purely one on one. There was no recording or photographing or other perverted acts of that kind.
A further consideration is whether it has been revealed that the accused is a psychologically imbalanced person with tendencies to paedophilia. Not in this case, the court has also to consider the likelihood of re-offending. I think it is unlikely that there will be further conduct of this type. There is certainly no history of it, and for the purpose of sentence, I propose to proceed upon the basis this was an opportunistic one-off event. Pausing there for a moment, the fact that it is one-off is bad enough.
I do not think there was any planning. I am sure that the accused simply gave into base instincts and took advantage of a situation which presented itself to him. He is a person of hitherto good character. If this had been measured by his approach on the morning of the 7th, I think it is likely his motives in temporarily taking in Ms A and her family were kind and charitable. There was a time when kindness and charity were forgotten, and darker angels influenced the conduct of the accused. I confess to have been surprised that a person who was kind enough and charitable enough to take these people in in the early hours of the 7th did not continue that basic decency into accepting he had committed a terrible offence and made an appalling mistake. Although I did not take this into account as a matter of aggravation of sentence, the attempt to blacken the collective names of Ms A and her children during the police interview did not help his cause. I read the conduct of the accused in the video-recorded interview under caution as a person who went into the interview with a carefully prepared explanation which was an attempt to confess and avoid. By their verdicts, the jury must have disbelieved what he said. They were right.
I do not take into account in aggravation of sentence the allegations against the witness known to all in the trial as Tiger. That was an attempt on the part of the accused to distract from the real issues. The attempt was transparent and extreme. It is possible that Tiger and his army of “boys” may have inflicted violence on the accused. I view the allegation of extortion made against Tiger with the same laughing contempt that Tiger showed to that proposition in the witness-box. The idea that Tiger and his confederates cooked up a scheme to inculpate the accused I also regard as somewhere between laughable and tragic. That said, there was a chunk in fact more than a substantial chunk, of Tiger’s testimony which could also be characterised as somewhere between laughable and tragic. The point of this is that the attempt to blacken the name of the mother and the children and Tiger and anyone else involved in the process was simply a shameless attempt to distract from the central problem that the accused faced. That said, I do not take it into account in aggravation of sentence. I adhere to the position I have earlier indicated in which the accused can be characterised as generous and charitable in taking mother in and the children in who faced a difficult situation. If only that man had emerged after he made the mistakes he did, we would be in very different territory than we are now.
No discount is available to the accused for pleading guilty and saving the time of the court and, more importantly, avoiding the process of causing the victim and her family from living, reliving this event. There is no evidence of remorse.
The sentence I would have imposed, had the accused been convicted of the full offence, would be different to the sentence I am about to impose. The view of the conduct in this case being so serious that the difference would have been expressed in days rather than months or years. In short, there is no practical difference in sentence.
Would the accused please stand up? In one of the authorities, the Court of Appeal upheld a sentence for two rapes on two different days of a young female of 12 years. This case is attempted rape of a girl of 9 years who is mentally handicapped. She was especially vulnerable and, as I have already indicated, I am sure the accused knew that. I think it is appropriate to revert to Stuart-Moore Ag CJHC and Stock JA in Kong Yun Chiu (above) where they observed that “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.” There is and can be no tariff for this offence. For the disgraceful conduct of the accused, he will go to prison for 10 years.