HKSAR v. LI KA KI

HCCC 20/2020

[2020] HKCFI 2041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 20 OF 2020

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant pleaded guilty to one charge of attempted rape, contrary to section 118(1) and 159G of the Crimes Ordinance, Cap 200.

The victim, X, aged 23 was of mild grade retardation. She got to know a female surnamed Tsang through a WhatsApp group. One day before the incident, she received a message purportedly from Ms Tsang from Facebook, asking her to go out the following day to meet up. Unbeknown to her, Ms Tsang had lent her Facebook account to the defendant who, after browsing the friends of Tsang, found X to be attractive.

On the day of the incident, the defendant turned up to meet X instead and took her to a guesthouse. X was asked to pay the rent. And inside the room, the defendant lowered X’s underpants and despite her verbal resistance tried to penetrate her forcefully. X put up a struggle and told the defendant that she was not willing and she would call the police if he continued. The defendant, however, made further attempts to penetrate her digitally and also with his penis. When those attempts failed, he gave up. He made a phone call and was heard to be saying, “Your friend refused to do it.” And he fled when X went to the washroom.

X was found to be in a distressed state when she worked in a centre sheltered workshop the following day, and that was how the matter came to light.

Defendant, who is now aged 30, has a clear record. He is locally educated. And by way of mitigation, I was told that he has suffered from hearing loss since childhood and has received medical treatment. He was found to suffer from hyperactivity disorder and borderline personality in his teens. Despite his hearing impairment, he has taken up various jobs since 2010.

Counsel submitted that the defendant is very remorseful for having committed the present offence and would like to apologize to the victim for what he has done. Whilst the present case contains some aggravating features, counsel submitted that the violence used in this case did not result in serious injury to the victim.

In sentencing the defendant, I have taken into account mitigation forwarded by counsel and I have perused all the letters and documents filed by the defence with the court and the relevant authorities. It should not be assumed that attempted rape carries with it a sentence necessarily less than that of a full offence. A sentencing court should first identify the aggravating and mitigating features.

No doubt the greatest mitigating factor in this case is his early plea which saves the victim’s inconvenience to come to court to relive the whole incident again. Whilst early desisting can be a mitigating feature, in the present case, in my view, no such question arose. The defendant kept trying for much longer than necessary, putting X to much pain and fear, and he persisted even when X told him that she would call the police. Then, there is the aggravating feature that he had used misrepresentation and trickery to trick X to come out on the pretext that he was Tsang. There was premeditation.

X has mild grade intellectual disability with limited stress management skills and therefore she suffered from post-traumatic stress symptoms after the incident. Her sense of safety was damaged by the event, which in turn affected the trust that she felt she could repose in others. A further aggravating feature is that no contraceptive was used. With all these aggravating features, I adopt a starting point of 6 years’ imprisonment. For his plea, he is entitled to the full one-third discount and reduced to 4 years.