HKSAR v. L. K. B.

HCCC 406/2024

[2026] HKCFI 494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 406 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of rape and admitted the Summary of Facts at the committal proceedings at the Eastern Magistracy on 21 November 2024. The defendant has confirmed his plea and his admission to the Summary of Facts today through counsel.

2.  The particulars of the charge state that on the 7th day of August 2023, at a flat in Kwai Chung, New Territories, in Hong Kong, the defendant raped X.  

3.  The Summary of Facts provides, inter alia, as follows.  The defendant (aged 35 at the time) is the elder brother of female X (aged 30 at the time).  X lived with the defendant, her other elder brother (“PW2”) and their mother at a flat in Kwai Chung (“the Flat”).  The Flat has three partitioned bedrooms with a curtain at each door.  The bedroom on the left closest to the main door belongs to the defendant.  The bedroom right beside it belongs to X and the bedroom on the right belongs to PW2.  The mother sleeps on a bed in the living room. 

4.  At around 8 pm on 6 August 2023, X attended a music festival in Central.  She left the music festival at around 10.30 pm as she was very drunk and dizzy and her friend sent her home by taxi at around 11.45 pm.  She arrived at the Flat at around 12 am on 7 August 2023 and her friend left.  She then changed into a T-shirt dress without wearing any bra or underwear underneath and fell asleep as she was very tired and drunk. 

5.  While she was sleeping, she suddenly felt something being inserted into her private parts and thrust four to five times.  She felt that it was a penis that was not completely erect.  She then opened her eyes and saw the defendant standing at the side of her bed facing her.  He was standing between her legs which were spread open.  Her legs were halfway off the side of the bed and her dress was pulled halfway up, partially covering her private parts.  The defendant then smiled at her and left the room.  At one point the defendant had also kissed her lips once whilst standing beside her bed.  X had not consented to the intercourse or the kiss.  

6.  X did not notice whether the defendant had used a condom or whether he had ejaculated.  X was very scared and did not know what to do as the defendant was her brother but she continued sleeping as she was still very drunk.  

7.  When she woke up at around 9.45 am that day, she felt discomfort in her private parts as if she had sexual intercourse with someone.  She then took a shower and left for work at around 11 am. 

8.  At around 12.20 am on 7 August 2023, PW2 was sleeping inside his bedroom and heard the defendant shouting X’s name loudly.  PW2 then opened the curtain of his room and saw the defendant coming out from his own room and entered X’s room.  PW2 went over to take a look and saw the defendant quickly carrying X onto the bed. X was semi-conscious with her eyes closed at the time.  PW2 believed that she was drunk and had fallen off her bed.  The defendant and X were both clothed at that time.  

9.  CCTV of the building in question captured X returning home accompanied by a male friend at 11.58 pm.  X appeared to be semi-conscious and was unable to walk properly even with her arm around her friend’s shoulder.  The friend then left the building at around 12.04 am on 7 August 2023. 

10.  At around 4.20 am on 7 August 2023, X sent messages to the defendant via WhatsApp and confronted him about the rape.  She scolded him for messing with his own sister and told him that she would be calling the police.  The defendant replied with sad face emojis and sent a message saying “I love you”.  Such messages were later found on the defendant’s mobile phone.  

11.  At around 5.24 pm on the same day, X sent a message to her friend telling her about the rape.  Her friend then convinced her to report the case to the police and accompanied X to Kwai Chung Police Station at around 6.30 pm that day.  

12.  DNA samples were taken from X by the forensic pathologist at around 12.30 am on 8 August 2023 and sent for examination.  Seminal staining was found on the high vaginal swabs, low vaginal swabs, endocervical swabs, vulval swabs and external anal swabs taken from X.  DNA obtained from the pellet fractions of the seminal staining could all have originated from the defendant. 

13.  At around 2.31 am on 8 August 2023 the defendant was arrested for rape at the Flat. He stated the following under caution in his three video‑recorded interviews held on, respectively, 8 and 9 August 2023:  

(1) He lived at the Flat with his mother, his elder brother PW2 and X. He rarely spoke to X. He was married but his wife lived in mainland China;

(2) On 6 August 2023, he stayed at home all day with his mother. When he was sleeping at around 12 to 1 am on 7 August 2023, he suddenly heard a loud noise and ran to the living room. He opened the curtain of X’s bedroom and saw X lying completely naked on the bedroom floor. X was lying face up on her side and the defendant felt that she was drunk;

(3) He then helped her back on the bed by putting his arms under her armpit. As X’s body was completely limp, he had to push her buttocks onto the bed with his thighs. After helping X onto the bed, he kissed her forehead;

(4) X was quite drunk at that time. She was unconscious and covered in sweat. He had called X’s name several times but she was not very responsive and had only moved her hands about and shook her head; and

(5) He went to the bathroom and saw X’s handbag and mobile phone in the bathroom, so he placed them back inside X’s bedroom. The defendant then returned to his own bedroom to sleep.

14.  Regarding the personal background of the defendant, the defendant is now 38 years old.  He was born in Hong Kong.  He is married but he has separated with his wife who is now residing in mainland China.  They do not have any children.

15.  The defendant has three siblings, two elder brothers and one younger sister being X.  Unfortunately, his oldest brother and his father passed away in 2013 and 2019 respectively.  Prior to his arrest, the defendant was living with his mother, second eldest brother and younger sister, X, in a public housing unit in Kwai Chung.  The defendant keeps a harmonious relationship with his family all along. 

16.  The defendant reached Secondary Form 5 education level.  After leaving school in 2005, he joined the labour force.  His first job was a lifeguard in a housing estate and the defendant worked there for over 10 years.  At the time of his arrest, he was a driver responsible for delivering goods for Taobao customers, earning HK$26,000 per month.  He made regular monthly contributions to his family during the past years.  

17.  The defendant first met his wife in Dongguan, China.  After a short courtship, they got married in 2019.  Unfortunately the wife often had quarrels with the defendant.  Their relationship increasingly deteriorated.  The unhappy marriage frustrated the defendant who then turned to spend his time at various bars and pubs after work.  Gradually the defendant indulged himself in drinking and became an alcoholic.  

18.  At the night before the incident, I am told that the defendant drank a lot at home.  Later his younger sister, X, returned home from a concert who seemed to be quite drunk as well.  X fell onto the floor of the sitting room and the defendant assisted her to her bedroom, where the defendant, under the influence of alcohol, committed the offence for which he subsequently is said to be profoundly regretted.  

19.  Prior to his arrest for the present offence, the defendant had a clear criminal record. 

20.  In mitigation, the defendant submits that the duration of the offence was relatively short, not a prolonged offence with aggressiveness.  There is no other aggravating features, for example, taking photographs or videos during the offence or circulating the same online.  The defendant further submits that he did not use any violence, weapons, threats nor inducement on X.  It is also said to be fortunate that there is no evidence that X was pregnant or contracted any diseases because of the incident. 

21.  The defendant further submits that he was aged 35 and X was aged 30 at the time of the offence so there was no great difference in age.  Both of them were grown-up adults and X was not a mentally impaired person either.  The defendant submits that this is not a case where breach of trust is involved.  The defendant did not abuse his position to commit the offence.  

22.  In the present case, I had intended to call for a victim impact statement to assess the effect of the offence on X, before sentencing the defendant.  That however proves not to be possible.  I am told by Ms Angel Yuen, counsel for the prosecution, that X is not willing to undergo an assessment for a victim impact statement. 

23.  In the present case, I would adopt an initial starting point of 5 years’ imprisonment.  There are however two aggravating features in this case as far as I can see: (1) no protective measures appeared to have been used by the defendant; and (2) the victim, X, was a sister of the defendant who appeared to be drunk at the time.  

24.  In my view, this second feature is a particularly serious aggravating feature.  X could reasonably expect that she would be protected by her older brother rather than being taken advantage of and sexually abused by him after drinking at a music concert.  In all the circumstances of this case I would increase the initial starting point to 7½ years’ imprisonment from 5 years.  

25.  The only mitigating factor as far as I can see is the defendant’s timely guilty plea for which I will give him the full one-third discount.  Accordingly, the defendant is sentenced to 5 years’ imprisonment.