HKSAR v. YEUNG SHING SANG

CACC 374/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 374 OF 2013

(ON APPEAL FROM HCCC NO. 452 OF 2012)

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the Reasons for Judgment of the Court):

1.  At the hearing the applicant sought leave to appeal against the sentence of 12 years imprisonment imposed by M Poon J for the offence of rape following his conviction after trial by the judge and a jury on 4 September 2013 of a count of procuring another person to do an unlawful sexual act by false pretences, contrary to section 120(1) of the Crimes Ordinance, Cap. 200 (Count 1) and of a count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap. 200 (Count 4). Those offences were committed against the same victim, Ms X, and occurred at the applicant’s home in premises at 14-26 Shui Wo Street, Kwun Tong, Kowloon between 28 and 29 June 2012. The judge imposed a sentence of 3 years imprisonment in respect of Count 1, which sentence was ordered to be served concurrently with the sentence of 12 years imprisonment in respect of Count 4. We allowed the application, quashed the sentence of 12 years imprisonment and in its place substituted a sentence of 10 years imprisonment. We said that we would give our reasons in due course. That, we do now.

2.  The applicant was acquitted of a count of non-consensual buggery (Count 2) and the alternative count of procuring another person to do that unlawful sexual act (Count 3) against Ms X at the same location and period of time as the other offences.

Prosecution case

3.  At the time of the offence Ms X, a 38-year-old woman, worked as a masseuse in Hong Kong, to which she had come to reside in 2005.  In 2000, she had married a Hong Kong residents and gave birth to their son in 2001.  However, their marriage had broken down in 2005 and she lived together with her son, who was mildly mentally retarded.

4.  Ms X came to know the applicant, who was 39 years of age, in June 2012 through the introduction of her twin sister Jin, who was the applicant’s lover.  On the morning of 28 June 2013 Jin told Ms X that she had made love to the applicant, who was a God with magical powers.  In subsequent telephone conversations, Jin suggested that the applicant could help Ms X’s mentally retarded son.  As a result, Ms X met Jin in the afternoon and accompanied her to the applicant’s home.

5.  At the applicant’s home, the applicant urged Ms X not to give up on her son and claimed that he could perform rituals not only to help her son but also to transform her boyfriend.  Also, he mentioned a ‘ghost’ child that he had brought up.  Having given Ms X a mineral drink to consume from a bottle, he showed her some explicit sexual photographs stored on his Samsung mobile telephone.  He said he had performed rituals that helped many husbands, whose wives performed sexual acts with him in gratitude.  Later, X felt tired and fell asleep.  After the three of them had eaten dinner, Jin left the premises to purchase material for use in the ritual, including sausages, lubricant and condoms.  Then, at the applicant’s suggestion she consumed some coffee from a plastic cup, which he said would enhance her blood circulation.  In enquiries made after the matter was reported to the police, it was found that two plastic cups found on the premises contained traces of ice, as did the blood and urine samples taken from Ms X.  She had never taken drugs before.

6.  In the guise of performing a ritual on Ms X, her eyes were covered with a towel and the applicant inserted a sausage contained in a condom into her vagina, which she was then instructed to expel by simulating the movements of childbirth.  Subsequently he had inserted his fist into her vagina, likewise contained in a condom.  The applicant took photographs of her, although if these existed no such photographs were adduced at trial.  At one stage, Ms X became aware that the applicant was penetrating her vagina with his penis without a condom.  In response to her loud shouts of “No”, he desisted and withdrew.

7.  In the morning, Ms X left the premises and returned to her home and to her boyfriend, to whom she appeared distressed.  In the afternoon they were joined by Jin.  Ms X and Jin embraced each other and cried.  Then, a report was made to the police.

Defence case

8.  The applicant did not avail himself of the right to give evidence at his trial.  Rather, he relied in part on his out-of-court statements in video recorded interviews with the police.  There, he admitted having had sexual intercourse with Ms X, but asserted that he had desisted and withdrawn his penis from her vagina when he became disconcerted by the presence of Jin.  He went on to have sexual intercourse with Jin.  He asserted that he had had sexual intercourse with Ms X with her consent.  He denied having inserted a sausage or his fist into Ms X’s vagina and having committed buggery with Ms X.

9.  Although in his out-of-court statements the applicant had denied having inserted a sausage or his fist into Ms X’s vagina, in cross-examination of Ms X it was suggested, albeit denied by Mr X, that she had consented to the performance of those sexual acts on her.  Similarly, she denied the suggestion that voluntarily she had consumed a drink contained in a plastic cup which she knew to contain ice and that she had done so having become aroused by watching the applicant and Jin having sexual intercourse.

Reasons for Sentence

10.  In her reasons for sentence, the judge described the circumstances in which Ms X had been tricked into allowing the applicant to perform acts of a sexual nature on her and the limits of that consent:[1]

“The defendant talked her into performing the rituals. X knew that the rituals involved acts of a sexual nature which involved something which would harm her body, although she had no idea of what it entailed or its precise perimeter, but her consent was limited to acts other than sexual intercourse.

She could not offer any explanation as to why she agreed to the ritual. She described a condition of feeling very dazed but conscious during the rituals after she drank coffee from a plastic cup offered by the defendant. Methamphetamine, “Ice”, was found in the blood and urine samples of X and traces were found in the cups seized from the defendant’s home.

During the rituals, the defendant covered X’s eyes with a towel and applied salt and then stuck a sausage into her vagina. When she had to answer a call of nature, she was told to urinate into a rubbish bin. Eventually, the whole sausage was inserted into her body and the defendant asked her to force the sausage out with might, like labouring.

During the ritual, the defendant penetrated her with his penis briefly, telling her that this was not for his own benefit but all the benefit was to be credited to her boyfriend.  The defendant had also stuck his clenched fist into her vagina.  All these were done in the presence of X’s twin sister.  X was in the defendant’s flat for more than 12 hours before she left and the defendant had used a purple scarf to tie around her breasts under the pretext of enhancing her drooped breasts.”

11.  Of the applicant’s culpability, the judge said:[2]

“The facts of this case, as accepted by the jury in convicting this defendant, reveal appalling and despicable behaviour on the part of the defendant. After befriending her sister and coming to know her son’s mental condition, he had deliberately set out to exploit her vulnerability and naivety by telling her that his rituals could help improve her son’s mental retardation. His acts were not impromptu but premeditated.

The victim was subjected to prolonged sexual indignities and perversions and the impact of the incident on her remains strong and will no doubt be immeasurable in terms of time and effect, both physically and psychologically. Furthermore, lacing her coffee with “Ice” to weaken her power of reasoning to enable him to carry out the perverted acts unimpeded is another aggravating feature. Also, the defendant had failed to use a condom during the penile penetration”

Victim impact statement

12.  Having ordered the preparation of a psychological report to assess the psychological effect of the events on Ms X the judge noted of the report:[3]

“According to the clinical psychologist, X refused to talk about details of the incident. She experienced various post-traumatic symptoms such as fear, anxiety, insecurity, shame, irritability and anger. She was paranoid as to drinking water provided by others and even went so far as to avoid walking past those drink-selling counters in the supermarket. She was always in hyper-vigilant state and over-reacted to being touched by others. Her trust for others diminished significantly and she harboured paranoid thoughts that computers would increase her chances of being traced by others. She is receiving, currently, both psychiatric and psychological treatment and counselling.”

The applicant

13.  In the course of mitigation on behalf of the applicant, the judge indicated that for purposes of sentence she would ignore his conviction in 1989, when he himself was only 15 years of age, for the offence of having unlawful sexual intercourse with a girl under the age of 16 years.[4]  Having ordered the preparation of a psychological and a psychiatric report on the applicant, the judge noted that they both described the applicant as having suffered depression and having harboured suicidal thoughts.  She went on to note that it was the opinion of the clinical psychologist and that the applicant was:[5]

“..a manipulative individual with low frustration tolerance and inadequate problem-solving ability, poor emotion control and low self-esteem. He is impulsive and short-sighted and did not consider the consequences of his action. He had resorted to substance abuse, that is abusing “ice”, in coping with his multiple psychosocial stressors and maladaptation”

Starting point

14.  Having described the circumstances of the commission of the offence of rape as being “a bad case”, the judge stipulated a starting point for sentence in respect of that offence of 12 years imprisonment.  Noting that the procuring offence, the subject of Count 1, was “part and parcel” of the commission of the offence of rape and stating that she had taken the circumstances of aggravation into account in stipulating the starting point for sentence in respect of the offence of rape, the judge stipulated a starting point for sentence for Count 1 of 3 years imprisonment.

Grounds of appeal against sentence

15.  On behalf of the applicant, Mr James Tze submitted that the starting point for sentence stipulated by the judge for the offence of rape, namely 12 years imprisonment, was manifestly excessive having regard to the aggravating factors in the commission of the offence.  It was accepted that the aggravating factors included the surreptitious administration of ice to Ms X and the failure of the applicant to wear a condom.  Further, it was accepted that the judge was entitled to have regard to the ongoing impact of the events on Ms X.  On the other hand, it was submitted that no violence was used in the commission of the offence and the applicant had desisted in his penetration of the victim’s vagina with his penis when she made clear her lack of consent.  Further, the penetration of the victim’s vagina was for a short time only.  Finally, it was to be noted that the assessment of the risk of the applicant re-offending was said to be low to moderate.

16.  His attention having been drawn by the Court to the judgment of this Court, differently constituted, in HKSAR v Chow Kam Wah [6],  Mr Tze invited the court to note that, although the applicant’s application for leave to appeal against sentence had been dismissed, this Court described the sentence of 8½ years imprisonment imposed for a conviction of rape after trial as being “on the high side”, as it did the totality of 11 years imprisonment resulting from an order that part of the sentences of imprisonment imposed in respect of three counts of procuring a woman to do an unlawful sexual act, namely to have sexual intercourse, were ordered to be served consecutively to the sentence imposed in respect of the rape offence.  There, the victim had been tricked into having sexual intercourse with the applicant on the basis that it was part of a ritual to exorcise a ghost.  Mr Tze invited the court to note the great disparity in age between the applicant in that case and his victim, namely 51 years and 19 years of age respectively, and the fact that the applicant had not only not used a condom during sexual intercourse with the girl but also had ejaculated inside her vagina.

A CONSIDERATION OF THE SUBMISSIONS

17.  We are satisfied that the judge was correct to describe the applicant’s behaviour as “appalling and despicable”.  As she noted, he preyed on the “vulnerability and naivety” of Ms X in respect of her son’s mental condition, so that the offence was premeditated.  Similarly, as is accepted on behalf of the applicant, his surreptitious lacing with ice of the drink he provided to Ms X to impede her powers of reasoning and to release her inhibitions was an aggravating feature in the commission of the offence, as was his failure to use a condom when penetrating her vagina with his penis.

18.  The judge was correct to describe Ms X as having been “subjected to prolonged sexual indignities and perversions” and to take into account that the psychological effects were ongoing.[7]  That report noted of Ms X, that:

“……the incident of sexual assault or to lead to severe extensive impact on the client psychological well-being. The client’s symptoms of depression and post- traumatic stress disorder were prominent. After the incident, she was always under heavy feelings of sorrow, fear, worry, insecurity, shame, irritability and anger…. The assault caused significant strains on the client's basic trust to people, particularly other males……….. Her heterosexual relation was negatively affected. She felt uncomfortable about having intimate physical touch. Her interest in engaging in sexual activity is markedly diminished. Her positive self-image was heavily damaged. Strong sense of self-blame and guilt upon the assault was revealed. She deeply regarded herself as very stupid.”

19.  Ms X had been tricked into consenting to acts of a sexual nature “short of sexual intercourse and anal intercourse”.  That trickery was itself a serious factor of aggravation in the commission of the offence.  Further, having agreed first to participate in rituals involving sexual acts, she allowed those acts to be actually performed on her after her powers of reasoning had been reduced and her inhibitions relaxed by the surreptitious administration of ice.  Nevertheless, it is clear from the account that Ms X was able to describe in her testimony of the series of sexual indignities visited upon her by the applicant that she remained fully conscious throughout those events.  She was aware immediately that the applicant was penetrating her vagina with his penis and she was able to express loudly her refusal to allow that to happen.

20.  It is correct, as Mr Tze has pointed out, that in the course of the infliction of the sexual indignities, culminating in rape, inflicted on Ms X no violence was used on Ms X by the applicant, other than stepping on her bottom.[8]  The medical report prepared by the pathologist of his examination of Ms X confirmed that there were no injuries to her private parts and anus.[9]

21.  In the result, we were satisfied that in all circumstances, notwithstanding the factors of aggravation in the commission of the offence of rape identified earlier, the starting point taken by the judge for sentence for that offence of 12 years imprisonment, was manifestly excessive.  In our judgment a sentence of 10 years imprisonment adequately reflected the gravity of the offence.  Accordingly, we allowed the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we quashed the sentence of 12 years imprisonment imposed in respect of Count 4 and substituted in its place a sentence of 10 years imprisonment.  We made no other different orders, so that the total sentence of imprisonment to which the applicant is now subject is 10 years imprisonment.

[1] Appeal Bundle, page 520 A-L

[2] Appeal Bundle, page 521S-522 E.

[3] Appeal Bundle, page 521N-R.

[4] Appeal Bundle, page 528A-C.

[5] Appeal Bundle, page 521D-H.

[6] HKSAR v Chow Kam Wah (CACC 456/2010; unreported, 30 November 2012.)

[7] Appeal Bundle, page 522 B-C.

[8] Appeal Bundle, page 39 N.

[9] Appeal Bundle, page 45 K-M; exhibit P45.