COURT: You have pleaded guilty at the committal stage to one count of rape and was committed to the Court of First Instance for sentence.
The facts of the case are as follows.
The victim, X, aged 22, is your daughter. X had been diagnosed with having mild-grade retardation since childhood. You and the mother of the victim got divorced in 2005. At the material time, you resided with X at a flat in Tuen Mun, New Territories while X’s mother and your elder son lived in Sham Shui Po. The flat in Tuen Mun was a unit with no room partition and the victim slept on a floor mat, which was placed near the main entrance of the unit.
At about 9 pm on 5 July 2022, X’s mother received a call from X, who told her that the defendant, that is you, touched her private part and she would like to leave home. Mother thus request the victim to pack her belongings and go to her flat in Sham Shui Po.
When the mother later asked X as to what had happened, X told her that the defendant touched her breasts, private part and buttocks. When asked whether X had sexual intercourse with you, X claimed that you inserted your penis into her vagina at the unit on Monday, that is the day before. X further claimed that she had tried to resist but in vain. The case was reported.
A video interview was conducted with the victim on 7 July 2022. During the interview, X revealed that in the night on Monday, ie 4 July 2022, while she was lying on the floor mat at the unit, you, who was naked, walked towards her and asked her to take off her clothing. X declined. You then started touching her body and took off her clothing. Afterwards, you kissed her breasts, pulled her thighs apart and inserted your penis into her vagina without using any condom. X tried to resist and said “no” but you paid no attention to her. X also tried to push you away but in vain. When you inserted your penis into her vagina, she felt painful and uncomfortable. The sexual intercourse lasted for about 5 to 30 minutes. At all material times, X did not consent to having sexual intercourse with you.
You were arrested. Under caution, you denied the offence.
From these facts, there are a number of aggravating factors in the offence that you have committed, namely, first, you are the natural father of the victim. Second, you have abused the trust that others have placed on you in allowing X to live with you. Third, you knew full well that the victim is suffering from mild-grade intellectual disability and have limited verbal expression as you have been living with her since she was 2. You, as the natural father, is supposed to look after her in order to avoid others taking advantage of her disabilities. Sadly, you are the one who took advantage of her disabilities. Fourth, you had taken no protective measure in raping her. Lastly, you raped her in her home which is supposed to be a safe shelter for her.
I also had the benefit of a report from a clinical psychologist about the condition of the victim. According to the report, you and the victim’s mother divorced when the victim was 2 years old. Since then, the victim was under the care of you and your parents. The victim’s mother and the elder brother of the victim lived apart. Because of the victim’s disability, your mother used to stay with her in your flat in order to look after her.
In anticipation that your mother may not be able to look after her for long in view of your mother’s advanced age, application had been made to place the victim in a hostel years ago. At last, your mother passed away in 2021. Due to difficulty in adjustment on the part of the victim, she did not stay in the hostel as arranged and was left to stay with you in the unit.
The psychologist is of the view that the victim suffered from mild-grade intellectual disability and difficulty in verbal expression. It is therefore perhaps difficult for her to express all her thoughts and feelings related to offence committed by you. X could only mention about feeling upset, painful, helpless, and worry.
Memories of the incident still appeared in the victim’s mind at times. She could only avoid thinking of it and avoid things that remind her of this incident. Crying spells and sleep difficulty are also behaviour direct indicators of her negative impact from sexual abuse.
The report also revealed that after the incident was disclosed, X felt relieved. She believed she is now safe as you are under arrest, and she is also living in a hostel. She expressed her unwillingness to live with you again and worried that you might blame her for disclosing it to the police. Except from these, it was reported that she have no other distress at this moment.
Although she could not express herself fully about her feelings, the psychological impact and horror of being raped by her natural father must have been considerable and long-lasting.
You were born in November 1962 and is now 62 years old. You had only received up to Primary 2 education. You had minor convictions for gambling and common assault, and the last conviction is common assault in 2017. I would not take them into consideration in sentencing you for the present offence. You were not in gainful employment and relied on Comprehensive Social Security Assistance since 2001.
It was urged upon me when you last appeared before me that you are of low intellect and I was persuaded to obtain a psychological report before sentence. It is revealed in the report that you had been to Castle Peak Hospital years ago but treatment was terminated with the approval of psychiatrist.
From the assessment done on you by the psychologist during the present remand, psychologist is of the view that you are of extremely low intellectual functioning compared to people in your age group and that your IQ score is 63. From the assessments, it demonstrated you had difficulties in understanding and explaining abstract concepts and vocabularies you commonly encountered in daily life as well as limit with problem-solving and general knowledge.
However, your non-verbal abilities fell within the low average range which was significantly better than your verbal abilities that fell within the extremely low range. It is suggested your personal weakness in understanding, using and thinking with spoken language, while you could better interpret, organise and think with visual information, it is estimated that you are within the range of mild intellectual disability.
Nonetheless, no significant impairment was found in your adaptive functioning and independent living in the community. You had no obvious problem with self-care and was able to help with household chores at home. You could engage in open employment in the community independently. More importantly, despite limitations on abstract thinking and learning, you should be able to distinguish right from wrong.
The report said, although you should be able to distinguish right from wrong, it is doubtful if you could understand the consequences of your offending behaviour and the harm inflicted on the victim. Psychologists who had the benefit of seeing you, assessing you, conducting tests on you is of the view that your remorse was regarded as superficial as evidenced by your tendency in denying your own responsibility for the offence. It is worth to note that upon your arrest and under caution, you denied the offence as well.
In the case of R v Billam and Others, the English Court of Appeal had this to say:
“The variable factors in cases of rape are so numerous that it is difficult to lay down guidelines as to the proper length of sentence in terms of years.”
The court in England suggested that:
“For a 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.”
It is also said in the case:
“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 had been carefully planned; (5) the defendant had previous convictions for rape or other serious offence 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; lastly, the effect upon the victim, whether physical or mental, is of special seriousness.”
It is said:
“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.”
Lastly, it is said in the case of Billam:
“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 Court of Appeal in Secretary for Justice v Singh held that:
“While Billam provided helpful guidance to a number of factors relating to what might aggravate the crime of rape, the guidelines as to the starting point were not necessarily appropriate.”
In that case, the offence was aggravated by virtue of having been committed in the privacy of the victim’s home. And also the psychological impact and horror of being raped by a man who was a member of her own family, who the victim trusted and respected for those reasons, must have been considerable and long-lasting. The Court of Appeal in that case on appeal said that a starting point of 10 years will be adopted.
In the case of HKSAR v KKK, the Court of Appeal held:
“Abuse of a child by a parent or a person in the position of a parent was a damnable breach of trust against which society at large ultimately through the courts assumed the duty proactively to protect the child and to, with it, condign punishment upon offenders. The child was a captive, physically and emotionally, and it was in that light that the seriousness of a sexual offence upon a child by its parent was to be viewed.”
In that case, protective measures were not adopted in the sexual intercourse, and the Court of Appeal said a starting point of 12 years’ imprisonment was appropriate.
The Court of Appeal, again in the case of HKSAR v Tsang Chiu Tak, laid down some sentencing principles in this sort of case:
“The Court of Appeal reiterated in many recent cases that the court had to protect innocent, trusting children and prevent these vulnerable persons from sexual abuse, which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it is necessary for the court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victim and family.
The Court of Appeal pointed out that when the court deals with offences of sexual assault on a child, the factors that need to be taken into consideration include: the age difference between the defendant and the victim; 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; whether the defendant had used threats or inducement to make the victim succumb; number of occasions of committing offences and the duration of the offences; whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim; whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal diseases to the victim or getting her pregnant; whether the sexual abuses have caused physical or psychological trauma to the victim; whether the offences have impact on the family members of the victim; whether the defendant was involved in other inappropriate behaviours, such as inviting other people to watch or take photos or videos of the offence he had committed; whether the defendant is psychologically imbalanced, and paedophilic and the likelihood of re-offending.”
Lastly, the Court of Appeal said:
“Acted under the influence of alcohol at the material time is not a mitigating factor.”
In the case of HKSAR v Leung Ping Kuen, the Court of Appeal said:
“The sentencing principle involving sexual assault on a child may be applied to sexual assault on a mentally incapacitated person. The court had to protect innocent, trusting children and prevent such vulnerable persons from sexual assault, which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the court to adopt deterrent sentences to deter others from committing similar offences.”
As I have said earlier, there are a number of aggravating factors in the crime that you have committed. In the circumstances of this case, having taken into consideration of those aggravating factors that I have mentioned, I take a starting point of 12 years.
It is submitted that you were under the influence of alcohol when you committed the present offence, namely, that you had been drinking beer before returning home, and it was in a moment of compulsive conduct, affected by alcohol, that you committed the present offence. However, as said by the Court of Appeal in Tsang Chiu Tak, that is not a mitigating factor, and I will not give you any discount.
As to your mild intellectual disabilities, as disclosed in the report I called for, your counsel further submitted and relied on authorities that some discount should be given. The Court of Appeal in the case of HKSAR v Lau Chin Yu said:
“It was a necessary part of the sentencing process to consider not only the features of the case which were adverse to the applicant, but also the other circumstances which put into perspective the kind of person the applicant was.”
In that case:
“The applicant’s personality assessment fitted the profile of someone with a low self-esteem and with a perception of himself as ‘less capable and lovable than others’. The applicant was described as ‘shy and timid’ despite the fact that he had ‘good support from his family’ and had ‘attained a post-secondary education’.”
The court said:
“This was not to say that such factors render his offence other than serious and knowingly culpable, and the offence did not appear to have been spontaneous.”
But the Court of Appeal:
“...comparing the position of the applicant as the perpetrator of these offences, and immature 23-year-old with a weak, timid and ineffectual personality with that of a fully mature adult who had been shown to have asserted himself over a mentally incapacitated victim, a heavier sentence would be called for in the case of an offender in the latter category.”
Ms Chan, on your behalf, further relied on two cases in asking me to give you some discount for your disability. In the case of R v Henry, where the Supreme Court of New South Wales laid down some sentencing guidelines, Wood CJ, at paragraph 252 said:
“Nor am I persuaded of the appropriateness of the suggested analogy between drug addiction and mental abnormality, in respect of which the element of general deterrence is often given less weight. The relevant principle, whereas general deterrence, is a relevant consideration in every sentencing exercise. It is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap.
In an extreme case, the proper application of the principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case, it is a matter of balancing the relevant factors in a manner no different from which is involved in every sentencing exercise. The reason for this approach lies in the circumstances that the community will readily understand that an offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints. And, in some instances, lacks the ability to make reasoned or audited judgments. Almost invariably, there is a limited appreciation of the wrongfulness of the act or of its moral culpability, which, although falling short of avoiding criminal responsibility, does justify special consideration upon sentencing.”
Wood CJ also quoted the words of Gleeson CJ in another case:
“The question of the relationship with any between the mental disorder and the commission of the offence goes to circumstances of the individual case to be taken into account in the application of relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence.”
The final case referred to or relied upon by your counsel, R v Harvey, which is a case of buggery on a boy. The sentence was reduced on appeal on three grounds. First, the victim in that case, did not seem to have suffered any harm for what had happened to him. Secondly, it was accepted the offence was an isolated incident. And finally, the appellant was a man of slightly below normal intelligence.
The court has stressed that in view of these circumstances, and particularly that the incident was an isolated one, the sentence could be reduced. And it was reduced from 3½ years to 30 months.
As to the victim did not seem to have suffered any harm from what had happened, it is because, first, the penetration was minimal. Secondly, although the boy was unwilling, he does not seem to have been unduly upset by what had happened because he ran away from the appellant and passed two members of the public and he said “hello” to them, but did not show any signs of distress. And when the boy arrived home, he made no complaint to his parents or anyone else about what had happened. It was only because the two passers-by, having given a thought to the matter, feel the matter should be reported to police.
The second unusual feature of the case is that there was positive evidence coming from the police that the police were satisfied that this was an isolated incident.
As disclosed in the psychologist report that I have called for on your behalf, though you suffer from mild intellectual disability, have an IQ score of 63 only, it only demonstrates that you have difficulties in understanding and explaining abstract concepts and vocabularies that you commonly encounter in daily life.
However, your non-verbal abilities did not fall within the extremely low range, and you have no obvious problem with self-care, and you could engage in open employment independently. More importantly is, despite the limitation on abstract thinking and learning, you are able to distinguish right from wrong. Despite your mild intellectual disability, I do not think I should give you any discount for that.
In the circumstances, other than your timely plea, there are no mitigating factors in this case. In this case, the only evidence against you came from your poor daughter, who has difficulty in expressing herself.
I will give you some discount for sparing her to give evidence against you, as she had been trying to avoid thinking of the case and avoid things that might remind her of this offence. With some reluctance, I give you a discount of 6 months.
I sentence you to a term of imprisonment for 7½ years.