COURT: The defendant pleaded guilty to one count of rape before a magistrate on 25 April this year. According to the particulars of offence, he raped a female, “X”, at his home in Fu Kwai House in Tai Wo Hau Estate, Kwai Chung, on 3 November 2022.
According to the Summary of Facts to which he agreed at the time of his plea, at the material time he was 28 years old and X was 23 years old. X was suffering from depression since 2018, and she had to attend follow-up sessions at the Princess Margaret Hospital every three months and to take regular medication to stabilise her emotions. The defendant suffered from schizophrenia since 2012. Also he was required to attend follow-up sessions at the Princess Margaret Hospital. The facts stated that he has received disability allowance for over 10 years.
The two of them came to know each other in year 2020 during an activity held in the Wellness Centre, which was an integrated community centre for mental wellness. Since then they occasionally met with each other about once or twice per week.
On 3 November 2022, the defendant asked X to go to his flat for a chat and she agreed. At about 7.30 pm on that day, they met and the defendant brought her up to his flat. After chatting for a while in the flat, the defendant indicated that he wanted to have sex with X and asked her to remove her lower garments. X reluctantly acceded as she was afraid. After having the lower garments of both of them removed, X pushed the defendant’s shoulder once to express her reluctance, but the defendant did not pay heed to her. He then asked X to sit on his penis and penetrated into her vagina without a condom. At the same time, he also touched and squeezed the breasts of X.
After a while, he said that he could not ejaculate and he had to watch porn video while having sex. Then he took out his phone and watched the porn video while he continued the sexual intercourse. After a while, they changed to another posture. At this stage, X pushed the defendant’s upper body again to show that she did not want to have sex with him. But he ignored her and continued to penetrate her vagina without a condom. At the same time, he moved his body back and forth whilst holding his phone with one hand to watch the porn video. It was until X said that she felt tired that he stopped. He appeared unhappy and stated that he had to take medicine. Then both of them left the flat eventually.
According to the CCTV footage of Fu Kwai House, the two of them entered Fu Kwai House together at about 7.44 pm on 3 November 2022. And they left together at about 8.21 pm on the same night. That is about 37 minutes later.
X only intended to have a chat at his flat and she did not want to have sex with him.
Thereafter, at about 9.00 pm on the same day, X made a complaint to her boyfriend, Y. Then the next morning, on 4 November, her mother also came to know about the matter. Eventually a report was made to the police.
The defendant was arrested by the police for the offence of rape on 4 November 2022. He stated under caution that, “Sorry, I did rape her, give me a chance.” He also said that he had sexual intercourse with X at his home. After the sexual intercourse, he watched porn video with his iPhone together with her.
In a subsequent video-recorded interview, he said he made love with X at his home. He was the one who initiated to have sex with X because he was addicted in watching porn contents. He came to know X at the Centre and they had known each other for about two years. On the evening of 3 November 2022, he asked X to go to his home. Upon arrival, he first pulled up the upper garment of X against her wish to molest and squeeze her breasts. Then he removed her jean shorts and underpants and also removed his own lower garments before he had sex with X. At the material time, he said X did struggle and said, “No.” He knew that she was not willing to have sexual intercourse with him. But he continued in spite of her struggling as he could not control himself. Also, he initiated to change the posture because he wanted to have more excitement. He said X helped him to masturbate on his request. During the sexual intercourse, he did not use a condom and also he did not ejaculate. The whole sexual intercourse lasted for about 15 to 30 minutes. He knew that X was not willing to have sex with him. Also he initiated to watch the porn video during the sexual intercourse because he wanted more excitement, but X did not show much interest.
Upon an assessment of the intellectual and adaptive functioning of X, it was the opinion of the clinical psychologist Ms Lui Fung-yee that the adaptive functioning ability of X was equivalent to a person of 12 years and two months old, which was lower than 99 percent of adults at her age. She was considered to have fulfilled the criteria of Mild Intellectual Disability. However, she had achieved good community adjustment and practical living skills which required infrequent or no support in her daily life.
By his plea of guilty, the defendant now accepts and admits that at the material time he raped X at his flat.
Information has put before this court about the assessment of the intellectual and adaptive functioning of X. The date of assessment was in August 2023. Her intelligence level was estimated to be equivalent to a person of 12 years and two months old. And her assessment indicated significant abnormal functioning. She was therefore estimated to be cognitively impaired. However, she possessed the capability to live independently. According to the clinical psychologist, her functioning falls within the definition of a mentally incapacitated person under the Mental Health Ordinance. As such, her functioning also fits the definition of a mentally incapacitated person stipulated in the Criminal Procedure Ordinance.
On the other hand, she has achieved good community adjustment and practical living skills which needs infrequent or no support in her daily life. And she has the capability of independent living. As such, her condition is considered to be inconsistent with the definition of a mentally incapacitated person under the Crimes Ordinance.
This court has also the information of a victim impact report which was prepared after the incident. According to the clinical psychologist Ms Kwok Chung-sze of the Social Welfare Department, after the incident, X avoided visiting the Wellness Centre where she encountered the defendant. Following the incident, she had feelings of shame and even chose to change her name. She had unresolved anger and fear towards the defendant which was manifested in her becoming increasingly withdrawn and engaged in self-mutilation on her arms and thighs. Her condition was so serious that her mother reported an incident in which X cut her arm deeply, necessitating hospitalisation for treatment and resulting in significant wounds and scarring. She also became hyper-vigilant around male strangers and she actively avoided contact with men.
The assessment of X revealed significant and multifaceted psychological impacts stemming from her experience of the sexual assault. X exhibited a range of post-traumatic stress disorder (PTSD) symptoms and avoidance behaviour which indicated a profound disruption in her emotional and psychological well-being. Her depressive symptoms reflected an inadequate coping response to the trauma, further entrenching her in a cycle of emotional distress. The assault also led to significant sexual distortions and distress, impairing her ability to form healthy intimate relationships. According to the clinical psychologist, she has a continuous need to receive clinical psychological treatment.
The defendant is now 30 years of age. He has completed Form 4 education and he has no previous criminal conviction. He was single and lived with his mother. He used to work as a part-time cleaning worker earning about $1,500 per month.
In her mitigation, defence counsel Ms Sabrina See stated that the defendant alleged that he was suffering from mania, hyperactivity disorder and emotional illness since he was 17, but he did not receive any treatment for those matters. He has been attending the Princess Margaret Hospital since 2012 for schizophrenia.
Counsel urged this court to take into account the fact that he admitted the offence and he was cooperative with the police by admitting the offence upon his arrest. He was also remorseful and truly regreted upon learning the suffering of X and the impact on her thereafter. Counsel urged this court to take into account the fact that he pleaded guilty to the offence even though X failed to identify him in the subsequent identification parade held in February 2023.
Counsel said there was no evidence that he had taken advantage of the mental health state of X, and that the reports indicated X did not require any support in her daily living. For example, she was able to go to the home of the defendant by herself on the day of the offence. Also, counsel acknowledged that it was an aggravating feature because no condom was used during the sexual intercourse. However, the defendant did not ejaculate in her vagina which removed the risk of getting her pregnant.
For the offence of rape, the usual sentence is no less than five years without aggravating feature. In this particular case, I consider that the incident was aggravated by three particular matters.
First of all, no condom was used during the sexual intercourse. Even though he did not ejaculate inside the vagina of X, however, it is indicated in the Admitted Facts that he forced X to watch the porn video together with him because he could not ejaculate. So he did not ejaculate. The fact that he did not ejaculate was not a deliberate decision on his part but rather that he was unable to ejaculate at the material time.
Secondly, the fact that X was a mentally incapacitated person as defined under the Criminal Procedure Ordinance and the Mental Health Ordinance. However, I agree with counsel that on the facts of the case, there is nothing to indicate that he was aware of her condition. But the fact that they had been acquainted and going out to meet each other for a period of time indicated that there must be at least some indication about the mental capacity of X.
Thirdly, I consider the case is aggravated by the very serious trauma suffered by X and that impact upon her and she needs continuous treatment psychologically.
Having taken into account all those aggravating features, I consider the appropriate starting point should be one of 8 years’ imprisonment, that is, 96 months. The defendant pleaded guilty at an early stage and he is entitled to the full one-third discount. Other than that, I do not see any other mitigating circumstances.
As such, after the discount, he is sentenced to a total of 5 years and 4 months’ imprisonment accordingly, and that is the sentence that I impose.