CRIMINAL CASE NO. 291 OF 2010
COURT: D1 was charged with one count of rape, Count 1. D2, his girlfriend, was charged with aiding and abetting that rape, Count 2. Both D1 and D2 were then jointly charged with blackmail on the victim’s father and mother with a threat that unless a sum of money, HK$2,000 to be exact, was paid, the photographs and video clips taken during the rape would be published, Counts 3 and 4 respectively.
At the pre-trial review, D2 indicated her intention to plead guilty to all the charges, plus her wish to give evidence for the prosecution. A non-prejudicial statement was subsequently taken. A few weeks after that, D1 wrote in to say that he, too, would be pleading guilty to all the charges. Today, they have both done so accordingly.
The facts of the case have been read out by the prosecution. I will not repeat them, suffice it to say that it is an agreed fact that in order to punish the victim for ignoring D2’s continued request for her to leave D1, D1 and D2 agreed to trap the victim by asking her to go to their cohabitating home and then make use of the chance to take nude photographs and videos of her. Such nude photographs and videos would then be given to the victim’s family with the intent to force the victim to leave D1 and to teach her a lesson. That is the first point, and I have got what I just said almost word-for-word from the Summary of Facts.
Secondly, D2 took an active part during the rape. It was she who verbally abused the victim upon the latter’s arrival. It was she who ripped at the victim’s clothes, at least to start with, and subsequently took all the photographs and videos. She had also, I quote, “slapped the victim’s face, hit her arm and squeezed her breasts, warning her not to resist.”
Third, D1 for his part had, as well as hitting the victim on the arm, forced his penis into the victim’s mouth and subsequently penetrated her without a condom.
Insofar as the two counts of blackmail are concerned, both D1 and D2 were equally prominent in what came close to harassment by a series of upsetting if not threatening phone calls and short messages, culminating eventually to some specific demands for money. Those were the disturbing features, some of them aggravating factors of the case, none of which was mitigated by the fact that the victim had had previous sexual relations with D1 and that on the night of the offence, after the ordeal, the victim stayed the night and willingly performed oral sex and had sexual intercourse with D1 because, I quote, “she wanted to compete with D2 and to win D1 over to be her boyfriend.”
As a matter of fact, I find it difficult to see why the defendants, particularly D1, should blame the victim for her attachment to D1. I find it difficult to see why D2 would agree to D1 forcing himself on the victim when everything was done in the hope that it would disengage the victim from D1. I am not sure if this was not just an excuse for the defendants to blackmail the victim and/or her parents.
That said, I am prepared to give the benefit of the doubt to the defendants and separate the rape from the blackmail. But even on its own and whether or not it was an on-the-spot decision to go all the way, as Mr Wong for D1 has submitted, the rape originated from a trap whereby it was pre-planned that photographs and videos of a compromising nature should be taken of the victim with D2, a third person, present. During the rape there was unprotected oral as well as vaginal sex plus a degree, albeit a very small degree, of verbal and physical abuse, and, even on the defence version, everything done was done on vengeance as opposed to passion.
Subject to mitigation, those are the bases on which I will sentence the defendants. I should, however, point out that the victim has not been detected with any serious post‑traumatic effect.
D1 is aged 36, born in Hong Kong. He has had up to a primary 6 level of education. He was unemployed at the time of the offence. He has on 10 occasions mustered a total of 17 previous convictions, none of which were similar. While the seriousness of the matter is played down, his plea is advanced as his greatest mitigation.
D2 is aged 27, born in Hong Kong. She was educated up to form 3 level. She, too, was unemployed at the time of the offence. She and D1 were living together on CSSA. She has one previous conviction for theft. It is accepted by the prosecution that her intention and willingness to testify against D1 was genuine and might have led to the plea of the latter.
Given the seriousness of the matter, which I have explained, I think a starting point of 7 years is appropriate for both Count 1 and 2. I do not think D2 is in any way less culpable than D1 because D1, alone, was capable of perpetrating the substantive offence of rape. For the two blackmail offences a starting point of 2 years is appropriate. The ultimate sentence is for them to run concurrently as both of them amount, in my view, to one single incident.
For D1, whose only mitigating factor is his plea which entitles him to no more than the custom one-third discount, this will work out in the following way: for Count 1, he will be sentenced to a term of 4 years and 8 months. For Counts 2 and 3, he will be sentenced to the concurrent terms of 1 year and 4 months. Since rape and blackmail are completely separate matters, these sentences will have to be served consecutively, giving a total of 6 years.
For D2, to whom I will give a slightly more than 45 per cent discount for her plea and assistance to the prosecution, see HKSAR v Ng Shek Yu CACC178/2000, it is 3 years and 10 months for Count 2 and the concurrent terms of 1 year and 1 month for Counts 2 and 3, to be served consecutively, thus giving a total of 4 years and 11 months.