HKSAR v. MOK TSZ HIN AND OTHERS

HCCC 367/2018

[2019] HKCFI 2256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 367 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

All four defendants have pleaded guilty to various sex offences and in relation to D1, one criminal intimidation offence in the Magistrates’ Court and they are committed to this court for sentence.

Summary of Facts reveals the following:

X, the victim, was a girl born on 12 April 2004 and she was a Form 1 student and aged 12 and 9 months old at the material time.

In the evening of 26 January 2017, X was invited by D1 to D4 out for a chat and drink at the podium of one shopping centre in Sha Tin. D1 was the boyfriend of X at the time. They chatted and drank for approximately three hours.

After chatting, they went to the toilet of the shopping centre. D4, however, followed X into the female toilet and then squeezed the breasts and buttock of X before dragging X out and pulling her into the male toilet where X was sexually assaulted again (that is Charge 1, indecent assault against the 4th defendant).

While X was being pulled into the male toilet, D3 at the same time put out a “Wet floor” sign outside the male toilet. D2, on the other hand, climbed on top of one of the cubicles to look, to watch. Inside the toilet cubicle, D4 pushed X’s head downwards and made X perform oral sex on him (Charge 2, indecent conduct against D4).

After the oral sex, D4 pushed X downwards onto the toilet bowl, removed X’s pants and had sexual intercourse with X before ejaculating outside her body (that is Charge 3, unlawful sexual intercourse against D4).

While D4 was having sexual intercourse with X, D2 continued to watch from above.

After D4 left the cubicle, D3 immediately entered and covered X’s mouth. D3 pressed the head of X down and put his penis into the mouth of X (Charge 4, indecent conduct against D3).

After a few minutes, D3 pushed X’s body around and had sexual intercourse with X (Charge 5, unlawful sexual intercourse against D3).

D3 thereafter pushed X’s head down again to perform oral sex and eventually ejaculated into her mouth after 30 minutes (Charge 6 - indecent conduct against D3).

When X was having the second oral sex with D3, D1 during the meantime had sexual intercourse with X from behind (Charge 7, unlawful sexual intercourse against D1).

When D3 finished, D2 entered the cubicle. D2 similarly pressed X’s head down and inserted his penis into X’s mouth (Charge 8, indecent conduct against D2).

After X performed oral sex on D2 for a while, D2 then pressed X’s body down and had sexual intercourse with X from behind (Charge 9, unlawful sexual intercourse against D2).

None of the defendants wore any condom during the sexual intercourse and as a result, X felt pain and suffered from abrasions.

In the afternoon on the next day, ie, 27 January 2017, D2 asked X out for lunch and purchased contraceptive pills for X.

In the evening of that day, D1 invited X to go to a bar to talk. On arrival, D1 pulled X to the rear alley and threatened X not to tell the incident to anyone including the police. X was told that she could be killed in a car accident or kidnapped and starved. X felt very frightened (Charge 10, criminal intimidation against D1).

Eventually the incident was reported to a social worker in March 2017. Upon persuasion, X reported the matter to the police in July 2017. D1 to D3 were arrested by police in that month, D4 left Hong Kong in June 2017 and was not arrested until March 2018, when he returned from China.

Psychological report indicated that X had suffered from the sexual abuse by these four defendants. Numbness and blank out were exhibited by X. Threats to hurt her and her family were particularly fearful if she would report the case to the police. X had self-blaming and self-doubt about the incident and wished the four defendants to receive the lengthiest sentence the court could possibly impose. There was also a big shock to the mother of X.

Although the four defendants were not charged for rape, based on the available facts, this is a borderline rape case.

X was dragged into the male toilet by force firstly by D4. D3 then immediately put out a sign and D2 climbed up the cubicle to observe. All these took place in one shopping centre, albeit late at night. These facts pointed to a joint effort by the group, with D4 as the ringleader, the initiator in this matter. Then D4 pushed X to perform oral sex, pushed X to one side and removed X’s pants and pushed her body downward and penetrated her from behind. After D4, D3 covered X’s mouth and again pressed and pushed X around to perform various sexual acts. The same followed by D2 and D1, albeit D1 at a lesser extent.

In essence, force was used during this matter. This is not just a borderline rape but a borderline gang rape case perpetrated by four young men in complete disregard of X’s dignity and emotion. No empathy had been shown whatsoever. Had they been charged for rape, they would be looking at starting point of around 8 to 9 years’ imprisonment on the rape charge alone.

Let me first deal with the initiator, D4. D4 was the oldest one and the most evil of all, being the ringleader and the initiator of these hideous acts. He was 24 at the time and is now 26. D4 has five criminal records relating to violence and one record relating to claiming to be a member of a triad society. Well, I am pretty sure that he is also a member of Wo Shing Wo.

In respect of Charge 3, ie, the unlawful sexual intercourse, the maximum sentence for that offence is one of life imprisonment. As pointed out in the Secretary for Justice v Chung Yui Hung [2007] 2 HKLRD 772, whilst a very long sentence for an offence of this kind was generally reserved for offenders with similar convictions in the past, this did not mean that a substantial sentence was not called for in the case of a first offender, where the circumstances were justified. I also agree with the observation of the Court of Appeal that this is a particularly grave offence and in reality, came extremely close to the borderline with rape.

This court has pointed out on numerous occasions that it owes a duty to the public to make every effort to deter. This is one appalling case. In my view, an appropriate starting point for this offence alone would be one of 5 years’ imprisonment. Giving credit to the 4th defendant’s plea, the sentence in respect of Charge 3 will be one of 40 months’ imprisonment.

In respect of Charge 1, the sexual assault on X or the sexual assault in question was humiliating but not the most serious one. A starting point of 18 months is appropriate. Giving credit to his plea, the sentence will be reduced to one of 12 months.

As far as Charge 2 is concerned, the maximum sentence is one of 10 years’ imprisonment. The pushing and the demand on X to perform oral sex was, in my view, particularly degrading in this case. Given the nature of the conduct, a 36 months starting point will be adopted. Giving credit to his plea, the sentence will be reduced to one of 24 months’ imprisonment.

Having considered the overall criminality of the incident and the totality principle, it is ordered that 6 months of Charge 1 and 12 months of Charge 2 are to run, firstly, consecutively to each other and secondly, to run consecutively to the 40 months imposed on Charge 3, thus making a total of 58 months’ imprisonment.

D3 was 23 at the time and is now 25. He was a receptionist at a fitness centre earning $11,000 a month. D3 has a clear record.

Although D3 was not the ringleader, he actively participated in the event by putting out a wet floor sign and immediately followed D4 in covering X’s mouth, pressing X to perform oral sex, pushing X around and penetrating her vagina and again pressing X again to perform oral sex for about 30 minutes before ejaculating into her mouth. To describe that as disgusting, in my view, is an understatement.

For Charge 5, a starting point of 5 years is adopted. D3 will be given credit for his plea and his sentence in respect of Charge 5 is reduced to one of 40 months’ imprisonment.

Insofar as the two indecent conduct offences, ie, Charge 4 and 6 are concerned, a starting point of 36 months each is adopted. D3 will be given credit for his plea, as such, the sentence in respect of Charge 4 and 6 each will be one of 24 months’ imprisonment.

Again having considered the overall criminalities and the totality principle, it is ordered that firstly, 9 months each of Charge 4 and 6 are to run consecutively to each other and secondly, consecutively to the 40 months imposed on Charge 5, thus making a total of 58 months’ imprisonment.

In respect of D2, he is now 21. He came to Hong Kong in 1999 and received Form 4 education. He became of Wo Shing Wo in Form 3. After leaving school, his working pattern became unstable.

On the last occasion, his sentence was adjourned for a detention centre report. The medical officer has confirmed that D2 is medically unfit for detention in a detention centre because of underweight. As such, the only option open for this court is one of immediate imprisonment.

In respect of Charge 9, a starting point of 5 years will be adopted. Again, D2 will be given credit for his plea and his sentence is therefore reduced to one of 40 months’ imprisonment.

In respect of Charge 8, a starting point of 3 years is adopted. That 36 months is reduced to one of 24 months for his plea. Given the overall criminalities and D2’s involvement in this scheme, it is ordered that 12 months of Charge 8 is to be run consecutively to the 40 months imposed on Charge 9. As such, D2 is sentenced to 52 months’ imprisonment.

In respect of D1, he is now 22. D1 was born in Hong Kong and received education up to Form 4 level. D1 joined Wo Shing Wo in early 2014. After leaving school in 2014, D1 started working as a part-time logistic worker. D1 also has one criminal record of conspiracy to defraud.

On the last hearing, his sentence was adjourned pending a detention centre report. It was revealed in the detention centre report that little remorse had been shown by D1. The medical officer has also confirmed that D1 is unsuitable for detention in the detention centre because of overweight.

In respect of Charge 7 and similar to other defendants, a 5 year starting point is adopted. Given the defendant’s plea, the sentence is reduced to one of 40 months’ imprisonment.

In respect of Charge 10, a starting point of 18 months is adopted. Given the defendant’s plea, the sentence is reduced to one of 12 months’ imprisonment. In my view, this is a particularly serious offence. This 12 months’ imprisonment will run wholly consecutive to the 40 months imposed, thus making a total sentence of 52 months’ imprisonment.