COURT: Defendant, on 8 May 2017 you pleaded guilty at the Eastern Magistracy to three offences. You pleaded guilty to two charges of rape
which are the 1st and 2nd charges respectively and a charge of indecent assault in the 3rd charge. As a result of your plea of guilty you were committed here to the Court of First Instance for sentence.
The commission of these three offences all took place at the Police Tactical Unit Headquarters in Wu Tip Shan Road, Fanling, New Territories.
The victim was Madam X who was 25 years old at the time and who suffered from mild intellectual disability. Within a period of approximately a month she was raped by you on two occasions being 9 and 16 April 2016, Charge 1 and 2 respectively. On 7 May 2016, she was further indecently assaulted by you, that offence being the 3rd Charge.
Before me today you have admitted an amended summary of facts. The facts are fully set out and I shall adopt what is stated mostly in there.
The victim, X, was born in November 1990. She was aged 25 when these incidents happened. She suffered from mild intellectual disability with full scale IQ of 61. She had a mental age of around 9.76 years old. She was a mentally handicapped person and also a mentally incapacitated person as defined under the Mental Health Ordinance.
X was admitted into Hong Chi Association after she finished her education. Hong Chi is an organisation dedicated to serving people of all grades of intellectual disability providing them with services including special education, job training, shelters and supported employment as well as professional therapy.
As part of X’s job training she was sent by Hong Chi to work at the Police Tactical Unit Headquarters at Fanling as a cleaner. She started working there as a trainee under supervision since October 2012.
You, defendant, worked as a senior foreman at Hong Chi. When you were recruited you knew that you had to work with mentally handicapped or mentally incapacitated trainees and that your duties included giving simple instructions to them on how to complete cleaning tasks. You were provided with written guidance on how to support mentally handicapped or mentally incapacitated persons by Hong Chi when you started your job.
You were briefed on Hong Chi’s policy on the prevention of sexual abuse committed against the mentally disabled. You, however, were not required to provide the trainees with psychological support. There were four supervisors in total of which you were one to supervise a total of 22 trainees at the Police Training Tactical Unit Headquarters. X, the victim, was one of the trainees you supervised.
The matter came to light when, on 7 May 2016, X texted a placement officer at Hong Chi to whom you reported, suggesting that you had abused her. The officer called X, X however kept crying and could not tell her anything. After advising X to seek immediate assistance from another female foreman, the officer went to the PTU Headquarters to look for X.
Further enquiries were made of X and X told the officer, whilst crying, that you had done something to her which she did not like. She complained that you had touched every part of her body.
Following discussions with social workers X’s father reported the matter to the police. X was interviewed and she recounted that in the most recent abuse on 7 May, that happened inside the storeroom on the 4th floor of the PTU Headquarters, you had touched her breasts by placing your hands underneath her clothes. You were pressing yourself upon her very hard even after she said “No” to you. You forced her to take off her pants. You put your hand into her private part.
On the other occasions, she said you forced her to have sexual intercourse with you. The first time she described it happened was on 9 April 2016. You were both in the staff rest room on the 3rd floor of the PTU Headquarters. In her words, she said you forced her to like you. You sat on top of her and forcefully kissed her mouth and face. She pushed you away but you did not let her go. She was terrified. Again, in her own words, she said you extended something down and inside her.
In the interview X used dolls demonstrating that you had penetrated her with your penis into her vagina. She added that you used your hand to cover her mouth whenever she wished to say something. She went on to say you were very forceful, causing her pain.
The next occasion she described was on 16 April, the subject matter of charge 2. She said when you were both in the store room on the 4th floor of PTU Headquarters you suddenly locked the door. You removed your clothes and her trousers and underwear. You told her that you loved her. She replied she did not like you and tried to push you away. You forced her to have sexual intercourse with you. Once again, X demonstrated how the sexual intercourse took place through the use of dolls.
On 16 April she said before you, in her words, interfered with her private parts you had used a transparent circle. When asked whether she consented to what you did to her she shook her head.
An investigation was conducted within Hong Chi which eventually led to you being interviewed on 9 May 2016. You resigned shortly after the interview. One unused condom was found inside your staff locker situated inside the male toilet on the 3rd floor of the PTU Headquarters. You were arrested on 20 May 2016 and remained silent under caution.
You admit and accept that you had sexual intercourse with X without her consent on 9 and 16 April 2016 and touched X’s breasts and private parts without her consent on 7 May 2016.
Prior to sentencing you, defendant, I called for a psychological and a psychiatric report on you and a victim impact report on X. I have taken into account all that your counsel, Mr Caesar Lo has said for you in mitigation.
Defendant you are aged 56 and have a clear record. You have completed Primary 6 education in Hong Kong. You are divorced and lived at your ex-girlfriend’s home before your incarceration after arrest. You joined the Correctional Services Department (CSD) at age 18 and retired at age 45 voluntarily having served the CSD for 26 years. From the letters I have received, you had a very satisfactory service.
After retirement from the CSD you worked as a supervisor at three security companies. The letters from those employers also support the fact that you had a very satisfactory service. You commenced working at Hong Chi in 2015 and was later promoted quite quickly to senior foreman.
Your family members have written a joint letter expressing that you are the youngest amongst all your siblings and are caring to them and especially to your 90 year old mother who is presently in an elderly home. They have commented that you are a good person who has a made a serious mistake and had a momentary loss of mind.
Your ex-girlfriend had also written a letter and expresses that you are a good person, a dutiful son and, as a result, she is still lending you her shoulder for support. You, yourself, have written a letter to me expressing your deep remorse knowing that what you did was very, very wrong and that you have admitted your guilt as you do not wish X to relive the painful experience and be cross-examined in court and to feel the embarrassment and pain again. You say that you hope that you will turn a new leaf and return to work and contribute to the community again.
It is correct defendant, as Mr Lo as said, that you have entered your plea of guilty at the first available opportunity. You have saved the court time and spared the victim X from giving evidence. Mr Lo has said this is demonstrable of your genuine remorse.
The contents of the psychological and psychiatrist reports are noted by me. It is clear that shortly after the commission of this offence you became very depressed. You were reportedly shocked and distressed and had repeated suicidal attempts, including dashing into the road, jumping from heights and slashing your forearm. As a result, you were sent to the Kowloon Hospital where you were diagnosed with depression and put on medication and were admitted between 13 and 19 May.
Almost the following day you were arrested and were remanded in custody and, under the Correctional Services Department, you were remanded at the Sui Lam Psychiatric Centre where you had continuous psychiatric and psychological follow-up. Over the past year you had, from time to time, fleeting suicidal ideation but with medication and counselling, however, your mood was largely stable. You are assessed to have normal intellectual functioning. You are an individual who is able to differentiate right from wrong and understand the consequences of your actions.
The psychologist’s opinion is that your sexual reoffending risk is assessed to be low given your age, absence of prior violent or sexual offences and no evidence of sexual preoccupation or sexual deviance. The psychiatrist is of the opinion that you had gone through a period of adjustment difficulties to the point of depression but your current mental condition is stable.
The Victim Impact Report dated 14 August 2017 is detailed. Although it was estimated that X’s age is around 9.76 years old, this was just an estimation. X, however, is a person with sub-average general intellectual functioning with deficiencies in adaptive behaviour. X’s mother has reported that after the sexual assault the mother had to accompany X to sleep every night until the recent months. X’s sleep was disturbed. She also had nightmares on the sexual assault, initially.
Currently, although X could sleep on her own, there were reportedly no nightmares but her mother observed that X would wake up at least once every night which had never happened before the sexual assault. Her mother also reported before the sexual assaults X would calmly listen to her mother when she was teaching her ways to protect herself, however, after the assault she would become irritated easily; she refused to listen and might cry and hide in her room.
The sexual assault also had a negative impact on X’s social relationships. When her parents tried to introduce her to new friends, X refused to meet with these new friends and revealed that she would prefer to be on her own. She also refused to go meet with her relatives on her own which she frequently met with in the past.
She is now more insecure; she was relatively independent before the sexual assault. Her mother reported that she avoided staying alone at home now and would frequently ask for the time that her mother would return home. There were also times that X refused to go home on her own.
There were also increased worries about her work and she would become nervous when there were uncertainties or changes in her schedule.
Upon X being interviewed by the psychologist, initially she showed no sign of emotional distress when she was first approached and showed a pleasant mood when the psychologist chatted with her on her daily life and work. However, she became nervous when she talked about the sexual assault that happened in May 2016. She wrung her hands, lowered her head, avoided eye contact and stayed quiet for a few minutes before resuming the conversation. Overall, however, X was cooperative and was willing to share with the psychologist the impact of the sexual assault on herself.
X revealed that she was not afraid of males but she found it difficult getting along with the opposite sex after the sexual assault. She further revealed before the sexual assault she thought of working at various places but currently would only prefer to stay in a familiar and safe workplace. She feared working with strangers and would be relaxed and happy to stay with familiar female staff she was currently working with.
In the recent month X revealed she had not had unpleasant dreams relating to the sexual assault and she rarely thought about the assault. However, she avoided meeting with trainees from the Hong Chi Super Service team. She still considered seeing these people as annoying to her as it would remind her of the Super Service team and the sexual assault. She also showed fear and worries of working in the Hong Chi Super Service team.
The clinical psychologist’s observation of X and X’s mother concluded that the sexual assault have had a continued negative impact on X’s mood, sleep quality, work and social relationships which are still observable after one year from the sexual assault.
For the offences that you have committed, defendant rape is a very serious offence to which the law provides for a maximum sentence of life imprisonment. For the offence of indecent assault, the law provides a maximum of 10 years imprisonment.
Mr Cheng for the prosecution has submitted two cases for the court’s consideration and they are Hong Kong SAR v Lau Chun-yee CACC529/2005 and Hong Kong SAR v LCH CACC435/2015. The Court of Appeal there in Lau Chun-yee had considered the case of the defendant pleading guilty to offences of indecent assault where he, the defendant, had been employed as an instructor at an integrated vocational rehabilitation centre which provided opportunities and training for mentally retarded persons and mentally handicapped persons. Of course, in that case it considered the effect on employers or instructors abusing the mentally impaired person. In that case the defendant was X’s supervisor.
The case of Hong Kong SAR v LCH the court also considered sexual assaults on a mentally incapacitated person. Paragraphs 50, 51, 52 and 53 are very relevant when considering sentence. I quote those paragraphs by the Court of Appeal:
“In modern society measures are taken to attend to the needs of the mentally disabled so that they can live within the community and have as close to a normal life as their disability allows. Long gone are the days when all such persons were shut away from society and institutionalised. Organisations such as the centre play a particularly important role in providing an opportunity for the mentally disabled to feel they are living a normal life and contributing meaningfully to society.
The value of the work that such organisations do cannot be emphasised enough. Within such organisations the staff work sympathetically with their disabled colleagues to assist them in carrying out their duties. As happens in every workplace friendships between colleagues no doubt form. Indeed, the closer supervision that may be required of mentally handicapped persons may more readily lead to workplace friendships forming.”
Paragraph 52:
“However, the non-disabled staff of these workplaces must always be conscious of the special relationship that they have with their employer, with the relatives of their disabled colleague and with their disabled colleagues themselves. The centre itself is a special place and is unlike a normal workplace because it employs in its disabled employee a workforce which needs special protection and whose care is entrusted to it by the employees’ relatives. There is undoubtedly a relationship of trust between the centre and the relatives of the mentally incapacitated employee. Equally undoubtedly there is a relationship of trust between the centre management and its staff to whom the management entrusts the care of the disabled employee and between the staff and the relatives of the disabled employee.”
Paragraph 53:
“Clearly there is also a special relationship between the non-disabled staff and the disabled employees entrusted to their care. By virtue of their daily duties there are in a special relationship with the disabled employees and they must not exploit that relationship. Whether one describes it as a relationship of trust or a relationship of dominance is neither here nor there. What is relevant is that by virtue of their position they are in a position where they can exercise control or influence over the disabled employees in their charge.”
Defendant, there was a high level of trust placed between you and X. There was clearly a breach of trust as X was entrusted to your care and wellbeing. You breached the trust placed in you by your employer and the trust placed in you by X’s relatives and the trust X herself must have placed in you. X was employed as a disabled employee in Hong Chi association which provided a special protection and whose care her parents had entrusted to Hong Chi and to their staff of which you were one.
It is said by Mr Lo that you had a mistaken belief that you were in a relationship with X. I am unable to accept that a mature adult like yourself employed as a senior supervisor, in an organisation such as Hong Chi could, would or might have had such a mistaken belief.
As Mr Lo has said your acts were driven by your poor control of your sexual impulses. You took advantage of your position knowing of X’s mental condition. You exploited that special relationship which you enjoyed through being her supervisor of X. Distressing is the fact that you succumbed to your sexual desires at your place of work. The offences taken place in a store room in the staff rest room of the workplace at the Police Tactical Unit.
There was an amount of force used but I accept there was no violence nor intimidation. It is clear to me that X clearly understood what was happening to her was an abuse and she made a complaint to an officer. It is accepted by the prosecution that there was no evidence that you did not use a condom on the first occasion of rape and the prosecution accept that you did use a condom on the second occasion of rape which is what X described as the transparent circle.
Mr Lo says it is your case that you did use a condom on both occasions. I accept that there is no evidence before me that you did not use a condom on the first occasion.
Defendant, these sexual assaults caused an obvious and negative impact on X as seen from the Victim Impact Report. The distress caused on her during the sexual acts were clear when she described herself as being terrified. You had deliberately covered her mouth with your hand and you had used some force upon her during these sexual assaults. It is apparent that this has had a significant effect on her social relationships, her insecurity and her behaviour. It is clear to me that her parents - her mother particularly - have also had to be very much more supportive after these serious offences against her daughter. You have caused trauma to the victim and her family.
Defendant, there are serious aggravating features in this case. There is clearly a breach of trust; the victim is a vulnerable person being a mentally impaired person. You were her supervisor, a mature adult able to comprehend fully and understand the consequences upon her. You exploited her and you have committed these offences on three separate occasions within a period of a month. It is fortunate that she was able to recognise that what you were doing to her was an abuse and complained at the time she did.
Defendant the strongest mitigating factor is your early plea of guilty. That will accord you the usual one-third discount. It is encouraging to see, at least, that you have a low risk of re-offending. In sentencing you I consider the principle of totality for these three separate offences. These incidents are separate and so the sentences in respect of each could be ordered to be wholly consecutive. However, I must have regard to the totality and I bear that in mind.
Defendant, for these three offences had you been convicted after trial, I would have considered a starting point of 10 years imprisonment. You have pleaded guilty and, therefore, that term will be reduced by one-third and you shall therefore be sentenced to 6 years and 8 months’ imprisonment.
For the rape charges, I take a starting point of 5 years’ imprisonment and the aggravating features which enhance that starting point are factors such as your serious breach of trust, the fact that the victim is a mentally impaired person, the negative impact on the victim and, therefore you sentence shall be enhanced by a further 3 years’ imprisonment which makes a starting point of 8 years’ imprisonment for charges 1 and 2. Giving you full credit for your plea of guilty on those charges, 1 and 2, you shall be sentenced to 5 years and 8 months’ imprisonment.
For charge 3 I would have taken a starting point of 5 years’ imprisonment after trial, giving you full credit for your plea of guilty, I reduce that term to one of 3 years and 4 months’ imprisonment.
To reflect the term of 6 years and 8 months’ imprisonment I order one year of charge 2 to run consecutive to charge 1 and the remainder to run concurrently to the other charges. On charge 3 I order that term of imprisonment to run wholly concurrent to charges 1 and 2. For the sake of clarity, defendant you are sentenced to 6 years and 8 months’ imprisonment. Please be seated.
MR LO: There’s one thing I’m not sure of because your Ladyship fixed a starting point of 8 years for the charge rape and reduced that by one-third. I think that would give us 5 years 4 months - 64 months.
MR CHENG: That’s 64 months.
COURT: Yes, sorry my maths.
MR LO: It should be 5 years 4 months after discount.
COURT: Thank you. Should be 1 year 2 months consecutive.
MR LO: Yes.
MR CHENG: 1 year 2 months on the second charge to run consecutively to the 1st charge and the 3rd charge remains the same.
COURT: Thank you. Correct. I will just repeat that.
For Charge 1 it should be 5 years 4 months. For Charge 2, 5 years 4 months and 1 year 2 months of charge 2 is to run consecutive to Charge 1.
MR LO: Yes.
COURT: Thank you.
COURT: My apologies, this is something I need to get right at first, right in the beginning, but my sincere apologies. Our figures today do not seem to be in fact right.
MR LO: We also apologise for our poor mathematics.
COURT: Yes, mine too. But this is something I should have got right in the beginning. I do apologise. In any event, nobody picked it up as well.
It should be 1 year and 4 months on Count 2 to run consecutive to Count 1.
I think that is all I need to correct myself on.
MR CHENG: Yes.
MR LO: Yes.
COURT: Yes, my apologies once again. But the overall sentence remains the same. Thank you.