CRIMINAL CASE NO. 238 OF 2010
At around 2 to 3 am on 7 December, year 2009, the victim and the two defendants were at a birthday party at Why Club, Tsim Sha Tsui. All of them drank a lot of alcohol. The victim was so drunk that she could not walk properly. At about 4 am, both defendants left Why Club with the victim.
Eventually, they took the victim to Kam Yuen Hotel at Mongkok, by taxi. They rented a room there. The 1st defendant then went downstairs to buy a packet of condoms. The three stayed for about 30 minutes inside that room. During this period, the 1st defendant raped the victim who was so drunk that she could not resist.
The 2nd defendant, Chan Ho-yin, also molested the victim.
At about 5 am, the victim left the hotel and complained to her two friends by phone. A report was made to the police. The victim was 15 years and 9 months at the time of the offence. She suffered no injury.
The 1st defendant is 30 years old. He has one previous conviction of possession of dangerous drugs. He was fined. He finished Form 3 education. He worked as a lorry attendant at the time of the offence. The defendant submitted four letters for my consideration today. He is very remorseful. His employer commended him as a hardworking and responsible employee. The employer agreed to re-employ the 1st defendant after his discharge.
I find the following aggravating features in this case. The victim was 15 years and 9 months old. She was raped by the 1st defendant and molested by the 2nd defendant in turn. The two defendants took the victim to a hotel with an ulterior motive.
I have considered authorities, including R v Billam [1986] 1st Vol. WLR 349, R v Millberry [2003] Vol. 1 WLR 546, Secretary for Justice v Lau Yun Leung CAAR No. 3/1999, and HKSAR v Chung Cai Wing [2010] Vol. 3 HKLRD G7. Having considered the aggravating factors and the circumstances of the incident, I take a starting point of 8 years’ imprisonment.
Apart from pleading guilty, the 1st defendant gave evidence against the 2nd defendant in the latter’s trial. Although the 2nd defendant was only convicted of indecent assault, I am prepared to give the 1st defendant a further discount in this respect.
I do not accept that the 1st defendant was affected by alcohol at the time of the offence. I take a starting point of 8 years’ imprisonment. I deduct 32 months for his plea. I give a further reduction of 10 months for his assistance to the police.
The 1st defendant has to serve a total of 54 months’ imprisonment.