COURT: The defendant was convicted upon his own guilty plea of one count of rape. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, background of the defendant, mitigation put forward on his behalf and psychologist’s report on the victim and the defendant respectively.
The facts of the case may be summarised as follows.
The victim is a lady 26 years of age at the time of the offence. At about 2 a.m. on a summer day in 2013, she was returning home. The defendant joined her in the same lift and went upstairs to the same floor. The defendant then stood outside the flat next to that of the victim. When the victim asked him what was the matter, he told her that he was not able to open the door. He also asked if he could use her toilet to answer the call of nature. The victim permitted him to do so.
After having used the toilet, the defendant closed the wooden door of her flat and sat on a sofa. At that time the victim was trying to contact unsuccessfully her boyfriend, with whom she was having a dispute. She began to cry. The defendant came over to her and wiped away tears from her face. Then all of a sudden he kissed her. The victim pushed him away with both hands and shouted “No.” The defendant then grabbed her by the neck with both hands. The victim shouted “Help.”
The defendant told her not to shout. He further told her to take off her short jeans and panties. The victim could not breathe normally and felt great pain, as the defendant was grabbing her neck. She complied and took off her jeans and panties.
Then the defendant ordered her to take off her top. She did not take it off. She pulled it up. The defendant then grabbed her neck with one hand and pulled up the bra of the victim with another hand. He then kissed her lips and body. The victim resisted and shouted for help. She, however, could not shout loudly, as her neck was held by the defendant.
During the struggle, the defendant pushed the defendant onto the floor. She then felt something thrusting into her vagina. After having been penetrated a few times, the victim asked the defendant not to hold her neck, as she could not breathe normally. She told him she would not shout any more. Defendant let go the neck of the victim and continued thrusting his penis into her vagina. It lasted about a minute.
The defendant then pulled his penis from the vagina of the victim. The victim dared not move as she feared the defendant would do more harm to her. The defendant then put on his trousers and left, leaving behind a used condom.
The victim immediately phoned her boyfriend, but he did not answer. She called another friend and made a complaint. She was advised to make a report to the police but she did not do so because of fear. She then cleaned her private parts with water.
When the boyfriend came in the morning, he accompanied the victim to make a report. In the same evening, the defendant was arrested when he was returning home. He lived next door to the victim. An empty condom packet was found in his pocket. He admitted having committed the offence.
DNA of the victim was found on the inside surface of the condom. Semen was found in the vulval swabs taken from the victim and on the inside and outside surfaces of the condom.
During the interview with the psychologist, the defendant said something to her which caused me concern about the propriety of the guilty plea.
Today, learned defence counsel Mr McGowan confirmed to the court, after taking instruction in the light of this matter, that the defendant confirmed that he had raped the victim with the required mens rea and there was no genuine belief on his part about consent of the victim.
On this basis, I find it proper to accept the guilty plea of the defendant.
The defendant is now 26 years of age. He received education up to Form 3 level and had worked as a waiter before his arrest. He was living with his stepfather, mother and younger sister.
In mitigation, Mr McGowan urged me to accept that the offence was not planned. He also asked me to take note that the defendant had indicated in early June his intention to plead guilty and asked the prosecution to assure the victim that she would not be required to testify in court.
Through his counsel, the defendant offered his apology to the victim. He did so at the last hearing and did so again today, in particular, knowing the serious consequence his conduct has brought to the victim.
Mr McGowan provided the court with the case of HKSAR v Mo Hiu Fung [2014] 1 HKLRD 796 and HKSAR v Singh Balwinder, HCCC 351/2013, both of which I have considered. He submitted that the facts in both of these case are more serious than the present one.
Mr McGowan also submitted letters written by the defendant, his parents, girlfriend, relatives and colleagues.
In his own letter, the defendant said that at the time of the offence he was under the influence of alcohol. He said he is very remorseful and Christianity has changed his life. The offence caused much mental and psychological to his mother, who has a history of mental disorder. His family and his girlfriend are still supportive of him and he is determined to turn over a new leaf. He expressed his apology to the victim.
His parents said that the defendant is a filial son and he is now remorseful. As a result of the offence, they are under great psychological pressure and feel ashamed. The mother is sick and the father is shouldering great financial pressure as the defendant was the main breadwinner of the family.
His girlfriend stressed that the defendant is a man of good nature. She still loves and supports him and indicated that she will marry the defendant upon his discharge.
Others also speak well of the defendant. All pleaded leniency on his behalf.
The defendant has two criminal conviction records, both in 2008. For an offence of theft, he was fined. For an offence of having unlawful sexual intercourse with a girl under the age of 13, he was sentenced to receive training in a rehabilitation centre. Defendant apparently did not benefit much from the rehabilitative training and now committed this much more serious offence.
As this is the second offence of sexual nature committed by the defendant, he does not deserve any merciful consideration of the court.
As Lord Lane CJ said in the case of R v Billam [1986] 1 All Er 985, rape is generally regarded as the most grave of all the sexual offences. On top of any physical harm it might have caused, it involves a severe degree of emotional and psychological trauma. It is violation which may have the effect of obliterating the personality of the victim. It may also result in continuing insecurity, fear of venereal disease or pregnancy.
In R v Millberry [2003] 1 WLR 546, Woolf LJ said that sentencers should stand back and look at the circumstances as a whole and impose a sentence which is appropriate, having regard to all the circumstances.
In the recent case of SJ v Leung Yuet Hung, CAAR 1/2014, Stock VP observed that the starting point generally used in this jurisdiction for this type of offence tends to be in the order of 5 years.
In HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427, the Court of Appeal identified aggravating features, including the followings, which, in my judgment, are applicable in the present case:
One, the offence was planned.
Two, violence was used over and above the force necessary to commit the offence.
Three, the offender had gained access to the place where the victim was living.
Four, no safety measures had been used.
In finding that the offence was planned, I do not mean to say that it was necessarily premeditated. The defendant did, in any case, use a trick and exploit the trust of the victim to gain entry into her residence. I do not find it a spontaneous conduct of the defendant. He had the time and opportunities to reflect and his decision was to commit the offence without any due consideration of this lady who had been so kind to him.
Not only did the defendant use a trick, he seriously exploited the kindliness of the victim. If the court does not take a serious view on the matter, it will give the society a wrong message, which is not going to help foster a trusting, considerate and benevolent community.
That the offence was committed at the place where the victim was living and the fact that the offender was living right next to her must be a serious aggravating feature. It does not require much imagination to appreciate the psychological impact and fear suffered by the victim because of these features. Although the victim did not know the defendant personally at the time of the offence, she must have come to aware that he was, and will still be in the future, living next to her.
The Court of Appeal said in Mahal v HKSAR [2012] 1 HKC 146 that violation of a girl or a woman in her own home or at any other place which has been taken by the victim as a personal sanctuary safe from the intrusion of outsiders is a serious matter indeed. The victim will be returning day by day after the violation of the person, a constant reminder, therefore, of the trauma visited upon her by the act of rape. Indeed, unfortunately, these features actually have very substantial impact on the victim, as indicated in the psychologist’s report which I will refer to later.
The force used on the victim did not cause her much serious actual physical injuries. However, the defendant had used both hands to grab the neck of the victim and during most of the time in the course of the offence he was grabbing her neck, causing her difficulty in breathing. The victim put up resistance and indicated her disapproval right from the beginning, but the defendant did not desist. He used force to complete the offence.
The nature and degree of resistance and struggle put up by the victim did not call for the action of the defendant, which could have caused very serious consequence. Such brutality had caused the victim fear about her life. In my judgment, such risk actually existed.
I find that the defendant did use a condom. However, his semen was still found at the vulva of the victim. Whether condom was used is an important consideration in sentencing for this nature of offence, for it relates to the concern of the risk and worry of pregnancy and sexually-transmitted diseases.
During the course of the offence, the victim was not aware that a condom had been put on. Understandably, not every victim in such dreadful situation will be able to pay attention to this matter. It is, however, reasonably expected that the concern and worry that I have mentioned will come to her sooner or later. The worry that she would have if she noticed semen during her cleaning of her body is readily conceivable.
It was not a case of total disregard of the victim by not using a condom. Nevertheless, the fact that semen was left on the victim is a matter that the court should not ignore. On the other hand, I note that as a matter of fact, no pregnancy or illness has actually been caused.
A psychological impact report of the victim has been obtained. It reports a very sad case that this crime has ruined a young lady who had been pleasant and outgoing and was able to earn to support herself and her family before.
She is a different person now. Notwithstanding that it is one year after the incident, she is still severely traumatised and overwhelmed. It brought her lots of shame. She becomes extremely insecure, distrustful of people, and socially withdrawn. She seldom goes out now. She does not even visit her children, which she regularly did before. She can no longer continue her job, which requires meeting with people. She was a saleslady before. Her earning was sufficient to support herself and her family, but now she has to live on her own savings and is in financial difficulties.
After the incident, she separated with her boyfriend. Owing to her mistrust and fear of males, she cannot commit and enjoy further heterosexual relationship.
As the incident took place at her home, she cannot now regard it as a safe place. It brings her lots of traumatic memories. She cannot live there any more and has to live in a flat of a friend. Her request for re-housing is still being processed. In effect, she has lost her home.
She is still overwhelmed by the trauma. She still has intrusive memories, flashbacks and dreams about the defendant and details of his sexual abuse. She is suffering from crying spells, withdrawal, sleeping disturbance and anger outbursts, which paralyse her daily functioning. She has suicidal thoughts and has committed self-injurious actions. She is also worried that the defendant would harm her again after his discharge from prison and about revenge by him. She is not able to put a psychological closure to the incident.
She reported multiple symptoms of anxiety, autonomic arousal, intrusion of traumatic experience, episodes of depersonalisation, derealisation, cognitive disengagement and unwanted irritability. The psychologist said that this suggested the victim has chronic depression. She is of the view that the victim is suffering from severe level of chronic post-traumatic disorder.
The incident has caused significant impairment in the social, occupational and other important areas of functioning of the victim. She still needs to attend to treatment from a psychologist. It appears to me that she must have a long way to go to recovery.
A psychologist has also reported on the defendant. She said there is no sign indicative of his having psychiatric problem. It was said that the defendant is an introvert and not good at expressing himself. The defendant disclosed that he is often sexually preoccupied and was not satisfied with his sex life despite he has regular sex with his girlfriend and has been visiting prostitutes.
The psychologist is of the view that the defendant is a self-centred introvert with low self-esteem. He has casual sex attitude and is sexually preoccupied. Her assessment is that his risk of sexual recidivism is high and he is prone to violence.
From what the defendant said to the psychologist, no sign of real remorse is shown. He still sought to shift the blame to the victim, saying that he had been told she was sexually casual, she was dressing seductively on the day, she seem to be under the influence of drugs and that certain behaviour of hers led him to think that she was inviting him.
In this regard, I bear in mind that counsel confirmed on the defendant’s behalf that he admitted commission of the offence. Learned counsel also asked me to treat what the defendant said to the psychologist as an attempt of rationalisation rather than denial or shifting of blame.
In all the circumstances, I am of the view that only a starting point of 7½ years is sufficient to reflect the seriousness of the offence.
The defendant pleaded guilty to the count. The victim therefore is not required to go through the ordeal of repeating the incident in court. She has been notified of the position before the date scheduled for the trial. For this, he is entitled to a one-third discount.
Through his counsel, the defendant offered his apology twice to the victim. Despite submission from very experienced counsel on his behalf, I am not entirely satisfied that the defendant has full and genuine remorse, in view of what he told the psychologist.
It was said that when the defendant committed the offence he was under influence of alcohol. The prosecution did not take issue of this. When the defendant was interviewed under caution, he said he had drunk several cans of beer before the incident. I have little reason not to accept that the defendant had consumed beer before committing the offence.
The effect of alcohol varies amongst different persons. From what had taken place, as revealed in the summary of facts, which the defendant admitted, I find that it did not have substantial effect on the defendant and obviously the defendant was in full command of what he was doing.
In any case, it has been consistently held that influence of alcohol in the commission of an offence is not in general a reason for reducing the sentence. This line of thought was endorsed by the Court of Appeal in AG v Lee Kui Man [1997] 1 HKLRD 576, which also involved an offence of sexual nature.
In my judgment, even if the defendant was under the influence of alcohol at the time of the offence, this voluntary consumption of alcohol in the circumstances of the present case does not warrant a reduction of the sentence.
Having considered the whole circumstances, including mitigation put forward on his behalf, I am of the view that one-third is the extent of discount the defendant is entitled to.
Defendant, please stand up.
For these reasons, I sentence you to 5 years’ imprisonment, and the court recommends you to receive psychologist treatment.