CRIMINAL CASE NO. 189 OF 2009
COURT: Defendant, you may remain seated because the sentencing may take a little time.
On 20 August, defendant, you pleaded guilty to the following charges: indecent assault (Count 1), indecent assault (Count 2), indecent assault (Count 3), rape (Count 4) and doing an act tending and intended to pervert the course of public justice (Count 5). On that day I heard mitigation on your behalf by Mr Boyton and ordered, at his request, that a psychiatric and a psychologist's report be prepared to assist me in the sentencing process. Those reports are now to hand and I am told they have been read and explained to you.
At the time of the commission of these offences, you were a serving police officer attached to the CID at Mongkok. You held the rank of detective police constable. Four of the five offences were committed at the Mongkok Police Station. All of the offences were committed between 14 November 2008 and 25 November 2008. You were arrested on 26 November and, subsequently, admitted the commission of these offences.
Count 1 was an indecent assault committed by you on 14 November 2008. The victim was a young girl aged 17. She had previously had dealings with other officers at the Mongkok Police Station but not with you. In early November you obtained her contact details and telephoned her, ostensibly to ask her to attend the Mongkok Police Station to assist with ongoing inquiries. This was, in fact, a charade. You were not in any way engaged in the investigation to which this victim was attached. The victim, however, was not to know this.
As requested, she went to the Mongkok Police Station on the evening of 14 November. She was accompanied by her mother. You took her to the suspect assembly room of the identification parade suite, leaving her mother waiting in the report room. It was in this room that you then indecently assaulted her.
What happened was as follows: you purported to conduct an interview with the victim. As I have earlier indicated, however, this was a charade as you had no involvement whatsoever in any matters which concerned her. Having commenced the so-called interview, you then made improper remarks about the size of her breasts. Then, according to the Summary of Facts, you attempted to lift the victim by placing your hands under her armpits. After this, you lifted her T-shirt and fondled her. All throughout, the victim was struggling and telling you to stop. Finally, you removed your trousers and underwear and exposed your erect penis to her. It was only after this that the victim was permitted to leave.
That was not, however, the end of her ordeal because thereafter you sent no less than 16 SMS messages to her telephone. These continued up until the early hours of 19 November.
Count 2 was also an indecent assault. Again, the victim was a young woman. She was a 16-year-old student. In late October of that year she had been arrested, allegedly, for having committed the offence of shoplifting. That case had been handled by officers from the Mongkok Police Station but not, I hasten to add, by you.
On 17 November you called the victim and asked her to go to the Mongkok Police Station, ostensibly to assist with police inquiries into another matter. The victim did as she was requested, and at 11 pm on the evening of that day, she went alone to the Mongkok Police Station. As with the victim in Count 1, she was taken by you to the suspect assembly room of the identification parade suite. There, again as with the case with the victim in Count 1, she was indecently assaulted by you.
You pretended to conduct an interview with her. As you did so you commented, improperly, on the size of her breasts. You then inserted your hand inside her underwear and touched her on the left breast. The Summary of Facts reveals that the victim was frightened and attempted to move away from you. This was to no avail because you then used your forefinger to touch her in the region of her crutch. The Summary of Facts states that you “poked her private parts over her dress.” Eventually, she was able to leave but as with the victim of Count 1, you thereafter sent text and telephone messages to her asking her to go out with you.
As to Count 3, the victim was a 21-year-old university student. On 22 November 2008 she had lost her mobile telephone and made a report of that loss to the Mongkok Police Station. On that same day you, pretending to be a CID officer named Wong, telephoned her ostensibly as part of an investigation into the report that she had made.
You asked her to come to the Mongkok Police Station. This she eventually did on 24 November, at 8 pm. She was, as were the earlier victims, taken by you to a room in the identification parade suite. On this occasion it was the witness assembly room. There she was indecently assaulted by you.
As with the earlier victims, you pretended to interview her. As you did so, you made improper remarks to her, which are described in the Summary of Facts as, "He started to talk erotic things." The victim asked you whether she was too fat to be a police officer. Your response to that was to fondle her over most of the parts of her body. You attempted to part her legs with your hand.
Eventually, having told her to stand facing the wall, you were able to insert your hand under her skirt touching her on the buttock and thigh. It is clear beyond peradventure from the Summary of Facts that she was scared and was resisting you. It is equally apparent that you were aware of this. Eventually, like the other victims, she was able to leave. As she did so she attempted to obtain the particulars of your service number and attachment but you declined to give that to her. As with the other victims, you continued to call and send messages to her on her mobile telephone.
Count 4 is the rape charge. It also occurred at the Mongkok Police Station. The date of that offence was the same as for Count 3. The victims, however, were not the same. The victim of this count was, again, a young woman. She was 19 years of age and had in early November 2008 made a report to the Tin Shui Wai Police Station that she had earlier lost her wallet.
On 22 November you called her and invited her to come to the Mongkok Police Station on the pretence that you were investigating her loss. Apparently, you had used another person's identity password to improperly access the police computer where you read the report made by her. By these means you obviously obtained her contact details and the circumstances surrounding the loss of her wallet.
As requested by you, the victim of this count went to the Mongkok Police Station at 5.45 pm on 24 November. She was at that time accompanied by her boyfriend. You spoke with her and suggested that she return later that evening but you asked her not to bring her boyfriend with her.
At about 11.30 pm that same night the victim did return but with her boyfriend waiting nearby. You took her to the same room in the Mongkok Police Station as you had taken the victims in Counts 1 and 2. It is there that you raped her. The following is what is recorded in the Summary of Facts admitted by you when this matter was last before me.
In that Summary of Facts the victim is referred to as PW4, and I quote, "He started to talk erotic things and suddenly lifted up PW4's upper garment to kiss her right waist a few times. PW4 immediately withdrew to avoid him. The accused then kneeled in front of PW4, lifted her right leg, touched her from the inner side of the right thigh, down the ankle and kissed her leg. PW4 pushed him off and told him to stop. The accused then forced PW4 to withdraw close to the wall and thrust his finger into her vagina for several tens of seconds. PW4 resisted and shouted to stop him but in vain. The accused then kissed PW4 on her neck, lifted up her upper garment to kiss her breasts and pull down her underpants to kiss her vagina. PW4 was very scared and was at a loss what to do. Afterwards, the accused removed his own trousers, penetrated his penis into the vagina of PW4 and thrust for two to three minutes without using a condom." That is the end of the quotation.
Subsequent to this, the victim left the Mongkok Police Station and she and her boyfriend, who had been waiting outside, immediately proceeded to the Tin Shui Wai Police Station by taxi where they made a report of rape at 2.10 am, on 25 November.
As for the 5th Count, the Summary of Facts reveals that on 25 November 2008 you started sending SMS messages and making calls to the victim of the rape's telephone. However, unbeknown to you, at that time her telephone was being monitored by police officers from Kowloon West Police Regional Headquarters. Acting on police instructions, the victim asked you your name and you replied 'Ah Fai'.
Sometime later in that afternoon, the victim, on police instructions, called you and invited you to come out. However, by that time, it was apparent that you were aware that a complaint had been made by the victim and that there was then a police investigation in place. You told her over the phone that you knew she had made a report to the police and you asked her to give you a chance. You sent text messages to her telephone, saying that you did not want to lose your job or go to prison. At 7.02 pm, on 25 November, you sent an SMS text message to her in which you offered to pay her $100,000 to withdraw the complaint of rape against you.
Turning now to the gravity of these offences. The first four offences have, in their commission, a number of disturbing similarities. In each case you have improperly accessed information in police records to contact the victims. You were not in any way involved in any investigation with respect to complaints made by the victims, or, in the case of one of them, the offence for which she was being investigated.
There is an escalation in the seriousness of the offences from when the first took place. You were obviously emboldened by the fact that you had, in effect, got away with the initial assault of the first victim in Count 1, and in the days following you pursued others with the specific intention of sexually assaulting them. In each case, the victim's ordeal did not cease after the offence. In each case, you pursued them with text and telephone messages.
There is no suggestion, nor could there be, that your encounters with your victims were by chance or that your conduct was on the spur of the moment. It is apparent from the manner in which you obtained their details that the victims had been targeted by you. In the case of the victim of Count 4, the rape, the fact that you arranged for her to come back to the police station late in the evening, without her boyfriend, speaks for itself.
Not only did you lure your victims to the Mongkok Police Station by contacting them ostensibly in the capacity of a police officer conducting legitimate inquiries, you then took them to a place within that police station where you knew that you could effect your intentions without fear of discovery.
Each of these victims was abused by you in circumstances which must cause the public in Hong Kong to reassess the trust they place in members of the Hong Kong Police. The people of Hong Kong pride themselves in the calibre and integrity of their police force and your conduct over these few days can only be described as reprehensible. You have abused the trust which is invested in you by reason of your appointment as a police officer.
It has been suggested in the course of mitigation and in statements made by you to a psychologist, that you were intending to make friends with the victims with a view to asking them out but that you were, on each occasion, overcome with desire. I do not accept that proposition. Not only did you sexually abuse these young women, you pursued them after the event and the suggestion made that this was to invite them out is nonsense. The likelihood of any of them agreeing to enter into a relationship with you after you had sexually abused them, is fanciful. It is quite apparent that there is clear and obvious premeditation in the commission of each of these offences.
Mr Boyton, on your behalf, has pointed out a number of factors in mitigation, which I must properly and can properly take into account. He tells me that you are remorseful and this much is manifest from your pleas of guilty. Mr Boyton has referred me to your service record as a police officer, which he describes as exemplary. Whilst this is an exaggeration, nevertheless it is apparent to me, having read the record of your achievements and commendations, that you were a very capable police officer. Nothing turns on the difference between the expression whether you were exemplary or very capable.
As far as your background is concerned, you completed form 5, secondary school, and thereafter worked as a waiter for some two-and-a-half years before you joined the police force in 1998. You were previously married. You have no children and you are now divorced. Prior to the commission of these offences it is apparent that you had, on a number of occasions, been commended by your commanding officers for the diligence of the conduct of your responsibilities as a police officer.
As I earlier indicated, on the last occasion, I requested that reports be prepared by a psychiatrist and a psychologist. I have before me the report of Dr W K Choi, a visiting psychiatrist at the Siu Lam Psychiatric Centre, which is dated 14 September 2009. I have also the report of a clinical psychologist, Miss Michelle W S Liu, who is attached to the Correctional Services Department, and that report is dated 16 September 2009.
The salient parts of the psychiatric report are as follows, and I quote, "In my opinion, Leung can be described to be an opportunistic criminal who has repeatedly taken advantages from the nature of his work, for his own sexual gratification. He does not suffer from any formal psychiatric disorder. His acts could be driven by his poor control of sexual impulses, probably also reinforced by some of his successful experiences in the past. The acts were not particularly sophisticated, nor appeared to be well planned beforehand. Theoretically, after being removed from the “risky” position, the likelihood of re-offending is low. Psychiatric treatment is not indicated. I have no specific medical recommendations to make."
Miss Liu, the psychologist, was much more guarded in her assessment. She said, and I quote, "Clinically, Mr Leung is not impressed to have clinically significant psychopathology, including paraphilias of any kind. Regarding his re‑offending risk, he demonstrates several factors that are related to risk of sexual recidivism. These include his difficulty in sustaining a reasonably stable intimate relationship, poor coping of negative emotionality, poor impulse control, history of having multiple sexual partners which indicates problematic sexual self-regulation, and some distorted sex attitudes. There remains a possibility that he may use sex as a coping of his life stress. There are some risk factors that Mr Leung does not exhibit. He has no prior conviction of general or sexual offending. There is also no clear sign suggesting that he has paraphilias of any kind. Based on the information available and the risk factors identified above, Mr Leung could be described as being at the low to moderate risk of sexual recidivism as at present. Nevertheless, I opine that his risk factors should not be overlooked and they warrant clinical attention. If they are left unattended, his re-offending risk will very likely be increased and he will have a higher propensity to run into sexual misconducts or other problematic behaviours in the future. He has expressed willingness to receive psychological intervention." That is the end of the quote.
At the conclusion of her report, Miss Liu said as follows, and I quote, "Although he has denied that his interests towards the victims were primarily sexual, it is likely that his tenuous control over his sex impulse and his deep-seated loose attitude towards sex are contributing factors to his sexual offending behaviours. He also tends to minimise the consequences of his indecent behaviours. At present, Mr Leung's risk of sexual recidivism is deemed at the low to moderate level. His risk factors include difficulty in sustaining a stable intimate relationship, poor coping of negative emotionality, poor impulse control, history of having multiple sexual partners which indicates problematic sexual self-regulation, and some distorted sex attitudes. I opine that such risk factors should not be overlooked and they warrant clinical attention. If they are left unattended, his re-offending risk will very likely be increased and he will have a higher propensity to run into sexual misconducts or other problematic behaviours in the future. In view of the above, psychological treatment, targeting such risk factors, is strongly recommended."
I now come to consider the appropriate starting points for sentence. You are entitled, as the Court of Appeal has indicated, to a full one-third discount from those starting points by reason of your pleas of guilty. I will say at the outset there is nothing in the matters advanced in mitigation or other material before me which will justify an increase beyond that one-third.
The indecent assault offences. Sentences for indecent assault vary markedly, given the circumstances under which the offence may be committed. The maximum sentence is 10 years' imprisonment. In the instant case, as I have indicated, there are common aggravating factors. I will not repeat them. The 1st Count is of the three indecent assault counts the least serious inasmuch as there was no direct contact with the victim's breasts or genitalia. Nevertheless, the offence is serious and a starting point for sentence of 2 years' imprisonment is called for.
Counts 2 and 3 are further aggravated by the fact that they follow immediately upon Count 1 and that the degrees of indecency involved are all the more serious. The starting point for sentence in the circumstances in the case of Counts 2 and 3 then is 3 years' imprisonment.
As for the rape count, Mr Boyton, on your behalf, submitted that the appropriate starting point for sentence in this case is 8 years' imprisonment. In doing this, he refers me to the decision of R v Millberry & Ors [2003] 1 WLR 546. In that case, Lord Woolf CJ, observed that:
"Where a rape is committed by an offender who is in a position of responsibility towards the victim or the offender is a person in whom the victim has placed his or her trust by virtue of his office..."
And in that category of persons he included a police officer.
"...a starting point for sentence after trial of 8 years was called for."
Millberry was considered by the Court of Appeal in HKSAR v Lau Chin-yu [2007] 1 HKC 104. In Lau's case, the judge had adopted a starting point for sentence for rape of 10 years' imprisonment. Of the observations in Millberry it is to be noted that the Court of Appeal did not endorse the scale of sentences recommended by Lord Woolf. They did, however, observe that when a sentencer is considering a sentence as high as 10 years for rape, it was a necessary part of the sentencing process to consider not only the feature of the case which were adverse to the defendant, but also other circumstances which put into perspective the kind of person the defendant may be.
Those factors I take to be not limited to those factors in favour of the defendant. They may include, properly, matters that are addressed in reports, as we have here. In this regard, the concerns expressed in the report of the clinical psychologist, Miss Liu, are pertinent and relevant.
The account given by you to her of the circumstances of the commission of these offences is, in part, in marked contrast to the Summary of Facts admitted by you. In the Summary of Facts it is clear and unambiguous that each of the victims was in fear and resisted your advances. This was not what you told the psychologist. In the case of the rape count, you told the psychologist that you were falsely accused by the victim and that she did not resist your sexual advances.
Nowhere in the account that you have given to the clinical psychologist of the events that led to these charges do you appear to express any remorse or concern for the victims of your assaults. True, it is, there are expressions of remorse but they are not directed to the offences that you have committed against your victims. On the contrary, you have sought in part to lay blame on them. I share the concerns expressed by the clinical psychologist for the future.
It appears, on the face of it, that you do not appreciate the magnitude of your offending. I accept that you have an hitherto unblemished record. You have been, to all intents and purposes, a credit to the Hong Kong Police Force prior to the commission of these offences. Nevertheless, a sentence after trial of 10 years' imprisonment would be, in my opinion, justified.
Returning to the Court of Appeal's observations in Lau, the court said this:
"A starting point of 10 years' sentence for rape should be reserved for a case in a more serious category of its kind."
I pose that question in the circumstances of the present case. I am satisfied that it is the most serious category of its kind. Given the aggravating factors that I have already referred to and the factors which emerged in the reports, I am satisfied that 10 years is entirely appropriate as a starting point for the count of rape.
By reason of your position as a police officer, you identified, pursued then raped your victim. This was not a random act. You had improperly accessed police files to identify then contact your victim. You had used the trust vested in a police officer to lure her to the Mongkok Police Station, you had arranged for her to return later that same evening and asked her not to bring her boyfriend with her.
Your conduct was undoubtedly premeditated. Confident in the knowledge that your earlier assaults had not been reported, you then pursued your victim with callous disregard for her wellbeing and the trust vested in you as a police officer. For all of the reasons that I have indicated, the starting point of 10 years is entirely appropriate.
For Count 5, which is the attempt to pervert the course of public justice, I adopt a starting point for sentence of 2 years and 6 months. This is an offence which is generally regarded as being very serious and one which would normally attract an immediate term of imprisonment. Likewise, it is accepted where this offence is committed by a police officer in his capacity as a police officer, this is a serious aggravating factor.
I want to make it abundantly clear that in adopting the starting point I have, I do not enhance that by reason of the fact that you were a police officer at the time of the commission of this offence. Your conduct in attempting to pervert the course of public justice by offering money to the victim of the rape was not an act linked to your responsibilities as a police officer. It was the act of a desperate man alert to the fact that he was guilty of a very serious offence and was seeking to avoid the consequences of that. Nevertheless, it must be said that you, as a serving police officer, must be fully aware of the seriousness of this offence.
This brings me to the question of totality. Each of the offences, Counts 1 to 4, are separate and discrete. It would, but for the need to consider totality, be appropriate to order that the sentences be consecutive one to the other. Count 5 is not an aggravating factor in the rape. It is like the other offences, separate and discrete, and it would normally be consecutive to the other sentences. Having indicated the starting points and having indicated also that you will receive a full one-third discount from those, the following are the sentences for each of the respective counts:
On Count 1, you are sentenced to be imprisoned for 1 year and 4 months from a starting point of 2 years;
On Count 2, you are sentenced to be imprisoned for 2 years from a starting point of 3 years;
On Count 3, you are sentenced to be imprisoned for 2 years from a starting point of 3 years;
On Count 4, you are sentenced to be imprisoned for 6 years and 8 months from a starting point of 10 years;
On Count 5, you are sentenced to be imprisoned for 1 year and 8 months from a starting point of 2½ years.
If these sentences were made consecutive one to the other, that would result in a total term of imprisonment of 13 years and 8 months, which I consider to be too high. Taking all matters into account, I consider that the total sentence to be imposed should be one of 12 years' imprisonment.
To give effect to that, I will order that the sentences on Counts 1 to 4 be consecutive, one to the other. I will order that the sentence on Count 5 be concurrent to the other terms.