HKSAR v. CHU KWUN CHUNG

HCCC 3/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 3 OF 2015

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

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COURT: The defendant, Chu Kwun-chung, was charged with one count of attempted rape, contrary to sections 118(1) and 159G of the Crimes Ordinance, Chapter 200.

He pleaded guilty before me and I convicted him of the offence after he admitted to the Summary of Facts.

Summary of Facts

The facts disclose that on 21 September 2014, shortly before 5 am, the 62-year-old female, victim X, left home for work. When she walked past an open space carpark at Ma Wat Wai, Fanling, the defendant suddenly grabbed her neck from behind and pushed her into the carpark. Her shouts for help were to no avail.

In the carpark, the defendant pushed X down and hit her head against the ground about four times. He then pressed the back of X’s neck with one hand and lowered X’s trousers and underpants with the other. He thrust his penis against X’s vagina, attempting to rape her. X resisted vigorously and penetration was unsuccessful. X continued to shout for help but no one came to her assistance. The defendant warned her not to shout, saying that she would be beaten.

The defendant made two more unsuccessful attempts to effect penile penetration. The defendant then tried to insert his finger into X’s vagina. Again, this was unsuccessful due to the violent resistance from X. The defendant then fled the scene.

X went home and told her daughter what had happened. A report was made to the police. X was then sent to the Accident & Emergency Department of the North District Hospital for examination. She was found to suffer from swelling over her nasal bridge and laceration of her vaginal opening with minimum bleeding.

X was later examined by a forensic pathologist. She was found to have sustained multiple bruises and abrasions on her forehead, nose and right cheek. There were patchy abrasions on the back of her lower neck, the back of her middle chest at midline, the back of her left chest, her left loin and the back of her left elbow. The pathologist was of the opinion that the bruise in front of the urethral orifice and the split wound along the episiotomy scar were caused by a hard object, such as a finger or a penis, within a day of two prior to the examination. Fingernail scrapings were taken from X for DNA analysis.

A physical examination on 17 October 2014 revealed that X had a depressed right nasal bone and deviated nasal bridge with convexity to the left. Closed reduction of the deplaced nasal bone was performed on the same day. X last attended the outpatient clinic at the Alice Ho Miu Ling Nethersole Hospital on 6 January this year when a doctor noted mild residual deviation of nasal dorsum with no significant obstructive symptoms. Sorry, in fact, the operation was performed three days later, on 20 October, not on the same day. X was satisfied with the cosmetic outcome of the nasal fracture.

After the attack but before X went home, she noticed a bloodstained Octopus watch without strap on the ground and the watch was later seized by the police. From the transaction records retrieved and the images captured on various CCTV in stores nearby, the police identified the defendant as the attacker of X and he was arrested on 25 September 2014.

Under caution, the defendant admitted that he was drunk and wanted to “interfere with” the woman as he had sex drive. He said he knew it was wrong and was remorseful. He said he was too drunk and he could not achieve an erection.

DNA analysis confirmed that his DNA was found on the fingernail scrapings taken from X.

During a video-recorded interview, the defendant elaborated his confession. The defendant described how he had come to Hong Kong from Shenzhen to have a drink with a friend and how he was sexually aroused after he got off a taxi at Tsz Tong Tsuen around 4.20 am, how he walked to Ma Wat Wai and saw a woman, that is X, and he could not control himself and he tackled her with the intention of raping her. He said he had no idea how old the woman was.

When he tried to penetrate the woman with his penis, she resisted, so he covered her mouth and used his strapless Octopus watch to hit her head twice. Due to her resistance and his failure to achieve an erection, he failed to penetrate her. The woman continued to shout for help and he got sober and left by a taxi.

The Defendant’s Background and Mitigation Advanced

The defendant is a 26-year-old man with one previous conviction of obtaining property by deception in 2008 for which he was fined $1,500 and ordered to pay compensation in the sum of $700. I understand he stole an intangible item, that is a particular weapon to be gained by obtaining points in a game, from the rightful owner via the internet.

The defendant was working as a construction site worker at the time of the arrest. He is single and was living with his mother and brother in Fanling, although sometimes he stayed with his then girlfriend in Shenzhen.

In mitigation, Mr John Marray, counsel for the defendant, informed me that the defendant is remorseful and wishes to apologise to the victim. Towards that end, the defendant had written a letter to X which had been passed to the prosecutor, Mr Cheng, to forward to her. Mr Marray also emphasised the defendant’s co-operation in making a full confession after he was arrested.

The defendant, his friend and his former employer all wrote to me asking for leniency. The defendant expressed his deep remorse and promised never to touch alcohol again. The defendant’s friend said that he was someone who would help others readily and they believe he acted out of character under the influence of alcohol.

His former employer, Mr Cheng, says the defendant was a hard-working and responsible worker who had committed the offence after drinking.

Sentence

A person convicted on indictment of rape is liable to life imprisonment. The defendant is convicted of attempted rape upon his own plea.

The facts of this case are remarkably similar to those in the case of Secretary for Justice v Lau Yun Leung [1999] 4 HKC 1. In Lau Yun Leung, the defendant attacked a 19-year-old girl viciously and attempted to rape her late at night. Fortunately for her, two uniform police officers happened to patrol nearby and the defendant did not succeed in raping her.

In some ways, this case is more serious than that of Lau Yun Leung. Before I deal with the aggravating factors in this case, I bear in mind that Hong Kong courts do not have to follow the sentencing guidelines in the case of The Queen v Billam and in the case of The Queen v Millberry, in England. Hong Kong courts are entitled to take into account the local conditions. I also bear in mind that the aggravating factors illustrated in Billam and Millberry had been considered and applied by the courts in Hong Kong. See for example in the case of HKSAR v Chan Wai Tung (陳煒東) CACC 121/2013.

As in the case of Lau Yun Leung, the defendant here committed a violent and cowardly sexual assault on a lone woman, though in this case it was in the early hours of the morning whereas in Lau Yun Leung, the offence was committed late at night. In both cases, the attack was done at a time and place when not so many people were around.

While the place and time of the offence was not one of the aggravating factors listed in either Billam or Millberry, the Court of Appeal in Lau Yun Leung considered the circumstances in relation to both the time and place of offence being an aggravating factor and the same principle, in my view, applies here regarding the time and the place of the offence, so this is an aggravating factor.

The defendant’s attack on X was violent. He banged X’s head against the ground, no doubt with the intention to stun her and subdue her. He also used his Octopus watch to hit X’s head during his attempt to rape her. The victim X suffered from various injuries and as a result of a deviated nasal bone, she had to undergo cosmetic surgery in October 2014. I am of the view that the violence used on X was over and above the force necessary to commit the rape on her, which is one of the aggravating factors in Billam.

X was 62 years of age at the time of the attack. Whilst one may argue that 62 may not be regarded as old in the modern age, nevertheless, without being disrespectful to X, she was then at a mature age that she would not have expected to be sexually attacked while she was on her way to work. In other words, she would have been going about her business without fear of being sexually assaulted. The fact that the defendant just picked any female who happened to be around when he had the sexual urge, without any regard to the age of the victim is appalling.

Although I do not have any psychological report on the impact of the assault on X, the shock and the indignity she has suffered must prey on her mind, particularly as she goes out alone in the early hours for work. Her age and the effect on her amount to an aggravating factor here.

The failure to use a condom is another aggravating factor. Whilst the defendant failed to penetrate X’s vagina, by thrusting his penis against X’s vagina repeatedly, he subjected X to the risk of any sexually transmitted disease, though the risk of pregnancy would have been extremely low, if not nil, in view of X’s age.

So you can already see there are so many aggravating factors in this case.

On the part of the mitigation, although I accept the defendant is remorseful, but there is really no real mitigation except the defendant’s plea of guilty before me. The fact that the defendant was under the influence of alcohol at the time of the offence was not a mitigating factor, which was readily accepted by your counsel, Mr Marray.

As pointed out in Lau Yun Leung: “the courts have just as much a duty to protect women from the unwanted drunken attention of such men as [the respondent in that case] as from men who act in similar fashion when sober”. The Court of Appeal also made it clear in the same case (Lau Yun Leung) that the courts -

“...owed a duty to the public to show that such grave conduct will not be tolerated and to reflect the abhorrence of right-minded people towards this kind of offence. Not only do such offenders need to be punished but others must be deterred from committing similar offences.”

Taking into account all the circumstances of this offence, had the defendant succeeded in committing the full offence of rape, a proper sentence after trial would have been 10½ years.

In this case, the reason of the defendant’s failure to commit the full crime was not due to any remorse or desistance on his part. It was partly because of his drunkenness, he could not effect erection, and also partly because of the vigorous resistance put up by X. Nevertheless, at least to the victim X, the fact that the defendant did not manage to actually rape her must have made a difference in her mind, no matter how slight. So I will take that into consideration to come to the proper sentence after trial for this attempted rape.

I am of the view that a sentence of 9 years is appropriate.

I have already said that I appreciate the defendant is truly remorseful and also he promised never to touch alcohol again. The only mitigation, really, is the defendant’s plea. The plea is timely and I will give the defendant a full one-third discount. There are no other reasons to further reduce the sentence.

For the offence of attempted rape, you are sentenced to 6 years’ imprisonment.