HKSAR v. QIAN PING

[English Translation - 英譯本]

HCCC 217/2024

[2025] HKCFI 1656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 217 OF 2024

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Sentence

The following is a digital transcript of the court proceedings

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Judge:

The Defendant, Qian Ping, was charged with one count of attempted rape, contrary to sections 118(1)  and 159G of the Crimes Ordinance (Cap. 200), to which he pleaded not guilty. After trial, the jury found the Defendant not guilty of the offence of attempted rape by a majority of 5 to 2, but unanimously found the Defendant guilty of the lesser offence of “indecent assault”. The offence of “indecent assault” is contrary to section 122 of the Crimes Ordinance (Cap. 200).

The undisputed facts of the case were that on 25 June 2023, X, a tourist from the mainland, went to patronize the massage parlour where the Defendant was working. The Defendant was the masseur who massaged X. According to X’s evidence, having already changed into a yellow top and shorts that the Defendant had given her, she was lying on the bed inside a massage room receiving the massage.

X and the Defendant talked for a while. Before long, X fell asleep because she had been busy touring around on foot and felt very exhausted. The Defendant woke her up when the massage session was about to finish. Since X was still very tired, she asked for an extra hour, which was added to her. Since X was really very tired, she slept on during the second session.

When X was sleeping, she felt something very heavy weighing down on her lower back – i.e. the lower part of her body - and something was pressing towards her vulva, i.e. her private parts, which caused her to wake up. At that time, she found that the yellow shorts and her own underwear already pulled down below her knees, so she turned around to look at the situation behind her and saw the Defendant behind the massage bed, with his pants and underwear pulled down, revealing his erected penis.

X was very shocked and screamed. She picked up her phone and immediately rushed downstairs and complained to the people there, saying that the Defendant had indecently assaulted her and raped her. At that time, a masseuse said to X, “There is nothing like that. It could not have happened. You might have misunderstood.” Since X could not get any help from the staff, so she used her mobile phone to report the incident to the police.

While waiting for the police to arrive, when she was still talking on the phone, she went upstairs to get her own clothes, but she did not get changed. She just held the clothes in her hands and was still in the yellow top and shorts given to her by the Defendant. She was on the street, i.e. on the opposite side of the road, waiting for the police to come, and at that time she was very emotionally distressed, wailing. Then a woman police constable arrived and took her to the police vehicle. After she had calmed down, she told the WPC what had happened.

The Defendant has also given evidence. The circumstances he described were very different. He said that X talked to him and soon talked about the topic of one-night stands. She even mentioned her desire for a one-night stand. X led the Defendant to squeeze her breasts with both his hands and she pulled down her own shorts and underwear in order to prepare for sexual intercourse, and so the Defendant climbed up onto the bed to prepare for sexual intercourse with her. The Defendant then pulled down the rubber band of his trousers, exposing his penis. When he touched or pressed against X’s lower parts (i.e. her vulva), X suddenly demanded for $1,000, to which the Defendant made a bargain, “I am not going to charge you for the two-hour massage (i.e. $400). Is that okay?” X refused. As the bargain fell through, the Defendant did not have sexual intercourse with X. The Defendant got off the bed.

Once the Defendant got off the bed, X turned around her body and was lying face down again, but she did not pull up her shorts or underwear, so her bottom was exposed. Then the Defendant got a big towel and covered her bottom, and continued to massage X on her calf. However, since his sexual desire still lingered on at that time, the Defendant quietly went on his own - he used the term “shooting the plane”, i.e. masturbation until he ejaculated. X knew nothing about this at that time. Having masturbated, he wiped his hand, i.e. he wiped his left hand clean and continued to massage X on her calf. To his surprise, X suddenly sprang to her feet and said that he had raped her, and then X went downstairs and demanded to - i.e. she rushed downstairs and said that the Defendant had raped her, and the fact that the Defendant had followed her downstairs was only to try to calm her down.

Obviously, because the jury unanimously found the Defendant guilty of indecent assault on X, that means the jurors did not accept what the Defendant said. The jury must have accepted that the Defendant had done what X said he had done and found him guilty of indecent assault, that is to say, guilty of indecent assault.The jury was only unsure whether the series of acts done by the Defendant came with the intent to rape X at the time, and that such conduct had gone beyond mere preparatory acts. Having said that, what the Defendant did was an indecent assault of such gravity that the sentence must be severe.

Before sentencing, I asked the two counsel to see if they could assist me by finding similar cases, i.e. cases of indecent assaults on customers by masseurs. The prosecution provided a total of five cases, but only two of them were related to masseurs. Of the two cases, one was dealt with in the Magistrates’ Court and the other in the District Court. That is to say, no appeal cases of masseurs indecently assaulting customers had been dealt with in the appellate court of the High Court. The five cases were in fact the same cases provided by the defence. The defence said that they could find the first four cases but not the last one.

I mainly deal with the cases where the masseur indecently assaulted the customer. In fact, one of the cases was a Magistrate’s case and the masseur was only sentenced to 9 months’ imprisonment, and the other one was in the District Court, where the masseur was sentenced to 18 months’ imprisonment. However, the main point of the two cases - that is, the facts of the cases were different from the present case. The main point is that it is a breach of trust for a masseur to indecently assault a customer, which is held by both judges in the two cases.

In other cases, such as CHAN Ching Ho, the main point is that the Court has to take into account three areas when considering this type of sexual assault cases, sexual offences. The sentence on the one hand, has to have a deterrent effect, to deter other people from committing the same offence. On the other hand, it has to show that the community finds such incident outrageously disgusting. There is also the need to pacify the emotions of the victim, her family and friends. Therefore, all three aspects have to be considered. Basically speaking, these are the three main areas.

Both the prosecution and the defence mentioned the first case because the Defendant was also charged with attempted rape, and at the end of the day, the jurors found him guilty of indecent assault, i.e. that the Defendant was convicted of indecent assault. Nonetheless, the facts of that case are of course very different from those of the present case. I have already taken into account the five cases when considering the sentence.

By way of background, according to the statement and the Defendant’s evidence in court, he was born in Sichuan, in the mainland. He is already 45 years old. According to him, he came to Hong Kong because he married a Hong Kong resident. He himself said that he came to Hong Kong in 2006, but there is no accurate record on the part of the Government as to when he came to Hong Kong. Anyway, he came to Hong Kong. The Defendant said after he had come to Hong Kong, he divorced his first wife and then remarried and had a 19-year-old son. He studied up to the third year in a secondary school in the mainland. He has been working as a masseur since he came to Hong Kong. He has been working as a masseur for more than 20 years with a clear record.

When Mr Leung mitigated on behalf of the Defendant, he told me that at the material time, the Defendant was earning about $20,000 a month. Mr Leung accepted that this was a case of breach of trust and accepted that – he submitted that the fact that X was a tourist was an aggravating factor.

Mr Leung requested the Court to take into account the fact that the Defendant had a clear record, that is, to take into account the fact that he had no criminal record at the time of sentencing. He also mentioned that the Defendant was the sole breadwinner of his family, so once he was sentenced to imprisonment, his family would be in financial difficulties. Another plea for leniency was that the chances of the Defendant repeating the offence were slim.

The following is the sentence I consider. Firstly, according to the law, if a person is convicted of indecent assault on indictment, i.e. indecently assaulting another person, he can be sentenced to 10 years’ imprisonment, i.e. not a short term, 10 years’ imprisonment. Well, there is no sentencing guideline for this category of offences because the circumstances of each indecent assault case can be very different, ranging from an act of a slight touch to an act amounting so close to rape. In fact, the sentencing hinges on the facts of the case.

In the present case, I don’t think the Defendant’s act of indecent assault on X was a minor one. In fact, I find this was very serious. The Defendant was a masseur who provided massage service to X. X agreed to let the Defendant touch her body in his capacity as a masseur, not to indecently assault her. The Defendant obviously took advantage of the opportunity and seeing that X fell sound asleep, he had an evil thought. In order to satisfy his own sexual desire, he lowered X’s shorts and underwear, and then pressed his penis against X’s private parts, i.e. her vulva. Of course, when the Defendant pressed or touched X on her private parts with his penis, it was relatively more serious than if he did it with his hands.

In CHEUNG Kwai Sang, the Court held that when a masseur indecently assaulted a customer, it involved a breach of trust, which Mr Leung, counsel for the Defendant, also accepted. Therefore, the Defendant’s indecent assault on X at that time was a breach of trust.

My view is that I do agree with the three areas mentioned in CHAN Ching Ho. That is to say, the sentence should have a sufficient deterrent effect. I opine that it should have a deterrent effect on the Defendant himself, as well as on other people. It should also clearly show that the community is indignant with such behaviour and founds it abhorring. It is clear that X has been very much aggrieved and disturbed by the incident. The distraught emotional state brought about by such act to X, her family and people close to her, like friends and relatives. must be redressed, so the sentence must not be light.

Having considered all the circumstances, I am of the view that for all that the Defendant has done, the starting point of 3 years’ imprisonment is appropriate. Such a starting point has taken into account the fact that the Defendant has a clear record. I understand that the imprisonment of the Defendant will definitely cause some financial hardship to his family, but this is not a mitigating factor for leniency. There being no other mitigating factor in the present case to warrant a deduction from the 3 years’ imprisonment, so I now sentence the Defendant to 3 years’ imprisonment for the offence of indecent assault.

Translated by the Court Language Section of the Judiciary and vetted by Mr P Y Lo, Barrister-at-law.