HKSAR v. C W K

HCCC 355/2017
[2018] HKCFI 471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 355 OF 2017

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

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COURT:

I don't propose to keep you in suspense. You are going to prison for 16 years and 8 months. When I have left court, Mr Fan will explain to you when you are likely to be released from prison, bearing in mind the rules we have about remission and the length of time you have been in custody on remand. You may sit down while I explain my reasons for the sentences I propose to pass.

Your offences were unquestionably very serious ones. Incest is one of our society's great taboos. It strikes at the very fabric of family life, especially when there was, as here, such a disparity of age between you and your daughters, when your daughters were so young, when one of them had a baby of whom you were the father, and when there was no question of any consent, assuming them to be of an age when they were legally capable of giving their consent, which was not the case here.

Your abuse of them involved a breach of trust of the very worst kind. The effect on your daughters of what you did to them has been considered by a clinical psychologist. She acknowledges, though, that the long-term impact of your behaviour on their mental and emotional wellbeing is impossible to predict at this stage. But the experience of the courts is that it would be very surprising if it did not blight their lives for many years to come.

I have considered whether this was one of those exceptional cases in which an indeterminate sentence is called for on the basis that there are good grounds for believing that you may remain a serious danger to the public for a period which cannot be reliably estimated at this stage. As I told your counsel, I have decided that yours is not a case for an indeterminate sentence, and it is for that reason that I have decided that I do not need psychiatric or psychological reports on you. Your counsel does not suggest that such a report is needed.

The point is that your offending has been confined to your daughters, and there is nothing in your background which suggests that you might be a risk to other women. So the real question is whether there are good grounds for believing that, by the time you would be released from prison following an inevitably lengthy determinate sentence, there would be a serious chance that you would try to have sexual encounters with your daughters. I do not believe that there is such a risk. You will by then be of an age when your libido is likely to have subsided, and there is no real likelihood of you ever being alone with them in circumstances in which sexual activity between you and them could take place. They would be adult women then.

Nor do I need reports to understand your motivation. You yourself said that your wife was not satisfying your needs, and that that was why you turned to your daughters for your sexual outlet. Accordingly, my task today is to decide what the appropriate determinate sentence should be.

Your offending began in 2013 when your daughters were aged 12 and 10. I shall refer to them as X and Y, respectively. You tried to penetrated X's vagina with your penis, but were unable to. You then moved onto Y whose vagina you did manage to penetrate with your penis, and you did ejaculate, although you were unable to get very far in. The charge of attempted rape in Charge 1 of the indictment relates to this attempt to penetrate X's vagina with your penis, and the charge of incest in Charge 2 relates to your penetration of Y's vagina with your penis. This is the only charge of incest in the indictment. That is because there was insufficient evidence of lack of consent on Y's part, although you have admitted today that you realised from Y's body language that she wasn't consenting. As it is, all the other charges of rape to which you have pleaded guilty could just as easily have been charged as incest.

There were four subsequent occasions when you raped X: in 2014 when she was 13 years old, in 2015 when she was 14 or almost 14 years old, and twice in 2016. She was 15 or almost 15 when you raped her for the first time in 2016, and on that occasion she became pregnant. Fortunately, her baby appears to be in normal health, and the baby's development is appropriate for its age. X was 15 when you raped her for the second time in 2016. The charges of rape in Charges 3, 5, 7 and 8 relate to these four occasions.

You accepted when you were interviewed that on at least two of those occasions you ejaculated and didn't use a condom. On each of those occasions, X tried to make it more difficult for you to do what you were trying to do by twisting and turning her body, but to no avail. The fact is that she was helpless. You were in your late 50s at the time.

You yourself disclosed to the police the offences which are charged in the other two charges in the list of charges, two charges of indecent assault on Y. They are Charges 4 and 6. The first was in 2014 when you touched her thighs over her clothing when she was 10 or 11. The second was in 2015 when you touched her breasts, and what the summary of facts rather delicately describes as “her private parts” over her clothing when she was 11 or 12.

I have already spelt out the aggravating features of your abuse of your daughters, and the only real mitigation available to you are your early pleas of guilty which, among other things, had the effect of sparing your daughters the ordeal of having to give evidence, and your voluntary disclosure to the police of your later abuse of Y. You have only a modest criminal record, dangerous driving and overcharging a customer when in your taxi, but the fact that you have never been in serious trouble with the police before carries little, if any, weight in cases like this.

Although it's necessary for me to pass separate sentences for all your offending, it will inevitably be necessary for me to stand back and look at what your offending as a whole truly deserves. Your overall sentence, in other words, must be appropriate to the level of your culpability.

No case is identical, and although previous cases help greatly in identifying principles and the appropriate range of sentence, it will be rare for what was thought to be the proper sentence in one case to be a definitive guide as to the proper sentence in another. But this case is an exception because not long ago the Court of Appeal ruled on a case which was strikingly similar to yours. That case was the HKSAR v KKK [2013] 2 HKLRD 676.

In that case, the offender was in his mid to late 40s when he raped two of his daughters. He raped one of them four times when she had been 12, 13 and 14 years old, each time without a condom. On one of those occasions, she had become pregnant and he had arranged an abortion for her. He raped the other daughter twice when she had been 10 and 11 years old, again without a condom each time. He had also forced the youngest of his daughters to pluck his pubic hair when she had been nine years old.

Although, he pleaded guilty to all the charges, psychiatric and psychological reports noted his total lack of remorse and that he blamed his daughters for his re-offending. He displayed a high degree of psychopathic traits with a very high risk of general re-offending and a moderate to high risk of sexual recidivism. He had an extensive and varied criminal record, but not a serious history of sexual assaults, although he was likely to be violent and abusive towards those women over whom he could exercise control.

The Court of Appeal reduced the total sentence which the trial judge had imposed to 18 years' imprisonment. The court must have thought that the appropriate starting point was in the region of 27 years' imprisonment before the discount of one third for the offender's pleas of guilty had been factored into the calculation, but not really more than 27 years since the court said, for the reasons which it gave in paragraph 35 of its judgment, that any further discount “warranted” for the fact that the girls had been spared the ordeal of giving evidence “must be slim”. For my part, I decline to give you any additional credit for that. It was just one of the consequences of your pleas of guilty, and your pleas of guilty, on the return date at the Magistracy entitle you to the conventional one-third discount. The fact that your pleas of guilty made it unnecessary for your daughters to give evidence is part and parcel of the discount you get for pleading guilty.

There are some differences between your case and that of the offender in KKK. Only two girls were involved in your case, though it has to be said that the only offence relating to the third girl in KKK was far less serious than the offences relating to the other two girls. The girls in your case were slightly older than those in KKK. The two offences of indecent assault which you committed against Y were less serious than either of the two rapes which the offender in KKK committed against the second girl. You yourself disclosed your later offending against Y, and there is nothing to suggest that you have the same character traits as the offender in KKK. On the contrary, in addition to disclosing some of your offending against Y, you admitted all your offending when the police interviewed you about it, including expressing remorse and acknowledging that what you had done had been wrong, and you hadn't previously been in serious trouble with the police. The offender in KKK, on the other hand, was heavily convicted, and he denied his offences when he was interviewed. Having said all that, it should be noted that you were about 10 years older than the offender in KKK at the time of the various offences, and the disparity in age between father and daughters was therefore greater in your case.

In balancing all these factors, I have concluded that your overall sentence should be marginally less than that passed in KKK. But unquestionably the overall sentence has to be very long. The gravity of offences of this kind was graphically expressed in paragraph 29 of the judgment in KKK.

I turn to the individual offences. The trial judge in KKK took a global approach for each set of offences against a particular girl. The Court of Appeal preferred to adopt a more orthodox methodology, and to assess the sentence for each offence before considering their totality. I propose to take that course. The most serious offence was your rape of X for the first time in 2016, Charge 7. That was the one which resulted in her getting pregnant and giving birth to a baby who was both your child and grandchild. I take 14 years' imprisonment as my starting point which I reduce by one third to 9 years and 4 months' imprisonment to reflect your plea of guilty. For the other offences of raping X, that is Charges 3, 5 and 8, I take 11 years' imprisonment on each as my starting point, which I reduce by one third to 7 years and 4 months' imprisonment on each to reflect your pleas of guilty.

For the attempted rape of X, Charge 1, I take 9 years' imprisonment as my starting point which I reduce to 6 years' imprisonment to reflect your plea of guilty. For the incest of Y, Charge 2, I take 11 years' imprisonment as my starting point which I reduce by one third to 7 years and 4 months' imprisonment to reflect your plea of guilty, and for the two offences of indecently assaulting Y, Charges 4 and 6, I take 3 years' imprisonment on each as my starting point which I reduce to 2 years' imprisonment on each to reflect your pleas of guilty.

I turn, finally, to what your total sentence should be to reflect the true level of your culpability overall. I have already said that your overall sentence should be marginally less than that passed in KKK, and I have concluded that the overall starting point in your case should be 25 years' imprisonment. Discounting that by one-third to reflect your pleas of guilty, the sentences I propose to pass are ones which total 16 years and 8 months' imprisonment. That will be achieved by my ordering you to serve the sentence of 7 years and 4 months' imprisonment on Charge 2 consecutively to the sentence of 9 years and 4 months' imprisonment on Charge 7. All the other sentences will be served concurrently with each other and concurrently with those sentences.

Would you now stand up, please, as I propose to spell out your sentences so that there is no doubt about the sentences I am passing.

On Charge 1, you will go to prison for 6 years.

On Charge 3, you will go to prison for 7 years and 4 months.

On Charge 4, you will go to prison for 2 years.

On Charge 5, you will go to prison for 7 years and 4 months.

On Charge 6, you will go to prison for 2 years.

And on Charge 8, you will go to prison for 7 years and 4 months.

All those sentences will be served concurrently with each other and concurrently with the consecutive sentences I have passed on Charges 2 and 7, namely, 7 years and 4 months' imprisonment on Charge 2 and 9 years and 4 months' imprisonment on Charge 7.