HKSAR v. ESGUERRA EDWIN SANTOS (M)

DCCC599/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 599 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance, Chapter 200.

Facts

2.  At all material times, the victim was a 33 years old Indonesian lady working as a domestic helper in Hong Kong.  She worked and lived with her employer in a flat situated on the ground floor of a village house (“the Flat”).  The defendant also lived in the same village house but in a different flat on the first floor.  The victim and the defendant were not familiar with one another.

3.  Around 5 p.m. on 3 May 2016, the defendant appeared at the doorway of the Flat with a door handle with him.  The victim received him and smelt alcohol coming from him.  The defendant told the victim that he wanted her employer to repair the door handle.  He asked if there was anyone inside the Flat.  When the victim answered in the negative, the defendant suddenly grabbed the hands of the victim, pushed her into the Flat and then onto the bed inside her employer’s bedroom.

4.  The defendant then tried to remove the victim’s clothing.  The victim struggled and attempted to free herself, while the defendant was taking off his clothes.  He then pushed her against a wardrobe and held her arms.  He pressed his body against hers and pushed her onto the bed again.

5.  The defendant then removed the shorts and underwear of the victim, grabbed her hands and laid himself on top of her to prevent her from moving.  He then lifted her T-shirt and brassiere.  He kissed and bit her breast while she was shouting continuously. 

6.  The defendant then inserted his fingers into the victim’s vagina.  When he found bloodstains on his fingers, he asked the victim in English what it was.  The victim was having her menstruation. 

7.  The victim seized the opportunity to rush into the lavatory with her pants and she put them back on.  The victim came out of the lavatory after about 5 minutes, thinking that the defendant might have already left.  But she found that the defendant was outside the lavatory with his clothes on.

8.  The victim then dashed into the kitchen.  The defendant followed her and pushed her against the stove and lifted her arms.  The victim begged him to let her go. The defendant said that he would only do so after the victim had hugged and kissed him. 

9.  The victim then kissed the defendant’s mouth once.  The defendant pushed her against the fridge and kissed her mouth.  The victim then dashed into the living room, but the defendant pushed her to the sofa, trying to kiss her again.  The victim resisted his kissing and ran out of the Flat. 

10.  The victim then telephoned a staff member of her employment agency and complained that a male resident upstairs wanted to rape her.  She was crying and sounded distressed over the phone.  She also made complaints over the phone to her husband in Indonesia and to her employer.  When she later returned to the Flat, she found the defendant had left.

11.  Forensic medical examination on the victim revealed that she had sustained the following fresh injuries with the following remarks given by the medical officer:

(1)a patch of reddish dots of intra-dermal bruises, about 3 cm x 2 cm, over upper end of sternum (which was highly consistent with the result produced by suction by the mouth);

(2)a tiny superficial laceration along the base of the left nipple at the lateral aspect, about 0.5 cm long (which could be produced by biting or by a fingernail);

(3)an indistinct dull reddish bruise, about 1 cm x 1 cm, on left upper abdomen over the rib edge; and a dull reddish bruise, 2 cm x 2 cm, on left side of mid-abdomen (which could be produced in a variety of ways such as blunt impact, pinching or sucking);

(4)on private parts, there was a patch of redness of 1 cm x 1 cm at either side of the vaginal opening, one patch at about 4 o’clock position and another at about 8 o’clock position, with explicit tenderness; and a recent longitudinal, superficial split wound of 1 cm long, at 6 o’clock position of the vaginal opening, with explicit tenderness (which were highly consistent with forceful dilation of the vaginal opening by the insertion of a hard object into the vagina). Speculum examination showed trace of menstrual blood with mucus at cervix.

12.  The defendant was subsequently arrested in the same evening.  During a video-recorded interview, the defendant said that he was a performer in the Disneyland, and that he had consumed a lot of alcohol in a friend’s gathering in the evening of the day in question.  He said he knew that the victim worked for his landlord, but he could not recall whether he had entered the Flat at the material times since he was very drunk.  He could not remember whether he had sexually assaulted the victim.  He could not remember how he had returned home.

13.  When the defendant pleads guilty to the charge, he admits that he had sexually assaulted the victim inside the Flat.

Criminal record

14.  The defendant has a clear criminal record in Hong Kong.  Learned counsel for the defendant Mr. Omar also produced 3 certificates issued by the Philippines authorities to prove that the defendant has no previous convictions or pending cases in the Philippines.

Personal and family background

15.  The defendant was born in the Philippines in 1962.  In two days’ time, he will be 54 years old.  He received up to secondary education in the Philippines.  From 2005 onwards, he has been working in Hong Kong as a musician in the Hong Kong Disneyland, and he has also settled down in Hong Kong.  He has married, but his wife passed away in 2009.  He has a daughter aged 23 and a son aged 21.  Both of them are living with the defendant in Hong Kong.

Mitigation

16.  Mr. Omar has produced 5 mitigation letters on behalf of the defendant, written respectively by his mother-in-law, son, daughter, colleague and church friend. In short, these letters show that the defendant is a loving and caring father who provides everything materialistically and spiritually to his children, that he is very willing to assist his parents-in-law and his siblings in Hong Kong and in the Philippines when they are in needs, and that he has been a person with good moral character who has never behaved indecently towards female members of his church.  In light of these favourable comments from the friends and relatives of the defendant, coupled with his clear record in Hong Kong and the Philippines, Mr. Omar stressed that the offence committed by the defendant was only a single fall from grace, and that the defendant committed this offence just because he was drunk.  Mr. Omar said that the defendant was so drunk on the day in question that he did not remember what he had done, and that he was sleeping at home when the police arrested him at about 8 p.m. on the day of the event.  Mr. Omar pointed out that the defendant started living in the village house in question in 2014, and the victim started working for her employer in August 2015, but there had never been any previous sexual advance made by the defendant towards the victim.  Mr. Omar stressed that the defendant had no premeditation in committing the offence and pleaded for the maximum leniency for the defendant.

Reasons for sentence

17.  The maximum sentence for the offence of indecent assault upon another person is 10 years’ imprisonment.  Since this offence may be committed in vastly different circumstances, there is no sentencing tariff, and the sentence of each case must depend on its own facts.  Nevertheless, the sentencing purposes are clear.  First, the sentence must reflect the seriousness of the offence committed by the offender.  Second, it must be deterrent in order to deter the offender from re-offending, and to prevent others from committing a similar offence.  Third, the sentence must mark the public abhorrence of the offence. Fourth, the sentence must redress the grievance suffered by the victim, her family members and friends.

18.  In the present case, there were a number of features that made the offence serious.  First, although the Flat was owned by the victim’s employer, the victim had to work and live in that place.  For this reason, the Flat was for all intent and purpose her home, and she was indecently assaulted at her home by the defendant who was a person unfamiliar to her.  Second, the defendant had in fact removed his own clothing and took off the shorts and underwear of the victim and laid himself on top of her.  It was quite clear that he had at least at one stage intended to have sexual intercourse with the victim without her consent, and even if he did not have that intention, it was just natural and reasonable for the victim to believe that the defendant was going to rape her, thereby subjecting her to the great fear of this possible offence.  Third, the defendant did not just touch or caress the external parts of the victim’s body.  He had in fact inserted his fingers into the vagina of the victim. There was therefore an actual penetration of the body of the victim, though as a matter of law, it did not amount to rape and there is no offence of assault by penetration in Hong Kong[1], but I cannot ignore the fact that the sanctity of her body had been violated by the defendant.  Fourth, the victim sustained injuries to her left nipple and her private parts albeit the injuries were not particularly serious.  Fifth, the defendant desisted from putting his fingers into the victim’s vagina only because he noticed that the victim was having her menstruation.  Even so and even after he had put his clothes back on, he still did not leave the Flat but waited for the victim to come out from the lavatory, and told her to kiss and hug him before he would let her go.  In actual fact, after he had made his demand, he tried to force his kissing on the victim on two occasions when she was by the side of the fridge and when the defendant pushed her onto a sofa. The victim had clearly been subject to this ordeal for a long period of time.

19.  Learned counsel for the defendant, Mr. Omar, tried his best to persuade this Court that the defendant was acting out of character because he was drunk.  I have no doubt whatsoever that the defendant had taken alcohol of a certain quantity, since the victim was able to smell alcohol from him, but I have great reservation on whether he was so drunk as he claimed that he did not know what he had been doing.  The facts admitted by the defendant showed that he was able to notice bloodstains on his fingers after inserting them into the victim’s vagina, that he was able to put back all his clothes on before he left the Flat, and that he was able to demand the victim to kiss and hug him before he would let her go.  All these facts showed that he was in complete control of his faculties and of his manipulation of the victim. 

20.  In any event, in my judgment, even if the defendant was intoxicated to the degree as he claimed, it makes little difference to the sentence to be imposed on him.  His intoxication was self-induced, and this Court has the paramount duty to protect women from sexual abuses of whatever kind.  I adopt the following remark made by Stuart-Moore V-P in Secretary for Justice v Lau Yun Leung [1999] 3 HKLRD 289,

“It made no difference that the respondent had taken drink or that this was an attack which he had not planned in advance. The courts have just as much a duty to protect women from the unwanted, drunken attentions of such men as this respondent as from men who act in similar fashion when sober.” (page 298, Letter F to G)

21.  Having considered the facts of this case and the sentencing purposes to be achieved, I have no doubt whatsoever that the only appropriate sentencing option is one of imprisonment, even though the defendant has pleaded guilty and has a hitherto unblemished character and record.

22.  I am of the view that the appropriate starting point of the sentence to be imposed is 30 months’ imprisonment.

23.  The defendant has pleaded guilty.  He is entitled to the usual one-third discount of the sentence.  I note all the good words said by his children, mother-in-law, colleague and church member, but the mitigating effects of these good words do not amount to a good reason to enable the defendant to have more than one-third discount of his sentence.  In short, there is no other effective mitigating factor in this case.

24.  For these reasons, the defendant is sentenced to serve a term of imprisonment for 20 months.

[1]  In England, section 2(1) of the Sexual Offences Act 2003 creates the offence of assault by penetration, and section 2(4) provides that the maximum sentence is life imprisonment.