COURT: The defendant was charged with two counts, a count of attempted rape of his then domestic helper, Madam X, alleged to have occurred on 28 July 2021, that is Count 2 on the indictment. And the full offence of rape of Madam X alleged to have occurred on 10 August 2021, which is Count 1 on the indictment. Both offences were alleged to have taken place in the defendant’s residence. The defendant pleaded not guilty and was tried before the jury from 22 August 2023 for 11 days. After two days’ deliberation, the jury returned their verdict on 6 September 2023, acquitting the defendant of the attempted rape by a unanimous verdict but convicting him of rape by a majority of five to one. One juror was discharged during the deliberation. A victim’s impact report was called for and the matter was adjourned eventually to today for mitigation and sentence.
It is trite that in sentencing a defendant found guilty after trial by a jury, the judge must honour the verdict of the jury and should not sentence on a basis which is contrary to the verdict. By virtue of their verdict, the jury in the present case must have accepted the evidence of Ms X in relation to the rape incident on 10 August 2021, and
must have found that the prosecution was unable to establish each and every element of the attempted rape offence on 28 July 2021 to the required criminal standard. I am thus bound by that verdict of the jury and must proceed to sentence the defendant on a basis consistent with such a verdict, as well as the factual implication thereof.
According to X’s evidence, the facts pertaining to the rape incident, and those which form the basis of my sentencing exercise are these. On 10 August 2021, X was woken up at around 2.15 am by a noise downstairs. At this point, she felt someone touching her right foot. When she opened her eyes, she saw the defendant at the end of her bed. The defendant told X to stay quiet, at which point he pulled X’s legs until they were dangling off the side of the bed. The defendant positioned himself in between X’s legs, and with both of his hands pulled down X’s pants and underpants to the knee level. Afterwards, the defendant turned X’s body so that her head was close to the defendant’s. The defendant then attempted to put his penis into X’s mouth. When X refused, the defendant flipped X back to her initial position, and touched the vagina with his right hand, before inserting his finger into her vagina for four to five seconds. Afterwards, he inserted his penis into X’s vagina for around 10 to 20 seconds. Throughout the episode, X did not consent to any of the intimate acts which the defendant carried out, and did not know whether the defendant was using a condom. The defendant then took out his penis and pulled up his pants, before making remarks to X about her menstruation. After the incident, and upon cleaning up, X found blood and sticky slime on the tissue which she used to wipe her vagina.
X eventually reported to the police about the rape incident on 11 August 2021. She was examined by a doctor at Yan Chai Public Hospital subsequently, and was found to have tender swelling at her right hand. Forensic examination was conducted and human tissues containing DNA of the defendant were found on X’s underpants, as well as inside X’s vagina. The defendant was subsequently arrested on 12 August 2021. Under caution, he denied raping Ms X. At trial, the defendant did not dispute that sexual intercourse occurred on 10 August 2021. He, however, maintained that the sexual intercourse as well as all acts of intimacy that had taken place were at (i) the instigation of X, and (ii) with the consent of X. In short, it was a paid sexual service offered by X to the defendant according to him. By its verdict, the jury clearly rejected that version of events put forward on his behalf in defence.
Background of the Defendant
The defendant is 45 years old now, and a man of clear record before the present offence. He was educated up to university level and at the time of his arrest for this case worked in the insurance industry. He used to be the sole breadwinner of his family, married in 2010 with three children (aged 10, roughly aged, and 6 years) out of the wedlock. After the present incident in 2021, he was divorced with his now ex-wife, leaving the three children in his main care, as well as, I am told during his incarceration, that of his mother who is now aged 74 and, of ill-health suffering from chronic illness as a result of her earlier treatment for cervical cancer. I am told that the mother is now in remission for cancer. The defendant’s father passed away in 2000, also because of cancer.
In mitigation, Ms Tsang urged me to impose as lenient a sentence as possible on the defendant. I have been provided with 12 letters of mitigation from the defendant’s family members (including his ex-wife, his mother and five elder sisters, as well as his former colleagues and friends). Today, one extra letter of mitigation from his friend has been produced to me as well. As to be expected, all of them speak highly of the defendant’s general character - as a responsible husband, loving father, a filial son, and a hardworking man at work. The court is also told (with documentations in support) about the charitable work undertaken by the defendant over the years, including his support for environmental causes, his sponsorship to less fortunate children in different parts of the world for quite some years.
On the circumstances of the offence in question, Ms Tsang asked me to bear in mind the fact that both the defendant (who had just turned 43 at the time of the offence) and X (who was at the time aged 40) were adults of similar age at the time of the offence and that both had indeed children who are born in wedlock. There was evidence also that the defendant was under the influence of alcohol at the time of the offence which was said to have momentarily clouded his judgment.
It was also submitted on his behalf that no violence was used and that according to X’s evidence, the ordeal only lasted for a very short length of time - four to five seconds for the digital penetration and 10 to 20 second for the penetration by his penis. X is said to only have suffered minimal injury with tender swelling of her hand, which she did not notice until the day after.
In terms of the relationship between the defendant and X, Ms Tsang submitted that given the jury’s verdict of acquittal of the attempted rape count, which preceded the rape offence, the jury must have found that X’s evidence did not support the alleged attempted rape and/or that the defendant’s evidence as to that count “might be true”. Ms Tsang went on to suggest that one may then conclude that X and the defendant have had a relationship outside that of a domestic helper and employer before the rape offence, and that the relationship was one of sexual nature. On that premise, Ms Tsang asked me to consider that the defendant and X were not strangers to intimacy before the offence and that the defendant might have come to expect some level of acceptance from X when committing the latter offence of rape. Ms Tsang prayed in aid the case of HKSAR v Kwan Chi Wing CACC 201/2008, which identifies a lower scale of seriousness for rape which occurs when some level of intimacy was expected by the victim. As I will explain below, I do not find that case to be entirely apposite to the circumstances of the present case.
The point made by Ms Tsang here by reference to Kwan Chi Wing raises the question of how the jury’s verdict on the two counts, namely one of not guilty on the attempted rape and guilty on rape, can, and should, be interpreted. In this regard, it would be recalled that the prosecution case under the attempted rape count was that on 28 July 2021, the defendant went up to Ms X’s bedspace and initiated intimate acts with Ms X. Ms X gave evidence that the defendant kissed or groped, and inserted his fingers into Ms X, as well as rubbed his penis against her vagina. Hence that clearly amounted on the prosecution case to attempted rape. X said she struggled and resisted these intimate acts, and the defendant stopped at the end because he was unable to get an erection. There had been produced at trial before the jury, a discretely recorded conversation made by X using her mobile phone on the following day, that is 29 July that recorded conversation, it was evident that Ms X was expressing clearly that she did not consent and was an unwilling party to intimate acts forced upon her by the defendant. At trial, the defence in effect suggested that these acts of intimacy on 28 July did take place but were consensual. According to the defence case, the defendant stopped amidst the intimacy only because of the arrival of his wife whose footsteps he heard. The defendant’s case was that it was X who set out on purpose to frame the defendant up with the secret recording of this conversation on the 29th which according to the defence was staged on the part of X, serving her own motive.
Viewed in such light, the jury’s verdict can be logically explained thus. Namely, they could not be certain as to whether the defendant knew, or was reckless as to whether Ms X consented to such intimate acts or not. In other words, the jury could not find beyond reasonable doubt that the defendant knew or was reckless about whether Ms X did or did not consent to the intimate acts that occurred on 28 July 2021. In relation to the finding of guilt on the rape count, however, the jury must have found that the defendant would by then have known that X did not consent, given the existence of the conversation on the 29th. Despite this manifestation of lack of consent on the part of X after the first attempted rape incident, the defendant nonetheless proceeded to have sexual intercourse with X on 10 August 2021 in the circumstances as described by X.
By returning a verdict of guilty on that rape count, the jury must have found proven beyond reasonable doubt that the defendant either knew that X did not consent or was reckless as to whether she did or not. This, as I said, I find to be a more logical interpretation of the jury’s verdict of acquitting the defendant on the attempted rape count, but convicting him of the rape. Accordingly, I would proceed to sentence the defendant on this factual basis.
The jury clearly rejected the defendant’s account that X had in any way consented to his intimate approach, nor did the jury accept that the defendant had or might have misinterpreted or misread X’s conduct. I therefore reject the suggestion that X had, by her behaviour, misled the defendant into believing that some level of acceptance from her in terms of agreeing to have sexual intercourse was expected.
Consideration of the Sentence
No doubt, rape is a very serious offence, and an important sentencing consideration is deterrence, in order to reflect the community’s disapproval of such deplorable behaviour.
In the context of this case involving a domestic helper being raped by her employer, there is the element of breach of trust which aggravates the offence in question. The defendant was the employer of X who resided at his flat, and who had day-to-day contact with the defendant, as well as members of his household. X slept at her bedspace at the top of the staircase on the rooftop with no partitions, hence, little, if any, privacy from anyone who wished to go to the rooftop and walk past the spot. The defendant was the one who frequented that location as, according to the evidence, his fish pond which he had to tend to daily, was located up on the rooftop. This is the context in which the relationship of trust that X reposed on the defendant as her employer should be measured for the purpose of sentencing.
The Victim Impact Report
As mentioned above, I have asked for a victim impact report to be prepared in order to have an independent professional assessment of Ms X’s mental and psychological condition. That report, prepared by Ms Chan, the clinical psychologist, who had interviewed Ms X twice, has now been made available to the court. According to Ms Chan, Ms X reported being “fearful with crying spells almost every day after the incidents” and “unable to control her emotions”, with “insomnia and poor appetite”. In Ms Chan’s opinion, X’s symptoms resembled a diagnosis of post-traumatic stress disorder and that she suffered from severe level of anxiety symptoms, and mild level of depression after the incident. Continuing psychiatric treatment and psychotherapy is recommended by Ms Chan to facilitate X’s post-traumatic adjustments.
That said, I do take into account the points made by Ms Tsang in mitigation. In particular as can be seen from the victim impact report, X had managed to find a new employer after the incident in December 2021. Ms Tsang also made the point in mitigation that X was not entirely new to Hong Kong, having served her first employer in Hong Kong a year before her employment with the defendant in the present case.
I pause to also make the point that the court has the benefit of observing Ms X’s behaviour, as can be seen from the CCTV footages played at trial, after the event in which the rape incident pertains.
Sentencing
There are no sentencing tariffs or guidelines for this type of offence but the courts have consistently treated cases involving rape of domestic helpers more seriously in terms of the sentence passed. As the Court of Appeal said in HKSAR v Chan Tung Hing Band [2010] 3 HKC 307 (at paragraph 11):
“We would add that in a relation of employer and domestic helper, it is often the case that the helper is in a particularly vulnerable position. Not only is the helper financial dependent on the employer, the helper will be far away from her home country and her immediate family. We view the preying on such persons particularly seriously.”
In commenting on the sentence of 8 years’ imprisonment imposed after trial on an earlier case of HKSAR v Lo Cheung On, CACC 335/2001 (unreported, 12 November 2002), which bore partial similarities in the facts, the Court of Appeal in Chan Tung Hing Band remarked that:
“It is no more than an indication of what is seen to be an acceptable sentence when certain circumstances exist.”
That said, I do not see the court in Chan Tung Hing Band to be imposing a strait-jacket that 8 years should invariably be considered as the appropriate starting point for rape offences involving domestic helpers. It still falls upon me as the sentencing judge, having presided over the trial for over 10 days, receiving and listening to the evidence placed before the jury, in particular the testimony of X, to gauge the seriousness of the offence in question and to identify the appropriate starting point within my discretion, to reflect what I see to be the overall criminality involved in the circumstances of this case.
In doing so, I have taken into account and examined carefully the number of other cases produced to the court including in particular:
a. HKSAR v Lo Cheung On CACC 335/2001 (unreported, 12 November 2002) involving a defendant raping a 22-year-old Indonesian domestic worker training at his residence, without wearing any condom at the time. In that case, the defendant was sentenced to 8 years’ imprisonment which was upheld on appeal.
b. The second case I considered is HKSAR v Apelete Kokou Afla, HCCC 74/2016 (unreported, 17 May 2017), the defendant in that case indecently assaulted and raped his domestic helper. The court sentenced the defendant to 9 years’ imprisonment which was upheld on appeal due to the existence of various aggravating factors, including the intentional delay of the trial by the defendant in that case.
c. And I considered HKSAR v Fung Hoi Yeung [2021] HKCA 1589, where the court initially sentenced the defendant based on Lo Cheung On and Chan Tung Hing Band, and adopted the 8 years starting point. Taking into account additional aggravating factors including verbal abuse, the planned nature of the attack, and the degree of violence, and the specific religious background of the victim in that particular case, the judge at the end enhanced the sentence by 2 extra years, making an ultimate sentence of 10 years. And the sentence was upheld on appeal in that case.
In the present case, Ms X was employed by the defendant as his domestic helper. He took advantage of the relationship of trust between the two of them whilst X was under his employment.
Having taken into account the background and the circumstances of the offence, the defendant’s personal circumstances and family circumstances, as well as all matters in mitigation put forth by Ms Tsang, including the mitigating letters written on his behalf as well as the circumstances concerning the three children whose care now is vested upon the sick mother of the defendant, taking all of these into account, I am of the view that an appropriate sentence for this case is one of 7 years’ imprisonment.
In adopting that sentence as my starting point, I have already taken into account the following aggravating factors that I find present in this case:
(iii)Thirdly, the consequence of the offence - as reflected
in the victim impact report upon Ms X to the extent
as described by the clinical psychologist in the
report, which I have outlined earlier on.
And in this connection, I should address two of the points made by Ms Tsang in her mitigation. First, Ms Tsang submitted that according to X’s evidence, at the material time, she did not know whether the defendant was wearing a condom or not and whether the defendant ejaculated inside her. In this regard, I note that there was forensic evidence at trial that DNA tissues containing the defendant’s sperm were found inside Ms X’s vagina, in particular at the endocervical area, which was the innermost part of her vagina. Furthermore, I note that the defence case as advanced at trial is consistent with the fact that he did not wear a condom during the intercourse and that he in fact ejaculated inside Ms X as revealed in the other taped conversation the defence produced at trial, where the defendant was recorded to have asked X “where to shoot”. All of these supports the clear inference that the defendant did not wear a condom and that he ejaculated into X.
Secondly, regarding the submission that no violence was used, whilst I note the undisputed medical evidence that Ms X did suffer a bruise on her right index finger, I do take into account the case as advanced by the defendant that it was caused by an accidental bumping against the door frame when X was asked to help move the filter of the fishing tank the day after, which was unrelated to the rape. The defence contended at trial that this episode was supported by what could be seen from the CCTV footage, especially the sequence of events showing X leaving the living room and going up the staircase. In any case, I accept that even if the injury might have been caused during the rape as alleged by X when she was struggling, this is not a case where severe violence was deployed by the defendant over and above the force necessary to commit the offence of rape.
The defendant contested the charges and was convicted of the rape after trial. As such, he does not enjoy any discount for a guilty plea. I also do not find any other mitigating factors that would allow any discount from the starting point of 7 years I adopt. Given the starting point of 7 years has already taken into account the aggravating factors that I identified above, I do not intend to further enhance the sentence.
This is, no doubt, a sad case with extremely unfortunate consequences for all involve for the defendant’s family, in particular, the three young children, but this is often the tragedy in such cases. All that was said on his behalf in mitigation including the letters written by his family and friends about his good character do not go very far in terms of mitigation in the present case. It serves instead as a sound reminder that one mistake is all it takes for a fall from grace. The defendant had it all. A happy family with three children, and a successful career. He chose to place himself in a situation which risked all of it, and he, and in particular, those he loves must now pay for the consequences.
I hereby sentence you to 7 years’ imprisonment for the offence of rape.