HKSAR v. MAN YIU FAI

HCCC 73/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 73 OF 2016

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

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COURT:

This defendant, who is now aged 44, was convicted on 22 May on two closely related counts. The first was administering flunitrazepam, which is better known as Rohypnol, to facilitate an unlawful sexual act and that is contrary to section 121 of the Crimes Ordinance, Cap 200. Rohypnol is sometimes called the “date rape drug”.

The 2nd count was rape and both of these offences were committed on 31 May 2015, on a 23-year-old woman who, in the trial, was known as Ms Y. The rape occurred whilst she was heavily under the influence of the drugs which he had administered to her without her knowledge.

It was not possible to pass sentence immediately following the defendant’s conviction because a victim impact statement from a psychologist was first of all required.

By way of background, Ms Y was a visitor in Hong Kong. She had come to meet up with her long-term boyfriend who lives and works here. It seems that for a long time, she has suffered from back pain because one of her legs is very slightly shorter than the other. In the past, she has received treatment in Germany where she lives.

However, there came a time on one of her visits to Hong Kong that she was troubled by her back, probably in January or February 2015, and a girlfriend of hers introduced her to the defendant. No treatment was given on that occasion. However, the defendant followed this up by remaining in touch with Ms Y on Facebook and he gave her an open invitation to attend his business premises for treatment.

Eventually, the appointment was made on 31 May 2015, at 7.15 in the evening. The arrangement was that the defendant would give physiotherapy to Ms Y in exchange for her giving Reiki treatment to him which Ms Y described as a Japanese energy treatment.

The defendant is a well-educated man with masters degrees in both Chinese and herbal medicine. However, as the defendant himself said in his evidence, while he is licensed to practise in the mainland, he is not registered to do so in Hong Kong.

The defendant’s business premises, known as Health For You, are entered through a door which has a very large sign which reads “Number one doctor”. The shelves in the reception area were stacked with medicines of one kind or another and two walls in the corridor of the premises were covered in the defendant’s qualifications and certificates of learning. One such proclamation read “Professor Doctor Yiu Fai Livet Man” and it described him as a master of natural healing.

In numerous other certificates, he is referred to as “doctor”. These certificates purported to show that the defendant had wide international experience in places as far afield as Britain, Spain, Australia, the United States of America, India, quite apart, that is, from the mainland and Hong Kong. The premises had all the hallmarks of a practitioner who was well qualified to practise as a doctor in Chinese and herbal medicine.

Furthermore, there was a room set aside for lectures, equipped with many desks and tables for his students, and in his office, he had a couch for physiotherapy.

Ms Y arrived at 7.15 to see the defendant. He already had two cups on the desk, in his office, prepared, one on his side of the desk and one on Ms Y’s side of the desk. In fact, first of all, she had filled out a medical questionnaire about her general health. She noticed about the drink, which looked just like a fruit smoothie, that it had the smell of alcohol to it. She never normally drinks alcohol but, out of sense of politeness and because of what the defendant was saying to her, she felt obliged to drink it. The defendant told her that he had added red wine.

Indeed, such a bottle, that is of red wine, was found in the kitchen. But the defendant’s herbal creations, of which this was one, are in fact all based on vodka. He had several dozen bottles in his premises and further ones at home, all of which are based in vodka. This particular bottle that he had used for the drink was labelled “relax”. Samples of the vodka bottles, or rather, bottles which contained vodka revealed alcohol levels of between 47 and 39 per cent.

It was very soon after she had drunk her smoothie that she began to feel dizzy. However, she had agreed to give Reiki treatment to the defendant and so she began to do this. She stood, fully dressed, in front of the defendant, doing the Reiki treatment whilst the defendant reclined on the massage couch, also fully dressed. She suddenly found that she was not able to stand up and was almost asleep on her feet and it was then that she lay on the massage couch.

Ms Y was aware of the start of that massage because in order to do this, she had to take off the top she was wearing which was put on a chair at the side of the couch, and the next thing that she remembered was waking up, completely naked, and seeing the defendant in his underpants as he went to turn off the lights, and it was then that the defendant started to touch her, to kiss her breasts.

She found her muscles were very weak and she was unable to respond as the defendant began to rape her. Even her mouth muscles wouldn’t work properly and very weakly she was able to say ‘no’ several times. This did not of course stop the defendant from raping her. He used no condom but it is a fact that he did not ejaculate. From the several medicines for erectile dysfunction kept by the defendant for himself, it seems that this was his problem.

The defendant was saying that he loved Ms Y. For her part, she found it disgusting that he put his tongue into her mouth. She described it all as a dream where she would wake up one moment and then fall asleep again. Eventually, there came a stage when she was able to move, although very unsteadily, and she got dressed, and when it came to finding a bus, the defendant accompanied her to the stop. In fact, Ms Y slept through the bus stop that she should have got off at and eventually got back to her boyfriend’s address almost five hours after she had met the defendant in his premises, just after midnight.

The boyfriend described the victim of this rape as being in very bad shape. It was as if she was drunk and dizzy. She could hardly stand up and indeed she was leaning against the wall and she started to try to tell her boyfriend how a doctor had taken off all her clothes and then she suddenly stopped speaking. She took off her clothes in the flat where her boyfriend lives, saying that all her clothes were dirty, and then completely fell asleep, so much so that Ms Y’s boyfriend could not wake her up at all and that is why he decided to call, very sensibly, an ambulance. He said he had never seen her in such a state. He knew that she did not drink alcohol and never took drugs.

One of the more sinister features of this case is that the rape, without the knowledge of Ms Y, was video-recorded by the defendant on a tiny gadget which looked like a watch, an ordinary watch, which he kept at the side of the massage couch. From this film, it was perfectly apparent that Ms Y was powerless to do anything.

Mr Ng, in his mitigation speech, has accepted that there are a number of aggravating factors in this case and has said all he possibly could say in regard to a case where the defendant has shown no remorse at all.

In addition, I have been provided by the defence with several letters from the defence side. Those letters include one from his brother, one from his sister and also one from his wife who has stood by him. There are eight letters from former so-called patients or students of natural healing and there are three from church preachers. All of these letters ask for leniency and describe the defendant’s good qualities, including his kindness, generosity and consideration towards others in the field of natural healing and in the surroundings of the church of which the defendant apparently is a member.

It may be that in some cases, the defendant has been able to use his abilities to some good. But sadly, none of those letters seem to appreciate the gravity of the defendant’s offence or the fact that even the defendant accepted, in his evidence, that his so-called medicines were vodka based, not natural cures at all. Even he accepted that his medicines may have had herbs mixed in with alcohol but this was a vodka-based medicine and it can be by no means described, as he admitted, as a natural medicine cure.

The defendant told many lies to the police and to the jury and I do not accept, and nor indeed did the jury, the defendant’s fundamental assertion that he had given a concoction to Ms Y without realising that it contained a date rape drug. This was a completely different story to the one which he had given to the police. I am not going to go into the lies that he told because they do not add to his sentence in any way. But you can understand how Ms Y would have felt as his allegations made against Ms Y were broadcast in various media reports. They were all false, those allegations.

The aggravating features, it seems to me, in this case are really fivefold. First of all, the defendant held himself out to be a professional doctor in his field and he had all the hallmarks of someone who was properly qualified to practise in Chinese medicine, herbal medicine and physiotherapy. The medical questionnaire that Ms Y was asked to fill out could only have reinforced this impression.

Secondly, the drug flunitrazepam, which not only can cause deep sleep but also memory loss, had a devastating effect on Ms Y and it was not the only drug in her drink. The defendant had also added something called quetiapine which is an anti-psychotic drug used for patients with mental disorders such as schizophrenia and bipolar disorder.

Doctor Tang, who was the expert in psychiatry called by the prosecution, said that quetiapine would also have added to the sleepiness of Ms Y, so also would the vodka-based alcohol in her drink.

The defendant’s story at trial, which the jury clearly rejected, was that he had used a South American hallucinogenic concoction known as Ayahuasca, with ingredients that were unknown to him. This was plain, utter nonsense. He knew exactly what he was doing. He had deliberately added Rohypnol for the purpose of rape.

Thirdly, the defendant used no condom and for any victim of rape, when that happens, it can only add to the concern that they will feel for obvious reasons.

Fourthly, the defendant actually filmed the rape of his victim using this well-disguised camera which had the appearance of a wristwatch. This perverted act contributed to his eventual undoing as nothing could more clearly demonstrate that the victim was incapable of defending herself from the defendant’s attack.

And there is a fifth point as well. Some five and a half months earlier, the defendant had been arrested for doing to another young woman, who was referred to as Ms X, the same as he had done to Ms Y, that is giving Ms X a drink which had the same ingredient, flunitrazepam, in it.

For entirely technical reasons, nothing to do with the merits at all, that charge, at a very late stage, had to be dropped by the prosecution. But, and this is where it is relevant in this case, the defendant had been given a very serious warning because, at the time of Ms Y’s rape, he was on bail for an offence of exactly the same kind and this demonstrates that he had not been discouraged in the least.

That is why I say the defendant, for those reasons that I have just outlined, has shown not a grain of remorse. He has put Ms Y through the ordeal of reliving this dreadful event for her. The nature of the defendant’s defence, which of course cannot add to his sentence in any way, can only have been additionally disturbing to Ms Y.

That is why I turn now to the victim impact statement which was provided by Ms Janet Cho Chi-wai who is a clinical psychologist. She conducted all the usual psychological tests in order to give an accurate assessment of the impact of this crime, or these crimes, on Ms Y. She described in her report, which is dated 1 June this year, how Ms Y had referred to her life before the offence being a perfectly happy one. But now, after offence, she has developed symptoms of depression as well as anxiety despite having received counselling to tackle these emotional problems since January last year, 2016.

The psychological tests which Ms Cho then conducted confirmed that Ms Y had both depressive and anxiety symptoms and she added that the information gathered from the interview with Ms Y and from the psychological tests suggested that the defendant’s conduct had “evoked significant psychological distress”. Ms Cho has detailed, under headings ‘emotional wellbeing’, ‘daily functioning’, ‘traumatic response’, ‘social relationships’, ‘self-perception and other stressors’, all of which have revealed factors which have adversely affected Ms Y’s ability to cope with life after these offences.

I am not going to read the detail of the report; the defence have it, I have it and so, I imagine, does the prosecution. But it ends with a summary of her conclusions as follows:

“The present assessment indicates that she has emotional problems and post-traumatic stress symptoms related to the offence. Her daily functioning is being disrupted and she is less able to enjoy normal day-to-day activities. In addition, her trust in others is negatively affected because she was hurt by a professional who should be trustworthy. Moreover, she has become socially withdrawn. The loss of trust and social withdrawal will pose a negative effect on the client’s interpersonal relationships. The available data suggests that the client displays significant traumatised symptoms and significant emotional disturbances. In view of her situation, she is recommended to continue receiving psychological treatment to deal with the impact arising from the offence.”

Plainly, on any view, these offences have had the most dreadful effect on the victim.

For all the reasons I have outlined, this is an extremely serious case. It involves the defendant posing as a registered and qualified doctor who drugged a woman almost half his age in order to rape her, and whilst in the very act of rape, he filmed himself having sex with her, presumably to satisfy his perverted desires.

On Count 1, your sentence is one of 6 years’ imprisonment. On Count 2, your sentence is 10 years’ imprisonment. Two years of the sentence on Count 1 will be consecutive to the rape sentence on Count 2. In total, your sentence is one of 12 years’ imprisonment.

(Discussion with counsel)

I am sure you understood this, Mr Man. But the counts on which you have been convicted were 3 and your sentence is 6 years’ imprisonment; 4, your sentence is 10 years’ imprisonment and 2 years of the sentence on Count 3 will run consecutively to the sentence on Count 4, making 12 years in all.