HKSAR v. SUN YUK CHEUNG

HCCC 261/2017

[2018] HKCFI 1029

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 261 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant is charged with one count of attempted rape with one count of indecent assault as the alternative. He pleaded not guilty to both counts. After trial, he was found guilty by the jury of the offence of attempted rape. In sentencing, I have considered the whole circumstances of the case, including the nature and facts, background of the defendant, mitigation put forward on his behalf, as well as the cases submitted by the prosecution which are Secretary for Justice v Lau Yun Leung [1999] 4 HKC 1, and Secretary for Justice v Rashid Mahmoud [2012] 3 HKC 138.

The complainant and the defendant came to know each other during their participation in the Occupy Central Movement. They remained friends afterwards and had occasionally came out for meals. The incident took place on the New Year Eve of 2017. Prior to that, they had not met for at least several months. On the initiation of X, they met. They were joined by a common friend, Au, upon the invitation of the defendant. They bought alcohol and snack and went to the staircase of the building where the defendant was living. There they had an enjoyable time for about three hours, drinking and chatting until the New Year Day.

The complainant was under the influence of alcohol. She vomited and wanted to have rest. She went to the home of the defendant and slept in his bed. Some time later, she woke up. The defendant kissed her. She responded by kissing him back, thinking that the defendant was showing a gesture of concern. Then the defendant touched her breasts. She felt offended and did not consent to the act of the defendant afterwards. She stopped kissing and pushed his shoulders. He ignored her and continued to kiss her and touch her breasts.

Further, he touched her vagina over her shorts with his fingers. She pulled his hand off. Then the defendant took off her upper garments. She tried to resist but could not stop him. The defendant then kissed her breasts. He also put his hand into her underpants and inserted his finger into her vagina. She tried to pull his hand out but was not able to do so. She moved her lower body to resist. The defendant then pulled her lower garments down, despite she had tried to prevent this by holding on to the waistband.

When she was wholly naked, she asked the defendant to let her off. The defendant told her to close her eyes and imagine he was her boyfriend. He then spread her legs and licked her private parts. She tried to push his head and moved her body backward. The defendant pulled her over to him and put his erect penis to press against her vagina. He said to the complainant: “I would not enter fully, just a little.” She kept moving her body to prevent him from entering and asked the defendant to let her off. The defendant told the complainant to let him aim at the right position and kept pressing his penis against her private part. She felt a little bit painful and asked the defendant to let her off, saying it is not meaningful at all. Then the defendant stopped and laid beside the complainant. Shortly afterwards, the alarm clock went off. Eventually, they put on clothing and left the defendant’s home together.

The defendant is now 26 years of age. He received education up to Form 3 and is an assistant hair stylist. He lives with his parents in a public housing flat. At the time of the offence, the defendant did not have any previous conviction. However, at the time of arrest, he was found in possession of dangerous drug and related equipment. For these offences, he was fined. This has no significance in the sentence in the present case.

In mitigation, learned counsel for the defence, Mr Chau, urged the court to take into account that this was an attempt, not full offence, and that there is no aggravating feature. Despite there was no protective measure, he urged the court to note that there was no penetration. The defendant stopped his conduct upon his own volition. He told the court that the defendant’s parents divorced when the defendant was studying at a kindergarten and he seldom saw his mother afterwards who has remarried. His father also remarried when the defendant was studying at upper primary level. The defendant finished education at Form 3 and started to pursue a career as hair stylist. Mr Chau also stressed that the defendant had no criminal record at the time of the offence.

Rape is a serious offence as it is physical violation of the victim’s body in an intimate way. It involves such intimate proximity between the offender and the victim and is an abuse of conduct which can be an important means of expressing love. It involves severe degree of emotional and psychological trauma on top of whatever physical harm it might have caused.

The defendant is found guilty of attempted rape, not rape. Whether it carries lesser culpability depends on the circumstances of the case. Sometimes attempted rape can be as bad as the full offence. In my judgment, I do not think the present is such a case. In sentencing, I have to take into account the whole circumstances as disclosed by evidence.

Both the defendant and the complainant are young adults. There is no evidence of premeditation. The defendant did not use any violence on the complainant, nor was the complainant subject to perverse act or degradation. The defendant stopped action not as a result of forceful resistance of the complainant or incapacity on his own part. However, he did not desist as soon as the complainant first asked him to let her go. The verdict is a clear indication that the jury found the defendant must have the knowledge that the complainant was not consenting or at least reckless as to whether or not she consented.

Despite the complainant had indicated that she was not consenting, the defendant inserted his finger into her vagina and rubbed her vagina area with his exposed penis. There is no reason to think that the complainant does not suffer a degree of emotional or psychological harm which can reasonably be expected of a case of this nature. I have to take into account that before the day of the incident, the defendant had been living a law-abiding life.

In all the circumstances, I am of the view that only a starting point of 4 years is sufficient to reflect the seriousness of the case. Having considered the whole circumstances and having regard to the mitigation submission, in my judgment, this is the appropriate length of sentence to impose.

Now, Defendant, please stand up. For the reasons I have said, I sentence you to 4 years’ imprisonment for the offence of attempted rape.