HKSAR v. SHAHID IMRAN YOUNAS

HCCC 153/2018

[2018] HKCFI 2494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 153 OF 2018

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

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COURT:

Background and the Facts

The accused pleaded guilty to one charge of rape and one charge of theft at the Eastern Magistrates’ Courts on 7 May 2018. Before me, he confirmed his pleas and accepted the Summary of Facts. He was accordingly convicted of both charges.

Briefly, in the small hours of 15 September 2017, the 29‑year-old complainant, after returning to her home and upon realising that she had lost her headband, went to look for it. After picking it up, she then walked to the pavement nearby to smoke. After a while, the accused, a stranger, approached her. The accused looked at the complainant’s cigarette and did a gesture. She ignored him and returned to her home building. After she had opened the metal gate, she saw the accused following her. She shouted but the accused grabbed the metal gate, rushed towards her, covered her mouth and pressed his chest against her back. In the process, the complainant kept struggling and tried to push the accused away but in vain.

The accused then dragged the complainant to a staircase inside the building. After she had said, “I will be quiet,” he loosened his grip. The complainant gave a packet of cigarettes and a lighter to the accused which he put into his trousers pocket. Afterwards, he grabbed her hand and covered her mouth, forcing her to walk along the staircase to the rear gate and telling her to keep quiet. At the time, the complainant felt very scared and dared not struggle because of the accused’s strong build.

When they were near the rear gate, the accused made the complainant turn around and face him. He then kissed her, the complainant tried to turn her head away but the accused held her face and kissed her forcibly for a few seconds. She struggled and tried to flee but he grabbed her and pushed her onto the staircase.

Seeing that the complainant had a mobile phone, the accused took it away and put it into his trousers pocket. This is the subject matter of the theft charge. Then, he pulled down his own trousers and underpants, lifted up the complainant’s skirt and put his penis near her private parts. Hoping that the accused would let her go if she offered to perform oral sex for the accused, the complainant said, “Mouth, mouth.” She then sat on the staircase and performed oral sex for the accused for about two minutes.

Afterwards, the accused lifted up the complainant’s legs onto his shoulders. She was very scared and kept moving her body. However, the accused held onto her legs tightly. She shouted but he covered her mouth and told her to be quiet. The accused tried to insert his penis into the complainant’s vagina but she immediately moved her body away. He then put her onto the floor and made her bend over. While the accused was standing behind her, the complainant felt something being inserted into her vagina. In the course of this, the complainant sustained an abrasion of 1.5 centimetre x 0.5 centimetre on her elbow because her elbow was touching the floor at that time.

Next, the accused turned the complainant around, grabbed her legs and again put them on his shoulders. He then inserted his penis into the complainant’s vagina for about 10-odd times. No condom was used. During the penetration, he also licked the complainant’s mouth and left breast for a few times.

After the penetration, the accused masturbated himself. When the complainant tried to leave, he pulled her back. The accused then helped the complainant tidying up herself. Later, he took out a pen and asked the complainant to write down her phone number and flat number. The complainant did as told because she was afraid that he would not let her go if she refused. When the complainant returned home, she made a report to the police.

Two days later, on 17 September 2017, the accused was intercepted by the police and the complainant’s mobile phone was found on him. He denied committing any offence. Subsequently, the forensic examination of the complainant’s external anal swabs and her underpants revealed the presence of the accused’s semen.

The Accused’s Background and Mitigation

The accused was born in Pakistan and was educated there up to Secondary 3 level. Upon the application made by his father, the accused came to settle in Hong Kong in 1994. He is now aged 36 and he previously worked as a salesman. At the time of his arrest, he was jobless and was receiving CSSA.

The accused has got 11 criminal convictions, four drugs-related, four dishonesty-related and one violence-related. He was last sentenced to a term of 3 years and 3 months for burglary in June 2015 and was discharged on 10 April 2017. However, within just half a year, the accused committed the present offences.

Mr Percy for the accused told the court that both parents of the accused had now passed away and he had no fixed place of abode in Hong Kong, living wherever he could find shelter. At the time of the offence, he was living in a stairwell near the complainant’s residence. Mr Percy, however, emphasised that the accused only came across the complainant accidentally on the day in question and it was not a planned rape. At the time, having been rejected a cigarette, the accused considered the complainant’s rejection as a slight on him. He then followed her into the building where the offences were committed.

Mr Percy correctly accepted that this was a very serious case but he submitted that when the accused helped the complainant tidying up herself, that was the beginning of his remorse, the full extent of which was shown when the accused pleaded guilty to the charges at the committal stage, thus saving the complainant from recounting the events and from the inevitable distress and embarrassment associated with testifying in court. Mr Percy, however, confirmed that he was not seeking any particular reduction on top of that given for the accused’s guilty pleas but that this matter be taken into account.

In respect of the victim impact report which was before this court, Mr Percy accepted that there was damage to the psychological well-being of the complainant and that the impact would be long-lasting.

As regards the theft charge, Mr Percy submitted that it was not a premeditated act. Relying on HKSAR v Yik Man Ying [2015] 4 HKLRD 700, he submitted that a starting point of 3 to 4 months would be appropriate given that the phone was recovered. Further, Mr Percy urged this court to order concurrent sentences as the theft and the rape could be regarded as one course of conduct.

The Victim Impact Report

The complainant attended an interview with a clinical psychologist on 31 May 2018. It was revealed that she found the rape incident terrifying, damaging and horrible. Throughout the incident, she felt powerless and overwhelmed. She extremely feared being hurt by the accused’s physical violence or his weapon, if any. It was also reported that during the forensic examination, the complainant cried hysterically and uncontrollably for hours.

The day after the rape, the complainant moved out from her premises and she dared not return home. According to the report:

“She lost her home and had to start anew somewhere else. She also found that her occupational functioning was affected. She had concentration difficulties and felt depersonalised.”

Jumping a bit:

“...displayed sexual post-traumatic stress symptoms characterised by severe avoidance response, intrusive recollections of traumatic experience, dissociation, unreasonable and unpredictable anger outbursts and sexual dysfunction.”

Again jumping a bit, “She felt fearful and frightened about sex”. Jumping a bit:

“Emotionally, she harboured senses of self-blame, powerlessness, emptiness and confusion. Her sense of self-confidence was damaged.”

In conclusion, it was said that the complainant is tremendously disturbed emotionally by the sexual assault trauma and she needs psychological treatment which would be provided to her.

Sentencing Considerations

There are no tariffs for the offence of rape. This is understandable for the facts could vary greatly from one case to another.

In SJ v Leung Yuet Hung [2014] 3 HKLRD 304, the Court of Appeal observed at paragraphs 22 to 24 that while a number of judgments in this jurisdiction had echoed the statement that “the starting point in Billam is not one which necessarily should be used as the starting point in Hong Kong”, the court’s assessment is that it still tends to be in the order of 5 years for rape committed by an adult without any aggravating or mitigating features.

At paragraph 35 of the judgment, the Court of Appeal then identified a list of aggravating factors which is of course not an exhaustive list.

Sentencing in This Case

On the facts of this case, there are plainly a number of aggravating factors which include:

(1) Invasion into the building in which the complainant resided;

(2) The use of force in grabbing, dragging and pushing the complainant, kissing her forcibly; covering her mouth and making her bend over;

(3) Carrying out the intercourse without any safety measures;

(4) Prolonging the ordeal by making the complainant go from one place to another; kissing her forcibly; making her bend over and sexually assaulting her from behind; then turning her around to insert his penis; as well as masturbating himself in front of her;

(5) The threat implicit in asking the complainant to write down her phone number and flat number at the end of the assault; and

(6) The severe impact on the psychological well-being of the complainant.

Insofar as the invasion into the complainant’s building is concerned, that is a serious aggravating factor as pointed out by the Court of Appeal at paragraph 43 in the judgment of Leung. No doubt that is for in the present case, the complainant was forced to move out from her premises the very following day after the rape and even until the time of the report, she dared not return home. It is not difficult to imagine how destructive the moving out was to the complainant because, through no fault of her own, she had to start afresh in a completely new environment with a constant reminder that such was the result of a cruel and serious violation of her person.

As regards the impact of the rape on the complainant, Mr Percy rightly and fairly accepted that the trauma would be long-lasting. In fact, it is evident from the victim impact report that the effect of the rape is devastating and that the complainant still has a lot to overcome.

I am, of course, mindful of the Court of Appeal’s observation at paragraph 46 of the judgment in Leung that:

“Aggravating features are not reflected in sentence according to some mathematical formula for each factor; it is a question of overall and sensible assessment.”

In this case, standing back and looking at matters in the round, I take the view that for all the aggravating factors identified above, the starting point should be enhanced from 5 years to 9 years.

In respect of the theft of the complainant’s mobile phone, I do not consider the authority of Yik submitted by Mr Percy to be of any assistance. The facts in that case were very different from what happened here to the complainant. In the circumstances of this case, the accused clearly took advantage of the complainant’s fear and helplessness when taking, or snatching, her mobile phone away. Moreover, it is obvious that such conduct had, at the time, added to the complainant’s anxiety for she would be worried as to what more would happen to her apart from the sexual assault and the taking away of her mobile phone. As mentioned in the report, the complainant:

“...extremely feared being hurt by the stranger’s physical violence or his weapon, if any. Hoping to survive from any possible physical injury, she dared not cry out loudly for help, struggle fiercely or act defiantly against the stranger.”

In HKSAR v Yeung Kam Tung, CACC 427 of 2012, 19 March 2013 unreported, the applicant engaged a young lady in a conversation and snatched her mobile phone while she was walking home in the corridor of her building at night time. With the assistance of her neighbours, the phone was recovered. The Court of Appeal considered that, on those facts, a starting point of 12 months was appropriate.

Returning to the instant case, given the background and the facts of the theft of the complainant’s mobile phone and the matters mentioned above, I consider that a starting point of 12 months is appropriate.

Moreover, I note that the accused has got three theft convictions in 2008, 2012 and 2013 in respect of which he was variously fined, given a probation order and imprisoned for 3 months. Then, as mentioned earlier, in 2015, he was sentenced to a term of 3 years and 3 months for the offence of burglary. He had just been released from prison for about half a year when he committed the present offences. Given that the accused committed yet another theft shortly after his arrest, I consider that the previous sentences passed on him have not had sufficient deterrent effect.

I take the view that, for additional deterrence, there should be a 3-month enhancement of the sentence for the theft in the instant case. With this upward adjustment, the starting point is one of 15 months for the theft charge.

The accused pleaded guilty at the committal stage. I would give him the full one-third reduction in sentence.

For the rape offence, 9 years reduced by one-third is 6 years’ imprisonment. For the theft offence, 15 months reduced by one-third is 10 months’ imprisonment.

These are separate offences. Although Mr Percy urged upon me that the two offences could be regarded as one course of conduct, I do not agree. The theft was wholly unnecessary and was a separate and distinct conduct from the rape. As stated above, it is my view that the theft had added to the complainant’s anxiety and feeling of helplessness at the time of the rape. Therefore, I consider a partly consecutive sentence would appropriately reflect the accused’s overall culpability in this case.

What remains for me to consider is the totality principle. Taking into account the criminality of the accused and the factors mentioned above, I take the view that an overall sentence of 6 and a half years after reduction for his pleas is appropriate in this case.

To achieve this result, I order that 6 months of the 10-month sentence for the theft charge be served consecutively to the 6-year term for the rape charge, the remaining 4 months to be served concurrently, making a total of 6 and a half years’ imprisonment.