HKSAR v. CHAN HO NAM AND OTHERS

HCCC 535/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 535 OF 2013

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The four defendants, please stand up. The four defendants were convicted after trial by jury of one count of rape.

Evidence during the trial revealed that the four defendants, shortly after their acquaintance with the victim who lived upstairs from where the four defendants worked, invited her out for a drink one night. They went to a pub and alcoholic drink had been consumed.

By the time they finished their night, their drink and left the pub, the victim started to show signs of unsteadiness and dizziness. The four defendants then decided to take the victim home. When they reached the victim’s home, they however decided to stay behind.

Shortly afterwards, each of them took their turn in raping the victim. CCTV video also captured the four defendants left the premises together afterwards. All four defendants at the time, were only 16.

It was further revealed during the trial that shortly before their departure from the pub, two of the four defendants, on instructions from the 1st accused, went to a convenience shop and purchased a packet of condoms.

Although it is accepted that the victim was not subjected to excessive violence during her ordeal, force was nevertheless used to overcome any resistance put up by her. By the time the victim was raped by the 3rd and the 4th accused, she was already exhausted, could no longer put up any resistance.

Needless to say, the victim was severely traumatised by the ordeal. That can be seen firstly, from her cutting her wrist as depicted on the WhatsApp message which she sent to the defendants. Secondly, the victim stated in her evidence that she, at one stage, wanted to commit suicide but for the fact that she needed to take care of her mother and her daughter.

The victim who was, at the time, only 19 had been subjected to a degrading act of gross indecency. The offence was planned and that the victim was raped by four men. The ordeal lasted more than an hour. Undoubtedly, the ordeal would hardly be forgotten and would have haunted the victim for the rest of her life.

Because of the defendant’s age, I adjourned their sentences on the last occasion so as to obtain further background information. Save and except the 3rd accused who declined to provide any information to the probation officer, the other three defendants’ background reports indicate that they were all under achievers in school. They all failed in their academic studies. In fact, none had completed their secondary educations. In short, after leaving school, they hopped from job to job.

Although technically, none of them have any criminal convictions, three of them, in fact, had their brush with the law prior to the present event.

In The Secretary for Justice v Habib Ahsan & Others CAAR 2/2002, the Court of Appeal in reviewing the sentences of three defendants who committed gang rape on an Indonesian worker came to the view that the appropriate starting point in that case should be increased from the original 6 years to one of 10 years’ imprisonment. The sentence was increased in order to reflect the gravity of the offence.

The seriousness of the offence in the present case is, in my view, only marginally less than the one I have just mentioned, in the sense that the victim in the present case was not abducted. However in the present case, as I said, the victim was raped by four, not three. One must also not overlook the fact that in the present case the four defendants abused their trust placed on them by the victim.

The victim trusted the four defendants and treated them as friends before she agreed to come out for a drink. So instead of being raped by strangers, the victim was raped by trusted friends. That, in my view, is also an aggravating factor. The only reason that this court will not adopt a starting point of 10 years is simply because of the four defendants’ youth.

It was submitted by counsel that a rehabilitative approach should be adopted. I disagree. In my view, the offence that the four defendants committed was so grave that little weight can be placed upon their youth. Youth pales into insignificance of the magnitude of the offence. Nevertheless, I am prepared to slightly reduce the sentence. Having considered all the factors, a starting point of 9 years is adopted for each defendant.

Each of the four defendants took part in raping the victim. Their roles were more or less the same, although one could readily see that the initiator in this case was the 1st accused. Although the 1st accused initiated, the others followed, so their culpabilities are more or less the same.

Each of the four defendants was convicted after trial. Each of them showed little remorse for what they did. None, in my view, deserve any sympathy or mercy.

In conclusion, each defendant is therefore sentenced to 9 years’ imprisonment.