HKSAR v. L.G.P.

HCCC 85/2021

[2021] HKCFI 2631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 85 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of attempted rape[1] and one count of indecent assault[2] before a Magistrate, admitted to the summary of facts and was committed to the Court of First Instance for sentence. He confirmed his pleas and admissions and was duly convicted at the sentencing hearing.

2.  Respective particulars of the two counts are that the defendant on 29 May 2020 attempted to rape and indecently assaulted X at a unit in On Tin Estate, Lam Tin.

Summary of facts

3.  The defendant is the stepfather of the victim, X.  He got married to X’s mother in 2016 and came to Hong Kong on his two-way permit in February 2020.

4.  The defendant resided at the offence location, together with X, the mother of X, brother of X and X’s 2-year-old younger brother born to the defendant and X’s mother.

5.  The defendant, his wife and the 2-year-old lived in one room while X and her brother had their own room.

6.  At around 10 am on 29 May 2020, while X was sleeping in her upper bunk bed in her room, the defendant entered and crawled into her bed.  The defendant was naked above the waist and wearing a pair of shorts.  The 2-year-old was the only other person in the unit at that time.

7.  Once in bed, the defendant fondled X’s breasts and private part with his hands, forcibly kissing her on her face and breasts.  X put up a struggle and yelled for help.  The defendant ignored her and took off her underpants, pulled up her pajama t-shirt, exposing her breasts and continued to molest her.

8.  The defendant then lifted up X’s legs and touched her private part with his hand.  He did not insert his finger into her vagina.  X saw that the defendant’s penis was erect and not wearing a condom.

9.  X resisted and tried to leave but was overpowered by the defendant.  X held her legs tight during the ordeal.  She felt the defendant’s penis touching her private part but there was no penetration.  These are the facts relating to the attempted rape in count 1.

10.  The defendant then held on to X’s right hand and forced her to masturbate him.  A few minutes later, the defendant forced X to perform oral sex on him.  The defendant eventually ejaculated inside X’s mouth.  X immediately spat out the semen into some tissue papers.  These are the facts relating to the indecent assault in count 2.

11.  The whole incident lasted some 40 minutes.

12.  X tidied herself up and left the flat after the defendant went back to his room.  At about 2:30pm, X went to her mother’s work place and told her that she was almost raped by the defendant.  X was emotional and crying.

13.  They went to report the matter to the Police at 3:45pm.

14.  The defendant was arrested and admitted to indecently assaulting X under caution.  In the subsequent video recorded interview, the defendant claimed that he assaulted X out of impulse.  That he was stressful because of the great discrepancy of social status between himself and his wife, which caused him to be unable to control his sexual impulse.

15.  X was examined on 29 May.  She was found to have sustained fresh bruising on her right elbow and bilateral shins and abrasion on the left knee.

X’s victim impact report

16.  According to X’s impact report dated 3 August 2021, Clinical Psychologist Ms Lam finds that X suffers from Post-traumatic Stress Disorder, with distressing flashbacks of the incident and has become more anxious and hypervigilant in general.  Psychological treatment will be rendered to X.

Previous convictions

17.  The defendant has no previous convictions.

Background and mitigation

18.  The defendant was born in mainland China and is 45 years old.  He was educated up to senior high school level.  The defendant’s father had passed away.  His mother is a farmer.  One of the defendant’s elder brothers is a doctor, the other a labourer.  They all reside in the mainland, which is where the defendant intends to return after his release from prison in this case.

19.  The defendant’s first wife died from cancer in 2007.  They have a daughter from that marriage and the relationship with his daughter and grand-daughter is good.

20.  The defendant met his second wife online in 2015 and got married a year later.  The defendant moved to Hong Kong after this marriage.  He used to work as a machinist and welder earning around 20,000 Renminbi.  In Hong Kong, the defendant’s wife works as an accountant’s clerk while he took care of domestic duties.

21.  It is submitted in mitigation that the defendant is “unspeakably remorseful”, as shown in the defendant’s own letter, and that he committed the offences out of his “momentary urge” and were not premeditated.  Without meaning for it to be an excuse, it is the defendant’s case that he had been verbally abused and insulted by his second wife over a long period of time.

22.  Mr Yuen for the defendant pointed out that the victim was an adult at the time of the offences; that the ordeal lasted around 40 minutes only, and it only happened once.  The defendant used limited physical force and did not make any threats.  The attempted rape stopped at a very early stage and there was no penetration because the victim had held her legs together.

23.  As a result of this case, the second wife had divorced the defendant and she and the victim had cut all contacts.  The defendant has also lost custody of their son.  The defendant, Mr Yuen submits, has lost everything.

24.  A Psychologist’s Report was prepared on the defendant.  Clinical Psychologist Ms Yeung finds that the defendant has inadequate stress management and problem solving skills.  As a result, the death of the defendant’s first wife made a big impact on his life and he likely suffered from depression in the two years that he was not able to work after her death.

25.  Since coming to Hong Kong and marrying his second wife, the defendant has been stressed by his new role of a homemaker, relying on his wife to support the family financially.  The defendant felt exhausted by the chores, felt worthless, lonely, bored and isolated at home.  Ms Yeung believes that the high level of stress caused a lowered level of self-control, but at the same time increased the defendant’s craving for intimacy and stimulation, likely leading to his commission of the offences against his stepdaughter.

26.  Ms Yeung, however, finds no signs of antisociality, sexual preoccupation or deviant sexual interest in the defendant, and his risk of re-offending is assessed as low.

Sentence

27.  The maximum sentence on conviction upon indictment for the offence of rape is imprisonment for life.  An attempt to commit the offence carries the same punishment.

28.  The maximum sentence for indecent assault is that of 10 years’ imprisonment.

29.  In the case of Secretary for Justice v Leung Yuet Hung[3], the Court of Appeal assessed that in cases where there are no aggravating or mitigating factors, the usual starting point for an offence of rape tends to be in the order of 5 years’ imprisonment.

30.  The Court stated that it is not safe nor logical to assume that an attempted rape is necessarily less serious than the full offence, and as with all sentencing, everything depends on the facts of the case, to be looked at in the round[4].

31.  The Court considered that there is validity in the statement that “The starting point for attempted rape should normally be less than for the completed offence, especially if desisted at a comparatively early stage.  But… attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence[5].”

Aggravating features

32.  The Court of Appeal also set out in Leung Yuet Hung some features which are to be regarded as aggravating the seriousness of an attempted rape:

“35. Aggravating factors to which the cases (Billam and Millberry above, and HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427)  allude include, but are not restricted to, the following:

(1)  the victim is very young;

(2)  a weapon is used to frighten the victim;

(3)  the sexual offence has been carefully planned;

(4)  violence is used over and above the force necessary to commit the sexual offence;

(5)  the offender has broken into or otherwise gained access to the place where the victim is living; and

(6)  the offender has used no safety measures in sexually abusing the victim so as to avoid transmitting venereal disease or causing pregnancy.”

33.  I turn to consider the present case.

34.  X was 22 at the time of the offence and would not be regarded as very young.  According to the summary of facts that the convictions are based upon, no weapons were used and no threats were made.  There is no evidence that the defendant had been planning to commit the offences.  The force used appears to not have been over and above what was necessary to commit the offences.  Most importantly, after his penis had touched the private part of X, the defendant did desist from raping her, although he did then commit the second offence.

35.  On the other hand, there are present the following aggravating factors.

36.  The defendant did not use a condom.

37.  Although there was no breaking in, X was assaulted in her own home.

38.  The most serious aggravating factor in this case is that the offence was committed by someone in a position of trust, by X’s own stepfather, making it a blatant breach of trust situation.

39.  I find that the fact that the defendant has bad stress management skills is a personal circumstance of his, and it is trite law that such would not warrant a reduction in sentence.  I see no reason to depart from this norm.

40.  Having considered all the circumstances, for the attempted rape, I will adopt a starting point of 4 years and 3 months’ imprisonment and enhance it by 1 year for the said 3 aggravating factors, leading to a sentence of 63 months’ imprisonment.

41.  The defendant is given the full one-third discount for his timely plea of guilty and sentenced to 42 months’ imprisonment for count 1.

42.  As for count 2, given the high level of indecency, the serious breach of trust, and the fact that sexually transmitted diseases can enter the blood stream through broken linings inside the mouth, making the failure to use a condom when the defendant ejaculated in X’s mouth an aggravating factor, I will adopt a starting point of 2 years’ and enhance it to 2 years and 6 months’ imprisonment.

43.  The defendant is granted the full one-third discount for his timely guilty plea and sentenced to 20 months’ imprisonment on count 2.

Totality

44.  The defendant could have stopped after the attempted rape.  Yet he chose to subject X to more trauma and humiliation by forcing her to perform oral sex on him, resulting in his ejaculating in her mouth.  Having said that, the indecent assault can arguably be said to almost be part and parcel of the attempt to rape X.

45.  Taking a step back, I find that 6 months of the sentence in count 2 should be served consecutively to the sentence in count 1, the balance concurrently.

Final sentence after plea

46.  The defendant is, therefore, sentenced to a total of 48 months’ imprisonment for the two counts after plea.