HKSAR v. LO TAK SHING

HCCC 229/2024

[2025] HKCFI 2991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 229 OF 2024

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REASONS FOR SENTENCE

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The Charge

1.  On 15 July 2024, the defendant pleaded guilty in the magistracy to one count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap. 200.  On the same day, he admitted a Summary of Facts dated 8 July 2024 and he was committed to the Court of First Instance for sentencing.  Today, before this Court, the defendant confirmed his guilty plea to the rape charge and his admission of the Summary of Facts.

Facts Admitted

2.  The facts of the case can be summarized as follows.

3.  The victim in this case (“X”) was a female aged 30 who was a mentally incapacitated person suffering from mild grade intellectual disability with extremely low intelligence. 

4.  In the morning of 30 May 2022, X’s mother (“Y”) brought X with her to work in Sai Ying Pun but soon discovered that X had gone missing.  X had left Y to go to a Buddhist temple in Wong Tai Sin (“the Temple”) which X had often visited.

5.  In the early hours of 31 May 2022, X got lost in Wong Tai Sin and saw some men, including the defendant, who were drinking at an outdoor food stall.  She asked the defendant for directions.  The defendant asked whether she was hungry and he bought her a meal and a drink.  The defendant then brought X to a park where she finished her meal.  After that, the defendant took X to his home.  On the way home, the defendant held her hand although X did not like it and was unable to fling his hand off.

6.  When they arrived at the defendant’s home, the defendant asked X if she felt hot and whether she wanted to take a shower.  He then removed all her clothes and undergarment.  X felt uncomfortable and asked him to let her shower by herself.  She was then terrified but dared not shout for help as it was already past midnight and she thought the neighbours would all be sleeping.  She was also afraid that the defendant might attack her.  She wanted to escape but did not know how to open the gate.

7.  X then went to the bathroom to take a shower.  She told the defendant to let her shower by herself but the defendant entered the bathroom and joined her in the shower.  During the shower, the defendant kissed X’s lips and her breasts many times against her will.  She had tried to push his head away but he persisted in kissing her breasts.  The defendant then pushed X towards the toilet and had sexual intercourse with her.  She did not consent to the intercourse and had told the defendant that she did not agree to it.  During the intercourse, X felt very uncomfortable and painful and there was blood.  She was terrified and tried to push him away but failed as he was too strong and heavy.  She told him that he could not do that and that she would call the police, but the defendant did not listen and persisted.  The incident lasted for around 30 minutes.

8.  After the incident in the shower, X and the defendant went inside the bedroom where they slept on the same bed.

9.  In the morning, the defendant walked X to the Temple before leaving for work.  Later that night, Y picked X up at the Temple and sent her home.  When Y asked X where she had gone the night before, X revealed the incident to her.  The case was then reported to the police.

10.  When the defendant was arrested for the offence of rape, he admitted under caution that he had “done it” with her.  In his video-recorded interview, he admitted, inter alia, that at his home, he had gone inside the shower with X; he had kissed her lips and breasts and rubbed his penis against her vagina; he had not asked whether she agreed to it; he had had sexual intercourse with her during which no condom was used and he did not ejaculate.

Background and Mitigation

11.  The defendant was born in the Mainland in 1964 and is now aged 61.  He was married but has separated with his wife for about 10 years.  He has a son who is now aged 31, a bank financial planner.  Prior to his arrest, the defendant lived alone.

12.  He was educated up to Form 2 in the Mainland and has worked as a chef for about 40 years.  He last earned a monthly salary of about HK$20,000. 

13.  The defendant has a clear record.

14.  His counsel, Mr. Luk, told the Court that by pleading guilty at the first opportunity, the defendant demonstrated his genuine remorse.  Since his remand in custody on 15 July 2024, the defendant has had deep reflection on his wrongdoing.  Mr. Luk explained that the offence arose from the defendant’s poor control of his momentary sexual impulse.  The defendant has a clear record.  He has now learnt a bitter lesson and he promises the Court that he will not re-offend in the future.  The defendant expresses his deep remorse and determination to turn a new leaf.

15.  Mr. Luk has submitted two letters written by the defendant’s siblings and son in mitigation.  In their eyes, the defendant is a person with a good heart who has always worked hard to care and provide for his parents and family.  They also confirmed his genuine remorse for the offence and for not being able to take care of his 90-year-old mother.  They all pleaded for leniency in sentencing.

Sentence

16.  The Court was minded to call for a victim impact statement from the victim but was informed by the Prosecution that X has refused to take part in any assessment.  I am therefore not assisted by such a statement; nonetheless, given the circumstances of the offence, I will infer the existence of some level of trauma suffered by X and her family as arising from the offence.  

17.  The Court of Appeal has reiterated in many recent cases that the sentencing principle involving sexual assault on a child may be applied to sexual assault on a mentally incapacitated person: the Court has to protect innocent, trusting children and prevent vulnerable persons from sexual assault which would cause them physical and psychological trauma; and it is necessary for the Court to adopt deterrent sentences to deter others from committing similar offences.  Such deterrent sentences are to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families: see HKSAR v Chan Ching Ho [2000] 3 HKLRD 476; HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427;  HKSAR v L.C.H. (CACC 435/2015, [2016] HKEC 1324, 15 June 2016); and HKSAR v Leung Ping Kuen [2020] 3 HKLRD 600.

18.  There are, broadly, three dimensions to consider in assessing the gravity of an individual offence of rape.  The first is the degree of harm to the victim; the second is the level of culpability of the offender; and the third is the level of risk posed by the offender to society.  It will always be necessary to consider an individual case as a whole taking into account the three dimensions.[1]  The English Court of Appeal indicated that an enhanced starting point of eight years’ imprisonment would be considered in a case of rape where there is present any of seven identified aggravating features including rape of “a victim who is especially vulnerable because of physical frailty, mental impairment or disorder”.  It is essential that, having taken the guidelines into account, sentencers stand back and look at the circumstances as a whole and impose the sentence which is appropriate having regard to all the circumstances.[2] 

19.  In the present case, there were aggravating factors involved in the commission of the rape offence. First, the victim was a mentally incapacitated person who was “especially vulnerable because of mental impairment” and Mr. Luk confirmed that the defendant was aware of this at the time of the rape offence; secondly, the rape was conducted without protection although the defendant claimed that he did not ejaculate during the intercourse; and thirdly, there was some level of force exerted on the victim during the offence which terrified her and caused her pain. 

20.  On the other hand, the offence was apparently spontaneous and not pre-meditated; and prior to the offence, the defendant was a person with a clear record and the offence was completely out of character.  I am inclined to accept that the defendant committed the offence due to very poor control of his momentary sexual impulse on that occasion, and that he is not likely to commit a similar offence in the future. 

21.  Standing back and looking at all the circumstances as a whole, I would use a starting point of 8 years and 6 months’ imprisonment for the rape offence in the present case.  By virtue of the defendant’s guilty plea, I will discount the starting point by one-third, reducing it to 5 years and 8 months’ imprisonment.  Given the seriousness of the offence, I do not see any other mitigating factor that is applicable to the present case.  The defendant is thus sentenced to a term of 5 years and 8 months’ imprisonment.

Exhibits

22.  Order in terms of the Prosecution’s application, not objected to by the Defence, was granted.