HKSAR v. LEE HONG TO

HCCC 398/2017

[2018] HKCFI 647

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 398 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, on 30 October 2017, you pleaded guilty to an offence of rape at the Eastern Magistracy. As a result of your plea of guilty, you have been committed here to the Court of First Instance for sentence.

You admitted that on 12 December 2016 at your house in Fanling, you raped X. X was aged 23 at the time of the rape and you were 31 years of age. It is clear from the facts of this case that you had been girlfriend and boyfriend. You had become involved in an intimate relationship. You met and became intimate in February 2015. Approximately three to four months later, she moved in to cohabit with you at the flat. Up until the time of this offence, you were in a relationship with her for approximately 22 months.

In December 2016, she decided to break up with you and you had a discussion about your relationship. You became emotional and did not want to break up with X. On the day in question, that is 12 December, X decided to meet you to tell you that she truly wanted to break up and she told you to meet her at the park near your home. X was worried that she would be in danger if she met you alone and, therefore, asked a male friend to go with her. At around 12 pm that day, she met you in the park. You kept on begging her to reconcile with you, but she refused. She requested to get back her personal belongings from your home. She told you to wait for her at the lobby of your home because she did not want you to go to your home with her.

Her friend, PW2, hid and watched you both from a distance. X then went to your home building and took the lift to your flat on her own. She then discovered that you had gone up the stairs and reached the same floor. She felt scared and took the lift to return to the lobby and left your building. Later, you found her in the park. Again, you asked her to reconcile with you, but she firmly rejected you. You then came agitated. Without your knowledge, X switched on the voice recorder of her mobile phone. She worried that you would hurt her, so she intended to record your conversation in order to protect herself.

She said she had to go to your flat to collect her personal belongings. You insisted on going with her. She refused. Eventually, you promised that you would stand outside the metal gate of the flat and let her pack her belongings.

At around 1.15 pm, you both arrived at the flat. She told you to wait outside. This was recorded on her mobile phone. You ignored her. You closed and locked the door of your flat. You then embraced her and pulled up her skirt. She kept on telling you to stop. You then let go of her. She then went to find her personal belongings.

At that time, you took out a bottle of wine and poured some wine into a glass. You took out another bottle and dropped a few drops of liquid into the glass of wine. You had previously prepared such a drink for X. You said it was an aphrodisiac drink for enhancing sexual pleasure. You asked her to drink it. She refused. Once again, the conversation was recorded on her mobile phone. You then went into your bedroom. X continued to find her personal belongings. You then came out of your bedroom without wearing any trousers or underwear. You carried her into your bedroom and locked the door. You pushed her onto the bed and took off her top, skirt and underpants. At that time, X was crying. You pushed her down to the floor from the bed, pinned her head down and made her perform oral sex on you. She told you to let her go.

You then put her onto the bed. You held her hands with your hands and pinned her down with your body. You then penetrated her vagina with your penis and whilst doing so, you said these words: "I treated you well, but it didn't work. You have to be raped. If you don't get raped, you refuse to change your mind." Once again, this was recorded on X's mobile phone. On the recording, one could hear the weeping sound of X. She told you to stop and not to interfere with her. However, the penetration continued for about 10 minutes. No condom was used.

Eventually, she managed to push you away with great force. She wanted to leave your house, however, you would not let her go unless she finished the drink that you had prepared for her. As she wanted to leave, she finished the drink. In order to leave your home, she told you she needed to go out to eat something. You told her she was to accompany you until 6 pm. You eventually left the home with her at 1.45. After consuming the drink, X felt dizzy. You then went to eat something and after finishing the meal, X went into the public toilet and made a phone call to her male friend, PW2. She told him that you had interfered with her. She later told you she had an appointment and you walked her to the Fanling Railway Station and you parted company. She then met up with her male friend, PW2, who then accompanied her to go to the North District Hospital. A report was made to the police.

You were arrested on the same day, 12 December 2016, at your residence, and under caution you said you did not rape your girlfriend, it was consensual. A video-recorded interview was taken from you and, in summary, in the interview, you made it out that all that you had done with X was consensual. You had tried to explain to the police that you had cohabited and were lovers and this was not a rape. You now admit on your plea of guilty that you did rape X on that day.

Defendant, as mentioned, you are 32 years of age. You have one previous conviction, many years ago when you were about 13 years of age for which you were sentenced to probation. Prior to the commission of this offence, you were a chef working at a hotel. Mr Keith Fung tells me you had a very successful career ahead of you. As a result of this incident, your career is effectively ruined. Mr Fung has said this is, in fact, a one-off incident and a single fall from grace.

You realise that this is a serious offence. You told Mr Fung that if in future you were to bump into X in the street, you will run away. Mr Fung tells me that you are a young man who looks ahead to the future who is preparing himself for the time when he is eventually released. You have prepared your own recipe book whilst you have been in remand and you are a man who wishes to start anew and forget the past. Most importantly, he says that you have a very supportive family, your parents, your aunt and uncle, who are all here today in court.

No doubt, you are aware that the offence of rape is a very serious offence. The maximum sentence for rape is one of life imprisonment. In this case, defendant, the victim, X, was, of course, your girlfriend. She had wanted to break off with you, but you refused to accept it. She feared you. She, in fact, on that day brought a male friend with her, but he stayed at a distance. She went to the flat as she was counting on your word to her that you would not enter the flat. You breached your promise that you would not go in. You then removed all her clothes and forced her to perform oral sex and raped her.

I understand your heartbreak or anguish that she wanted to break off the relationship with you. You had probably felt pain because you wanted to keep her together in a good relationship. However, she no longer wanted to stay in that relationship. It is worth remembering that this is a situation faced by many a young man or young woman. However, this does not give you the right to do as you did.

It is clear to me that you had decided to have sex with her when you went into the flat. You had come out of your bedroom unclothed on your bottom half. You used your physical dominance and strength knowing that it was against her will. You forced her submission to you. I think in this case, it is clear to me to say that it was a deliberate conduct by you to have forced her to have sex with you because the words you used clearly demonstrated that that was your intention. Clearly, you said: "You have to be raped." That act of rape was very much an act by which you sought to demonstrate to X your ability to control and dominate her and how powerless she was to stop you, despite her weeping.

I have received a victim impact report from X. It is clear, as in most raped victims, she feels miserable and fearful. However, in the words of the psychologist, she was not specifically disturbed by this case. That is stated in paragraph 6 of the report.

Defendant, you are a fully mature adult. The fact that you did not want her to break off the relationship is no reason to commit this offence.

For the offence of rape, had you been convicted after trial, I would have considered a starting point of 5 years' imprisonment. I do consider that there are aggravating factors in this case. Although, the flat was yours, you had promised her that you would not go into the flat. She went into the flat on the premise that she would be safe and that you would not follow her. However, you did not do so and you followed her into the flat and then locked her in. During the course of the sexual intercourse, you did not use any safety measures, that being you did not use a condom. I consider these factors them to be aggravating and enhance the starting point by 1 year imprisonment. Therefore, the starting point will be 6 years' imprisonment.

You pleading guilty at the earliest opportunity, I give you the full one-third discount and you shall be sentenced to 4 years' imprisonment.