HKSAR v. CHAN SZE CHUN

HCCC 50/2023

[2023] HKCFI 2344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 50 OF 2023

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

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COURT: The defendant was convicted by a unanimous jury of one count of rape. On 7 January 2022, the defendant raped a 16-year-old girl, X, in his home in the New Territories. The prosecution’s case was that the defendant, then 41 years old, in effect lured her to his house. There, within minutes of arriving, he initiated physical and sexual conduct before raping her.

They had met online through a dating app only four to five days earlier. He did not post his name on this app but made a statement that he was looking for somebody to come and play with his cats at home. When they made contact, he offered her $1,000 pocket money a week. When she asked why, he said she could treat him as an older brother or a boyfriend.

Not long after the rape, the defendant drove X back to the MTR station to go home. Within minutes of her getting on a train, she posted a photograph on her Instagram account with a statement, “some people just enjoy raping young girls”. She posted a second photograph and within hours contacted a school teacher anonymously, saying she wanted someone to talk to. She asked him the definition of rape and he began a dialogue with her as she clearly needed some help. She ultimately confided in him that she had been raped. He convinced her to go to the police and eventually he was successful.

There was another dialogue with an Instagram follower who had seen her photograph. She told this Instagram follower on private messages and in an audio message what had happened to her. These dialogues constituted recent complaint and her audio message clearly showed she was in distress, with sounds of crying and sobbing whilst she left a message.

A police report was made on 9 January 2022 and X was medically examined at the same day. She was interviewed by a clinical psychologist and it was recorded on 21 January 2022. That video-recorded interview was her evidence-in-chief and during the trial, she gave evidence via a live television link.

During that video-recorded interview, she gave a full no- holds-barred description of how the defendant raped her, how she repeatedly said no to him and tried to resist him. She explained how he placated her, as he took off each item of clothing, with promises such as he would only take off her jeans, not her panties, he would not interfere with her, he would not take her virginity, and he would not penetrate her. He ignored her request to stop on numerous occasions. He told her to close her eyes and relax, not to be so tense. He performed oral sex on her and made her perform oral sex on him. He did not use violence, but when she tried to push his head away when he was performing oral sex on her, it was to no avail, and when she performed oral sex on him he held her hair and head in position.

Her evidence was that she did not know how to react. She felt helpless, and clearly she believed his promises when he placated her. The fact that she asked her teacher hours later the definition of rape shows her naivety and inexperience. Her evidence was she was a virgin and had had no sexual experience.

The defendant was arrested on 22 January 2022 and under caution told the police that he did not rape anybody. In a video-recorded interview under caution, he told the police that he had had sexual intercourse with X but with her consent. She did not say no, resist, appear unhappy, complain afterwards, or cry. He painted a picture of a girl who met him for the first time that evening who was willing to have sex and consented to sexual intercourse.

The jury rejected his evidence and found unanimously that he had raped X.

The Defendant’s Background

The defendant is now 42 years old, divorced, with a teenage daughter. Mr Lee, who now acts for the defendant in mitigation and sentencing, has emphasised his previous clear record, family support and has said all he can say on the defendant’s behalf.

I have letters from the defendant’s immediate family and ex-wife which I have taken into account. I have read he is a responsible father, filial son, animal lover, hardworking employee who was devastated by his divorce.

Victim Impact Assessment Report

Prior to this rape, X was a teenager suffering from depression, low self-esteem, and self-loathing. She was being treated and lightly medicated by a psychiatrist and a psychologist at Queen Mary Hospital since 2020. Her condition was stable just before the incident. She was seen by both professionals after the incident, after the rape. Their conclusion was that as a result of the rape, she was suffering from post-traumatic stress syndrome, PTSD, requiring professional assistance and help. She also had to be prescribed a higher dose of anti-depressants.

To protect her privacy, I won’t repeat the contents of those reports obtained. Some reports were obtained in early 2022 after the incident, I have now more up-to-date reports. I have a victim impact assessment report which emphasises and highlights the undoubted serious impact this crime has had on X.

As a result of this rape, the victim’s low self-esteem, and self-loathing has been amplified. There have been episodes of self-harming and suicidal thoughts. Being unable to cope, she did not go to school between January and September 2022. She did return in September 2022 and did complete the school year. Her latest visit to the psychologist at the end of July 2023 after the court proceedings appears to be a milestone, in that she finally talked frankly to the psychologist about her distress. The psychologist said that the impact of the rape and the PTSD symptoms were not fully unveiled until after she had given evidence. Her symptoms are “on the improving trend” now. She requires continued and critical psychological intervention for the foreseeable future.

Sentencing

The maximum sentence is life imprisonment for rape.

In mitigation, Mr Lee has taken me to several rape sentence appeals which he suggests have similar facts and aggravating features to consider the sentences imposed in those cases to assist me here. He has submitted that the facts here are distinguishable from usual rape cases, thus I can be lenient and consider a term of imprisonment in the range of 5 to 5½ years.

Sentence for this kind of case is fact-sensitive. Sentences for other rapes are not of much assistance or guidance. Sentencing these offences will mean the court must consider various factors, those include the degree of harm to the victim, the level of culpability of the offender and the level of risk posed by the offender to society. The good character of the defendant is of minor relevance and weight in this type of case.

Whilst the customary starting point for a rape or attempted rape offence would be 5 years’ imprisonment, this might be enhanced where any one or more of the aggravating features identified in the English authority of the R v Billam [1986] 82 Cr App R 347 at 351 (f)  to (g)  are present. Where aggravating features are present such as a very young victim or clear physical or mental consequences of the rape, sentence should be substantially higher than the figure suggested as the starting point.

In Hong Kong, the Court of Appeal in the Secretary for Justice v Lau Yun Leung 1999 3 HKLRD 289 held that whilst Billam provided useful guidance as to the principles involved in sentencing for rape, the guidelines as to the starting point were not necessarily appropriate nor were the courts of Hong Kong bound by the factors articulated in that English authority, or the levels of sentence considered appropriate. The courts in Hong Kong are entitled to take into account local conditions and the Billam factors are not exhaustive.

The Court of Appeal have identified some features which are to be considered as aggravating the seriousness of this sexual offence. In my view, there are a number of aggravating factors that elevate the seriousness of the facts here.

I have taken into account the case of HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427, the Court of Appeal considered how a court should approach the sentencing of persons convicted of rape where the victim was a child. The court listed a series of considerations germane to such an issue. Those include:

(1)  the age difference between the defendant and the victim;

(2)  the relationship between the defendant and the victim, including whether the defendant has taken advantage of his position or status to commit the offence and whether there was a breach of trust in this case;

(3)  whether the defendant used threats or inducements to make the victim succumb;

(4)  the number of occasions of committing the offence and the duration of the offences;

(5)  whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6)  whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7)  whether the sexual abuses have caused physical or psychological trauma to the victim;

(8)  whether the offences have had an impact on the family members of the victim;

(9)  whether the defendant is involved in other inappropriate behaviour, such as inviting other people to watch or take photographs or videos of the offence he committed; and

(10)  whether the defendant is psychologically imbalanced and paedophilic and the likelihood of reoffending.

In Tsang Chiu Tak, the accused was a person aged 40. He was convicted of the rape of a child of 15 who was the daughter of his cohabiting girlfriend. He entered the victim’s bedroom and tried to fondle her. She resisted him. He asked his cohabitee to persuade the victim to enter their bedroom. The accused raped her in the bedroom. He asked a few days later for her to go back to the bedroom. She refused. She was forced into the bedroom and raped again. One of the features of that case was the psychological trauma suffered by the victim was clearly of substantial duration. In that case, the defendant was sentenced to 12 years’ imprisonment. The Court of Appeal was of the view that the sentence was a heavy sentence but declined to interfere with it.

In my view, in this case, there are a number of aggravating factors that elevate the seriousness of the facts. Mr Lee has identified as aggravating the fact that firstly, X was just 16 years old and secondly, after the rape was diagnosed with symptoms of acute stress disorder which manifested into post-traumatic stress disorder.

I also find relevant other factors I regard as aggravating and that is not only was the victim very young but was a virgin. This is made worse by the fact that the defendant is 25 years older than the victim.

Moreover, I am satisfied from the victim’s evidence that there was penetration before the defendant put on a condom and penetrated her again. She clarified in re-examination whether there was penetration before the defendant put on a condom and I’m satisfied from her evidence that it was not just the defendant’s penis rubbing against her vagina but there was penetration at that stage. My finding that he penetrated her without a condom initially when raping her opened her up to the risk of pregnancy or a sexually transmitted disease.

Here, from the evidence and the facts, I find the offence pre-planned insofar as the defendant befriended X on a dating app and then he lured her to his home to play with his cats and offered her pocket money. This is enticing to a young girl and in my view an example of taking into account local conditions in sentencing.

The defendant admits he then befriended her on Instagram and Telegram. As a grown man, he must have known what a young, naïve, malleable and vulnerable teenager she was from her Instagram profile, her posts and messaging her online. I think this would have been obvious to anyone watching her interview and seeing her during this trial and that is 18 months later via a television link.

Lastly, the mental effect of the rape on X is very relevant. I’m satisfied from the reports that the mental consequences on X as a result of the rape have been devastating and will be long-lasting. She had to leave school in the middle of a school year at a crucial time in her education.

Those are the aggravating features I find present in this case and the sentence should be substantially higher than the figure I find appropriate as a starting point.

Conclusion

In conclusion and in sentencing the defendant, I have taken into account the facts of this case, the evidence of X, the reports I have had before me as well as the mitigation put forward by Mr Lee and all the matters urged on the defendant’s behalf.

In light of the facts of this case, a starting point of 5 years’ imprisonment is appropriate. The case was aggravated by the following matters which I find enhances that starting point significantly.

I repeat; the case was seriously aggravated by the following factors;

(1)  the young age of the victim

(2)  the defendant, 25 years older than the victim took advantage of her.

(3)  I find there was a degree of preplanning to lure her to his home with cats and pocket money

(4)  the fact that there was penetration sex without a condom at the beginning of the rape

(5)  the significant mental trauma that the incident has inflicted on X

In my judgment, given the aggravating features that I have identified, I will increase the starting point of 5 years by 3 years’ imprisonment.

I thereby sentence the defendant to 8 years’ imprisonment.