HKSAR v. CHOW KAM WAH

HCCC80/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 80 OF 2010

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

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COURT: The defendant was originally charged with 3 counts of procuring a woman to do a sexual act by false pretences (1st to 3rd counts) contrary to section 120(1) of the Crimes Ordinance, Cap. 200; and 2 counts of rape (4th and 5th counts) contrary to section 118(1) of the said Crimes Ordinance.

The defendant pleaded not guilty to all 5 counts. After trial he was found guilty by the jury on the 1st, 2nd, 3rd and 5th counts but not guilty on the 4th.

The Summary of Facts

The facts disclosed that the defendant, a 52-year old man, came to know the victim, a 19-year old naïve and superstitious girl, through the introduction of a 16-year old youth. The defendant told the victim that there was a ghost following her and he offered to exorcise the ghost for her.

On three occasions between 1 March and 31 May last year, the defendant telephoned the victim and asked her to go to his home so that he could perform the exorcism ritual. On each occasion the defendant went through some forms of ritual. The defendant burned incense, made hand signs and stamped his feet. The defendant blindfolded the victim and asked her to lie face down. He removed her top and bra and wrote on her back with his hand. He then removed the victim’s pants and underpants and had sexual intercourse with her.

The defendant told the victim that the sexual intercourse was part of the exorcism ritual. The defendant thus procured sexual intercourse with the victim by falsely representing that by having sexual intercourse with him the ghost following the victim would be exorcised.

The victim felt very ashamed after the first occasion but she continued to go to the defendant’s home on the second and third occasions as she was told by the defendant that she had to continue with the exorcism ritual until the end.

In relation to the 5th count of rape, the facts disclosed that on 8 September 2009 the defendant met the victim and drove her to collect her wages. They also had a meal together. After the defendant had taken the victim with him to do some sort of repair work for another person, and was ostensibly driving her home, the defendant took a detour and drove the victim to a deserted dark place later confirmed to be Siu Lang Shui Road at Lung Kwu Tan of Tuen Mun.

There the defendant raped the victim at the back of his car. At the time, the victim was menstruating, though there was no evidence to show that the defendant knew of that fact before he raped her.

The evidence disclosed that the defendant forcibly kissed the victim when she was still sitting on the front passenger seat. The victim put up resistance and she moved backwards to the back seat, hoping to make an escape. She found herself trapped at the back seat and the defendant forcibly removed her shorts and underpants and had sexual intercourse with her against her will. The defendant was not wearing any condom and he ejaculated inside her during the sexual act.

The victim made complaints to her good friend and her boyfriend respectively shortly after the rape and a report was made to the police leading to the arrest of the defendant on 9 September.

I obtained a statement from the victim regarding the impact of the present offences on her. Basically, she repeated what she had already told the court during the trial: her sense of shame after the defendant had sex with her during the exorcism ritual; her fear of revenge by the defendant on her perceived idea that he was somehow related to the triads; and her distress after she was raped.

Although at one stage she told the police she would not testify against the defendant in court, she later changed her mind and did attend court. She said she felt relieved after giving evidence but she is still troubled by nightmares. She does not wish to be reminded of these incidents any more.

Apart from a statement from the victim, I also called for a psychologist’s report on her. I do not wish to disclose in detail the contents of the report. Suffice it to say that what the victim had told me in her statement is supported by the assessment done by the psychologist. The victim’s clinical presentation resembles those suffering from post‑traumatic stress disorder. Her cognitive capacity is such that she is vulnerable to exploitation. Psychological treatment is recommended but declined by the victim.

The Defendant’s Background

The defendant is now 53 years old and is not a first offender. He had two previous convictions before the present offences. One was for the unlawful possession of dutiable goods, that is, duty-not-paid cigarettes, in 2006 and another occasion was criminal intimidation in 2008.

The defendant was married twice and had a daughter by each wife. The daughter with his current wife died in 2005, while the daughter with the first wife was still living with him at the time of these offences.

The defendant was interviewed by the clinical psychologist on my order. I do not think there is any need to reiterate the contents, save to say that the defendant maintained his version of how he came to have sex with the victim - a version rejected by the jury. According to the psychologist, results of the psychological test coupled with the clinical observations suggest that the defendant is a defensive, untrustworthy and manipulative person. No deviant sexual interest was detected in the defendant. The defendant refused to admit his problems and he externalised all the blame to the victim. The defendant had no insight into his problems and his motive to change was low. The defendant showed no remorse to the offences.

In view of all these, the clinical psychologist was of the view that the defendant’s risk of re-offending was moderate to high. A prolonged psychological treatment is highly recommended for improving the defendant’s motivation to change, therefore equipping him with skills for the prevention of sex re-offending.

Mr Percy, counsel for the defendant, informed me that the defendant did not accept the assessment by this clinical psychologist Mr Charles Pao. Mr Percy made it clear that he had not asked to have Mr Pao cross-examined, nor has he arranged for evidence of other clinical psychologists to be adduced.

In mitigation, Mr Percy submitted that the rape was not the worst of its kind. It was not a case in which a young girl was abducted by a stranger and raped. He referred to the aggravating factors set out in the English Court of Appeal case of Billam and submitted none of the aggravating factors listed therein appear in the present case. He submitted that even when the victim was assessed to have suffered from the post-traumatic stress disorder that does not amount to an aggravating factor.

Mr Percy also submitted that the fact that the defendant did not use a condom at the time of rape, thus exposing the victim to a risk of pregnancy and venereal disease, is not an aggravating feature as in fact the victim did not fall pregnant and she did not suffer from any venereal disease.

Mr Percy asked me to treat the three counts of procurement as one series of offences and pass a concurrent sentence on all three; then, on the totality principle, to order part of the sentence for rape to run consecutively to the concurrent sentence for the three counts.

Sentence

A person convicted on indictment of an offence of procuring another person by false representation to do an unlawful sexual act is liable to imprisonment for 5 years, while a person convicted of rape on indictment is liable to life imprisonment. The defendant exploited the superstition of this naïve young victim and had sexual intercourse with her on three occasions.

Having considered the circumstances of those three offences, I am of the view that each offence is a distinct one and they are not one series of the same offence. I would adopt a starting point for each offence. I am of the view that a starting point of 2 years is appropriate for the first count. The other two counts were repeated offences during a very short period of time. The appropriate starting point is 2½ years for the 2nd and 3rd counts.

As the defendant pleaded not guilty to all these offences he is not entitled to any discount for plea. There are no other grounds to further reduce the individual sentence of these three counts.

Having stepped back to look at all the circumstances involving all three offences, a total sentence of 7 years is obviously too high. I am satisfied that an overall sentence of 5 years would properly reflect the defendant’s culpability in these three offences.

In the case of The Queen v Billam & Others, the Court of Appeal in England considered a total of 17 appeals involving either rape or attempted rape and associated offences. The Court of Appeal set down guidelines with 5 years for rape by an adult without any aggravating or mitigating factors, going up the scale to 8 years, 15 years and life imprisonment, depending on the seriousness of the offence. The Court of Appeal also set out the following factors as aggravations:

1) violence used over and above the force necessary to commit the rape;

2) weapon used to frighten or wound the victim;

3) the rape is repeated;

4) the rape was carefully planned;

5) the defendant had previous convictions of rape or other violence of a sexual nature;

6) the victim was subjected to further sexual indignities or perversions;

7) the victim was either very young or old;

8) the mental or physical effect of the rape on the victim.

Where these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.

In Hong Kong, the Court of Appeal has held that while Billam provided useful guidelines to some aggravating features in a rape, the guidelines as to the starting point were not necessarily appropriate. The courts in Hong Kong were entitled to take into account local conditions and not to follow the Billam guidelines on sentence. See, for instance, the case of Secretary for Justice v Lau Yun Leung and the case of Secretary for Justice v Sukhmander Singh.

In the present case, most of the aggravating factors mentioned in Billam were absent. While the victim was only 19 at the time of the offence, it could not be said that she was very young. However, she did exhibit signs consistent with one suffering from post-traumatic stress disorder and she is still haunted by the rape. I do not accept Mr Percy’s submission that the psychological trauma suffered by the victim does not amount to an aggravating factor in this case.

There was another aggravating feature in the present case which was not mentioned in Billam. That is the defendant’s failure to use a condom during the rape and his act of ejaculating inside the victim, thus subjecting the victim to the risk of sexually transmitted disease and pregnancy. See, for example, the case of HKSAR v Chung Chi Wing where the court said, after referring to the first two aggravating features:

“Third was the fact that the applicant was indifferent to any possible physical consequences for the young girl. He did not wear a condom and ejaculated inside her.”

Although the defendant was much older than the victim and in his own admission he was hanging around with youngsters, including the victim, I do not consider his crime involved any breach of trust.

One must not forget this offence of rape was committed after the defendant procured sexual intercourse with the victim by false pretence on three occasions, so making this rape more serious.

Having considered all the circumstances of the rape, I am of the view that a starting point of 8½ years is appropriate. The defendant was found guilty after trial. He is therefore not entitled to any discount on plea. I do not see any other ground to further reduce this sentence. The proper sentence for this rape is therefore 8½ years.

I have already indicated that the overall sentence for the three procuring offences should be one of 5 years. Having considered once again the totality principle when the defendant is faced with a sentence of 8½ years for rape at the same time, particularly when I have taken the effect of him having committed the three counts of procuring into account when I considered the correct sentence for the rape, I am of the view that a total sentence of 11 years would properly reflect the defendant’s overall criminality in the present case.

In order to achieve this aim, I sentence the defendant as follows:

1st count - 2 years;

2nd count - 2½ years, to run concurrently to the 1st count;

3rd count - 2½ years, to run concurrently to the 1st count but consecutively to the 2nd count, making a total of 5 years for these three offences;

5th count - 8½ years, 6 years to run consecutively to the 5 years imposed for the 1st, 2nd and 3rd counts, making a total of 11 years for all 4 counts.