HKSAR v. CHOI CHEUK YIN, HOWARD

HCCC 142/2020

[2020] HKCFI 2512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 142 OF 2020

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

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COURT:

The defendant pleaded guilty before a magistrate to one charge of rape and was committed to the Court of First Instance for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, background of the defendant, mitigation put forward on his behalf and impact report on the victim.

At the time of the offence, the defendant was 18 years old and the victim 16. They had studied in the same secondary school and the defendant was the victim’s senior. They came to be acquainted between 2017 and 2018 and had developed a relationship which lasted for about a couple of months. After they had broken up, they continued to communicate on Snapchat and had met up for once or twice with other friends present.

On 11 June 2019, they had lunch together during which they talked about matters in school without any intimate body contacts. Then the victim requested to go to the defendant’s home to kill time before she was to attend tutorial class near his home.

The defendant led the victim to his home and seemingly they were about to play video game in his bedroom. However, after the defendant had turned on the game machine, he pushed the victim down on the bed and kissed her mouth. Despite the victim said no and tried to push him away, he continued to kiss her for about five minutes and touched her breasts inside her shirt.

The defendant then took off the shirt and bra of the victim and started to touch and lick her breasts despite she repeatedly said no and tried unsuccessfully in pushing him away. The defendant then took off the pants and underpants of the victim and inserted his fingers into her vagina for about five minutes, ignoring the victim saying no and attempts to push him away. He then used force and compelled the victim to perform oral sex on him. It lasted about five minutes until the defendant ejaculated inside the mouth of the victim. The defendant then pulled open the legs of the victim and inserted his penis inside her vagina, ignoring that the victim was saying “no” loudly and her attempts to push him away. In the course, the victim cried.

The intercourse lasted about five to ten minutes and the defendant, who was not wearing a condom, ejaculated inside X. X was the victim.

As far as the personal background of the defendant is concerned, he is now 19 years old and has finished secondary education. He did not have any criminal conviction before.

In mitigation, learned counsel for the defence, Mr Alan So, urged the court to take into account that the defendant had been fully co-operative upon arrest and he made frank admission. He stressed that the defendant had pleaded guilty at the earliest opportunity and spared the victim of the ordeal of giving evidence in court.

Mr So asked the court to take into account that the defendant had committed no offence before and by committing the present offence, he had ruined his life, family and future career as well as brought shame to himself, family, relatives and friends. After he finished study, the defendant had worked in the airport as a security officer and now the career is ruined.

Mr So also said that there was no premeditation and the defendant committed the offence as he failed to exercise control on this occasion when the victim, his ex-girlfriend, visited his home for the first time. He also asked the court to take into account that despite no condom was used, fortunately, no serious consequence followed. Mr So stressed that the defendant realised he has ruined the victim and is full of remorse.

The defence submitted letters written by the defendant himself in which he expressed remorse and the will to equip himself to turn over a new leaf as well as letters by his family members, teachers and friends. Each spoke well of the defendant, satisfied with his remorse, expressed support and pleaded leniency on his behalf. Quite a lot of them are present in court to show support.

Rape is generally regarded as the most serious of all the sexual offences. It involves serious physical violation, it carries a risk of serious physical consequences such as disease and pregnancy, in particular as no condom or other protective measure was used during the course. Besides, it involves a severe degree of emotional and psychological trauma. It often obliterates the personality of the victim, especially when she is of young age as the victim in this case. The impact on the victim can be long-lasting.

There is no sentencing tariff for this type of cases as each case has to be decided on its own special circumstances and facts. In assessing the gravity of an individual case, as the Court of Appeal said in SJ v Leung Yuet Hung, CAAR 1/2014, the court has to assess a whole range of matters, the more important of which are the degree of harm to the victim and the level of culpability of the offender.

I have consulted cases, including HKSAR v Chan Wai Tung, CACC 121/2013, and HKSAR v Gurung Laxman, CACC 254/2011. The victim was a young schoolgirl and, undoubtedly, the defendant was aware of this. In the course, no vigorous violence was performed on the victim but, clearly, the defendant had used force to physically overwhelm her so that she was not able to stop the violation. The incident lasted for a considerable duration during which the victim was forced to perform oral sex for the defendant until his ejaculation. Despite having released his sexual desire in this manner, the defendant nevertheless carried on to do more evil thing on the victim.

When he forced non-consensual sex on the victim, he did not use a condom and ejaculated inside her, an act which he could have avoided. These were clear aggravating features. Had the victim suffered any disease as a result or became pregnant, it would be even worse.

Impact report of the victim has been obtained. It has been provided to the defence and explained to the defendant. In sentencing, I have taken into account the impact of the incident on the victim. For her welfare, I do not intend to detail the content of the report. Suffice to say that the trauma affected her academic and social functioning and caused her to have depressive mood, self-blame and distrust with others. The trauma has also led to self-harm and suicidal thoughts. She has been receiving psychological counselling and probably it will take quite some time for her to get over.

Despite the defendant had no criminal conviction record before, he had on this occasion committed a very serious case of crime. The defendant is a young man but was already an adult at the time of the offence. I accept that there was no premeditation but also note that the defendant did not desist when the victim put up resistance throughout and instead he was quite persistent and had subjected the victim to additional indignity before having the forceful sexual intercourse.

Defendant, please stand up. For the reasons I have mentioned, I adopt a starting point of 6 years and 9 months. I will give you a one-third discount for your timely guilty plea. Having considered the whole circumstances, including the able mitigation submission for you by your counsel, in my submission this is the extent of discount you are entitled to. You are therefore sentenced to an imprisonment term of 4½ years.