HKSAR v. TSANG CHIU YU

[English Translation – 英譯本]
CACC 443/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 443 OF 2010

(ON APPEAL FROM HCCC 202 OF 2010)

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant, Tsang Chiu Yu, pleaded guilty in the High Court to one count of attempted rape and was sentenced by Deputy High Court Judge P. Li to 8 years’ imprisonment.  Represented by Mr. Suen Kam Hee of Counsel, the applicant applied for leave to appeal the sentence.  At the end of the hearing, we dismissed the application for leave, for reasons which we now give.

Facts of the case

2.  Miss X, the victim in the present case, was born on 31 December 1995.  At the time of the offence, she had just reached the age of 14 and was residing with her family in a public housing flat in Tin Shui Wai.

3.  In December 2009, after Miss X had come to know the applicant on the internet, the applicant assisted her in organizing her birthday party in a private club, although he did not attend the party.

4.  On New Year’s Day of 2010, Miss X informed the applicant that she had lost her mobile phone at the birthday party.  The applicant offered to give her a new mobile phone as birthday gift.

5.  Subsequently, Miss X and the applicant met somewhere right outside the building in which Miss X resided.   The applicant said a friend of his was sending over the mobile phone, so Miss X and the applicant had a chat at a nearby park and then at his residence, during which nothing improper happened.  Shortly afterwards, the applicant accompanied Miss X back to her home where both her elder sister and younger sister were present.

6.  When the applicant was about to leave Miss X’s residence, he requested her to accompany him to the lift lobby.  While waiting for the lift, the applicant asked to hug Miss X, and she refused.  Suddenly, the applicant carried her up in his arms and took her to the rear staircase landing between the 12^th and the 13^th floors.

7.  The applicant put Miss X on the floor, telling her that he had a knife and would slit her face if she resisted.  He went on to say that he just wanted to hug Miss X, but she firmly refused and kept putting up resistance.

8.  The applicant began to use violence on Miss X.  He grasped her neck and covered her mouth with his hand, and then fondled her breasts, pulled up her upper clothing and kissed her chest forcibly.

9.  The applicant threatened Miss X and managed to strip her trousers and underpants down to her knees.  At the same time the applicant stripped down his own tracksuit pants and underpants.

10.  Miss X struggled free and ran upstairs to 13^th floor, but there she was chased up and overpowered by the applicant.    He dragged her to the staircase landing between the 13^th and the 14^th floors, where he kept grasping her neck and covering her nose and mouth with his hands until she promised not to call the police.

11.  The applicant then ordered Miss X to lift up her upper clothing for him to take photos of her naked body, lest she might report to the police.  She gave in.  But after the applicant had taken photos of her, he did not let her go.  When she put up resistance again, the applicant pushed her to the rear staircase landing at the 14^th floor and stripped her trousers down to her knees.

12.  When Miss X was lying prone on the floor with her back facing the applicant, he inserted his finger into her private parts and lowered his pants, exposing his erected penis, and attempted to have sexual intercourse with her.

13.  When Miss X was putting up resistance, the applicant pressed on her and said he just wanted to take a few more photos.  As she kept on struggling, the applicant gave up and told her to put on her clothes before leaving.  She ran to the 12^th floor but was chased up by the applicant who then pulled up her upper clothing again to take photos of her naked chest and followed her until she arrived at the entrance door of her home.

14.  Back at home, Miss X tearfully told her family members what had happened.  In the small hours of 2 January 2010, she went to the police station with her parents to make a report.

15.  Miss X suffered no injury to her private parts.  However, there were multiple reddish bruises over other parts of her body.  Swab tests taken of her breasts also revealed presence of the applicant’s saliva.

16.  After arrest, the applicant said under caution, “Ah sir, I did it.  I harassed the girl.  I shot some video clips which are (stored) in (my) computer.  And today I have deleted all the photos taken at the staircase last night.”  At a subsequent video-recorded interview, the applicant admitted having made verbal threats to Miss X in order to force her to give in, and also admitted having climbed on top of her body in an attempt to have sexual intercourse with her, but the attempt failed because she shouted for help.

17.  Video clips pertaining to the incident were found in the applicant’s computer by the police.  The deleted photos were also successfully restored from his camera.

18.  The ordeal has caused serious physical and mental trauma to Miss X, exacerbating her depressed mood and adversely affecting her daily functioning.  Miss X is currently suffering serious post-traumatic stress disorder.  She is constantly under intense fear and feels helpless and powerless.  She often blames herself for having trusted the applicant, and has lost her self-confidence and feels shameful. She feels angry about the violent acts and verbal threats of the applicant, which she finds loathsome.  The clinical psychologist takes the view that Miss X has presented symptoms of escapism and suppression of her own emotions, with frequent episodes of insomnia and waking from fear, which acutely affect her daily functioning and worsen her low mood.  The psychologist considers it necessary for Miss X to undergo psychological treatment.

The applicant’s background and grounds of mitigation

19.  At the time of the offence, the applicant was about 31 years of age and single. He is not well-educated, having merely attained Form 3 level, and has been engaged in manual labour work in various fields.

20.  The applicant has nine convictions for offences including indecent assault and rape. In February 2007 he was sentenced to 5 years’ imprisonment for having raped a 15-year-old girl whom he came to know on the internet. He was released on 11 November 2009, less than two months before he committed the present offence.  The clinical psychologist pointed out that the applicant had displayed behavioural problems since childhood.  He was selfish, violent, unsympathetic and inconsiderate.  He had been found to have Antisocial Personality Disorder.  He was promiscuous and enjoyed having sex with girls in their early teens because they could be easily manipulated.  The psychologist also found that the applicant had shown no remorse at all about his previous conduct and had instead shifted the blame to the victims and put up alcoholism as an excuse.  The psychologist concluded that, as the risk of the applicant re-offending was extremely high, the applicant must be subjected to long-term imprisonment and psychological treatment.

21.  The applicant said he felt remorse for the present offence and offered his apology to Miss X.  He said his family had forgiven him and he promised to work hard towards rehabilitation, and hence he hoped the court would pass a lenient sentence.

The trial judge’s reasons for sentence

22.  The trial judge emphasized that the applicant committed the present offence less than two months after having served the sentence for an offence of rape, which, coupled with the fact that both offences involved the same modus operandi, indicated a lack of repentance on the applicant’s part. The trial judge took the view that the applicant posed a grave risk to society and should be subjected to long-term imprisonment and psychological treatment.

23.  The trial judge pointed out the following features of the case which he considered to be aggravating factors: (1) the offence was premeditated in that the applicant made use of the internet to get to know Miss X and sexually assaulted her at their very first meeting; (2) Miss X had just reached the age of 14 at the time of the incident; (3) at the rear staircase the applicant pressurized and gave chase to Miss X a number of times, forcibly took off her clothes, and even inserted his finger into her private parts; (4) the applicant had no intention to use a condom and his attempt to rape Miss X failed only because she put up a struggle; (5) the applicant took photos of Miss X’s naked body in order to threaten her; and (6) as a result of the ordeal, Miss X suffered a depressed mood, physical and mental harm and impairment of daily functioning, and it was necessary for her to receive psychological treatment.

24.  The trial judge stressed that the offence in question warranted a deterrent sentence which would demonstrate the intolerance of the society to this kind of offence and also redress the grievances suffered by the victim and her family.

25.  Having considered previous judicial decisions including HKSAR v Chung Chi Wing [2010] 5 HKC 75, SJ v Lau Yun Leung [1999] 3 HKLRD 289 and R v Millerry [2003] 1 WLR 546, the trial judge adopted a basic starting point of 9 years’ imprisonment for the present case, but then enhanced it to 12 years in light of the applicant’s psychological disorder and the high risk of re-offending.

26.  The trial judge pointed out that although the offence to which the applicant pleaded guilty was only attempted rape, what he had done was tantamount to rape, and that he failed to achieve his purpose of raping Miss X not because he stopped of his own accord, but only because Miss X put up resistance with all her might.

27.  In the end, the trial judge reduced the sentence by one-third to 8 years on account of the applicant’s guilty plea which was apparently the sole mitigating factor.

Grounds of appeal

28.  Mr. Suen submits that, apart from the young age of Miss X and the taking of nude photos of hers by the applicant, the aggravating factors highlighted by the trial judge are present in rape cases in general.  Mr. Suen maintains that in attempted rape cases, which do not involve vaginal penetration by the  penis, the physical and mental trauma caused to the victim is comparatively light, and the defendant will not transmit any venereal diseases to the victim or make her pregnant.  Therefore, the sentence for the offence of attempted rape should, it is submitted, be lower than that for the offence of rape.

29.  Relying on the sentences imposed by the courts in a number of rape cases, Mr. Suen submits that the sentence of 8 years’ imprisonment imposed on the applicant is manifestly excessive.

Discussion

30.  The circumstances of this kind of offence and the sentencing considerations vary from case to case.  Therefore, the sentences imposed in other cases of the same kind do not necessarily have a decisive effect on sentencing.

31.  We agree that, all other relevant considerations being equal, the sentence for the offence of attempted rape should generally be lower than that for the offence of rape.  The reasons pointed out by Mr. Suen are obvious enough.

32.  However, in considering the appropriate sentence for the offence of attempted rape, it is necessary for the court to consider all factors pertinent to the case.  Apart from the degree of culpability of the accused, the court also has to take into account public interest, namely the need to ensure the safety of members of the public and protect them from any further offence committed by the accused.

33.  Compared with other cases of rape or attempted rape, there are indeed features in the present case which make it particularly serious.

34.  The offence was clearly premeditated.  The applicant came to know Miss X on the internet and then sought to contact her by offering her some materialistic enticements, and sexually assaulted her at their very first meeting.

35.  The applicant’s assaults had apparently been directed at  innocent girls of tender age, the reason being that, according to the clinical psychologist, young girls could be easily manipulated.

36.  This Court has repeatedly pointed out that it is an extremely serious offence for an adult man to sexually assault, on various pretexts or in various ways, innocent young girls whom he has come to know on the internet. Such an offence, being serious in nature and also increasingly prevalent, calls for severe punishment.  The court is under a duty to deter this type of offence and protect innocent young girls.

37.  Miss X, the victim in the present case, was particularly young, having just reached the age of 14 at the time of the offence.  The offence had a huge impact on Miss X.  As a result of the incident, she suffered serious post-traumatic stress disorder, which  adversely affected her daily functioning to the extreme and which necessitated psychological treatment on her.

38.  We wish to repeat the following observations made by this Court in HKSAR v Kong Yun Chiu [2007] 4 HKC 391:

“(1) The fact that the victim is a child is always a severely aggravating feature. Children are vulnerable members of society. It is too easy for those who would prey on their naivete and trust to succeed, for children are by nature trusting and the deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly.

(2) The trauma and distress, immediate and long term, is not confined to the child: parents are also affected.

(3) Children are much more likely than adults to suffer trauma in silence rather than report, particularly in cases of breaches of trust…” 

39.  We agree with the trial judge that it is necessary to impose on the defendant a sentence which demonstrates the intolerance of the society to such offence and also redresses the grievances suffered by Miss X and her family.  We cannot ignore the fact that, in the course of committing the offence, the applicant had taken photos of Miss X’s private parts and breasts to be used as threats against her.  The incident must have subjected Miss X and her family to tremendous distress and put them under constant pressure that those photos might be publicized (see the observations made by Ma CJHC (as he then was) in paragraph 26(c) and (d) of his judgment in HKSAR v Chow Yuen-fai [2010] 1 HKLRD 354).

40.  Had the applicant raped Miss X, the offence would have been even more serious.  Still, there is support for the trial judge’s comment that what the applicant had done was tantamount to rape and that he failed to achieve his aim of raping Miss X not because he stopped of his own accord, but only because she put up resistance with all her might. 

41.  One of the cases cited by Mr. Suen is HKSAR v Chung Chin Wing [2010] 5 HKC 75, in which the defendant lured a 13-year-old girl into his vehicle which he parked in an open space opposite her school, and then raped her inside the vehicle. When she resisted, the defendant used violence on her.  He did not wear a condom and ejaculated inside the victim.  After the rape, the defendant ordered the victim to leave the vehicle and then drove off.  He was arrested 9 years after the offence.

42.  The defendant pleaded guilty in the Court of First Instance and was sentenced to 10 years’ imprisonment.  On appeal, the Court of Appeal held that the appropriate starting point was 11 years and reduced the sentence to 7 years and 4 months on account of the guilty plea.

43.  The Court of Appeal pointed out three aggravating factors in the case: (1) the planning done by the defendant, who preyed upon pupils leaving the school premises after school and then lured the victim into his vehicle; (2) the tender age of the victim, i.e. 13 years and 5 months; and (3) by not wearing a condom and by ejaculating inside the victim, the defendant was reckless as to the physical consequences of his conduct for the young girl.

44.  The Court of Appeal also pointed out that, despite a lapse of 9 years between the offence and the arrest, the prosecution had not adduced any report on the impact, if any, of the incident on the victim .  Accordingly, there was no evidence of any adverse impact, long-term or short-term, of the ordeal on the victim, and sentencing had to proceed on the assumption that the incident had not made tremendous long-term or short-term effects on the victim.

45.  The Court of Appeal further said that as some 9 years had lapsed since the commission of the offence, the Court was well-positioned to assess the level of risk posed by the defendant to the society at large.  The Court of Appeal emphasized that although the defendant had an extensive conviction record for offences involving dishonesty, he had never committed sexual offences, and therefore the defendant did not  pose a continuing risk to society as far as sexual offences were concerned.

46.  On the contrary, in the present case there is evidence to show that the offence committed by the applicant brought about a huge negative impact on Miss X who suffered serious post-traumatic stress disorder and had to receive psychological treatment.

47.  More importantly, the applicant is a recidivist sex offender who poses a grave risk to society.  At the age of 16, he committed indecent assault for which he was put under probation.  In 2006, after he came to know a 15-year-old girl on the internet, he lured her to meet him on the pretext that he would lend her money.  He then took her to the rear staircase of a shopping arcade where he threatened her at knife point and raped her.

48.  Having served a term of 5 years’ imprisonment for the aforesaid offence and less than two months after his release, the applicant employed the same method of getting to know Miss X on the internet, luring her with materialistic enticements and attempting to rape her at their very first meeting.

49.  It is clear that the applicant is a sexual recidivist who shows neither remorse nor intention to rehabilitate himself.  He poses a grave risk to society, and particularly to innocent young girls.  We agree that it is in the public interest to have the applicant subjected to long-term incarceration and psychological treatment in order to prevent him from re-offending.

50.  In our view, in considering the appropriate sentence, the interest of the society at large is a factor of paramount importance (see our observations in paragraph 23 of the judgment in HKSAR v Cheung Kwok-yip, Peter [2010] 3 HKC 470).

51.  For the applicant who has pleaded guilty to one count of attempted rape, a sentence of 8 years’ imprisonment (which translates to a starting point of 12 years) may appear to be very severe.  However, in our judgment, given the background of the case and of the applicant, the sentence is both necessary and appropriate, and is not manifestly excessive.  If in future, upon release from jail for the present offence, the applicant commits the same kind of offence, an even more severe sentence will certainly be imposed on him in order to minimize the level of risk he poses to society.

52.  For the above reasons, we have refused to grant leave to the applicant to appeal his sentence.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.