COURT: Defendant, you may remain seated while I give you my reasons for sentence. When I eventually sentence you I shall ask you, please, to stand up.
Defendant, you were convicted after trial of two charges, one of indecent assault, and the other of rape, by a jury on their unanimous verdicts.
In this case the jury had found that you indecently assaulted a lady (Madam X) at her home on 28 April 2013. At that time she was 43 years of age, and you were 22 years of age. The indecent assault was the touching of both her breasts with your hands. After that, you raped her.
Madam X was an immigrant into Hong Kong from China in 2004 by virtue of her marrying a Hong Kong gentleman. You arrived in Hong Kong in December 2010. You are of Indian nationality. After arrival in Hong Kong, you claimed refugee status and are at present a torture claimant. Upon your claim, you were remanded in the Castle Peak Immigration Centre and later released in March 2013.
Thereafter, you went to stay with a fellow countryman whom you were introduced to by another friend. He is the tenant of the premises in question where these two offences were committed. That gentleman’s name is Mr Dinesh Kumar who was a witness in this case.
Madam X, through an estate agent, was introduced as a tenant to this flat to rent and share with Mr Kumar. On the day before these offences were committed, X moved in to the flat, that is, 27 April. When she moved in, she met Mr Kumar and yourself whom Mr Kumar introduced as his brother. It is later acknowledged that you were in fact not his brother. You were of no relation to him but he called you his brother as you were from the same country; you were his countryman. Mr Kumar informed X that you would only stay for a few days longer until you found a place of your own. There was no objection to this from X.
The next day X then went about her business in purchasing necessities for living in her new flat. That evening, at about 8.30 she was preparing her dinner. She heard a knock on the main door of the flat, opened the door and saw that it was you. She smelled a strong smell of alcohol. She let you into the flat.
Upon entering the flat, you took off your trousers in the living room and she, feeling that a little odd, went to retrieve for you a pair of shorts which belonged to her former husband and told you to put those on. This you did. She then went about preparing for her meal.
You then suddenly approached her from behind and used your hands to squeeze or touch both her breasts. You told her that you liked her. She told you, “Do you want to die, taking advantage of me? Don’t you think I’ll tell your elder brother?” she believing at all times that you were the brother of her flat mate. She told you to go back and sit down on the sofa. This you did and she continued to prepare her dinner.
She then offered you some of the meal that she had prepared. She did so as she felt some sympathy for you. She realised that both you and her were in much the same position, or both of a kind, having no family or relatives in Hong Kong. Having eaten the meal together she then went to wash the dishes.
While she was doing so, you then approached her again from behind and this time with much aggression you squeezed her breasts with both hands and dragged her into her bedroom and there you forcefully pushed her on to her bed and with a degree of violence and force raped her.
At all times she was struggling and twisting and trying to get out of your hold. You raped her without a condom. You then ejaculated outside of her and left the room. She was in a state of confusion as to whether to report this matter immediately for fear that the whole incident might be made public. Having slept on it, she decided to make a report the following day.
After investigation, it was found that your DNA was found from sperm on the bed sheets and on her shirt that she was wearing and also from your saliva found on the crotch of her shorts.
Defendant, your counsel, Mr Davies, has brought to my attention no authorities but has informed the court that the usual sentence of rape is one of a starting point of 5 years’ imprisonment after trial. He accepts that there is an aggravating factor of you having unprotected sex with the victim.
It is Mr Davies’ submission that the fact that she was raped in the comfort of her home is not an aggravating factor as you were a lodger in those premises. He puts forward no other mitigating factors save for the fact that despite your previous conviction and bind-over for fighting in a public place, that you are not a violent man.
Defendant, as you well know, rape is a very serious crime indeed. You are aged 22 and have one previous conviction for fighting in a public place for which you were fined, and were bound over for a similar offence. I do not consider this previous conviction or the bind-over to be of relevance in sentencing you for the rape and indecent assault offences.
The maximum penalty for rape is one of life imprisonment. The maximum penalty for an offence of indecent assault is one of 10 years’ imprisonment. I have taken into account all the matters in this case and also the mitigation put forward by your counsel.
I consider that for this offence of rape an appropriate starting point is one of 5 years’ imprisonment, after trial. I consider that unprotected sex is an aggravating factor which enhances that starting point. I also consider that the violation of X in her home, which is a personal sanctuary and safe place, is an aggravating factor and a serious matter.
Although you were a lodger in this flat, you were not permitted into her room. The common areas were the living room, the kitchen and the toilet, not her bedroom. I therefore consider that this is an aggravating factor.
Defendant, you are a pure stranger to Madam X. She had permitted you to stay for a few days longer because she believed you were a brother of the co‑tenant. She was sympathetic and kind to you that evening in offering you some of her dinner she had prepared. You took advantage of her generosity. You indecently assaulted her and raped her that evening.
On those facts, I consider the appropriate sentence for the rape to be one of 6 years’ imprisonment to which you shall be so sentenced on Charge 2. In respect of the indecent assault on Charge 1, I sentence you to 6 months’ imprisonment.
I order both sentences to run concurrent to each other which means that you will serve a total of 6 years’ imprisonment.