COURT: You confirmed your plea to the charge of attempted rape, contrary to sections 118(1) and 159G of the Crimes Ordinance, Cap 200. The particulars of the offence are that, on the 9th day of November 2024, inside a rooftop flat in Shatin, New Territories, in Hong Kong, attempted to rape a girl, X.
Girl, X, was born on 14 May 2012 and was aged 12 at the material time. She was studying Form 1 in a secondary school. X resided in a flat in Shatin with her mother, Y, and her younger brother. The flat is situated at the top floor and Y also owned a modular house at the rooftop of the building (“the Rooftop House”).
A few months prior to 8 November 2024, X became acquainted with the defendant on a social media application and they became friends. X and the defendant later contacted each other using a social media application.
At around 9 pm on 8 November 2024, X hanged out with her primary schoolmate at a park near Sha Kok Estate and consumed alcohol. At about 9.45 pm, X’s primary schoolmate left. X then posted a note on the social media account stating she was drunk. The defendant replied to X asking why she was drunk and offering to come and accompany her. X agreed and met up with the defendant at around 11 pm. This was the first time X met the defendant in person.
X and the defendant went to another park near Shing Mun River for a chat. Slightly after midnight, X told the defendant that she felt dizzy and sleepy. The defendant suggested to accompany her home. X agreed and they walked back to X’s residence.
X did not return to the flat but brought D to the Rooftop House instead, because she did not want Y to know she went drinking. There was a bunkbed in the Rooftop House and X immediately laid down on the lower bunk after they entered the Rooftop House. The defendant sat beside X on the bed and told her he would stay a little longer. X fell asleep after that and lost consciousness. X was later woken up by a woman police officer and she saw Y and other police officers in the Rooftop House.
At around 12.35 am on 9 November 2024, Y was sleeping in her bedroom in the flat when she heard a loud noise of a slamming gate coming from the rooftop. She went up to the rooftop with her son to check. Y saw the light was on in the Rooftop House and someone closing the door of the Rooftop House from inside. Y immediately entered the Rooftop House and saw the defendant, fully naked, lying on top of X who was wearing a tank top with her lower half of her body naked on the lower bunk bed. X’s eyes were closed and looked like she was asleep. The defendant’s private part touched X’s private part but Y could not see whether the defendant was moving, because her view was blocked by a school uniform hanging on the bed.
Upon seeing Y, the defendant stood up immediately and stood next to the bed. Y saw the defendant’s penis was erected at the time. Y confronted the defendant and asked what he was doing, to which the defendant replied he had done nothing. Y asked the defendant’s age and ID and the defendant claimed he was 17 years old, but the defendant was then 19 years old. The defendant then put his clothes back on. Y tried to wake X up by patting her and calling her, but X was unresponsive.
The defendant tried to leave the Rooftop House but was stopped by Y. Y took three photos of the defendant’s back with her mobile phone. Y also asked the defendant for his identity card, the defendant took out his identity card and student card, and Y took photos of the same. Y asked the defendant to call his mother, Y heard the defendant said to his mother on the phone that he took off his trousers because it was too hot, and that he still had his underwear on. Y said loudly that he was lying. The defendant then asked Y to give him a chance.
Y took a notebook and a pencil and asked the defendant to write down what he did wrong. The defendant wrote on the notebook that he was wrong and he took off X’s trousers and his own trousers out of lust.
Y then reported the case to the police. The police arrived at around 1.24 am. The defendant was identified by Y to the police. A woman officer woke up X. X regained consciousness and was sent to the Prince of Wales Hospital. The defendant was arrested and stated under caution that he acted out of impulse and touched X’s breast and private parts.
In a video-recorded interview, the defendant said under caution that he came to know X on a social media app about three to four months ago. They were just friends and did not know the age of X.
On the night of 8 November 2024, he replied to X’s message on the social media app, stating she was drunk. He arrived at 11.10 pm to 11.15 pm and met up with X near a secondary school. They went to a park nearby, he hugged and kissed X and also touched X’s breast. Sometime after midnight, X was getting more drunk but she still managed to walk home with him. They took the lift to the top floor while hugging and kissing inside the lift. X told him that she would like to sleep on the rooftop, so he went to the rooftop with her.
They entered the Rooftop House and X went straight to the bed and laid there. X soon fell asleep and was unresponsive. He thought of leaving at first but then he had an impulsive thought and have sexual intercourse with X. He touched X’s breast and private parts. He then removed X’s shorts and underwear. He touched X for about three to four minutes. He then took off his own clothes and decided to masturbate. He lay naked on top of X on the bed, masturbated for three to four minutes and ejaculated on X’s legs and stomach. He did not use a condom when masturbating. He did not have any condom with him at the time.
CCTV of the building captured that on 9 November 2024. The defendant and X entered the building at around 12.21 am, they were holding hands, they entered the lift and they hugged each other. At around 12.22 am, the defendant and X first walked to the right of the corridor on the top floor, about two minutes later, they walked up the stairs to the rooftop. At around 12.32 am, Y and X’s younger brother walked up the stairs to the rooftop.
X was examined by a forensic pathologist. No external bodily injury was noted on X and no injury was found on her private parts. The medical findings could neither confirm nor exclude the occurrence of sexual intercourse.
Forensic comparisons revealed, amongst other things, that samples taken from X: a DNA mixture was found from the low vaginal swabs and high vaginal swabs taken from X respectively, with DNA of X as the major source and DNA of the defendant as the minor source; seminal staining with DNA of the defendant was found on the vulval swabs taken from X.
Samples taken on the bed from the Rooftop House shows a DNA mixture likely to have originated from three individuals was found, with DNA of X as the major source and DNA of the defendant included as one of the minor sources.
The defendant now accepts and admits that at the material time he attempted to rape the girl, X.
Background and Mitigation
The defendant is now 20 years old and was 19 years old at the time of the offence. His parents are divorced. He resides with his mother and grandparents. He is a first offender with no prior conviction. He has been studying Year 1 of Diploma of Vocational Education at VTC. Prior to his arrest, he was employed on a part-time basis as a ticketing staff member at a cinema. I was told he is now a repairer at an air-conditioning shop.
In mitigation, counsel urged the court to exercise leniency, placing particular focus on the defendant’s timely plea. The plea is said to be a genuine expression of remorse. Importantly, it also spared X from the ordeal of giving evidence and being subjected to cross-examination in court thereby avoiding the risk of further distress and trauma arising from recounting the incident.
Four mitigation letters were submitted. The court has read and taken them into consideration.
Sentencing considerations
The offence of rape carries a maximum sentence of life imprisonment upon conviction on indictment. An attempt to commit rape attracts the same punishment. In the case of Secretary for Justice v Leung Yuet Hung [2014] 3 HKLRD 304, the Court of Appeal observed at paragraphs 21 to 24 that in cases of rape where there are no aggravating or mitigating factors, the usual starting point tends to be in the region of 5 years’ imprisonment.
The court further emphasised at paragraph 29 that it is neither safe nor logical to assume that an attempted rape is necessarily less serious than a completed offence. As with all sentencing exercises, everything depends on the particular facts and circumstances of the case.
In that context, the Court of Appeal cited with approval the passage in R v Billam [1986] 1 WLR 349, at page 352, where it was stated that:
“The starting point for attempted rape should normally be less than for the completed offence, especially if desisted at a comparatively early stage. But attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence.”
In the case of the Secretary for Justice v Lau Yun Leung [1999] 3 HKLRD 289, the Court of Appeal held at page 298 that:
“The courts in Hong Kong were entitled to take into account local conditions and to pass sentences that varied from those referred in the Billam sentencing guidelines. Some cases may well call for a higher starting point than 5 years, even in the absence of aggravating factors, depending on the circumstances.”
The Court of Appeal also held at 299 that:
“The standing point for a basic attempted rape, ie, one without aggravating features, would normally be lower than the standing point for a basic completed rape, particularly if the defendant desisted at a comparatively early stage. However, it might be made by aggravating features into an offence even more serious than some examples of full rape.”
In Leung Yuet Hung, the Court of Appeal also identified, at paragraph 35, a number of factors which may aggravate the seriousness of an offence of attempted rape. These include, but are not limited to the following:
“(1) The victim is very young;
(2) A weapon is used to frighten the victim;
(3) The sexual offence has been carefully planned;
(4) Violence is used over and above the force necessary to commit sexual offence;
(5) The offender has broken into or otherwise gained access to the place where the victim is living;
(6) The offender has used no safety measures in sexually abusing the victim, so as to avoid transmitting a venereal disease or causing pregnancy.”
In HKSAR v Tsang Chiu Yu [2012] 3 HKLRD 568, the Court of Appeal repeated the observations made by the Court of Appeal in HKSAR v Kong Yun Chiu [2007] 4 HKC 391 that:
“(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 prey on their naivety 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 more likely than adults to suffer trauma in silence rather than report, particularly in cases of breaches of trust.”
Application of the Principles
The incident occurred on the very first day the defendant physically met X, whom the defendant became acquainted on the social media. On that night, X had consumed alcohol and was intoxicated. She posted a message on her social media account. The defendant saw the message and replied X. She accepted the defendant’s request to accompany her. They went to a park for a chat.
Slightly after midnight, X told the defendant that she felt dizzy and sleepy. The defendant suggested to accompany her home. Upon arrival, X did not enter her residence but instead brought the defendant to the Rooftop House. There, she went directly to the bed and lost consciousness.
In his video-recorded interview, the defendant stated that he initially contemplated leaving, but subsequently acted upon an impulsive thought to engage in sexual intercourse with X. On the evidence before me, I give the benefit of doubt to the defendant and find there is no premeditation on his part. There is likewise no evidence that the defendant used any weapons or made threats. X was examined by a forensic pathologist and no physical injuries were detected.
On the other hand, as counsel properly acknowledged, there are a number of aggravating factors in the present case:
(1) X was of tender age of 12 at the time of the offence. Sexual offences committed against children are, by their very nature, serious offences. Deterrence is a major sentencing principle that this court should place weight on. Cases involving sexual offences against children therefore call for substantial custodial sentences to reflect both deterrence and denunciation. I note that the defendant was roughly 7 years older than X, albeit that there was no pre-existing relationship between them, giving rise to a breach of trust. These matters do not diminish the seriousness of the offence. Rather, they indicate that certain additional aggravating features, such as a large age disparity or an abuse of a position of trust, are absent. Their absence does not reduce the inherent gravity of the offence, but merely means that the court is not confronted with the further aggravation beyond what is already present;
(2) The defendant took no safety measures or precautions in that no condom was used, which exposed X to the risk of sexually transmitted disease. DNA of the defendant was also found on X upon examination;
(3) X suffered serious psychological trauma as a consequence of the offence. According to the psychological report before the court, X has manifested symptoms consistent with post-traumatic stress disorder arising from the incident. In addition to the trauma directly caused by the offence, rumours concerning the incident spread within her school to such an extent that she was compelled to transfer to another school, not once, but twice. Regrettably, even after doing so, the rumours continued to circulate. X was impressed to be traumatised by this case as well as the aftermath of ongoing humiliations and shaming by her aged peers.
In addition to the aggravating factors identified above, I consider that the overall factual circumstances of this case bear these features. Although the defendant desisted from his further attempt, he had stopped because Y discovered the incident. The defendant’s genital area was in contact with that of X. Therefore, the defendant did not stop on his own volition, but due to the timely intervention by Y. Had it not been for Y’s fortuitous and timely intervention, the substantive offence would, in all likelihood, have been commenced if not completed.
On the other hand, I note also that the defendant did not put up further resistance or make any attempt to flee after he was stopped by Y. No force was used, and it was an impulsive act on his part. He provided his identity to Y and wrote down what he had done wrong, and stayed until the police arrived.
Having considered all the circumstances, I will adopt a starting point of 6 years and 6 months’ imprisonment. The defendant is entitled to the customary one-third reduction in sentence, in light of his guilty plea.
In addition, I allow a further reduction of 2 months’ imprisonment, taking into account that the plea spared the victim from the additional distress and trauma of having to give evidence in court and the relatively young age of the defendant together with his clear record.
You are therefore sentenced to a total of 4 years and 2 months’ imprisonment for the offence.