COURT: The defendant had pleaded guilty in the lower court to one count of attempted rape, and he has been committed to this court for sentence. The particulars are that on 21 April 2021, at a rear staircase in a residential estate in Tai Wai, Sha Tin, New Territories, he attempted to rape a girl “X”.
The facts are very serious in that the victim was a secondary school student. At the time of the offence, she was only 13. In the afternoon of 21 April, about 1 pm, X was returning home from school to where she lived with her grandparents in the residential estate. She entered the lift and the defendant followed her.
When the lift arrived at X’s floor, the defendant exited the lift first and X then left the lift. The defendant then stopped X and gestured to her follow him. So, X went to the staircase because she felt scared. But the defendant was following behind X, at the same time asking her to follow him. So, X returned to the lift and pressed the button, but the defendant continued to follow her.
So, X then tried to leave the place by another staircase and it was at that stage that the defendant intercepted X by putting his hand around her shoulder and threatened to her that he had a knife and that he would cut her face if she did not comply. X said she was scared and did not resist or dare to shout for help. He, the defendant, then took the victim to the rear staircase.
At the rear staircase, the defendant molested the victim’s breasts until the victim asked him to stop. Then, the defendant lowered X’s underpants and pressed her down on the ground, and X was able to see that the defendant held his penis without a condom and repeatedly tapped at her vagina for about half a minute. X tried to push the defendant on his stomach but unsuccessfully. X felt that the defendant’s penis was soft and did not do any penetration, and after that the defendant asked X to get up to dress herself and then the defendant left.
And so X then went home and complained to her step-mother, and it was after that then the police were called. And upon investigation by the police, on a review of the CCTV camera, the security guard recognised the defendant to have been a building resident.
And so the defendant was arrested and upon a search of the defendant’s flat, the t-shirt, the shorts and flip-flops that the defendant was seen was wearing on the CCTV camera at the time of the offence was found. The shoulder bag that was similar to the one that was carried when he appeared on CCTV also was found and contained two pairs of cigar scissors.
And under arrest and caution, the defendant admitted molesting X with intent to rape her but he failed. And in a subsequent video-recorded interview, the defendant admitted that he intended in fact to have sex with X but he failed to become erect.
The victim was sent to hospital for a check-up and fortuitously she did not sustain any physical injuries, and DNA examination results show that the defendant’s DNA was obtained from the sperm fraction of the seminal staining on the inside crotch surface of the victim’s pair of underpants. And X positively identified the defendant at the identification parade.
The defendant is aged 44 and he has not got a good record. He has had some 11 previous convictions. He has had one rape conviction in 2007 for which he was sentenced to 5 years, and an attempted rape conviction in 2010 for which he sentenced to 8 years. There was also an indecent assault conviction in 2017, and his first offence in 1995 was also indecent assault.
Now, I had adjourned sentencing for a victim impact report and quite understandably, the victim did not want to relive this horrific experience by undergoing victim impact report. So, she declined.
Now, as I said to Mr Yu, who appears on behalf of the defendant, I agree with him that although there is no evidence as far as her mental condition is concerned and the possible impact on her psychologically, one can use one’s common sense that for a victim, a young girl of 13, on the cusp of teenage-hood, to undergo such a horrific experience would nonetheless leave at least a shadow on her psychology in her growing up.
Now, as far as the mitigation is concerned, Mr Yu has said everything he could possibly say on the defendant’s behalf. Mr Yu has pointed out that the defendant had not displayed any weapons to the victim and that he was not on the street targeting a potential victim. Mr Yu submitted that the defendant was visiting his mother and this was an impulsive act, for which he regretted and when he was arrested he made a full confession to the police.
Now, Mr Yu has also submitted that the defendant, though single, has a very supportive girlfriend and comes from a good and decent middle-class family. The defendant worked at various jobs and at the time of the offence he was unemployed. And so really, as Mr Yu pointed out, the only real mitigation is the fact that he did plead guilty and confess at an early stage and thus saving the victim from having to relive her experience in court.
Now, various authorities have been submitted by Mr Yu and each case is very case-specific, although the court can generally be assisted by the general idea of the range of sentencing.
Now, this case is very serious because if not for the defendant’s inability to achieve erection, the victim would have been subjected to being raped. And luckily, fortuitously, the defendant could not achieve his aim through no fault of anybody, but fortuitously, she was saved.
However, as I said, this sort of event that happens to a young girl of 13 was doing nothing but returning home from school. She should be protected by society and the courts from this sort of attack in the middle of the day. It is difficult to ascertain how far the impact of these events would have on her future growth mentally. As I have said, one can use one’s common sense to realise that this is a horrific event. Although no weapons were displayed, she was nevertheless threatened with harm, injury to her face.
So, I do recognise of course that what Mr Yu has said that no weapons were displayed and I therefore take everything into consideration and I consider that an appropriate sentence will be one of 12 years after trial.
With his plea, it is reduced to 8 years’ imprisonment.