HKSAR v. WONG NGAI CHUN

HCCC 142/2019

[2020] HKCFI 594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 142 OF 2019

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording

of the Sentence in the above Case

---------------------------------

COURT:

The jury unanimously convicted the defendant of attempted rape. In the evening on 10 August 2018, the victim went to a party held at Mei Foo Sun Chuen. She went with her friend, Ms Iu. There were about 11 guests in the party. They played video games, karaoke and finger-guessing games. The loser had to drink alcohol as a penalty. Everyone drank alcohol and ate seafood. They drank different kinds of alcohol during the party.

Initially, the victim and her friend wanted to leave at about 3 am. They, however, were persuaded to stay on. They were invited to sleep over in the guest room. By that time, the victim had drunk about 10 to 20 glasses of alcohol. When she went into the guest room, she was close to being drunk. They slept on the double bed. The victim slept on the right side while Ms Iu was adjacent to the wall.

At about 8.15 am, Ms Iu was woken up by the shaking of the bed. She patted and pinched the victim. There was no response but the shaking continued. Ms Iu felt suspicious. She lifted the quilt a bit and looked inside. She discovered the victim was naked from waist downwards. She then got off the bed and turned on the room light. She pulled away the quilt and found the defendant completely naked, lying by the side of the victim. Ms Iu started recording video of the incident using her mobile phone. By then the victim woke up. She did not know what had happened. She screamed and was very agitated. She subsequently reported to the police.

There was a seminal stain on the inside surface of the crotch area of the defendant’s underpants. The DNA of the sperm fraction of this stain came from the defendant. The DNA of the non-sperm fraction came from the victim. There was a non-semen stain found on the inside front surface of the defendant’s underpants. It was a mixture of DNA from the defendant and the victim. There was an abrasion on the labia minora of the victim’s vagina indicating mechanical interference such as sexual intercourse within about one day prior to the examination which was performed on 11 August 2018.

The defendant is 40. He has a clear record. He is married with two children aged 5 to 7. He is an F and B manager of a chain restaurant. He has a master’s degree. He has a clear record. The defendant wrote to this court, indicating that he was worried about his family, especially his aged parents. He promised to control his drinking habit in the future. He asked for leniency so that he could take care of his family as soon as possible.

There are letters from family members and friends of the defendant. I accept that the defendant used to be a kind person, a caring husband and a filial son. Ms Crebbin pointed out that this is a case of recklessness without premeditation. She asked this court to take into account that everyone was affected by alcohol at the material time. There was no violence involved. In my view, the evidence shows that the victim was drunk at the material time and in deep sleep. The video clip and the evidence of Ms Iu supported this clearly.

Similar to rape, deterrent sentence is warranted in attempted rape. It must reflect the disapproval of the society against this kind of offence and must address the humiliation suffered by the victim. As disclosed in the evidence, the defendant chose to go into that room, took off his clothing and locked the room door before attempting intercourse with the victim. I reject any suggestion that the defendant was reckless. I also reject any suggestion that the victim had by her behaviour misled the defendant into sexual intercourse with her consent.

In this case, the defendant did not use condom. He actually ejaculated as shown by the DNA analysis albeit not inside the victim. He made the victim undergo excruciating time while giving evidence in court. I regard all these are aggravating factors.

In the victim impact report, the clinical psychologist pointed out that the victim has been suffering from significant emotional distress. There are post-traumatic stress symptoms including recurrent dreams of the incident, sleep difficulties, poor concentration, and the victim is easily startled. These affect her vocational functioning and interpersonal relationships. She needs psychotherapy to manage these symptoms. Continued support by a social worker is recommended. The condition of the victim, as set out above, is also an aggravating factor.

Ms Crebbin invited me to watch some video clips which was taken of the victim during other parties in June, August and September 2019. These clips purport to show that the victim was not as traumatized as she described to the clinical psychologist. I do not think it is appropriate for me to do so. The clinical psychologist had performed various tests on the victim during the interview. It is not up to this court to qualify her findings.

I have considered the authorities submitted by Ms Crebbin. I agree that the sentence of this kind of cases is fact‑sensitive. I bear in mind the aggravating features and mitigating circumstances proposed in Billam. Good character of the defendant is of minor relevance. The defendant took advantage of the drunken condition of the victim. His conduct is despicable.

In the circumstances, I take a starting point of 4½ years’ imprisonment. There being no other mitigating circumstances, I sentence the defendant to imprisonment for 4½ years.