Charge 1 is rape, contrary to section 118(1) of the Crimes Ordinance, Cap 200.
The particulars of offence are that the defendant on the 7th day of April 2018 at Flat B & C, 1st Floor, New Hon Kung Hotel, On Lee Building, No 100 Yuen Long On Ning Road, Yuen Long, New Territories, in Hong Kong raped X.
The second charge is criminal intimidation, contrary to section 24(a)(1) and 27 of the Crimes Ordinance, Cap 200.
The particulars are that the defendant on the 20th day of April 2018, in Hong Kong, threatened X with injury to her reputation with intent to alarm the said X.
He pleads not guilty to both charges but is convicted of them by a jury after trial.
Evidence during trial
Ms X was aged 15 at the time of the alleged offences. She was a student but worked as a part-time girlfriend, or sometimes referred to as engaging in compensated dating or escort service. Potential customers could get to know her over the Internet, which was what the defendant did in the present case.
After getting in contact with each other, the defendant and Ms X arranged to meet and the meeting took place at about 6.30 pm on 17 April 2018. They went to the New Hon Kung Hotel at On Ning Road in Yuen Long, where a room was opened. I will refer to the New Hon Kung Hotel simply as ‘the hotel’.
Inside the hotel room, with the consent of X, they had intimate acts, including kissing, hugging and fondling. X also masturbated for the defendant and allowed the defendant to put a sex toy, which was a vibrating egg, into her vagina. Against the will and objections of X, the defendant inserted about one-fourth of his penis into the vagina of her 3 times. After that, the defendant gave a total of $700 to X.
In the evening of 20 April 2018, the defendant disclosed to X through WhatsApp that he had made video and audio recordings of X inside the hotel room. He even sent X a screenshot of X tidying up her school uniform inside the hotel room. The defendant also sent soundtracks of the moaning sound of X to X. The defendant said that the materials should be taken to the school of X for sharing. He told X to think of a way to hush his mouth and hands.
He also sent X a doxxing group of an app called Telegram, consisting of about 40,000 men who talk about sex. The defendant said, if he was to publish the materials, he would first do it on Hong Kong Golden and LIHKG. He said that he was only talking about hypotheticals.
Although X did not know if the defendant really had the video recording, she was scared that the defendant might really publish it and, after talking with social workers, she reported the case to the police the same evening.
The prosecution say that the defendant raped and criminally intimidated X by making a threat to make public the audio and video recordings.
Criminal record
The defendant has 38 previous convictions, of which 13 are unlawful sexual intercourse with a girl under the age of 16, 4 are indecent assault, and 2 are criminal intimidation. The defendant was last convicted of living on the earnings of prostitution on 25 April 2016 and was sentenced to 8 months imprisonment.
Victim impact report of X
According to the victim impact report of X, X suffers from clinically significant psychological disturbance as a result of the rape. She continues to be tortured psychologically, being disturbed by the recurring distressing images of what happened between her and the defendant on a daily basis. Her concentration at school is seriously affected and she either withdraws from others or throw into temper over trivial daily issues. She perceives herself as a broken product, no longer deserving respect, love and care. She has difficulty in trusting people and developing interpersonal intimacy. The sexual trauma appears to be beyond the coping capacity of X.
The psychiatrist compiling the report cites the information provided by another psychiatrist who had seen X since 2016 for her mood disturbance due to family and interpersonal problems that X had been relatively stable during the period before the offence but had had increased nightmares and exacerbation of mood frustration after the offence. The psychiatrist is of the view that X is in need of long-time psychological treatment.
Mitigation
The counsel for the defendant, Mr Hung, makes a thorough mitigation on behalf of the defendant. He cites the authorities of R v Billam [1986] 1 WLR 349 and SJ v Leung Yuet Hung [2014] 3 HKLRD 304 for the reference of the court that 5 years imprisonment is the starting point for rape in the absence of aggravating features.
He points out that the defendant had only inserted one-fourth of his penis into the vagina of X and should be treated as something between attempted rape and completed rape. In this connection, he cites the authority of SJ v Lau Yun Leung [1999] 3 HKLRD 289, in which the Court of Appeal for this reason reduced a sentence of 10 years imprisonment to 8 years imprisonment.
Mr Hung emphasises that the defendant did not use any force and X suffered no physical injury. Although the defendant did not use any condom, he did not ejaculate in the body of X and X have not contracted any disease. The defendant was not in abuse of his trust position and was, at the most, an opportunist. Mr Hung cites the case of HKSAR v Lam Kai Man [2014] 5 HKLRD 863 and Leung Yuet Hung for the reference of the court.
Regarding the poor criminal records of the defendant, Mr Hung urges the court not to enhance the sentence by more than 10 per cent, relying on the authorities of HKSAR v Lai Yau Yi, CACC 31/2017, and HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.
In respect of the offence of criminal intimidation, Mr Hung points out that there is actually no video of the intimate acts between the defendant and X, and X cannot be identified in the audio recording. Above all, nothing have been published and the offence is not connected with any triad activities. Mr Hung refers the court to the case of HKSAR v Cheng Pui Man, Dicky, HCMA 765/2009, when a sentence of 18 months imprisonment was reduced to 12 months imprisonment on appeal to the Court of First Instance. Mr Hung asks the court to treat the defendant leniently.
Sentence
At the time of the offences, X was aged 15. Although she claimed herself to be aged 16 on the Internet where she offered the service of part-time girlfriend, it can be seen in the CCTV footage of the hotel, the audio and video recording taken by the defendant of X and the WhatsApp communication between the defendant and X that X was of very young age and immature.
On the contrary, the defendant was an adult aged 38. He was no doubt very much more experienced in life than X. Although he was not in a position of trust of X, he made use of his experience of life to take advantage of X.
Judging from the audio recording made by the defendant, the court accepts that the defendant did not use any force during the offence of rape. It, however, clearly shows that the defendant used certain tactics to achieve his purpose of raping X. He made use of a vibrating egg to arouse the sexual desire of X. When X made it clear that no sexual intercourse was allowed, the defendant was still persistent and made use of assuring words to win the trust of X. He then used his penis to penetrate the vagina of X on 3 different occasions. The defendant is clearly not only an opportunist but had planned for the act.
Although the defendant did not ejaculate inside X and X had not become pregnant or contracted any disease, no condom used by the defendant during the rape is still an important aggravating factor which the court has to consider.
As a result of the rape, X suffers significant psychological disorder. Although she had had emotional problem that required psychological treatment before the offence, such problem was clearly under control before the offence. The rape incident has no doubt exacerbated her psychological disturbance.
Mr Hung during mitigation submits medical reports of X about her emotional problem after the incident and points out that there is no mention in the reports about the trauma caused by the rape. It must be pointed out that these reports concentrated on the emotional problem of X and the doctors compiling those reports had clearly left the issues to the psychologist who was to see X. It says in one of the reports that the doctor had advanced the appointment of X with the psychologist.
The court has no doubt that the rape incident has caused serious traumatic stress to X. This is a factor which the court has to consider. The court has not lost sight of the fact that X worked as a part-time girlfriend at the time of the offence. This, however, did not give the defendant the licence to do what he had done. This is of course of limited mitigating value.
Having considered the circumstances of the case and the authorities cited by Mr Hung, as well as R v Millberry [2003] WLR 546 and SJ v Sukhmander Singh [2000] 2 HKLRD 187, the court adopts a starting point of 6 years 3 months imprisonment for Charge 1.
The defendant is no doubt a persistent offender of sexual offences. Although he has no previous conviction of rape, the court is of the view that there is a need to enhance the sentence to reflect his appalling criminal records. The court therefore adopts an ultimate starting point of 6 years 9 months imprisonment. The defendant has no valid ground of mitigation and is sentenced to 6 years 9 months imprisonment for Charge 1.
There are no sentencing tariffs for the offence of criminal intimidation. In the nature of the present case, an immediate custodial sentence is inevitable. The court does not agree with the submission of Mr Hung that nobody would recognise X even if the video of X and the audio recordings were published. Should they be published, anybody who knew X would immediately recognise her. The threat used by the defendant was to take the video and audio recordings of X to her school for sharing. It is not difficult to imagine what impact such threat would have on X.
Having considered the circumstances of this case, the court adopts a starting point of 15 months imprisonment for Charge 2 and so sentence the defendant as he has no valid grounds of mitigation.
Taking into consideration the nature of the offences and the totality principle, the court orders 6 months of the sentence of Charge 2 to run consecutively to the sentence of Charge 1, making a total of 7 years 3 months imprisonment.