COURT: I am going to announce sentence. The defendant may stay seated.
The defendant pleaded guilty on 26 July 2013 at committal to one count of rape. In this court he confirmed that plea and confirmed also the facts that he had agreed at committal. The victim was 37 years old. She came from China to live in Hong Kong in 2010. She lives alone in a remote village hut. Her native language is Hakka and she does not understand Punti well. She was educated to primary school level and works as a cleaning lady. Her sister believed that she suffered from having low average intelligence. The defendant was not known to the victim.
When the victim woke on 7 March 2013 she went to wash and later found the defendant standing by her bed. She was frightened and spoke to him in Hakka. They had a short conversation. The defendant left her after about ten minutes. The next morning the victim walked out of her hut and again saw the defendant sitting at the nearby hut. On this occasion the defendant entered a conversation with her and eventually, on the pretext that he needed to repair a water pipe, asked her to accompany him up the nearby hill. When they returned from that journey, the victim returned to her hut and the defendant followed her, uninvited. She noted that he smelled of alcohol. The defendant sat on a chair drinking water and smoking cigarettes.
Suddenly, the defendant approached the victim, pressed her on the bed and tried to undress her. He kissed her breasts and performed cunnilingus. He exposed his penis which was not erect. He tried to thrust it into her vagina. He made a number of attempts to do so but without success. On several occasions he threatened her. He then dragged her back on to the bed and blocked her attempts to prevent penetration. At one point the defendant wore a condom but later took it off and said, “You had better not run away again. I’ll dig a hole here to bury you, bury you up on the hill.” The victim was frightened and dared not resist further. Eventually, partial but not full penetration was achieved. Eventually the defendant terminated his activity, the victim left, got dressed and walked out of the hut. She made a number of telephone calls to various people and told them that she had been raped. On the same day her sister and brother-in-law confronted the defendant at the store in the village. A report was made to the police and the defendant was arrested.
In a cautioned interview the defendant stated that the owner of the hut is his aunt. On that day he went to the hut with a condom intending to have sexual intercourse with the victim. He drank a lot of alcohol. The victim did refuse him. He tried to have sexual intercourse with the victim but without success. Penetration, according to him, was achieved to the depth of one fingernail. He did not ejaculate. He later threw away the condom.
Subsequent examination by the forensic pathologist on 9 March 2013 showed that there was no recent injury to the victim.
On 12 March 2013 the victim identified the defendant in an identification parade.
The defendant admitted that he penetrated the victim’s vagina with his penis at the time when she did not consent to it and he knew or believed that to be the case.
The defendant has three previous convictions which were dealt with in 1976. They all arose from the same case. The offences, were robbery, possession of offensive weapon and having possession of a simulated bomb. He was sentenced to a total of 2½ years’ imprisonment and has not re‑offended since that time.
For the purposes of this sentence I propose to ignore the record. It is an old record and the offences are not of a similar nature to the present offence. It seems he has managed to keep out of trouble since 1976.
The defendant, who is aged 59, was born in China and was educated there to Primary 2 level. In 1970 he came illegally to Hong Kong but was granted an amnesty in 1973 and allowed to stay. He is married with a 28-year-old daughter who I am advised by counsel was educated to Form 3 and is working as a hairdresser. The defendant resides together in a housing estate. In years gone by the defendant worked as a farmer and construction worker but has been in receipt of CSSA for 7 years.
In mitigation I am advised that he suffers from ulcers and others such as high blood pressure, asthma and that he had a gall bladder removed earlier this year. Counsel for the defendant advise that this client, on the day in question, had consumed two catties of rice wine and then gone to the hut. He agreed they did not know each other but he knew about the victim’s relatives.
Counsel pointed out that there is no medical evidence which confirms any mental disability on the part of the victim. He pointed out also that the defendant was co-operative in this case. He returned to the village voluntarily and effectively waited there for the police to come and arrest him.
I note in this case that the major consideration in mitigation is the defendant’s plea of guilty for which he is entitled to the full one-third discount.
I note that there was no excessive violence used. I note also that the victim has been saved from the ordeal of coming to court to give evidence.
In this matter I take a starting point of 6 years and with the one-third discount sentence the defendant to 4 years’ imprisonment.