HKSAR v. Chung Chun Wa

HCCC 358/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 358 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant pleaded guilty before me to one count of wounding with intent and one count of rape. In sentencing, I have considered the whole circumstances of the case including its nature and facts, background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows. The victim was, at the time of the offence, a Form 5 student, aged 17. Her mother, who had divorced with the victim’s father when the victim was 9 years old, had a relationship with the defendant and they had lived together in a public housing flat for about a year in 2008.

In 2009, the victim’s family moved to live in another flat which situated at the same building. The relationship between the family and the defendant remained good and the victim called the defendant “Ba-Be” which means daddy. In 2011, the relationship between the victim’s mother and the defendant ended, and since then, the defendant had not been in touch with the family any more.

On 8 April 2016, the defendant came to the victim’s home. He left after the victim had told him that her mother was out of town. An hour later when the victim returned home with her classmate after having been to a restaurant, the defendant suddenly appeared and entered the flat. He told the victim that her mother had left something in his flat and asked her to go to his home together with him. Leaving her classmate at home, the victim went together with the defendant to his home.

Inside a bedroom, the defendant told the victim that he was very unhappy as his father had passed away and he missed the old days. He said he wanted to commit suicide and asked the victim if she was willing to die with him. The victim said “no” and told the defendant not to die. The defendant then tried to kiss the victim at her mouth. The victim fended him off with her hands. The defendant then left the room.

When he returned, he hid a hammer behind his back. When the victim told him not to kill himself, the defendant used the hammer to bash her at her head and pushed her head against the corner of the wall. As a result, the victim was hurt in her head and bleeding. The defendant then dropped the hammer and squeezed the neck of the victim with both hands. The victim fell onto the bed and he did not allow her to get up. The defendant then said to the victim that she had two options. One was for them to die together and the other was for her not to move and he will go die himself.

At that juncture, the victim’s younger brother and her classmate knocked on the door. The defendant covered the victim’s mouth with his hand, not allowing her to shout. Her brother and the classmate then left.

After that, the victim told the defendant that she did not want to die. The defendant then kissed her mouth and grabbed her breasts. He then demanded the victim to take off her clothes. After she had taken off her jacket, the defendant removed her skirt and her jeans. The victim asked him not to do that. The defendant threatened her that if she did not take off all her clothes, he would kill her. The victim was frightened and took off her own bra. The defendant then removed her underpants.

The defendant then took off all his clothes. He used a finger to poke her vagina once but the victim shouted due to pain and said “No”. The defendant gave her a last warning that if she was to move again, he would kill her. As a result, the victim was very frightened and stunned. The defendant then penetrated the vagina of the victim without using a condom. The intercourse lasted for about one and a half minutes. The defendant admitted that he did ejaculate but he could not tell whether it was inside or outside the victim. After the intercourse, the defendant allowed the victim to put on her clothes and leave.

The defendant was arrested in the early morning on the following day. At that time, upon seeing the officers who were looking for him, he climbed up a stool as if he was going to jump down the building. He was stopped and arrested.

Under caution, he admitted having raped the victim. He also said he had consumed alcohol and he visited the victim’s home for the purpose of asking her mother to lend him money to pay the rent. He asked the victim to go to his home because he did not want her classmate to know the relationship he had with her mother.

The victim sustained multiple external laceration wounds over her scalp and multiple bruising over the head and neck region.

I have taken into account a recent impact report on the victim. Having regard to the interests of the victim, I will not disclose anything more than necessary here.

The defendant is 33 years of age. He did not have any criminal record. In mitigation, Ms Panesar stressed that it was a one-off incident and the defendant had committed the offence out of character. She said the defendant is a person who had worked hard, trying to have progress in his life. He had worked as a dim sum cook, earning a stable income. He went on to study and qualified to work in a construction site but, unfortunately, was not able to secure a job.

Ms Panesar told the court that during that period of time, the defendant was sad and lonely since his father, who had been living with him, passed away and he was destitute as he had been out of a job for some time. He was not even able to pay the rental of the public housing flat and was about to be evicted. His application for social welfare took time to complete and assistance was not available in time. She also told the court that, in bad mood, the defendant had consumed two bottles of wine on the day and was under the influence of alcohol.

Ms Panesar said that it was under these circumstances that the defendant went to his ex-girlfriend, hoping money could be borrowed to him as a last resort. Learning that she was not at home, he wanted to talk with the victim. He only took her to his home because it was not convenient to talk with her in the presence of her classmate. He had not thought of harming the victim in any way and he was in a desperate state that he wanted to commit suicide.

Ms Panesar stressed that the defendant regrets very much what he had done and offered his apology to the victim and everyone affected. He made confession at the time of arrest and he indicated his intent to plead guilty soon after the case had been committed for trial.

When asked by the court whether it would desirable to obtain a psychologist’s report on the defendant, after having taken instruction and consideration, Ms Panesar informed the court that a report will serve little purpose. In the circumstances, no psychologist’s report on the defendant was obtained.

Rape is generally regarded as the most grave of all the sexual offences. On top of the physical harm, it involves a severe degree of emotional and psychological trauma to the victim. Risk of further physical consequences may also be serious. In assessing the gravity of an individual case, the court has to assess matters such as the degree of harm to the victim, the level of culpability of the offender and the level of risk posed by the offender to the society.

Whilst there is no indication that the offender is a risk to the society, in my judgment, this is a very serious case of the kind. The victim was, at the time, only 17 years old, studying Form 5. The defendant is a much older man who had an intimate relationship with her mother. They had lived together for a year and the victim addressed him as ‘Ba-Be’, meaning ‘Daddy’. Despite after the victim’s family moved away and the defendant and the victim had not met for several years, what happened on the day indicated that the victim still had a sense of trust towards the defendant.

Whilst I do not find there was premeditation, what the defendant did clearly had exploited the trust and the victim was put in a vulnerable situation. After having known on the first visit that the mother of this young lady was out of town, on the second visit, he asked the victim to go to his home with an excuse of returning something of her mother. Returning of the mother’s belonging did not take place; what happened was that the victim was deprived of the company of her classmate.

Although I do not find premeditation, I do not accept that it was a case of a momentary loss of control. The defendant told the victim of his thought of committing suicide. I find it hard to accept that a man who was really depressed to the extent that he had the thought of ending his life would, soon after saying out the thought, have such a strong urge of sexual desire.

On the other hand, I take into account the behaviour of the defendant at the time of arrest which is consistent with that of a person in a significant degree of emotional condition. In any case, without finding that what the defendant told the victim was not true, what he said obviously had caused the victim’s sympathetic concern to him and, in the circumstances, she allowed herself to stay in a vulnerable situation.

The defendant showed no mercy on a young lady who expressed concern of him. He maliciously hit the head of the victim with a hammer and pushed her head to hit against the wall. Such violence could have caused serious injury to the victim and it was lucky that she had not suffered more serious harm. After the attack with the hammer, he engaged in a dangerous act of squeezing the neck of the victim. I have given careful consideration as to why the defendant attacked the victim. During the interview, he said, under caution, that he did so as the victim treated him like a stranger and he wanted to scare her. If this was the real reason, what he did was totally uncalled for.

Indeed, I have much reservation in accepting this assertion, in particular as it is not consistent with the overall happenings as disclosed in the facts. Quite to the contrary, since the defendant only left the room after an unsuccessful attempt to kiss the victim, he returned with a hammer and, shortly after, he started to violate the victim sexually, it can be inferred that the attack was intended to achieve the sexual violation. I am of the view that even if the defendant was really in a depressive mood, at the same time, he was occupied with sexual desire. It was quite sickening.

Miss Lo, for the prosecution, said what the defendant did formed a sequence of events, and she did not go to the extent of asking the court to conclude that such violence was performed for the sake of the sexual assault. All in all, though it was likely, in sentencing, I do not regard the defendant attacked the victim with a view to sexually assault her. Notwithstanding that, in my judgment, such physical attack must have an impact on the victim when she was faced with a sexual violation. The pain, shock and terror which the victim experienced are readily conceivable. The situation was aggravated by the fact that the terrible acts on her was performed by somebody whom she trusted. The victim was only 17 years old.

After all these physical attacks, the defendant started the sexual violation and demanded the victim to take off her clothes. Under the circumstances of what had happened to her, the victim succumbed. The defendant did not stop his violation of the young lady even when somebody knocked on the door, and after the people knocking on the door left, he did not desist and instead started his serious sexual assault on the victim. This demonstrated the defendant’s persistence in harming the victim. In the course of demanding the victim to take off her clothes, he even threatened her that she would be killed if she did not comply with his evil demand.

Eventually, knowing clearly that the victim did not consent, he forced himself upon this young lady who had told him that she was still a virgin. In doing so, he did not use a condom. He cannot tell whether he ejaculated inside or outside the victim. This indicates that he ejaculated without thinking of doing anything to avoid leaving what came from him in, or near, the private parts of the victim. This vicious act exposed the victim to the risk of health hazard as well as pregnancy. It is again lucky that she does not suffer further harm and more serious consequence.

Although the offence did not take place at the home of the victim, it occurred in a flat of the same building where she was living.

As I have mentioned, I take into account what is disclosed in the impact report. The clinical psychologist is of the opinion that the victim has shown symptoms of acute stress reaction. The assessment of the clinical psychologist about the impact on the victim, as well as her observation of the victim’s mother, should be reflected in the sentence. I bear in mind that the defendant did not have any criminal conviction before.

In my judgment, only the following starting points are sufficient to reflect the seriousness of the present case: Count 1, 5 years; Count 2, 10 years.

For Count 1, I have had regard to the sentencing consideration as stated in HKSAR v Chan Chun Tat [2013] 6 HKC 225. It is a serious offence as it was committed with the intention of inflicting grievous bodily harm on the victim. I would have adopted a higher starting point if not for the fact that the victim did not suffer more serious injuries on her head.

For the reasons I have mentioned earlier, I have only taken into account the acts of injuring the head of the victim by hitting her with a hammer and pushing her onto a wall, as well as squeezing of her neck, and not the sexual assault which took place shortly afterwards.

For Count 2, I have taken into account all the matters I have mentioned earlier. As regards the initial violent act, notwithstanding that I cannot conclude that they were performed for the sake of the subsequent sexual assault, they formed a sequence of acts and, as I have analysed earlier, such violence must have an impact on the victim when she was later sexually assaulted.

The court was told that the defendant was under the influence of alcohol. In this connection, I have had regard to the assertion of the victim that she did not smell any alcohol from the defendant, and on the other hand, the defendant had asserted during the interview that he had consumed alcohol. Having considered SJ v Lau Yun Leung, CAAR 3/1999, even if the defendant was under the influence of alcohol, I do not think it can be a mitigating factor in the circumstances of the present case. Sufficient weight has to be attached to the interests of the victim, protection of women and the interests of the public at large.

The defendant pleaded guilty, he is entitled to a one-third discount. Having considered the whole circumstances, including what Ms Panesar has said on the defendant’s behalf, I am of the view that this is the extent of discount the defendant is entitled to.

For these reasons, I sentence you to the following imprisonment terms: Court 1, for the offence of wounding with intent, 40 months’ imprisonment; Count 2, the offence of rape, 6 years and 8 months’ imprisonment. Having considered totality and had regard to the case of HKSAR v Ngai Yiu Ching, CACC 107/2011, as I have taken into account the initial violent act in reaching the sentence for the offence of rape, I order the two sentences to run wholly concurrently.

So defendant, you are to serve a total sentence of 6 years and 8 months for the two counts of offence to which you have pleaded guilty.