The facts as disclosed at the trial was that the victim came to work for the defendant’s wife in 2014, and she served the family that consisted of the defendant, his wife and a young daughter in an address in Tuen Mun prior to the family moving to the premises at Kingston Terrace.
She gave an account that her duties were related to general housework and that her employers, that is, the wife of the defendant and the defendant would leave in the morning for work, and return in the evening. On several occasions prior to 25 August 2015, the victim said the defendant had approached her on several occasions when the lady employer, the defendant’s wife, was not home, to ask if she wanted to be his girlfriend, and that he would take care of her family. The victim said she refused, and he then tried to persuade her by saying that since she's come to Hong Kong to earn money, she can use this opportunity to earn more money. The victim said that she told the defendant she was contented with the money she earned as a domestic helper.
Now, this is an indication of the integrity of this lady, who was not going to be swayed by the temptations of easy money to sell her body. However, this did not cause the defendant to desist, and finally, on 25 August, the defendant came home at 1 pm in the afternoon, knowing full well that the victim would be working at home alone.
The victim is a small lady, about 5 foot tall, less than 100 pounds heavy. The defendant came home and when the victim was cleaning up the toilet, he seized the opportunity to go into the toilet and there, he committed his indecent assault on her by kissing her forcibly from her face down to her breasts, and the redness that was left by this assault can be seen in the photograph produced by the prosecution during the trial, and she had sent that photograph on Facebook to her friend Roselle.
The victim pleaded, and was crying and wanted to leave the toilet, and the defendant said he would only allow her to leave the toilet if she hugged him. So under those circumstances, she had to hug him, and then she was allowed to leave the toilet. She said she went to her bedroom because she wanted to get her clothes to take a shower, because she was sweaty and feeling dirty and sticky.
The defendant followed her into the bedroom, and during that time, had removed his top and was only wearing a pair of shorts. He was naked from the waist up. He then went into the victim’s room, and forcibly forced her into the lower bunk bed, and then raped her. The victim said that she tried to keep her legs together, but he was too strong for her, and one can see the physical difference between the defendant and the victim. The defendant is a very strong man, as can be evidenced from his arms, with prominent muscles. She was overpowered, and there was nothing she could do.
After she was raped, and she did not see any condoms, she was then allowed to get up out of the bed whilst the defendant went to the bathroom. She seized the opportunity to contact the only friend she felt she had, which was the person called Roselle on Facebook, and made a complaint to Roselle about the rape on her. She was frightened, which was very obvious, and she was crying, and eventually, a report was made to the police. Eventually, after the defendant left the toilet, she then went to the toilet to have a shower.
The police arrived subsequently at about just before 8 o’clock in the evening. WPC who arrived with the police team said that when the victim opened the door, she rushed out and was crying, and obviously in distress. So after that, the defendant was arrested and taken back to the police station. The victim was examined by a forensic pathologist.
Now, this was a very frightening experience for anyone, let alone someone of the victim’s position, who was working in Hong Kong, far away from home and family, who entrusted her safety to her employer. And that means that not only was her female and male employers under a duty to give her her wages, but also to see to her welfare whilst she was working for them. But instead, the defendant took full advantage of her vulnerability to force himself upon her.
There was no remorse from the defendant, because after he had raped the victim, he again said to the victim that he will send money to her family, and please do not show her face, this crying face to her employer, the female employer, when she comes home. There was utterly no remorse whatsoever.
Then we come to the trial. The trial was supposed to have started on Monday, and meanwhile, between the arrest and the trial, the defendant had been granted bail. It was on a Friday before the trial was due to start on the Monday that there was a variation of bail sought, and this court was informed that the Ewe interpreter that was available was from Ghana and not Togo, and he would prefer a Ewe interpreter from Togo.
At this late stage, it was well-nigh impossible to get someone from Togo, but nevertheless, the Court Interpretation Service was informed, and attempts were made, but it was unsuccessful. I spoke to the Ewe interpreter in court, a gentleman from Ghana, who explained that that the Ewe language is one that was similar between Ghana and Togo, but there was a difference. In fact, there were technical terms used, and that it was only if technical terms were used that there may be a difficulty in translating it into the Ewe used in Togo.
I decided that this being the case, a factual case, that we can proceed with the Ewe interpreter from Ghana. I had asked Mr Leung how he took instructions, and he said the full instructions were taken for trial in English. The defendant had been in Hong Kong for 10 years, is married to a local lady, he works for a local construction company, so I decided to proceed with the trial on Monday.
However, when Monday came, the defendant was not present. I was informed by Mr Leung, his counsel, that he had checked into the Adventist Hospital in Tsuen Wan, and Mr Leung proceeded to give the court a handwritten note from the doctor saying that the defendant had a hypertensive crisis.
I was not satisfied with just that note, so I asked Mr Leung to obtain a full medical report, and if not, for the doctor to attend to explain the prognosis and on Tuesday. There was a further note from the doctor saying that tests were being done, at the Adventist Hospital, without saying how long he would be kept in the Adventist Hospital.
Meanwhile, the victim had been brought back from the Philippines to give evidence on the Monday already, and she was waiting to come to court to give evidence, and no doubt these days of adjournments would have added to her distress. I was therefore not satisfied with the medical chit from the doctor in Adventist Hospital to explain why the defendant has stayed away. So in order for me to understand fully the medical condition of the defendant and whether he was fit for trial, I revoked bail and sent him to Queen Elizabeth Hospital custodial ward.
On the Wednesday, the consultant at the Queen Elizabeth custodial ward then gave me a full medical report on the defendant and said that the hypertensive crisis, in fact, is under control. His blood pressure is under control, and the reason perhaps for his crisis was his poor, as he said, was the defendant’s poor drug compliance at home. Which led to this hypertensive crisis, because once he was transferred to Queen Elizabeth Hospital, his blood pressure was stabilised with his usual anti-hypertensive medications and dosage, and the associate consultant, Dr Lam, certified that he was fit for trial, and we could start the trial on Thursday.
And it was a sorry history, because then on the Thursday, I was informed by counsel and solicitor that the defendant was being uncooperative, and they wanted to cease to act. I refused leave for either counsel or solicitors to withdraw at the eleventh hour, and I did indicate that even if they had withdrawn, I was prepared to continue trial, even if the defendant is unrepresented, because in this case, we are dealing with a vulnerable witness who came back from the Philippines especially to give evidence, and this is fully, in the end, justified, because of the victim impact report, which I have received from the prosecution and which the defence has already been given a copy.
Now, in this report, in fact, it is a statement of the victim. She said that after the incident, she was depressed, and she got scared easily. For example, when someone touched her from the back, or when she encountered a male stranger. I have no doubt that this sort of trauma would cause that kind of distress. She had also lost her job after the incident, and she was very worried because she had no income, and she therefore could not sleep well.
And she was also afraid, because that she might sustain sexually transmitted disease, because there was no evidence that the defendant was wearing a condom when he raped her.
Because of this traumatic event, she was afraid to work in Hong Kong again, and she said that she did receive an HIV injection about six months after this incident, because the defendant was not wearing a condom.
She said she is the financial pillar of her family, as a lot of our domestic helpers are, and we all know that working outside the country really helps the family in the Philippines, but because of this traumatic event, she has not been able to bring herself to come back to Hong Kong to work, so she says she and her family are having a very difficult time in the Philippines. She can no longer support her family, and because of coming to Hong Kong to give evidence, she had to resign from her job as a saleslady, and so she doesn’t even know if she will find another job after she returned to the Philippines.
She wants a compensation order to be issued by this court to compensate for her loss in income between August 2015 and August 2016, in the amount of HK$48,120.
Now, in view of this request, I had asked Mr Leung to take instructions, as to whether the defendant was willing to offer compensation. This request had been denied by the defendant, saying that he had no money. Unfortunately, the defendant was on a $50,000 bail, but that money he had already, by saying a power of attorney, allowed his solicitors to take away.
It is a fact that the actions of the defendant had not only victimised the victim, physically, but also materially. She has lost income of HK$48,120, and under Section 73 of the Criminal Procedure Ordinance, I am empowered to grant compensation on top of any sentence that I give to the defendant.
So as far as the level of sentence is concerned, there is no guideline sentence. Each case has to turn on its own facts. I am grateful to Mr Arthur for the case of HKSAR v Chan Tung Hing, in 2008, where the Court of Appeal was dealing with a sentence, a rape sentence, and the victim in that case was a domestic helper. The defendant in that case was sentenced to 8 years’ imprisonment after trial.
The Court of Appeal having considered the sentence that was imposed, had this to say, and the judgment was delivered by Ma J, who was the chief judge of the High Court as the then was, and it is worth repeating, because Ma J said in the judgment, which is reported at [2010] 3 HKC 307, he observed that the applicant had not shown much shown much remorse either. At trial, he accepted that sexual intercourse took place, but ran a defence along the lines that the victim was demanding money from him, and only when she was not paid did she then turn against him. This is the similar defence that was run by the defendant in this case.
He then goes on to say at paragraph 11:
“We would add that in a relationship of employer and domestic helper, it is often the case that the helper is in a particularly vulnerable position. Not only is the helper financially dependent on the employer, the helper will be far away from her home country and her immediate family. We view the preying on such persons particularly seriously.”
The Court of Appeal considered that the trial judge in that case was correct in identifying the aggravating features in that case, that there was a breach of trust in that the applicant was the victim’s employer, the victim was vulnerable, in that she was new in Hong Kong and homesick. The applicant lured the victim into his bedroom under the pretext of helping her call her family, and the applicant did not use a condom.
In this case, there was certainly a breach of trust, certainly, the helper, the victim, was in a particularly vulnerable position, far away from home country and her immediate family. And to add to the victim’s distress, which I consider to be also an aggravating feature, was the fact that the trial was delayed for three days, and during those three days, I can imagine the victim being caused much distress whilst waiting to give evidence.
I am also taking into account that there has not been any remorse whatsoever shown in this case. This case is, in fact, in an even more, if you can say, worse position than the defendant in Chan Tung Hing, because the defendant had indecently assaulted the victim prior to this, knowing that the victim did not want anything to do with him sexually, and the victim made it very clear that she did not want to be indecently assaulted. That did not cause him to desist. Instead, he went on to rape her.
I am appalled at what had happened, and therefore I consider that in the circumstances of this case, an appropriate sentence on the 1st count would be 4 years’ imprisonment.
And for the rape, I would consider an appropriate sentence of 9 years. However, after saying that, I would have to consider the totality principle. The indecent assault did take place shortly before the rape, and so I will make the two sentences concurrent, so the defendant will go to prison for 9 years.
As for the compensation order, I understand that the compensation order ordered by the court is viewed as a debt which is recoverable, correct me if I am wrong. So I will order compensation in this case, in the amount asked for by the victim, that is, HK$48,120, to be paid to the victim by the defendant.