HKSAR v. W.C.C.

HCCC 113/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 113 OF 2017

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

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COURT:

The defendant was convicted unanimously by a jury of one count of rape. This was Count 2 on the indictment.

The original indictment contained two charges, Count 1 being an attempted rape, and Count 2, rape. At the close of the prosecution case, it was submitted that the evidence in support of Count 1, the attempted rape, was, as it emerged, part and parcel of the evidence in Count 2. That is to say that there was an ongoing course of conduct which culminated in sexual intercourse, but there was no strict delineation in time as would properly permit the indictment to support the two charges.

This was first raised on behalf of the defendant as a submission of no case to answer in respect of Count 1. This was not a well-founded submission. There was evidence to support the charge of attempted rape, albeit that it was arguably a part of the lead-up to the 2nd count.

The dilemma was resolved by the prosecutor accepting, and quite rightly so, that there was a degree of duplicity in the two counts, in light of the evidence as it fell. I was, in the circumstances, invited to direct the jury to acquit on the 1st count, and this course was agreed to by counsel on behalf of the defendant. I directed the jury accordingly, and they returned a unanimous verdict of not guilty on Count 1.

Count 2, it was alleged that the defendant had, on 10 November 2016, raped X. The offence took place at around 3 am on that day, inside premises which were occupied by both the complainant (X) and the defendant.

The Background

The complainant and the defendant were formerly husband and wife. They married on 31 January 1986, in Fujian province in China. Of that union, there were two children, a daughter who was born in 1987, and a son who was born in 1988.

The complainant, the daughter and the son did not come to live in Hong Kong until 1994. In 1999, a property was purchased by the defendant, and this then became the matrimonial home. It was in this property that the offence that he is convicted of took place.

The marriage deteriorated over the years. The defendant was diagnosed with schizophrenia, and required treatment and medication. In 2012, the defendant attempted to commit suicide, and was hospitalised for some time. At this time, the matrimonial home had two main bedrooms, and thereafter, in around about 2013, a smaller room was created by subdividing part of the living room.

In early 2013, the complainant moved into this room after the daughter had left home. She indicated in the course of her evidence that there was no sexual relationship between her and the defendant from around about this time.

The marriage continued to deteriorate, and in 2015, the complainant commenced divorce proceedings. By all accounts, the defendant refused to acknowledge that this was the case. Nevertheless, the divorce was finalised on 29 April 2015. In the period between April 2015 and April 2016, the son, who had lived together with the complainant and the defendant after the daughter had moved out went to Australia for the purpose of a working holiday. At that time, the complainant moved out to live with her daughter, albeit that she returned to the matrimonial home from time to time.

The son returned to Hong Kong in April 2016, and to the matrimonial home to live. Likewise, the complainant returned on a permanent basis to care for him. The evidence was, in effect, that the complainant, the son, and the defendant lived in the premises, but that was the extent of their cohabitation. According to the complainant, she and the defendant had almost no communication whatsoever. She neither cooked for him nor cared for him.

On 9 November 2016, the complainant returned home to the former matrimonial home at around 8 pm. The defendant was present at the time, but she did not speak to him. She spoke briefly with her son, who is in his room, and was shortly after that about to place some linen into a storage area, which was inside the bedroom occupied by the defendant.

As she was about to do this, the defendant pushed her from behind into that bedroom. She was then lifted onto the bed, and the door was closed behind them. Over the next several hours, she was forcibly detained in that room by the defendant, despite her struggles and protests and cries for help, she was unable to leave. The defendant, over a period of time, forcibly removed her clothing, he tried to smother her with bed clothes after she had cried out to the son for help. She was forced to touch his erect penis. Her left nipple was bitten. Her vagina was forcibly fondled. It was her evidence that the defendant obviously wanted to have sexual intercourse with her, despite her refusal and her efforts to prevent this.

Eventually, at around 3 am, the defendant succeeded in raping her. He did not use a condom, and he ejaculated inside her.

However, her ordeal did not end there. Notwithstanding that the defendant had achieved what he obviously set out to do, she was thereafter subject to further detention and indignities. She was given toilet paper to cleanse herself. She tried to go to the toilet in the other room to urinate. The defendant refused to allow her to leave this room, and told her that she could, if she wished, “pee on the bed”. Eventually, she was forced to urinate into a plastic container, which she found in the defendant’s bedroom.

It was not until around 6.15 or 6.30 am that she was able to leave this room, and then only because she persuaded the defendant that she would attempt to obtain employment for him. It was, as a consequence of these entreaties on her part that she was eventually permitted to leave the bedroom.

She made a phone call on his behalf, and ultimately was enabled to leave the premises around about 8.15 in the morning.

Now, she was undoubtedly distressed at that time. She called her mother in Fujian province, who advised her to go to the police. She attempted to contact her daughter, and eventually was able to contact the daughter’s husband, her son-in-law, who in due course took her to the police to make a report.

Throughout the course of her ordeal, her son was in the flat, but heard nothing, as he was using the internet and listening to music with headphones, which covered his ears.

Subsequently, the complainant was medically examined. She was observed to have fresh bruising on her limbs. There was no apparent injuries to her private parts, but she had tenderness over her left nipple.

The defendant was arrested late in the evening of that day, that is, 10 November 2016. It was an Admitted Facts in the trial that there had been vaginal intercourse between the complainant and the defendant. Throughout this trial, there is a constant theme, generated on behalf of the defendant, that he was not aware that he and the complainant had been divorced. This is despite the fact that the complainant stated that she had told him precisely that, and that in fact, the papers for the divorce proceedings had been served him by her together with the parties’ daughter.

The defendant gave evidence in the trial. In effect, what he said was that he only became aware that they were divorced when he was arrested by the police on 10 November.

His account of the events of that evening and early morning, the evening of 9 November and the early morning of 10 November could not have been more different than those of the complainant.

It was his account that whilst there had been sexual intercourse, it had taken place at the instigation of the complainant, who was an active and willing participant. This account was plainly and properly rejected by the jury.

Subsequent to the jury’s verdict, I have requested information from the Siu Lam Psychiatric Hospital as to the defendant’s mental health, his prognosis, and ongoing treatment. It was an Admitted Fact in the trial that he suffered from the mental illness of schizophrenia. This had been the uncontested evidence of the complainant.

The report that has been provided as a result of my request indicates that the defendant does indeed suffer from a psychotic disorder, namely schizophrenia. During the course of his remand since 10 November 2016, his condition has been stabilised with psychotropic medication, and they have indicated that he requires ongoing treatment to prevent exacerbation of his symptoms. It is clear from this report that were he to be sentenced to a term of imprisonment, appropriate treatment would be available to him through the Correctional Services Department and their liaison with the Siu Lam Psychiatric Centre.

An early report provided to the magistrate upon the defendant’s initial remand has been annexed to that report as well. That report confirms the observations made in the report dated 12 July, and give some further detail to the condition from which he was suffering.

It appears that at the time of his initial remand, the symptoms of his condition were more significant and apparent, and they have been stabilised by a proper adjustment, or indeed proper consumption of medication.

It is suggested in mitigation on behalf of the defendant that the conditions from which he suffers is a component in the offence which he has committed.

Whilst this may be true, what is apparent from the evidence of the complainant is that whilst the defendant had been diagnosed with his condition some many years before the events which gave rise to this offence, he had, whilst initially taken the required medication, had ceased over some time to do so. The fact that he had chosen not to take the medication is perhaps a reflection on the fact that he did not fully appreciate the condition from which he suffered.

Nevertheless, the fact that he is a person suffering from a mental illness which requires ongoing medication does not, in my opinion, afford him any significant benefit insofar as his culpability is concerned for this offence.

In the course of mitigation, Mr So on behalf of the defendant, has submitted that the degree of criminality of the defendant’s offence is in some way reduced by reason of the fact that the complainant, the victim, was not a member of the public, and was familiar with the defendant.

I have a great deal of difficulty understanding the submission. It appears to have, at its core, the suggestion that a man who rapes his wife or ex-wife is in some ways less criminally liable by reason of that. That is not a proposition which I think sits comfortably with the criminal law, and indeed sentencing as I know it.

He further went on to say that in the course of the trial, the son gave evidence to the effect that if the defendant was found not guilty, his mother would understand. Quite how that is relevant to the sentencing component, again, I have some difficulty with. The son was making a plea on behalf of his father in the course of the trial. He was inviting the court to impose a lenient sentence. A matter he was entitled, obviously, by reason of his relationship with the defendant, to do.

Nevertheless, a suggestion on his part that his mother might understand were the defendant found not guilty does not, to my mind, in any way diminish the seriousness of his offence.

In coming to assess the appropriate sentence in this matter, I have endeavoured to canvas with Mr So who appears on behalf of the defendant. What I see as the degree of criminality, exacerbated by certain aggravating factors.

I have pointed out to Mr So that in my opinion, the fact that the complainant was detained for a period from 8 pm to 6.15 am the following day is a serious aggravating factor, Mr So has, on behalf of the defendants, suggested that any period of detention subsequent to the actual rape does not amount to an aggravating factor in the circumstances.

That is a submission without any substance whatsoever. Not only was the detention an integral part of the offence of rape, the detention continued, not only up to and inclusive of the time of the rape, but subsequently thereafter. Indeed, the complainant was caused to suffer significant indignities subsequent to the rape. Again, Mr So suggests that these are not factors which should in any way aggravate the offence of rape. Again, a submission in my opinion which is without substance.

The ordeal suffered by the complainant was prolonged. The level of violence, whilst not extreme, was undoubtedly significant. It was sufficient to ensure that he achieved that which he set out to achieve. At one point in time, when she attempted to cry out for assistance from her son, the defendant applied to her face a quilt or blanket, and said words to the effect that he would suffocate her, and that they would both die together.

Her ordeal was prolonged. And it is, in my opinion, a significant aggravating factor in the offence of rape, as is the fact that the defendant did not use a condom and ejaculated inside her, as is the fact that she was subject to significant indignities subsequent to the rape, and eventually only allowed to leave some three and a quarter or three and a half hours later.

In my opinion, there can be no doubt that a term of imprisonment is the appropriate sentence to be imposed. Mr So on behalf of the defendant doesn’t seek to suggest otherwise. Bearing in mind all of the factors that I have referred to above, which includes the fact that it may or may not, it may be the case that he was not properly medicated for his confusion of schizophrenia at the time of the offence, nevertheless, I am of the view that a sentence of imprisonment in excess of that which was suggested by Mr So must be imposed.

I have been referred to an unreported decision of the Court of Appeal in a review case, CAAR 1/2014, and Mr So seeks to pray-in-aid in suggesting a starting point of 5 years is an entirely appropriate and accepted starting point for a rape in Hong Kong.

In my opinion, that authority does not support that proposition. At paragraph 23, the Court of Appeal observed this:

“A number of judgments in this jurisdiction, starting as long ago as 1994, have echoed the statement that the starting point in Billam is not one which necessarily should be used as the starting point in Hong Kong.”

And they referred there to Lau Yuk Ming [1994] 2 HKCLR 259:

“...and that the guidelines in Billam were no more than general indications of what was considered to be appropriate at that time in England. The courts in Hong Kong are entitled to take into account local conditions and impose sentences that vary from those referred to in the Billam sentencing guidelines”

They referred to R v Sung Kwok Man and another [1994] HKC 161, and HKSAR v Lau Chin Yu [2007] 1 HKC 104.

However at paragraph 25, they said:

“If, in fact, 5 years is the starting point still in use, a question whether that adequately reflects the gravity of the offence of rape in this jurisdiction is one which may require consideration some other time, but it is relevant in the context of this case to remind ourselves of the nature of the crime.”

And they there cite a passage from Lord Chief Justice in Billam.

What, then is the appropriate sentence in the present case? Even if it were accepted, which I do not believe is the case, that 5 years is the norm for a starting point, the aggravating factors in this case, which I have referred to, are such as that starting point would be properly increased to one of 7 years. I see nothing in the submissions made on behalf of the defendant which would in any way mitigate against that starting point. This is a serious case of rape, as I have already indicated, the trauma suffered by the complainant was prolonged, and indeed prolonged beyond the completion of the rape itself.

In those circumstances, taking all matters into account, including those matters advanced by way of mitigation, the appropriate sentence is one of 7 years’ imprisonment, and that is the sentence which I impose.