HKSAR v. W C T

HCCC 160/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 160 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 pleaded guilty to two counts of rape, Charges 1 and 3; one count of indecent assault on another person, Charge 2, and one of attempted rape, Charge 4, and admitted the facts pertaining to those charges. All four charges concerned “X”, the daughter of the defendant. She was born in March 2001 and is now aged 16.

Charge 1 took place on an unknown day between 28 March 2014 and 30 March 2014 in Mainland China. X was 13 years old when Charge 1 took place. Charge 2 took place on an unknown day between 1 May 2014 and 31 August 2014, at a flat at Hung Wan Street. X was 13 years old when Charge 2 took place. Charge 3 took place on an unknown day between 1 May 2014 and 31 August 2014, at a flat at Hung Wan Street. X was 13 years old when Charge 3 took place. Charge 4 took place on or about 10 October 2016, at a flat at Hok Ling Street. X was 15 years old when Charge 4 took place.

In year 2000, the defendant married X’s mother. In 2001 and 2002, the mother gave birth to X and her younger brother in China. In year 2003, the defendant moved to Hong Kong. In 2009, the mother, X and her younger brother moved to Hong Kong. Since then, the whole family resided in Hong Kong.

Between 1 July 2012 and end of March 2016, the family lived in a flat in Hung Wan Street, To Kwa Wan, which has no bedroom. The family shared a bunk bed. The defendant and the mother slept on the upper bunk and X and her younger brother slept on the lower bunk. Their flat at Hung Wan Street was the location where Charge 2 and 3 took place. Since end of March 2016, the family moved to a flat in Hok Ling Street, To Kwa Wan. The flat has four bedrooms. The defendant and the mother occupied a bedroom; X and her younger brother each occupied one bedroom. Since October 2016, X’s uncle stayed in one bedroom.

The sexual abuses of the defendant on X came to light on 15 October 2016. X was chatting with a schoolmate about being sexually abused by her father. A passer-by joined in the chat and heard what X said. The passer-by reported the case to the police soon after.

On 17 October 2016, a video-recorded interview was conducted with X. She disclosed the sexual assaults by the defendant.

The rape in the mainland, Charge 1

The first sexual abuse had happened when X was in primary 6, when the defendant, X and her younger brother went to the mainland together and the mother did not join them. They stayed in her grandfather’s home in Shanwai. The three of them stayed in a room and shared one big bed with X sleeping in the middle and the younger brother sleeping on her right side and the defendant on her left.

One night, when X was wearing a white skirt and underwear, she felt someone placing his finger inside her underwear and fondled her private part. She felt itchy. The finger was then inserted in her vagina. Her underwear was then pulled down and she felt a penis inserting into her vagina. She felt painful. After that, her underwear was pulled back up. She was very sleepy at that time and she had a vague impression about the incident. She believed it was done by the defendant as he was sleeping next to her. She could not see who it was at the time as the room was very dark.

The indecent assault at Hung Wan Street, Charge 2

X was indecently assaulted by the defendant when she was at home on a night at summer time. X was in Primary 6 when the incident took place. When X was sleeping in her bed, she felt someone touched her breast, pulled up her clothes and kissed her nipples. She felt painful and woke up. She saw the defendant’s face vaguely. The indecent assault took place when her younger brother was in a deep sleep beside her. The incident came to an end when her mother returned home. The defendant rushed back to the upper bunk.

The rape at Hung Wan Street, Charge 3

On the night that followed the indecent assault, because the defendant had molested her the night before, X swapped her sleep position with her younger brother and she slept at the inside, next to the wall. When X was sleeping, she felt someone touching her private parts. Her underwear was then pulled down and she felt a penis inserting into her vagina. She felt so painful so she shouted once and opened her eyes. She saw the defendant on top of her. He was not wearing any top and his boxers were lowered. During the vaginal intercourse, X felt very painful as the defendant’s penis went deeply inside her vagina. On the next day, after X woke up, she took a shower and she found some smelly yellow discharge at her underpants.

The attempted rape at Hok Ling Street, Charge 4

On or about 10 October 2016, when X was sleeping on her bed at the flat at Hok Ling Street, she was wearing a vest and underwear, she felt someone fondled her private parts using fingers. The person who attacked her then squeezed in between and the wall. She turned her back against the attacker but the attacker tried to put his penis inside her vagina but failed. He then rubbed his penis against her thighs when her back was facing him. The victim kept her eyes closed. Soon after, she felt the person left her bed, switched on the lights and took some tissue paper to wipe the bedsheet. He then switched on the light and at this juncture, X opened her eyes and saw the defendant’s back when he was leaving the room.

On 25 October 2016, the defendant was arrested. He remained silent under caution.

On 17 October 2016, X was examined by a forensic pathologist who opined, inter alia, that there was no recent injury to her private parts and no abnormality or injury was found in the hymen. It was remarked that the evidence is neutral as to whether there was sexual intercourse as alleged.

On 17 October 2016, during house search of the flat at Hok Ling Street, the victim’s bedsheets were seized and the defendant’s semen was found thereon.

The antecedents statement of the defendant says that the defendant, born in China, is now 39 years old. He has a clear record. The defendant worked as a construction site worker at the time of his arrest.

Doctor Lui, the psychiatrist who examined the defendant, opines in the psychiatric report of the defendant that the defendant is not suffering from mental illness.

Ms Yim, the clinical psychologist who examined the defendant, says, at the concluding paragraph of the psychological report of the defendant that the defendant is a first offender of sex crime. He was introverted in personality, socially isolated and had weak intimacy skills. Due to his failure to handle marital problems, he was sexually ungratified. With poor control of sex urges, he appeared to sexually assault his biological daughter repeatedly to gratify his sexual needs.

Though the present assessment indicated no evidence of paraphilic disorders, psychological treatment on his intimacy skills and appropriate gratification of sexual needs is recommended. Considering the defendant’s history of self-harm behaviours triggered by the current conviction, continuous monitoring of his self-harm and suicidal risk is necessary after sentencing.

Ms Lam, the clinical psychologist who interviewed X and prepared the victim impact report of X, opines that X was a victim of interim familial sexual abuse and was traumatised by these incidents. Information gathered and test findings indicated that she manifested symptoms of post-traumatic stress disorder. She experienced more difficulties to regulate her emotions despite she had tried hard to suppress. In addition, the abuse had posed significant adverse impact on her self-esteem, emotion regulation and interpersonal relationship with others in the long run. Her need for psychological treatment is strongly indicated.

Ms Lam observed that, after the last incident in October 2016, X had a conflict with her mother. She was very emotional and finally she told her mother what she had gone through. However, her mother was not ready to believe in her. It was a big blow to X and she was under significant distress that she could no longer be able to cope with her distress. She shared with her peers and social workers but she still did not want to report to the police as her mother objected.

It should be noted also that in the mitigation letter written by the wife of the defendant, not a word was said about the feelings or sufferings of X. For the offences committed by the defendant, the wife only described them as ‘shameful things’. She says in the letter: “He was the one who supported the family financially and who made decisions to sort out everything for us, but now, I have to take up his role”. It seems to me the wife was more concerned about the loss of financial support than the wellbeing of her daughter.

I have considered the mitigation advanced on behalf of the defendant by Ms Chiu and the authorities cited, namely HKSAR v F L H, CACC 426/2000, HKSAR v K K K [2013] 3 HKLRD 676, CACC 504/2011, HKSAR v Lam Chung Tak Jemy, CACC 271/2006, HKSAR v L K S, HCCC 33/2016 and HKSAR v Jia Hon Jin(?), CACC 384/2010.

The four offences were grave in themselves as they were committed by the defendant against his biological daughter, hence involving, as they did, a gross breach of trust. The seriousness of the offences was aggravated by the fact that X was only 13 years old when Charges 1 to 3 took place. She was 15 when the defendant committed Charge 4 against her.

In sentencing the defendant, it should be taken into consideration there is evidence that X manifested symptoms of post-traumatic stress disorder as a result of the sexual abuse. She experienced difficulties to regulate her emotions. The abuse had posed significant impact on her self-esteem, emotion regulation and interpersonal relationship with others in the long run. X requires psychological treatment to cope with her conditions.

The defendant committed Charges 1 to 3 at the time when the younger brother of X, aged only 12, was sleeping next to X. How a father could sexually abuse his daughter in the way and in the circumstances the defendant did, ie, in the presence of a sleeping son, is beyond one’s comprehension.

The fact that the defendant had repeatedly sexually abused his daughter added to the seriousness of the case. Each offence committed by the defendant added to the overall culpability of the case, which is a matter which falls for consideration when the totality principle is considered.

All matters taken into consideration, in my judgment, the following starting points should be adopted for Charge 1 to Charge 4: Charge 1, rape, a starting point of 11 years’ imprisonment; Charge 2, indecent assault on another person, a starting point of 18 months’ imprisonment; Charge 3, rape, a starting point of 11 years’ imprisonment; Charge 4, attempted rape, a starting point of 4½ years’ imprisonment.

The defendant is entitled to the customary full one-third reduction for his guilty pleas and clear record. I would allow the defendant an extra reduction of 3 months’ reduction for his guilty plea to Charge 1, taking into account, firstly, the victim was spared from the extra distress of giving evidence in court and, secondly, the likelihood of a finding of not guilty had the matter been contested, given the fact that X could not see the rapist at the time as the room was very dark. I would allow the defendant an extra 1 month reduction for his plea to Charge 2 and an extra reduction of 2 months for his pleas to Charge 3 and Charge 4 which spared the victim from the extra distress of giving evidence in court.

I do not accept the claim that the defendant committed the offences out of recklessness. The defendant had sexually abused his daughter on four occasions. It cannot be said that he committed the offences out of recklessness.

I do not see the fact that the defendant attempted to commit suicide after the last incident is something that militates against the seriousness of the case. Naturally, the defendant should feel ashamed and distressed for what he had done. The attempt to commit suicide was an irresponsible act.

The defendant, when he was interviewed by the clinical psychologist, denied penetration during the first and the third incident, that is the two counts of rape. In my judgment, his remorse is indeed shallow.

Ms Chiu submits that when each offence took place, no force, threat or violence was exerted by the defendant and there was no resistance from the victim as she was, to a large, or some extent, asleep. If force, threat or violence was ever used, a higher starting point would be adopted. The fact that no force, threat or violence was used is not a mitigating factor that the defendant can pray in aid of.

I do not accept it is a mitigating factor that the forensic examination on 17 October 2016 revealed, amongst others, there was no abnormality or injury found in the hymen of X. I do not accept the fact that the defendant surrendered himself to the police, accompanied by his lawyer, ten days after the case had been reported amounts to a mitigating factor. It is most unlikely that the defendant, with his background, would become a fugitive because of this case.

It is submitted that the chance of reoffending similar offences by the defendant is very slim and that the defendant is a person of clear record. Previous good character is only of minor relevance in rape cases. And in any event, the previous good character of the defendant has already been taken into account in the one-third reduction. In the case of sexual offences committed by a father against his biological daughter, it is only natural that the chance of reoffending will be slim.

Sentences

Charge 1, rape, with the one-third reduction, the starting point of 11 years will be reduced to 7 years and 4 months’ imprisonment. With the extra 3 months’ reduction, the sentence is 7 years and 1 month’s imprisonment.

Charge 2, indecent assault on another person, with the one-third reduction, the starting point of 18 months’ imprisonment will be reduced to 12 months. With the extra 1 month reduction, the sentence for Charge 2 is 11 months’ imprisonment.

Charge 3, rape, with the one-third reduction, the starting point of 11 years will be reduced to 7 years and 4 months’ imprisonment. With the extra 2 months’ reduction, the sentence is 7 years and 2 months’ imprisonment.

Charge 4, attempted rape, with the one-third reduction, the starting point of 4½ years will be reduced to 3 years’ imprisonment. With the extra 2 months’ reduction, the sentence is 2 years and 10 months’ imprisonment.

Totality

In my judgment, a total sentence of 10½ years’ imprisonment should adequately reflect the overall culpability of the four offences. To achieve this result, I order that the sentences for Charges 2, 3 and 4 shall run concurrently with each other and the subtotal is 7 years and 2 months. Three years and 4 months of the sentence for Charge 1 shall run consecutively to the sentences for Charges 2, 3 and 4.

The total sentence is 10½ years’ imprisonment.