HKSAR v. A

HCCC 137/2018

[2018] HKCFI 2165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 137 OF 2018

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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 a magistrate to five charges of rape and was committed to the Court of First Instance for sentence.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, the background of the defendant, mitigation put forward on his behalf and impact reports on the victim.

The defendant is the father of the victim X who is a single child in the family. At the material time, the defendant, X and her mother were living together in a public housing flat.

The incident of Charge 1 took place in July 2005 when X was 10 years old. It was around 2 am. X was sleeping in a bed in the living room. She woke up when the defendant returned home from work. Then when the defendant was using the computer at the living room, he asked X to come close to him. He put his hand inside her pyjamas and touched her breasts. He then told her to lie down on the sofa. When she did as told, he removed her underwear and put his fingers into her private parts. Then he put on a condom and had sexual intercourse with her against her will until he ejaculated inside the condom. It lasted roughly 10 minutes and during the course he grabbed her breasts forcefully. X was terrified. The defendant warned X not to tell anybody about what had happened. X’s mother was sleeping in the bedroom.

The incident of Charge 2 took place one month later, in August 2005. The defendant woke up X and removed her trousers and underwear. He had sexual intercourse with her against her will and without using a condom. Having penetrated X for a while, the defendant told X to lay her upper body onto the bed and penetrated her from behind. It lasted for around 10 minutes. The defendant ejaculated outside her. At the material time, X’s mother was sleeping inside the bedroom.

The incident of Charge 3 took place in 2008 when X was 13 or 14 years old. The defendant again raped X. At that time, either X’s mother was not at home or was taking a shower inside the bathroom.

The incident of Charge 4 took place two years later, in 2010, when X was 15 or 16 years old. The defendant told X to lie on the bed. When she did so, he removed her trousers and underwear and had sexual intercourse with her against her will without using a condom. During the course he also penetrated her anus with his fingers. The incident lasted about 10 minutes and he ejaculated outside her.

The incident of Charge 5 took place about seven years later, in February 2017, when X was 22 years old. When X’s mother was taking a shower, the defendant told X to follow him into the bedroom. She reluctantly did so as she did not want her mother to know what had been going on. She lied on the bed and removed her underwear. His first attempt to penetrate failed. He then licked her private parts for around 5 minutes. Using his saliva as lubricant, he managed to penetrate her against her will without using a condom. He again ejaculated outsider her.

In July 2017, the mother of X came to know the matter and arranged her to stay with her stepdaughter. X also made a report to the police.

When the defendant went to a police station to report that X had gone missing, he was arrested. Under caution, he admitted to have made love with X against her will on multiple occasions. He said since it was very stressful working as a hotel chef and that his wife was not in good health, he needed to vent and could not control himself in doing what he did to X.

The defendant is 50 years of age. He had received secondary education in China before he came to Hong Kong at the age of 16. He started to work at a kitchen and progressed over the years to become a senior assistant chef in a high class hotel. He did not have any criminal conviction before.

In mitigation, learned counsel for the defence, Mr Luk, SC, informed the court that he, the defendant, married his wife who has a daughter from her previous marriage. They lived together until the stepdaughter went to USA to pursue her upper secondary education when her natural father took up the responsibility of supporting her.

X was born in 1994. Since then the defendant had for a long time taken up three jobs to support the family. He started a fast-food shop in 2004, which ended because the couple wanted to have more time to take care of X who suffered a serious illness when she was sent to the mainland to be looked after by relatives since the couple had no time to do so owing to their commitment to the operation of the business.

The general health of the defendant’s wife is not good and she does not have much interest to have sex with him. The defendant did not find other channels to ventilate his sex desire.

On the night after X had returned from the mainland, he had a conversation with her. They became emotional and hugged each other. The defendant was aroused sexually and it was under such circumstances that he committed the first offence. He accepts his fault.

Mr Luk, SC, urged the court to take into account that the defendant had been fully co-operative upon arrest and he made frank admission. He pleaded guilty at the earliest opportunity and spares the victim of the ordeal of giving evidence in court. Mr Luk, SC, also urged the court to note that there had been no use of violence and X had not been subjected to further sexual indignity.

Letters were produced by the defence. In his own letter, the defendant expressed remorse and said he is now a Christian. In the letter written by his elder sister, she described the defendant as a caring and responsible father and a filial son. She and two staff of the church said they believe the defendant has genuine remorse. The letter from the hotel in which the defendant had worked in says the defendant is a reliable and responsible person.

Rape is generally regarded as the most serious of all the sexual offences. It involves serious physical violation, it may bring serious physical consequences such as disease and pregnancy. Besides, it involves a severe degree of emotional and psychological trauma. It often obliterates the personality of the victim, especially when she is of young age. The impact on the victim can be long-lasting.

In assessing the gravity of an individual case, as the Court of Appeal said in SJ v Leung Yuet Hung, CAAR 1/2014, the court has to assess a whole range of matters, the more important of which are the degrees of harm to the victim and the level of culpability of the offender.

A father who rapes his daughter is of a high level of culpability. The girl is innocent and the act breaks the otherwise harmonious family that she had been living in. She is entitled to trust her father and indeed must have trusted him. There was a gross breach of trust by the defendant. It is even more serious if the offence is committed during the young age of the girl. The young girl had little option but to stay in the family subject to the constant worry of further abuse by a person who is supposed to love her. In the present case, all the incidents took place at her home, a place where she was entitled to feel safe and loved.

The defendant started to hurt his daughter when she was very young, only 10 years old at the time of the 1st charge. Then, in a duration of five to six years, he raped her four times. The defendant had stopped abusing X for several years and probably when X would be feeling some ease in her mind, he did the evil act on her again. It was when X was 22 years old. Although she was an adult by then, it was a nightmare recurring after a lapse of seven years. The huge psychological impact is readily appreciated. During this incident, the defendant subjected his daughter for a considerable duration of indignity before being manage to penetrate her. Most of the offences were committed during the critical period of the growth and development of X. The last incident was a cruel act as it must have destroyed the hope of X which had built up over the previous few years. The hurt is tremendous. It demonstrated that the defendant treated his daughter as a sex toy, anticipating that she would submit to him even though she had grown into maturity in terms of age. The sexual relationship between the defendant and his wife is no excuse. I can only hope that X can fully recover with the help of psychologists and social workers. The road will probably be a long one.

The defendant penetrated his daughter on multiple occasions and at least for three such occasions without any protection. It was a total disregard of the welfare of the daughter for the purpose of satisfying his selfish lust and exposing her to the risk of disease and pregnancy. It is true that the defendant did not perform violence on his daughter - it was probably because it was not necessary. Had there been violence, it is an aggravating feature. Had X suffered any disease as a result or became pregnant, it is also aggravating.

The acts of the defendant have ruined the family. The harm is lightly alleviated by the facts that X is now an adult and is not financially dependent on the defendant as in many other cases where the dependent is still young. The court has been provided with a detailed report prepared by a clinical psychologist and a letter written by the victim herself. For the welfare of the victim, I will not disclose the details of the content of the documents - the documents had been provided to the parties prior to this hearing for the sake of justice - suffice to say the impact on the victim was assessed to be severe. She suffered post-traumatic distress, mood fluctuations and low self-esteem. She has suicidal thought. There are impacts on many aspects. She requires continuous psychological treatment.

Despite the defendant had no criminal conviction record before, he had committed a very serious and shameful case of crime. There is no sentencing tariff for this type of cases as each case has to be decided on its own special circumstances and facts. Apart from the Leung Yuet Hung case I mentioned earlier, I have consulted cases such as HKSAR v KKK, CACC 524/2011(504/2011?), HKSAR v Tsang Chiu Tak, CACC 386/2011 and HKSAR v LKS, CACC 260/2016.

In all the circumstances, I will adopt the following starting points for each of the charges: Charge 1, X was only 10 years old, 12 years as a starting point; Charge 2, which took place one month after the first incident, the defendant raped his daughter without wearing a condom, starting point is 13 years; Charge 3, X was 13 or 14 years old, starting point is 12 years; Charge 4, X was 15 or 16 years old. This time the defendant also did not wear a condom. He also penetrated the anus of his daughter with his fingers. Starting point is 14 years; Charge 5, this time the defendant also did not wear a condom. The starting point is 10 years. If not because X was then an adult already, I would have adopted a higher starting point for the reason I have said earlier.

The defendant committed these serious crimes on his daughter on five occasions in the circumstances as stated earlier. I am of the view that only an overall starting point of 21 years is sufficient to reflect the seriousness of the case. That will mean an overall sentence of 14 years, taking into account the one-third discount the defendant is entitled to for the timely guilty pleas he tendered.

Having considered the whole circumstances, taking into account mitigation submission, I am persuaded to give the defendant an overall further discount of 3 months, in particular for the reason that he spared the victim the ordeal of giving evidence in court and will also do so in relation to each charge.

Defendant, please stand up. For the reasons I have mentioned, I sentence you to the following imprisonment terms. Charge 1: 7 years 9 months; Charge 2: 8 years 5 months; Charge 3: 7 years 9 months; Charge 4: 9 years 1 month; Charge 5: 6 years 5 months. Having regard to the totality, I order the sentences for Charges 2 to 5 to run concurrently. If 6 years of the aggregate of these sentences to run consecutively to that of the sentence for Charge 1, you are to serve a total sentence of 13 years 9 months’ imprisonment for the five charges to which you have pleaded guilty.