HKSAR v. Qasir Jahanger

HCCC 427/2017

[2018] HKCFI 2695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 427 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, you have been convicted after trial by a jury of one count of attempted rape of Madam X. You gave evidence at the trial and said that this sexual encounter with X was consensual. From the jury’s verdict, they have rejected your defence.

On 10 May 2017, you were a neighbour of the victim, Madam X. You lived in the room next door to hers, which she shared with her husband. This was what is commonly known as a sub-divided unit. That evening, when X’s husband left their home shortly after 9 pm, he left X inside alone. Shortly thereafter you knocked on X’s door. Believing the person at the door to be her husband who had just left, she opened the door. When she saw you, she immediately tried to close the door, but you forcefully pushed open the door. You entered the room, immediately locked the door behind you, and immediately took off your clothes, that is, your shirt and your trousers and underwear.

Having done that, X saw that your penis was erect. She immediately jumped onto her bed but you dragged her down to the floor by grabbing her ankles and pulled off her underwear. Thereafter you pressed her down and vigorously attempted to have sexual intercourse with her. You had, in her words, attempted to use your penis and attempted to put it into her buttock. However, she continued to struggle, she turned around, and when she turned around, you then used your penis to try and penetrate her vagina. X said she felt your penis was pressing very hard against the outside of her vagina. You used your penis with great force, knocking at the area around her vagina and between her vagina and anus. Throughout this time she said she struggled with great force to prevent you from entering into her.

In the end, she said, you held your penis with your hand, swung it around and ejaculated, and your semen sprayed all over her nightgown, onto her bed and onto her body. You then left the room half dressed, wearing your jeans and underpants but not your upper garment. Throughout this episode she said she shouted loudly and was crying and eventually when you left she immediately told her husband and a report was made to the police.

After the investigation, it was found - and this was an admitted fact - that your DNA was found from the semen stains on the bedsheet.

Defendant, on your own election, you discharged your legal team after the evidence-in-chief by Madam X and you were unrepresented at the trial. I adjourned for sentence and called for a victim impact report and a psychological report upon you. At the sentence hearing you have instructed counsel, Mr James Sherry, who has mitigated on your behalf. I have appraised him of the facts which I think it is important for him to know and he is also familiar with the facts of this case. Mr Sherry has helpfully submitted his mitigation in writing and referred me to a number of previous authorities to assist me to pass the most appropriate sentence upon you.

Principles in the authorities that are handed to me are helpful, however, it may not be too useful to compare sentences in different cases as the facts in each case differ.

Defendant, you are now 34 years of age but were 32 at the time of the offence. You have been in Hong Kong since 2005 and have three previous convictions. Those were for criminal damage, burglary and possession of an ID card belonging to another. You remain in Hong Kong as a torture claimant or commonly referred to as a Form 8 recognisance holder.

The maximum penalty for rape is one of life imprisonment. I refer to the case of Leung Yuet Hung CAAR 1/2014 where the Court of Appeal and Stock VP had considered the principles of sentencing in rape, particularly that of attempted rape. In cases of rape, defendant, a starting point of 5 years’ imprisonment is usually appropriate. Your counsel, Mr Sherry, has urged me to adopt a lower starting point than 5 years’ imprisonment as this is an attempted rape.

As in Leung, I consider this case to be as close as rape as the offence can be, that is, as close as one can get to the full offence of rape. The reason for my saying that is that you had used your penis and tried to penetrate her by knocking or using your penis around her vagina and anus and in the surrounding area as did the defendant in Leung. In my judgment, therefore, an appropriate starting point before any aggravating features is one of 5 years’ imprisonment.

There are features in this case which call for an enhancement of your sentence or are commonly referred to as aggravating factors. The first is that you attempted to rape X without a condom. You then ejaculated over her also without a condom. You attempted to rape her in the sanctuary of her home. You had gained access to her home by forcing your way into her home. Although the victim cannot be described as elderly, she was of a senior age of 58 and you were only 32 at that time. You are a torture claimant engaging in serious crime in Hong Kong.

Apart from those aggravating features, other matters for my consideration is the effect that this offence has had on the victim and the risks of your sexual reoffending. The victim impact report states that she suffers from post-traumatic stress disorder and a major depressive disorder. I shall not go into the report in detail but the disturbances has caused significant distress and impairment on her daily functioning for more than a year and she still suffers from severe sleep problems with many somatic discomforts. She has nightmares mainly involving the scene that she suddenly fell from a high location reminding her of you forcibly pulling of her legs from the bed. She usually woke up terrified with much sweating on her back which irritated her skin. It goes without saying that she has suffered tremendously from this attempted rape upon her.

The psychological report I called upon you shows that you lack remorse and insight into your problems and your risk of sexual reoffending was assessed to be at the high end of the moderate range. At the conclusion of the psychologist’s report, the psychologist describes you, personality-wise as hedonic, irresponsible and promiscuous. She said you presented with great sexual needs. However, she said there was no evidence at the present assessment that you had any deviant sexual interest. She concluded by saying that psychological treatment targeting your substance abuse, sexual impulse regulation and prevention of reoffending behaviour is suggested.

As mentioned, X stated that her husband would have a regular routine of leaving the home at about 9 pm daily. It is of no coincidence that you knocked on her door very shortly after he left. You would have been aware that she was on her own when her husband left. X had seen you peering into their room on two previous occasions.

Although I cannot conclude that this was a planned or attempted or premeditated attempt of rape, it would certainly appear that you were well aware of the habit or routine of the victim’s husband and knew that she was on her own when you knocked on the door. Although there was no severe violence, you grabbed her legs and pulled her off her bed forcibly. This must be taken in the context that you are pulling a 58-year-old woman off her bed while she is standing on the bed onto the ground. I accept there were no injuries on her and that she was still able to forcibly struggle against you. I also accept that this is what may be considered of low violence but I nevertheless still do consider this to be violent. What you did do though is violently try to penetrate her with your erect penis.

The forensic expert, Dr Mok, in the trial examined X some 14 to 15 hours after this attempted rape. He found a superficial split wound with a small amount of blood oozing from the outside of her vagina. He opined that the wound could be caused possibly by the direct impact or rubbing of an erect penis or fingers or foreign body on that area. It was a blunt force trauma. As this was a fresh wound, he said it would likely to have been caused about one to two days before his examination. X gave evidence that her last sexual encounter with her husband was approximately a week before. I therefore conclude that this superficial split wound was caused by your erect penis and its blunt force trauma against her vagina.

Mr Sherry has said that you had desisted from raping her. Given the age difference and certainly the strength, you could obviously have continued and raped her. I know not why you desisted, but what I do see from the facts is that very shortly after you pulled away, you flung your penis around and almost immediately ejaculated upon X.

It appears to me now, after reading your psychological report, and as stated earlier, that you have great sexual needs; you masturbate up to five times a day and watch pornography daily, you were reported to have sex every day when you were in a relationship and you have a habit of visiting prostitutes regularly. It appears to me that your stallion-like behaviour had targeted a vulnerable elderly or more senior lady as you knew she was an easy target in an attempt to satisfy your healthy appetite and sexual drive on a person weaker and vulnerable to you.

Defendant, this attempted rape occurred in the sanctuary of X’s home. You invaded her space. Although unsuccessful in raping her, you intentionally sprayed your sperm over her, ejaculating over her, this conduct being grossly intrusive on X.

I take from paragraph 46 of Leung:

“Aggravating features are not reflected in sentence according to some mathematical formula for each factor. It is a question of overall and sensible assessment.”

I therefore will not break down each aggravating factor and reflect the sentence for each aggravating factor.

Looking at this case on the round and taking into account the aggravating factors, I enhance the starting point of 5 years to that of one of 9 years’ imprisonment, to which you shall be so sentenced. Defendant, there are no mitigating factors in your case to warrant any discount to that time.