HKSAR v. Ali Nazakat and Another

HCCC 107/2018
HCCC 108/2018
(Heard together)

[2019] HKCFI 491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 107 & 108 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

D1, Ali Nasakat, was convicted by a jury of rape, the 1st charge of the indictment in HCCC 107/2018. D1 pleaded guilty to the 1st, 2nd and 3rd charges of the indictment in HCCC 108/2018 on 26 March 2018. The charges are respectively theft, conspiracy to obtain property by deception and fraud. D1 was committed to the Court of First Instance for sentence.

D2 pleaded guilty to 2nd and 4th charges of the indictment in HCCC 108/2018 on 26 March 2018. The charges are respectively conspiracy to obtain property by deception and failing to surrender to custody. D2 was committed to the Court of First Instance for sentence.

On 6 December 2016 at about 10 pm, the victim went to Lan Kwai Fong to have a drink with three friends. At about 1.30 am on 7 December 2016, she had about five glasses of liqueur. She was tired and tipsy. Her friends put her in a taxi to go home alone. She lost memory of what had happened from then onwards.

At about 7 am on 7 December 2016, she woke up and found herself lying on a sofa at Flat 27E, Vigor Industrial Building. She was still quite drunk and had severe headache. Suddenly D1 appeared in front of her. She was nervous and wanted to leave. D1 took out her handbag from a cupboard and gave it to her. She briefly checked her handbag and found her mobile phone, $500 cash and Octopus card and credit card missing. This is the subject matter of the 1st charge of the indictment in HCCC 108/2018 against D1.

D1 took the lift down with her. She got on a taxi. Later at home, she was so tired that she went to bed without a shower. After she woke up between 12 to 2 pm, she found abnormal secretion on her underwear. She suspected she was raped. In the meantime, she also reported to the bank the loss of her credit card. She eventually reported to the police later that day. Subsequent analysis confirmed that the sperm of D1 was present in her vagina and on her underwear.

Police investigation revealed the following transactions: (a) At about 10 am on 7 December 2016, D2 used the victim’s credit card to purchase a gold necklace and a bracelet of about $13,000 in total from Kam Kau Jewellery shop in Tsuen Wan. D2 signed on the payment slip. He then sold the items to another jewellery shop nearby and shared the proceeds with D1.

Shortly afterwards, D2 again purchased another bracelet using the victim’s credit card at Kam Kau Jewellery shop at about $9,200. This is the subject matter of the 2nd charge of the indictment HCCC 108/2018 against both defendants.

Shortly after 1 pm the same day, D1 used the victim’s credit card to purchase two items: a mobile phone at about 2,400 and a bottle of perfume at about $1,000 from two other shops in Tsuen Wan but unsuccessful. The two shops were Buy Home Company Limited and Sa Sa Cosmetic Company Limited.

Later at about 2 pm on the same day, D1 used the victim’s credit card to purchase two packets of cigarettes at about $110 from Esso Petrol Station at Castle Peak Road. The transaction was unsuccessful.

At around 8.37 pm the same day, D1 used the victim’s credit card to purchase a mobile phone at $2,800($2,080?) from Century Telecom. The transaction was unsuccessful. D1 left the credit card at the shop and left. These unsuccessful transactions are subject matters of the 3rd charge of the indictment HCCC 108/2018 against D1.

After further investigation, the police raided Flat 27E of Vigor Industrial Building at around 1.25 am on 9 December 2016. D1 was located sleeping on a sofa inside the premises. On examination of D1’s mobile phone, the police found that a picture of the victim’s credit card was sent to D2 through WhatsApp. D1 was arrested. The police also watched the CCTV footages of Vigor Industrial Building in relation to the early hours of 7 December 2016. The footages reveal that D1 carried the victim across the carpark and took a lift up to 27th floor. The victim appeared unable to walk on her own in those footages.

In the afternoon on 14 December 2016, the victim identified D1 at a formal identification parade. D2 was arrested on 10 January 2017. D2 failed to turn up in court on 22 January 2018. He was later arrested on 3 February 2018. This is the subject matter of the 4th charge of the indictment HCCC 108/2018 against D2.

D1 is 24. He is an illegal immigrant from Pakistan. He has been married for three years. He came to Hong Kong in November 2016 via China. He received junior secondary education in Pakistan. He was unemployed. He has a clear record in Hong Kong. His father is a permanent resident in Hong Kong. D1 asks for a chance and leniency from this court.

Clinical psychologist, Ms Chow, interviewed the victim after this trial. Ms Chow pointed out that the victim had a particularly difficult time for several months after the incident. She was depressed due to worry of sexually transmitted disease because of this incident. She had to withstand side effects of medication such as weight loss, nausea, mood swing, fatigue and headache. It was shocking and sorrowful for her when she watched the CCTV in court. Ms Chow concluded that the victim was emotionally vulnerable since this incident. She suffered marked anxiety and lowered sense of safety. Fortunately, she has not developed any mental disorder.

The penalty for rape offences must reflect that courts will not tolerate this abhorrent conduct. Others must be deterred from committing similar offences. In the present case, there are aggravating factors which warrant enhancement of the sentence:

(a) D1 is an illegal immigrant. He is a stranger, taking advantage of the drunkenness of the victim. It is most despicable conduct.

(b) D1 did not use condom and ejaculated inside the victim.

(c) It was premeditated that he carried the victim all the way back to Flat 27E before raping her.

(d) The victim suffered serious physical and psychological trauma after the incident, though no mental disorder.

I have considered the authority submitted by Mr Tracy, HKSAR v Tse Hoi Pan [2010] 1 HKC 1 and HKSAR v Ho Man Ho [2012] 1 HKLRD 188. I have also considered HKSAR v Lau Yun Leung, CAAR 3/1999. I sentence D1 as follows:

1st count of rape in HCCC 107/2018, I take a starting point of 7 years’ imprisonment.  I enhance 1½ years for the aggravating factors.  I sentence D1 to 8½ years’ imprisonment.

For the 1st count of theft in HCCC 108/2018, I take a starting point of 2 years’ imprisonment. I deduct 8 months for his plea. I sentence D1 to 16 months’ imprisonment.

For the 2nd count of conspiracy to obtain property by deception in HCCC 108/2018, I take a starting point of 3 years’ imprisonment. I deduct 1 year for his plea. I sentence D1 to 2 years’ imprisonment.

For the 3rd count of fraud in HCCC 108/2018, I take a starting point of 3 years’ imprisonment. I deduct 1 year for his plea. I sentence D1 to 2 years’ imprisonment.

For the three counts in HCCC 108/2018, I order the sentences to run concurrently. The three counts in HCCC 108/2018 are different offences though closely followed the rape offence in HCCC 107/2018. Taking totality into account, I order 1½ years of the final sentence of HCCC 108/2018 to run consecutive to the sentence of HCCC 107/2018. D1 has to serve a total of 10 years’ imprisonment.

Sentence for D2

D2 is 30. He received education up to Form 4. He was a delivery worker at the time of the offence. He is single. He lived with his grandma and took care of her. He is remorseful and asks for leniency.

D2 has two convictions of conspiracy to defraud in 2013. He was sentenced to 12 months’ and 7 months’ imprisonment respectively. He was also sentenced to 1 month’s imprisonment for failing to surrender to custody in 2013.

For the 2nd count of conspiracy to obtain property by deception in HCCC 108/2018, his role is equally important as he was the person who actually used the credit card and forged the signature of the victim. I take a starting point of 3 years’ imprisonment. I deduct 1 year for his plea. I sentence D2 to 2 years’ imprisonment.

For the 4th count of failing to surrender to custody in HCCC 108/2018, I take a starting point of 9 months’ imprisonment. I deduct 3 months for his plea. I sentence D2 to 6 months’ imprisonment.

I order the two terms to run consecutively. D2 has to serve a total of 2½ years’ imprisonment.