HKSAR v. Y.C.K.

HCCC 284/2018

[2019] HKCFI 1053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 284 OF 2018

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

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COURT:

The accused pleaded guilty to one charge of incest at the Eastern Magistracy Court on 3 September 2018. The prosecution had laid a rape charge with an alternative charge of incest. The prosecution accepted the accused’s plea to incest and withdrew the rape charge. The accused appeared for sentence on 22 January 2019.

Mr Yuen, defence counsel, had raised the mitigation of intoxication which led to the question whether the plea was unequivocal. The offence of incest requires specific intent and self-induced intoxication could be a defence. Such mitigation puts the accused’s knowledge of the identity of the victim in doubt.

In essence, under the influence of alcohol, he thought the victim was his wife in his wife’s bed. Both the prosecution and the defence subsequently agreed that the plea, under such circumstances, was equivocal. Incest required the accused’s knowledge. Self-induced intoxication is, however, not a defence to rape, a crime of basic intent, whether the issue being intention, consent or mistake as to the identity of the victim.

The accused made it clear from the outset that he would plead to either rape or incest even if he had a defence or a reluctant witness in the victim because he would not, under any circumstances, put his daughter or wife through the ordeal of giving evidence in a trial. The accused elected to plead guilty to rape.

Before me today, he has pleaded guilty to rape and accepted the Summary of Facts. He was accordingly convicted of the charge on his own plea.

Briefly, this offence was committed on 22 March 2018 at the accused’s home where he lived with his wife and daughter, the victim, X, who was then aged 15. The accused has an older child who was abroad studying at the material time. The family home had no bedrooms and two bunk beds were placed in the living room, separated by a cabinet.

The accused returned home that evening after work, having been drinking with work colleagues. X was lying on the lower bed of one of the bunk beds and smelt alcohol on the accused when he spoke to her. Because of the nature of the conversation, X suspected her father thought she was his wife. She told the accused that she was X. She then turned her back to the room and faced the wall to go to sleep.

X told the police that not long after the conversation, the accused climbed into the same bed and molested her right breast from behind for three to four minutes before inserting his finger into her private parts. She then said he rubbed his penis against her buttocks but she could not be sure whether there was penetration.

The accused told the police that he was drunk when he returned home and wanted to have sex with his wife. He thought that it was his wife on the lower bunk and approached her from behind and removed her pants. He says he did penetrate X’s vagina a few times but when he heard her speak, he then realized it was his daughter instead of his wife. He immediately withdrew his penis. He was not wearing a condom and did not feel X resist him during sexual intercourse.

The next morning, X accused him of having sex with her. He said he thought X was his wife and apologized. Immediately after the incident, X showered and later when her mother went to the toilet, X asked her to sleep in the same bed with her. It appears that X did tell her mother what happened because the following morning when her mother went to work, she sought assistance from a social worker who reported the matter to the police.

On 23 March 2018, the following day, the accused was arrested at home and said under caution that he was drunk and thought he had had sex with his wife. He only knew it was his daughter when he woke up. He was very remorseful. I called for a victim impact assessment report and a psychologist’s report for the accused in anticipation of the plea and mitigation.

The Accused’s Background and Mitigation

The accused was born in China and was educated there up to Form 3 level. He came to Hong Kong in 1979 and married his wife in China who joined him in 2000. His son is now over 20 and his daughter, X, is now 16. The accused is 59 years old. At the time of his arrest, he was working as a construction site worker and had been since 2014. Before that, he was a transportation worker. He does not have a clean bill of health. He suffers from long-term heart problems.

The accused has six criminal convictions obtained over three court appearances in 1989, 1990 and 1998. His last conviction therefore was over 20 years ago. None of his convictions are of a sexual or violent nature. He has never served a term of imprisonment.

I have been told that his very elderly parents live in Shenzhen and he visits them regularly. They have been kept in the dark about this offence and his remand.

In mitigation, I have received letters from X, the accused’s wife and his son. Mr Yuen, for the accused, stresses the full extent of his remorse from the minute his daughter confronted him the morning after. The accused was never going to allow X or his wife to suffer the inevitable distress and embarrassment associated with testifying in court.

It is submitted that this was a one-off, isolated incident without any prior history of sexual molestation or interference. Although the accused did not wear a condom, he did not ejaculate inside X. It is stressed that he stopped as soon as he realized he was having sexual intercourse with his daughter. There was no violence used nor any aggravating factors usually associated with the offence of rape or incest. He will not reoffend. These are mitigating factors I accept.

The letters from the accused’s wife and son express forgiveness and both believe he was drunk when he committed this offence. The letter from his son is lengthy and gives an insight into the relationships and difficulties within the family. There is respect for the accused and evidence of sacrifice from the accused for the sake of his family.

It is the letter from the victim, however, that is the most significant. In this letter and subsequent letters she wrote to her father as well as in the victim impact report, the victim repeats her distress and displeasure at the fact that the social worker reported the matter to the police without consulting her. In her view, she believed her father’s excuse and had already forgiven him. She did not want this matter to result in a criminal charge. She had refused to be examined by a pathologist.

I have seen some of the letters that X wrote to her father in remand, five letters in total. The contents have been stressed in mitigation. The victim’s forgiveness is the main theme in the letters. She is quite open about her feelings and emotions. It appears that her forgiveness is genuine because the contents of the letters would not be typical of a daughter who bears a grudge against her father under such circumstances. Her raw emotions do not suggest she has been forced to write these letters to engineer a mitigation of forgiveness. She clearly misses her father and wants him home as soon as possible. X wants to maintain her relationship with the accused and still looks up to him as a parental figure.

More importantly, Mr Yuen suggests the letters indicate she still trusts her father. That would appear to be the case. Mr Yuen has submitted in mitigation that this is not the usual case where there is a betrayal of trust by a father who deliberately abused his position to make improper sexual advances against his own child. This offence arose out of his recklessness, putting himself in such a position and committing this offence. He asks the court to impose a more lenient sentence than usual so that the family can be reunited and to minimise the trauma the daughter is clearly now still experiencing.

The Victim Impact Report

X attended an interview with a clinical psychologist on 18 February 2019. She was accompanied by her mother and both were interviewed separately. However, there is no mention of the interview with her mother.

It is clear in the report that X does not reveal the impact of the rape on her. She does not describe how the rape has affected her. What has affected her most is the shock and anger she feels against the social worker and the police. She now has tremendous guilt for sending her father to prison and destroying the family unit. She feels guilt that her hardworking and supportive father is now in such a position.

The clinical psychologist feels that she has chosen loyalty to her father rather than being loyal to her true feelings. She denied suffering from any significant impact from the sexual assault and emphasized her wish to put it behind her. Her relationship with her mother is difficult and conflicted. From her behaviour, the psychologist finds her current condition fulfils the diagnostic criteria of Post‑traumatic stress disorder. The trauma of being sexually assaulted by her father has held her back and yet to be resolved.

The Accused’s Psychological Report

A clinical psychologist saw the accused and I have taken into account the contents of the report. The accused was not forthcoming with the psychologist and told him that he did not recall committing the offence. He refused to discuss the offence. He stressed that he pleaded guilty to minimize the embarrassment for X and his family.

The opinion was that his risk of reoffending was low. I have clarified with Mr Yuen before convicting the accused that his plea is unequivocal. It has been explained that what he meant when speaking to the psychologist was that although he did commit the offence, he mistakenly identified his daughter as his wife.

Sentencing Considerations

There are no tariffs for the offence of rape because the facts vary greatly from one case to another. In Secretary for Justice v Leung Yuet Hung [2014] 3 HKLRD 304, the Court of Appeal observed at paragraphs 22 to 24 that while a number of judgments in this jurisdiction had echoed the statement that “the starting point in Billam is not one which necessarily should be used as a starting point in Hong Kong”, the court’s assessment is that it still tends to be in the order of 5 years for rape committed by an adult without any aggravating or mitigating factors, features. In that judgment, the Court of Appeal identified a list of aggravating factors. Despite this, it would appear our courts take a very serious view of this offence and often take a higher than 5 years’ starting point for rape.

It has been stressed in mitigation that the defendant was drunk at the time of the offence, but in any event, in my judgment, even if the defendant was intoxicated to the degree as he claimed, it makes little difference to the sentence to be imposed on him. His intoxication was self‑induced and this court has the paramount duty to protect women from sexual abuses of whatever kind. Offences of a sexual nature committed against children are deplorable but such an offence against one’s own child is unthinkable to a right-minded person.

For the purposes of sentencing, I accept the accused is genuinely remorseful. Normally, a plea at the earliest opportunity carries little weight when considering the enormity of the impact of this sexual offence. That would be subsumed by the one-third discount the accused is entitled to. I do, however, take on board the specific instructions the accused gave defence counsel that he would plead guilty to any charge laid to protect X and his wife.

As for the forgiveness of X, the attitude of a victim normally cannot be allowed to interfere with a proper exercise of the sentencing discretion. However, in some rare circumstances, forgiveness may have an effect upon sentence. In the R v Sung Chin Pang [1995] 2 HKC 352 at page 356, it was said that if:

“Victims seek to persuade the court to exercise mercy or leniency in a wholly unsolicited, but principled manner, it would be wholly wrong for the court not to pay some regard to it.”

Hence, my comment earlier that the letters of forgiveness do not appear to have been engineered by the accused or another family member. Obviously, the significance of forgiveness is lessened the more serious the offence.

It is evident that the effect of rape is devastating and that X may not yet have resolved the trauma she suffered, and from her letters, it is safe to say that sadly, her trauma continues or is magnified by the incarceration of the accused. I have to balance the seriousness of the offence, the public outrage from such facts, and all the mitigation put forward. It is an exercise to strive for an overall and sensible assessment.

Accused, please stand up. This is an unusual case with its own peculiar and individual facts. I have fully considered all those facts as well as the contents of reports and mitigation put forward. I find a starting point of 5 years’ imprisonment appropriate. The defendant has pleaded guilty and is entitled to a discount of 1 year and 8 months for that plea.

I take the view that I should take into account the victim’s forgiveness and the contents of her letters. It is one of those rare cases where the victim’s plea for mercy and leniency should be heard. Therefore, I reduce the sentence of 3 years and 4 months by a further 6 months.

The defendant is sentenced to 2 years and 10 months’ imprisonment. Do you understand that sentence?

ACCUSED: I understand.