HKSAR v. M.P.S.

HCCC 83/2019

[2019] HKCFI 2155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 83 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Background and the facts:

The defendant pleaded guilty to two charges of rape at the Eastern Magistrates’ Court on 11 March 2019. Before me, he confirmed his pleas and accepted the Summary of Facts. He was accordingly convicted of both charges.

The facts were briefly these: the complainant X is the defendant’s granddaughter. She was born on 4 August 2013 and is now aged five, a kindergarten 2 student. At all the material times, X lived with her parents and her younger sister, now aged two. The defendant, who is X’s paternal grandfather, lived with his wife in a public housing unit in the same district as that of X’s home premises.

Since about January 2016, the defendant started to help picking up X from school on every school day. Usually, the defendant would bring X to a park to play while waiting for X’s mother, Y, to bring her back home later. If it was a rainy day, the defendant would bring X to his flat and Y would pick up X there.

In the afternoon of 6 August 2018, Y arrived at the park to try picking up X but she did not see X and the defendant at the park. She called the defendant and was told that because of the rain, he had brought X to his flat. When Y arrived at the defendant’s flat, she found the metal gate locked. Y opened the gate with the spare key that she had. Once inside, Y heard X’s voice coming from the bedroom, shouting loudly “Ahh”. Y immediately rushed over and saw X standing on the bed facing the defendant who was naked on the top and was wearing his boxers only. At that time, the defendant was pulling up the pair of shorts on X. Y immediately asked the defendant what had happened but he did not reply. Y hugged X who then started to cry and Y then left the flat together with X.

Outside the building, Y calmed X down and asked X why she cried. X said to her that, “Grandpa took off my pants, used what he used to pee to touch where I pee. I felt very itchy and very uncomfortable”. Y then alerted her husband and they reported the case to the police that evening.

The defendant was arrested later that night. Under caution, he said he had been wrongly accused. However, on the following day, when a police officer was about to take an antecedent statement with the defendant, he suddenly said, “Madam, this case I have something I want to say”. The defendant was then cautioned and he said, “I did abuse my granddaughter”.

In the subsequent video-recorded interview conducted at the police station, the defendant admitted that on 6 August 2018, after bringing X back to his flat, X started to play with her toys in the living room. X later took the defendant’s phone and went into his bedroom to play a game on the phone. The defendant’s phone rang and he then entered the bedroom to answer the call. After the call, the defendant took off X’s pants, grabbed her legs, separated them, and penetrated X’s vagina with his penis. When doing so, X said, “No”, and “painful”. In reply, the defendant told X that, “The pain will stop in a while”. He then penetrated X for about one to two minutes, including coming into and out of X’s vagina twice. The defendant did not use any condom at that time. The defendant further admitted that he molested X because of his lust.

During the incident, the defendant’s wife was taking a shower in the bathroom. The defendant said that when he heard the sound of the metal gate, he knew that Y had arrived and he therefore withdrew his penis from X’s vagina and put on X’s underpants and shorts for her. The defendant claimed that he did not ejaculate.

Other than the 6 August incident, the defendant disclosed another event in the course of the interview. He said that when X was still four years old, on a day in autumn 2017, after picking up X from school, he brought her to his flat. When his wife went to the bathroom, X took his phone and went into his bedroom. He then followed X into the bedroom. Inside the bedroom, the defendant inserted his penis into X’s vagina for about one to two minutes out of his lust. X said to him, “Grandpa, it was very painful”. The defendant then withdrew his penis and pulled up X’s pants. The defendant said he did not use a condom and he did not ejaculate. When asked why he did that to X, the defendant replied that because he wanted to see if he would be sexually aroused when his penis was inserted into X’s vagina.

The defendant’s background and mitigation:

The defendant was born in Malaysia on 1 January 1941 and is the only child of his family, his father having been taken away during World War 2 when the defendant was three years old. When he was aged eight, the defendant and his mother moved to live in Hong Kong. Having completed his secondary school education here, the defendant started working as a clerk and he retired in 2001. He is now aged 78. The defendant is married with two sons and two daughters. They are all married and live apart from the defendant and his wife. The defendant has got two grandsons and four granddaughters, including X and X’s younger sister. In terms of his health, the defendant has heart problems, diabetes and cataract and he needs to take medication on a regular basis. He had a clear record prior to the commission of these offences. In mitigation, Mr Wong for the defendant submitted that the defendant is truly remorseful as he maintained his guilty pleas knowing full well that a lengthy imprisonment term is inevitable. In particular, Mr Wong drew the court’s attention to the fact that the first charge only came to light because of the defendant’s own admission without which there would be no evidence to support the charge. Mr Wong also asked the court to exercise mercy on the defendant in view of his advanced age.

The defendant’s psychological report:

After the defendant’s conviction and in order to have a better understanding of the psychological condition of the defendant, I had ordered the preparation of a report on him by a clinical psychologist which I now have. The defendant is not found to have any emotional or mental disorder but the psychologist observed that he showed no emotional bonding with X at all and it was reported that, “victim empathy seemed to be limited”. In the psychologist’s opinion, the defendant could have committed the offences as a maladaptive coping response for his sexual needs or as a result of paedophilic disorder. The risk of re-offending is estimated to be within the low to moderate low range.

The Victim Impact Report:

When X related the incident to the interviewer, she described herself as very sad and angry and she felt that she had no choice and could not escape. X also mentioned that the defendant had made her believe that Y would be furious if Y knew that X had done it with the defendant, so X dared not tell anyone about the abuse. X experienced profound and prolonged sense of helplessness and hopelessness over the abuse. Her drawings indicated her underlying sense of insecurity.

In terms of her daily life, X had difficulty falling asleep and when Y tried to cover her with a blanket, she would have a startled response and was seen to be ready to defend herself. Reportedly, X also had nightmares about two to three times a month during which she would make some angry voice and fight with her limbs. She struggled vigorously even when Y held her to try comforting her.

In terms of the disclosure, X experienced great stress as the defendant bluntly denied the abuse and both grandparents then scolded X and Y for telling lies. According to the report, X suffered from post‑traumatic stress disorder after the disclosure. She always looked absent-minded both at home and at school. She lost interest in play and showed no energy to mingle with her peers. When the teachers talked to her, X showed no response. X showed great avoidance to mentioning the abuse or the defendant and going to the neighbourhood where the defendant lived. It was reported that X’s fear generalised to other male elderly and she avoided them. Worse still, X internalised the responsibility of the abuse and questioned if she had done something wrong and she had apologised to Y twice for “playing game” with the defendant.

Fortunately, with the support of her parents and her maternal grandparents, X became more stable two months after the disclosure although she still had recurrent thoughts about the abuse at times and still required the reassurance from Y that it was not her fault.

In short, the psychologist came to the conclusion that the abuse’s: “negative impact could not be underestimated as her subjective distress could gradually intensify when she continues to gain more comprehensive understanding of the incident as her cognitive ability develops. Her shameful feelings could gradually emerge as she starts to understand she was being used as a sexual object, which could have great impact on her development of self-image.” and that, “The long-term psychological impact on X could be profound”.

When Y was interviewed for victim impact assessment in April 2019, she was noted to be readily tearful when referring to the hard times X had experienced and she herself was also in great distress for the hurt X had experienced. Reportedly, Y cried frequently after knowing the abuse on X and she showed strong self-blame for not discovering the abuse earlier. Further, Y felt guilty and was heart-broken in respect of the reprimands X had received in the past for not being respectful to the defendant.

According to the psychologist, both X and Y are in need of psychological treatment to process their trauma.

Sentencing considerations:

There are no tariffs for the offence of rape. This is understandable for the facts could vary greatly from one case to another.

In SJ v Leung Yuet Hung [2014] 3 HKLRD 304, the Court of Appeal observed at paragraph 37 that, “The age of the victim was a major aggravating feature. In HKSAR v Kong Yun Chiu [2007] 4 HKC 391 at 395, this court said:

“It should go without saying that children are particularly vulnerable members of society...the deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly. The trauma caused to a child by an indecent assault, and the long-term adverse impact, is difficult to calculate but trauma may safely be assumed in the vast majority of cases, perhaps all. Similarly, trauma and distress, immediate and long-term, is not confined to the child. Parents of child victims will almost certainly be haunted by images of what has been done to the child and, in addition, will nurture a deep sense of guilt either for having entrusted the child to the company of someone who breaches the trust or, in other cases, having left the child unguarded for the odd moment... Whilst the range of offences within the category of indecent assault is wide, the fact that the victim of such an offence is a child is always a severely aggravating feature.”

The offence we are concerned with in this case is, of course, not just the offence of indecent assault, but the much more serious offence of rape committed on a very young child.

Sentencing in this case:

On the facts of this case, there are plainly a number of aggravating factors which include:

(1) The extreme young age of the complainant;

(2) The breach of trust involved: instead of being the carer and protector of X, the defendant became her abuser;

(3) Carrying out the intercourse without any safety measures;

(4) Continuing with the intercourse when X had told the defendant that it was painful. That is in relation to Charge 2; and

(5) The severe impact on the psychological well‑being of both X and Y.

Clearly, what was revealed in the victim impact report is truly disheartening and worrying. Yet, the defendant, who was aware of the contents of the report and who did not seek to argue otherwise, was said to have shown limited empathy to X and had shown no emotional bonding at all with X. In my view, the indication is that the defendant merely used X as a sexual object and did not care about her.

The one thing which the defendant could be said to have acted responsibly is his pleading to the charges, thus saving X the further trauma of testifying in court. For this, he would be given the full one-third reduction.

In respect of his advanced age, I do not see it as justifying any sentence reduction because we are here dealing with two very serious and repulsive rapes committed on a very young girl who is his granddaughter.

Now, when it comes to the starting point of the sentence, I am, of course, mindful of the Court of Appeal’s observation at paragraph 46 of the judgment in Leung that:

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

In this case, standing back and looking at matters in the round, I take the view that for the facts of this case and for all the aggravating factors identified above, the starting point should be one of 15 years for each of the two charges.

The defendant has pleaded guilty at the committal stage, I would give him the full one‑third reduction in sentence. 15 years reduced by one-third is 10 years’ imprisonment. In respect of Charge 1, I accept that, if not because of the defendant’s own admission, there would not be evidence against him. Therefore, I will further reduce the sentence to one of 8 years.

These two charges took place at different times and are separate offences. The sentences should, in principle, therefore be served consecutively. However, having considered the matter of totality, I take the view that an overall sentence of 11 years should sufficiently reflect the defendant’s culpability in this case. I therefore order that 3 years of the 10-year term for Charge 2 are to be served wholly consecutively to the 8-year term for Charge 1, the rest to be served wholly concurrently, making the total sentence one of 11 years.