HKSAR v. Tsang Yau Tik and Another

HCCC 266/2018

[2019] HKCFI 3071

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 266 OF 2018

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

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COURT:

The 1st defendant, Mr Tsang Yau-tik, faces the following charges in this case:

(a) Count 1: criminal intimidation, contrary to section 24(b)(ii) and 27 of the Crimes Ordinance, Chapter 200;

(b) Count 2: claiming to be a member of triad society, contrary to section 20(2) of the Societies Ordinance, Chapter 151;

(c) Count 4: rape, contrary to section 118(1) of the Crimes Ordinance, Chapter 200.

The particulars of these offences are set out in the indictment. The court is not going to repeat them. He pleads not guilty to all three charges but are convicted of all of them by a jury after trial.

The 2nd defendant, Mr Wong Yuen-kwong, faces Count 3 which is an offence of attempted procurement by threats or intimidation to do unlawful sexual acts in this case. This offence is contrary to section 119(1) and 159G of the Crimes Ordinance, Chapter 200 and the particulars of the offence are set out in the indictment. He pleads guilty to this charge on the first day of trial of this case.

Evidence in the Trial of the 1st Defendant

In 2016, X came to know the 1st defendant whose nickname is Gut Lei Chai. The 1st defendant used WeChat to date X for a number of times but X only went out with him once in the company of a female friend.

In the morning of 1 January 2018, X received a WeChat message from the 1st defendant, asking her to go out which read:

“Do you want me to put up posters about you? No female has ever treated me like this. You don’t come out, your whole family will die. No female has treated me like this. You make me lose my dignity.”

Being frightened, X went out with the 1st defendant and was taken to Room 4 of Hong Lok Guest House at Tai Ho Road, Tsuen Wan.

X had been to this room with her boyfriend to consume dangerous drugs. A person referred to as Yin Chai during the trial, as X cannot remember his name was Yin Chai or Ho Chai, was already in the room. The 2nd defendant had also turned up in the room but he and Yin Chai left the room one after the other.

The 1st defendant asked X to be his girlfriend but X refused. D1 said he had a strong background and he followed triad society and a certain person. X has forgotten which triad society and which person the 1st defendant said he followed.

Against the will of X, the 1st defendant removed the safety pants and underpants of X and took them with him to leave the room when the 2nd defendant returned there.

The 2nd defendant tried to persuade X to have sexual intercourse with the 1st defendant and said it would be good to make the 1st defendant happy and the 1st defendant would give X $500. The 2nd defendant also said that X either had sex with the 1st defendant or had sex with a group of them. X still refused.

X wanted to leave the room but found that the 2nd defendant was masturbating near the door room while watching pornography on the television set. X was therefore unable to leave the room.

The 2nd defendant said he would not have sex with X and X only needed to have sex with the 1st defendant. The 2nd defendant sent a message to the 1st defendant, saying that X was willing to do it. The 1st defendant eventually had sexual intercourse with X inside the room against the will of X when nobody else was there.

During the process, X resisted and struggled and the 1st defendant used his strength to overpower X. The 1st defendant did not use a condom and ejaculated inside X. X then opened a room in Chui Yuen Guest House which was next to Hong Lok Guest House after she had left the latter. She cried there and informed her good friend nicknamed Princess. Princess took a pair of underpants to Chui Yuen Guest House for X and X told her what had happened.

X became pregnant despite having taken the emergency contraception pills prescribed by the Family Planning Association. An abortion was carried out and the 1st defendant was confirmed to be the natural father of the foetus by DNA profiling.

The 1st defendant gives evidence that he came to know X through the introduction of the 2nd defendant in early 2017. At that time, the three of them consumed dangerous drugs inside a room in a guest house. After the 2nd defendant had left first, he and X embraced and kissed each other and had intimate acts inside the room. About three or four months later, the 1st defendant encountered X when he played cards and consumed dangerous drugs with a friend in a room in a guest house. He and X embraced and kissed each other and had intimate acts.

On a day in the winter of 2017, the 1st defendant and X and two of the friends of X arranged to have a gathering. The 1st defendant and X opened a room in Hong Lok Guest House first and when they were about to have sexual intercourse, the two friends of X arrived and all of them went to consume dangerous drugs in the home of a friend of the 1st defendant.

The date on 1 January 2018 was initiated by X. The 1st defendant went to Tseung Kwan O to pick up X and then took her up to a room opened by Yin Chai in Hong Lok Guest House. The 1st defendant, X, Yin Chai and the 2nd defendant consumed dangerous drug ‘Ice’ inside the room.

The 2nd defendant and Yin Chai left first. The 1st defendant removed the safety pants of X and as X said that she had to think the matter over, the 1st defendant went to work nearby. Later, he received a message from the 2nd defendant saying that X was willing to have sex for $500. He returned to the room and with the consent of X, they had sexual intercourse.

The 1st defendant went back to work and X told him to take along some ‘Ice’ when he returned. At about 8 pm to 9 pm, X and Princess telephoned the 1st defendant to ask him to go to Chiu Yuen Guest House. X also told the 1st defendant to take with him some ‘Ice’. The 1st defendant refused and even queried X if she still wanted the $500. Afterwards, he was unable to get in contact with X.

On 18 January 2018, X told the 1st defendant that she was pregnant and asked to meet each other but the 1st defendant ignored her. Later, Princess asked the 1st defendant over the telephone to pay $10,000 for the abortion of X but the 1st defendant refused. The 1st defendant denies all the offences.

Facts Admitted by the 2nd Defendant

The facts admitted by the 2nd defendant are largely the same as the evidence of X in court, except that there is no admission of the 2nd defendant regarding the conduct of the 1st defendant in relation to the charges of intimidation and claiming to be a member of triad society. It is included in the facts admitted that after the 2nd defendant had sent a message to the 1st defendant, the 1st defendant returned to the room and the 2nd defendant then left immediately. The 1st defendant then raped X inside the room.

The evidence of X relating to her pregnancy and abortion and the DNA profiling also form part of the facts admitted by the 2nd defendant.

Criminal Record

The 1st defendant has two previous convictions. The last one was assisting in operating a gambling establishment for which he was sentenced to 6 weeks imprisonment on 11 November 2016.

The 2nd defendant has one previous conviction of conspiracy to defraud for which he was sentenced to 24 months imprisonment on 21 July 2015.

Victim Impact Report

According to the victim impact report of X, she has, as a result of the rape, been unable to have natural joy. She

constantly feels ashamed and is under the fear that others would know her secret of being a rape victim. She leads a double life, being calm and normal on the outside but being threatened and vulnerable on the inside. She suffers the traumas of abortion and being re-victimized in the trial. Her sense of self-worth and trust of men have been destroyed. She perceives that her life had irreversibly contaminated by the rape, her pregnancy and abortion. She believes she is unlovable. She attempted suicide last year since she felt extremely disturbed because of the traumatic experience. She hopes that the perpetrator receives severe punishment.

The psychologist is of the view that X requires psychological treatment but X is not yet ready to receive it.

Psychiatric Report of the 1st Defendant

According to the psychiatrist, the 1st defendant does not suffer from any formal psychiatric disorder.

Mitigation

The 1st defendant is aged 29, received Form 3 education and was a casual worker at the time of the offences. The 1st defendant has a wife who is actually a female partner and is aged 23. They have a child aged 1½ years.

Counsel for the 1st defendant submits the mitigation letters written by the 1st defendant’s female partner and mother. He is described as a good husband, a good brother and a good son. It is disclosed that the 1st defendant paid for the tuition fee of the younger brother and the medical bills of the mother. Counsel for the 1st defendant says that the 1st defendant is basically a good person and is not beyond cure. The counsel also discloses that the defendant had had the idea of committing suicide. The 1st defendant’s family will suffer as a result of the imprisonment of the 1st defendant.

The counsel emphasises that no serious violence was used during the offence and there was also no aggravating act. The counsel asks for a modest increase in the starting point because of the 1st defendant not using a condom and impregnated X. The case does not warrant a longer sentence because the 1st defendant poses no risk to society. The counsel asks for concurrent sentences for all the offences.

The 2nd defendant is aged 32 years and is married with a 3‑year-old son. He was a transportation worker as well as a shop assistant at the time of the offence. He had been a manager of a supermarket, earning $12,000 a month but had

resigned because of the pressure of work. He is currently a shop assistant.

The 2nd defendant tendered his guilty plea on the first day of trial on 8 May 2019, after the case management hearing on 7 January 2019. Counsel for the 2nd defendant points out that according to HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, the 2nd defendant, subject to the overall discretion of the court, is entitled to 20 per cent discount from the starting point for his guilty plea.

The counsel stresses that there are no tariffs for the offence the 2nd defendant is to be sentenced, and had it not been for the involvement of the 1st defendant, he would have been dealt with in the District Court. Counsel cites the case of HKSAR v Lo Cheuk Hung, DCCC 363/2010 for the reference of the court. The counsel points out, inter alia, that the threats of the 2nd defendant were directed to make X to have sexual intercourse with the 1st defendant, not the 2nd defendant himself, and the threats were in fact not successful as X had not succumbed to the threats and was raped by the 1st defendant. The counsel asks the court to adopt a starting point of 2 years’ imprisonment and give 20 per cent discount in sentence to the 2nd defendant.

Sentence

The 1st defendant, being a married man in the sense that he had a female partner who was pregnant at the time of the offence, kept dating X when X clearly showed that she had no interest in him. The 1st defendant resorted to intimidating X to make her come out to meet him. When X refused to be his girlfriend, the 1st defendant further applied pressure on X by claiming to be a member of triad society.

In this case, the 1st defendant and the 2nd defendant no doubt acted together to persuade or to threaten X to have sex with the 1st defendant. Although X was eventually raped by the 1st defendant, the threats of the 2nd defendant no doubt had a huge impact on X at the time when she was so helpless. The threat of the 2nd defendant that X either had sex with the 1st defendant or being gang-raped was a serious one.

Although the 2nd defendant did not persuade or threaten X to have sex with him but with the 1st defendant, the two of them, as pointed out above, no doubt acted together. This is obviously an aggravating factor for both the 1st and 2nd defendant.

The 1st defendant eventually raped X. During the process, he used his strength to overpower X. He did not use a condom and even impregnated X. This is a further aggravating factor which the court has to take into account. According to the victim impact report of X, she suffers the traumas of being raped, the pregnancy and the abortion, as well as being re-victimized in having to give evidence in court.

Having considered the authorities and decisions such as R v Billam [1986] 1 WLR 349, R v Millberry [2003] 1 WLR 546 and Secretary for Justice v Sukhmander Singh [2000] 2 HKLRD 187, the court adopts a starting point of 8 years imprisonment for Charge 4. For Charge 1 and Charge 2, the court adopts a starting point of 12 months and 18 months imprisonment respectively. The court is of the view that the 1st defendant has no valid ground of mitigation, thus sentencing the 1st defendant to 12 months imprisonment for Charge 1, 18 months imprisonment for Charge 2 and 8 years imprisonment for Charge 4.

The court has taken the criminal intimidation and the claiming of a member of triad society of the 1st defendant into consideration in coming to the starting point of 8 years imprisonment of the rape charge. Taking into consideration this factor as well as the nature of the case and totality principle, the court orders the sentences of all three charges to run concurrently. The 1st defendant is therefore to go to prison for a total term of 8 years.

For the offence of procurement of unlawful sexual intercourse by threats or intimidation, there are indeed no sentencing tariffs. In the case of HKSAR v Lo Cheuk Hung cited by the counsel for the 2nd defendant, the victim for such an offence was 14 years old and the threat used was to distribute the victim’s nude photographs. The district judge took a starting point of 24 months imprisonment.

In the case of HKSAR v Au Yeung Kwok Fu, CACC 41/2010, the defendant was convicted of 9 offences of procurement of unlawful sexual intercourse by false pretences. The false pretence used was for the defendant to have sexual intercourse with the victim as a Chinese ritual to improve the luck of the victim. The victim was impregnated as a result. The Court of Appeal held that a starting point of 3½ years imprisonment for each charge was not manifestly excessive.

This court accepts that the threats used by the 2nd defendant in the present case were not successful, but as pointed out above, there are other aggravating factors. For example, he acted together with the 1st defendant and his threats had huge impact on X who was in a hopeless situation at the material time. The court also bears in mind that the 2nd defendant himself did not engage in sexual intercourse with X, but one must not lose sight that the maximum sentence for the offence of procurement of unlawful sexual intercourse by false pretence is 5 years imprisonment while that for procurement of unlawful sexual intercourse by threats or intimidation is 14 years imprisonment.

Having considered all these factors and circumstances of the case, the court adopts a starting point of 3 years 6 months imprisonment in respect of Charge 3 against the 2nd defendant.

The court is of the view that the only mitigating factor of the 2nd defendant is his plea of guilty which is entered on the first day of trial. Giving credit for his guilty plea, the court sentences the 2nd defendant to 2 years 9 months imprisonment.