HKSAR v. Yeung Tsan Lam

HCCC 153/2019

[2020] HKCFI 633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 153 OF 2019

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

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COURT:

The defendant had pleaded guilty to one count of rape and a second count of administering drugs to obtain or facilitate intercourse.

It is a sad case in that, as far as the facts were concerned, the victim in this case had met the defendant on Facebook in 2008 and all they had was a casual acquaintance until 2016 when X contacted the defendant for some medical information. So the defendant at that time was a nurse and the victim knew that the defendant had some medical knowledge, and therefore when her mother fell ill, she consulted the defendant as to what best to do. The defendant then advised her and, apparently, the victim was very grateful and so when the defendant messaged the victim and asked for a casual meet-up on 18th October 2017, the victim agreed.

So, on that evening, the victim met the defendant at a 7‑Eleven store, where they purchased some potato chips and some water. Then they went to a park nearby, the Hoi Sham Park, in To Kwa Wan for a chat. Whilst in the park and while they were chatting, the defendant then gave the victim a can of grape juice which he had opened and, according to the victim, although in her presence, he had opened it with his back to her so she did not actually notice the process of the opening of the can.

After drinking the grape juice, the victim felt she was intoxicated. She felt her limbs becoming weak and her memory became hazy, and she then fell, she said, into a semi-conscious state. She then, in her haziness, actually saw another person, who was the 2nd defendant initially, come along to the park and that person, together with the defendant in this case, then took her to a nearby guesthouse. Then after they entered a room in the guesthouse, the victim could not remember what happened. The next thing she remembered she woke up in hospital.

And the facts admitted shows that, at about 9.05 pm that evening, the victim’s mother received a call from the defendant, and when the victim’s mother arrived at the guesthouse, she discovered that her daughter was lying on the ground unconscious in the room in the guesthouse with her clothes on. The defendant assured the victim’s mother that the victim will wake up in the morning and asked her not to call the police. However, the victim’s mother very wisely called the police and called for an ambulance and her daughter was taken to the Queen Elizabeth Hospital, and it was only at 4 am in the early hours of the morning that the victim regained consciousness.

The defendant was arrested and, under video-recorded interview, he admitted the offence, and he also admitted that he had administered drugs commonly known as “乖乖水” into the can of grape juice which he had purchased earlier, and he also said that, on the way to the guesthouse, he had bought a pack of condoms and also some beer from 7-Eleven, and it was in the guesthouse that he then raped the victim without a condom.

The defendant further admitted that he had bought this drug, the “乖乖水”, from a seller in the Mainland and the goods were delivered to him by SF Express self-pickup location in Mong Kok, and he claimed that, as far as he knew, this drug would cause a loss of consciousness and that he claimed that he had tried a little bit of it and nothing had happened, and so he decided to try the drugs on the victim.

Subsequent forensic analysis of the victim’s urine revealed that it contained not only Clonazepam and Ephedrine, not only in the urine but also in the victim’s blood. Clonazepam is a tranquilizer while Ephedrine is a stimulant, and the forensic pathologist, Dr Cheung, commented that Clonazepam could cause, amongst other things, drowsiness, slurred speech, inability to co-ordinate muscle movements, confusion, etc, and, in high dose, it could lead to respiratory depression, coma and even death. Also, a physical examination of the victim disclosed the defendant’s DNA found in the victim’s vulva swab.

This is the defendant’s first criminal conviction. He had a clear record prior to this. Mr So has already submitted everything he could possibly say on behalf of the defendant. I agree the defendant, because of this offence, has ruined his career and, basically, his life and he has brought shame to his family. He also, to his credit, stayed at the scene, contacted the victim’s mother and surrendered himself to the police when they came. He is remorseful and he did make a full confession to the police.

And the defendant comes from a single-parent family, and that his mother, very hardworking mother, had retired from her job and really was relying on the defendant’s financial support. The defendant is a registered nurse since 2014 and also he is studying for a Master of Public Health degree at the Chinese University of Hong Kong. I have no doubt that the friends, relatives, the mother of the defendant are all very disappointed by the defendant’s act.

I have received also many letters in mitigation from the friends and family of the defendant and, in particular, a very touching letter from the defendant’s mother, who is willing to stand by him throughout this period of time. It is said also that, as far as the defendant’s mom is concerned, the defendant was a filial, good-natured, good young man growing up.

I have no doubt that the defendant had kept to a law-abiding life, well liked by his friends and family prior to this offence, and, without a doubt, this is out of character, totally out of character, and his first fall from grace.

However, it is a very serious offence, particularly in light of the fact that there was premeditation in this. He lured the victim to the park in order to administer the drugs on her and then, knowing that she was semi-conscious, then helped her to the motel where he raped her.

This was a completely innocent young lady, who had innocently got acquainted with the defendant on Facebook and trusted him as a friend, and for the defendant to so coldheartedly try out this drug he received on the victim, which may cause, eventually, her to go into a coma and even lead to fatal consequence, is something which society cannot condone.

This court has a duty to protect our young, or even old, from being administered drugs indiscriminately in order to be taken advantage of. Although this is a first offence, however, the facts are serious enough that the court has to, by sentencing, send a message out to the society in Hong Kong that this kind of actions will result in severe and serious consequences.

So on the 1st count, I consider that an appropriate sentence will be one of 8 years after trial.

Now, in relation to the 2nd count, also I am grateful to Mr Wong for submitting the case of Man Yiu Fai [2019] HKCA 340, where in similar circumstances - however, that case was even more serious than the present - the Court of Appeal did say that, for the 2nd count offence, that it is serious and that it should be partially concurrent and partially consecutive to the main offence of rape.

So, on the 2nd count, I would sentence the defendant to 6 years’ imprisonment after trial.

I therefore give the defendant the full one-third discount for his plea at the earliest stage and fully recognise his remorse in this case.

So, on the 1st count, the defendant gets a reduced sentence from 8 years to 5 years and 4 months and, on the 2nd count, he gets a reduced sentence from 6 years to 4 years because of his plea, and the 2 years of the 2nd count will be served consecutively to the 5 years 4 months of the 1st count, thus giving a total sentence of 7 years and 4 months.

I must also mention that the victim’s impact report shows that the victim has tried to and, in fact, is succeeding to go back to a normal life, and that it is clear that she, therefore, although suffers sometimes from sort of flashbacks and memories of this horrific incident, over time, with counselling, I am informed by the clinical psychologist that she will eventually let go of this trauma and begin anew.

As for the defendant, as I have said, I am touched by the letter from the defendant’s mother and hopefully this fall from grace, as I have said, by the defendant will be his only fall from grace and he will use the time constructively whilst in prison to better himself in order to repay his mother for the heartache that he has caused.