HKSAR v. Wong Hing Kwok

HCCC 244/2019

[2020] HKCFI 909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 244 OF 2019

-----------------

-----------------

---------------------------------

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

---------------------------------

COURT: The defendant, Wong Hing-kwok, pleaded not guilty to a sole charge of rape. After a contested trial, the jury convicted him by a majority verdict of five to two.

The defendant committed the offence at his residence at Savoy Garden, Shatinpark on 22 November 2018. The victim, X, was a merchant of luxurious watches. She had first met the defendant in early October 2018 through the introduction of her then boyfriend, PW2. PW2 was an ex-business partner and a long-term friend of the defendant. Since their first meeting, the defendant and X had met on several social or business occasions. They had no romantic relationship whatsoever. It was expected that the defendant would introduce some potential buyers of luxurious watches to X. At all material times, the defendant did not know X was the girlfriend of PW2.

On 21 November 2018, the defendant invited and X agreed to join a boat party hosted by DW2, Mr Yip. They boarded the boat in Central. On the boat, X had conversation with some participants about selling watches. She consumed some wine and ate some food. On the boat, X became very dizzy and she had serious headache after she had consumed four to five glasses of wine. When X left the boat party in Causeway Bay, she boarded a taxi with the help of the defendant. The defendant also got into the taxi. X lost her senses after she got into the taxi. Before she boarded the taxi, she thought the taxi would take her to her home in Tsim Sha Tsui. On one previous occasion when she and the defendant met in Tsim Sha Tsui, she made known to the defendant the building where she lived.

The next memory X had after the boarding of the taxi was the sight of a glass door of a building. When X next regained her consciousness, she was already on a bed. Her head was facing the ceiling. The defendant was lying on top of her with his head facing her. The defendant was naked. He wanted to take off the underpants of X. He pulled the underpants of X down to somewhere like her thighs and X was holding onto her underpants. She pushed the defendant away and put her underpants back on properly. The defendant then pulled open the area of the underpants covering the private parts of X and X felt that the defendant used his penis to enter her vagina. As X was unwilling, she closed her legs tightly so that the defendant could not penetrate deeply by doing it once. She then pushed the defendant away. According to the evidence of X, the single act of penetration, which constituted the intercourse in the case, lasted for only one to two seconds and it was a slight penetration.

The defendant did not use a condom when the penetration took place. After X pushed the defendant away, she said to the defendant, “You have been married, you have a wife and I am unwilling. We are only friends.” X then lost her senses soon afterwards as she had serious headache and dizziness. X woke up in the morning on 22 November 2018. She left the premises and went home. She reported the case to the police at 12.04 pm the same day after she failed to have a body examination at a private hospital. The defendant was arrested on 28 November 2018.

The defendant is now 34, locally born. He received a Bachelor Degree in Electronic Engineering from the City University and he obtained a Master Degree in Business Studies from an overseas college. The defendant is married. He and his wife have a young daughter who is now 19 months old. The defendant is a businessman. He is a member of the Chinese Political Consultative Conference of Yangjiang City.

In mitigation, Mr Yeung places before me the following materials: certificates of Gold Award for Voluntary Service (Individual) issued by the Social Welfare Department, mitigation letters written by the defendant, his family members, his friends and business partner. Mr Yeung also draws my attention to the following authorities: one, Secretary for Justice v Lau Yun Leung [1999] 4 HKC 1; two, R v Millberry [2003] 1 WLR 542; three, HKSAR v Yiu Chi Wang, CACC 582/2002; four, HKSAR v Lee Sze Lung and Another, CACC 16/2010; and five, HKSAR v Tse Hoi Pan, Dominic [2010] 1 HKC 1.

Mr Yeung submits that the courts in Hong Kong are entitled to take into account local conditions to pass sentences that varied from the sentencing guidelines in R v Billam that the starting point should be 5 years for rape without aggravating circumstances unless for completed offence, citing Lau Yun Leung.

Of the aggravating features identified in R v Millberry, Mr Yeung reckons that the defendant did not use a condom when he committed the offence. He submits the defendant did not use any violence that was even close to the cases he cited. The penetration lasted only for one second or so and when X pushed the defendant away, indicating she did not want to have sex with the defendant, the defendant stopped and did not try further.

Mr Yeung submits also that the present case was a single fall from grace for the defendant. He had too much to drink that night and he has to start afresh upon release from prison. Mr Yeung submits that the starting point of 5 years should be adopted for the reasons that, one, the defendant was very intimate with X when they were at the boat party; two, the penetration in this case was shallow and lasted for one second or so; three, the defendant stopped when X pushed him away and did not repeat; four, no aggravating factors in this case apart from the fact that the sex was unprotected, the defendant did not use violence against X; five, the defendant’s good character; six, the defendant’s clear record; seven, the defendant’s plea for leniency.

In sentencing the defendant, I have taken into account the facts of this case, the background information of the defendant, all the matters placed before me in mitigation and the authorities referred to by Mr Yeung and all the matters urged on the defendant’s behalf by Mr Yeung.

In assessing the gravity of the offence committed by the defendant, I have considered the degree of harm to X. The act which constituted the sexual intercourse was a single penetration which was slight in degree and short in terms of time. X, however, was deeply worried after she was raped.

As far as the culpability of the defendant is concerned, the sexual intercourse was unprotected. The defendant was taking advantage of a very drunken woman. As far as the level of risk posed by the offender to society is concerned, I accept that the risk is low as the defendant committed the offence out of his usual character.

On the facts of the case, in my judgment, an initial starting point of 5 years is appropriate, taking into account the act which constituted the sexual intercourse under complaint was one slight penetration which lasted for only one or two seconds. A little force was used by the defendant. On the other hand, the case was aggravated by the fact that the defendant did not use a condom when he raped X, he was taking advantage of a very drunken woman who was defenceless at the time. In my judgment, given these aggravating features, a final starting point of 5 years and 9 months should be adopted.

The defendant has a clear record. The offence he committed was out of his usual character. I shall allow the defendant a reduction of 5 months because of his clear record and previous positive good character. That would bring the sentence down to 5 years and 4 months.

There is no other mitigating factors. For the reasons given, I sentence the defendant to 5 years and 4 months’ imprisonment.