HKSAR v. Lai Yuk Man

HCCC 207/2020

[2020] HKCFI 3138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 207 OF 2020

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of Attempted Rape before Magistrate Ho Chun-yiu and was committed on 31 August 2020 to the Court of First Instance for sentence. He confirmed his plea of guilty and his admission to the summary of facts before me and his conviction is confirmed.

Summary of facts

2.The defendant and the victim ‘X’ were neighbors in a subdivided flat with three rooms with a shared washroom.

3.At around 06:15 on the morning of 18 September 2019, when X came out from the washroom and on her way back to her room, the defendant suddenly came out of his own room and told X that he loved her so much and that he wanted to have sex with her.

4.X felt scared and immediately went back into her room and tried to close her door but the defendant pushed it open and pushed X on to the bed.  X sat on the bed while the defendant stood at the bedside.

5.The defendant told X that people laughed at him because they had been neighbors for five years and he had not had sex with X.  X told the defendant that he was insane.  The defendant pushed X on to the bed and tried to pull down her underpants.  X struggled and shouted for help.

6.Meanwhile, the defendant said to X that he was over 50 years old, did not have any girlfriend and had not slept with any prostitute and asked X why she would not have sex with him.

7.The defendant pulled X’s underpants forcefully and touched her right breast over her clothing.  X struggled and her underpants were torn.  The defendant touched X’s private part.  X immediately grabbed hold of the defendant’s hand.  The defendant then tried to touch X’s breast but X managed to stop him.  X kicked the defendant’s private part with both feet.  She could feel that the defendant’s penis was erect.

8.The defendant stopped after being kicked.  X told the defendant to calm down and that what he did constitute rape.  The defendant said that it was rape anyway and proceeded to kiss X’s hand.  The defendant asked her if he could kiss her lips and X rejected his request, telling him they could have a chat instead.

9.The defendant told X that he had no money and no place to live.  X took out $200 from her handbag and put the money in the defendant’s hand.  The defendant kept kissing X’s hands.  X told the defendant to get out of the room but the defendant refused.  X begged the defendant not to rape her.  The defendant told X that he wanted to keep her underpants and have her photo but he did not have a phone.  X told the defendant to leave her room first, and that she will find him a phone and send him a photo.  X shut the door as soon as the defendant turned around.

10.X immediately called her brother for help, who arrived at around 07:05 am.  X still had to work and she so left for work.  At around 10 am, X reported the incident to Police officers at her workplace.  She confirmed that she had bitten the defendant’s arm during her struggles.  The defendant had tried to lower his trousers but failed because of X’s struggling.

11.Physical examination was conducted on X and it was found that she had abrasion over her left wrist, a 1 cm abrasion erythema and tenderness over her right labia minora and a 2 mm abrasion at skin below right labia major.

12.The defendant was arrested the same evening and said under caution, “Ah Sir, I wanted to rape her out of sexual urge.  Give me a chance.”

13.In the later video recorded interview conducted under caution, the defendant said that he had lived in the subdivided flat for five years and three months but would be moving out soon.  He was worried that he could not see X again and so he did ‘something disrespectful’.

Previous conviction

14.The defendant is of previously clear record.

Background and mitigation

15.The defendant is now 50 years old.  He is single and has been so all his life.  He had never had a relationship with any woman.

16.The defendant left school after finishing Form 1.  For the past 20 years, he had been working casually as a logistics and transportation worker.  He became unemployed since around August 2020 and had been relying on his elder sister for financial support.

17.Mr Newman Wong, on behalf of the defendant, submitted that the defendant’s commission of the offence was an impulsive and spontaneous act, triggered by the defendant’s secret admiration for X, and the defendant became overwhelmed by his desire to become intimate with her.

18.It is Mr Wong’s submission that the defendant’s action was ‘bizarre’, and that it would appear that he was not himself that morning and that he did not really know what he was doing.  He pointed out that not a lot of violence was used and X suffered only minor injuries.

19.Mr Wong relied on the case of HKSAR v Qasir Jahanger HCCC 427/2017 and HKSAR v Kaewprasert Tavan, CACC 169/2008 and suggested that a proper starting point in the defendant’s case should be well below four years.

20.The facts of Qasir Jahanger are not dissimilar to the present case.  There the defendant was the next door neighbor of the victim (“Y”), who lived with her husband, at a sub-divided unit.  On 10 May 2017, Y’s husband left home shortly after 9pm.  The defendant knocked on her door shortly thereafter.  Thinking it was her husband, Y answered the door but saw the defendant instead.  Y immediately tried to close the door but the defendant forced it open and entered the room, immediately locking the door behind him.  The defendant took off his own clothes and Y saw that his penis was erect.  Y jumped onto her bed but the defendant dragged her down to the floor by grabbing her ankles and pulled off her underwear.  The defendant then pressed Y down and vigorously attempted to have sexual intercourse with Y.  The defendant attempted to put his penis into Y’s buttock, but because of Y’s continued struggling, he was not able to do so.  The defendant then attempted to insert his penis into Y’s vagina.  The defendant used great force, knocking at the area around her vagina and between her vagina and anus.  Y struggled with great force throughout to prevent the defendant from entering into her.

21.In the end, the defendant held his penis in his hand and swung it around and ejaculated, spraying semen all over Y’s nightgown, onto her bed and her body.  The defendant left the room half-dressed, wearing his jeans and underpants but not his upper garment.  Y shouted loudly and cried throughout the ordeal, and she immediately told her husband what had happened after the defendant left and a report was made to the Police.

22.The defendant there was 35 years old and a Form 8 recognizance holder.  Remedios J, referred to the case of Leung Yuet Hung, CAAR 1/2014 where the Court of Appeal had considered the principles of sentencing in rape, particularly that of attempted rape, and that a starting point of five years’ imprisonment is usually appropriate for rape.

23.The learned judge found that what the defendant had done to Y, just as in Leung Yuet Hung, was as close as one could get to the full offence of rape without actually committing it, and adopted a five-year starting point. She then identified the following aggravating factors: the offence took place in Y’s own home; attempting to rape Y without using a condom; ejaculating over her; forced entry into Y’s room; Y’s age of 58 and the defendant’s age of 32; the defendant committed the offence while a Form 8 recognizance holder seeking asylum in Hong Kong; the effect the offence had on Y’s wellbeing; and the lack of remorse on the defendant’s part and his high risk of re-offending, and applied an overall enhancement for these aggravating features of four years, resulting in a final sentence of nine years’ imprisonment.

24.In Kaewprasert Tavan, the Court of Appeal referred to the English Court of Appeal case of R v Billam [1986] 1 WLR 349, and the case of Secretary for Justice v Lau Yun Leung [1999] 3 HKLRD 289 and confirmed the general principle that, “the starting point for attempted rape should normally be less than for the completed offence, especially if it is desisted at a comparatively early stage.  But, as is illustrated by one of the cases now before the court, attempted rape may be made, by aggravating features into an offence even more serious than some examples of the full offence.”

25.In Kaewprasert Tavan, the Court pointed to the fact that “it was the complainant’s escape from the premises to which the appellant had taken her, when she had only a towel with which to cover herself, that brought the offence to an end”, and found that these features, together with the planning involved, were aggravating features which made the attempted rape more serious, and refused to disturb the starting point of five years adopted by the sentencing judge.

X’s victim impact report

26.A victim impact report was obtained.  It is the finding of Clinical Psychologist Ms Wong that as a result of the incident, X has been experiencing persistent emotional distress and post-traumatic stress symptoms, which included having recurrent nightmares and intrusive thoughts about the incident, sleep difficulties and significantly elevated levels of anxiety.  X has been tending to adopt an avoidance approach, which may temporarily help her ward off the emotional pain, but will likely further aggravate her distress if left untreated.

27.It is Ms Wong’s recommendation for X to receive psychotherapy to help manage her anxiety and traumatic stress more effectively, as well as receiving support from a social worker.  Relevant arrangements have been made to see to it that X receives the appropriate treatments.

The defendant’s psychologist report

28.Given the facts of the case, I found it prudent to call for a psychological report on the defendant before sentencing him.

29.According to the report, Clinical Psychologist Mr Woo finds the defendant an impulsive, passive and solitary individual with low self-esteem, low frustration tolerance and inadequate problem solving ability.  With the limited information available, Mr Woo finds no signs of major psychopathology.  He finds the defendant’s risk of re-offending to be at the high end of the moderate range.  He believes that psychological service focusing on distorted beliefs about sex, proper control of sexual needs, perspective taking, problem solving skill and relapse prevention may be beneficial to the defendant.

Sentence

30.The maximum sentence for attempted rape is the same as that of rape, which is life imprisonment.

31.There is no sentencing guideline but it is not disputed by the prosecution and the defence that in a case of rape where there are no aggravating or mitigating factors, the usual starting point is that of five years’ imprisonment.

32.It is also not disputed that the general principle regarding sentencing in an attempted rape case is that it would normally be so that the starting point for a basic attempted rape case should be lower than the starting point for a basic completed rape case, particularly ‘if it is desisted in at a comparatively early stage’.

33.In the present case, but for the bravery and quick thinking of X in maintaining her struggle and kicking the defendant in his private parts with both feet, it is likely that the defendant would not have stopped his attempt to have sexual intercourse with X.

34.X managed to stay calm and tried to talk her way out of the dire situation by telling the defendant to calm down and telling the defendant that what he was doing constituted rape.  Despite having been so reminded, the defendant continued to kiss X’s hand and asked to kiss her lips.  X, again, maintaining her wits around her, told the defendant that they could have a chat.

35.Although the defendant did not manage to get as far as the defendant did in the case of Qasir Jahanger mentioned above, it was only because of X’s constant struggling, resisting and calm handling of the defendant that the defendant had stopped trying to have sexual intercourse with X.  Having said that, the fact is that the defendant did stop and did not try again to rape X, and I must take this into consideration.

36.As to the point raised by defence counsel that the clinical psychologist had wrongly stated that the defendant had repeatedly violated the law, I find that it is indeed a wrong statement because as far as the court is concerned, the defendant is of clear record.

37.However, Mr Woo did not base his assessment solely on the defendant’s past offending, but a number of other factors, which I find are valid factors, were considered and I do not think that the assessment of the defendant’s re-offending would be rendered unsound based on that one misstatement of the defendant’s repeated offending.  As such, I find that I can still rely on Mr Woo’s assessment that the defendant does have a risk of re-offending and that it is around the high end of the moderate range.

38.Based on the circumstances of the defendant’s commission of the offence, and the trauma suffered by X both at the time and thereafter, the fact that the defendant had violated X in her own room, and the defendant’s risk of re-offending, subject to my observation above, I find that a proper starting point is that of four years and three months’ imprisonment.

39.I do not consider the defendant’s various psychological difficulties a mitigating factor and there will be no discount on this basis.

40.The defendant is granted the full one-third discount for his timely plea of guilty and sentenced to 34 months’ imprisonment.

Ms Kasmine Hui, SPP, of the Department of Justice, for the Respondent

Mr Newman Wong, instructed by Keith Lam Lau & Chan, assigned by Director of Legal Aid, for the Defendant