HKSAR v. So Tsz Chun

HCCC 271/2020

[2021] HKCFI 819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 271 OF 2020

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

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COURT: Introduction

The defendant pleaded guilty to 10 charges and is committed to this court for sentence. Before this court he confirms his plea and agreement to the Summary of Facts. The charges are as follows: Charge 1, rape; Charge 2, theft; Charge 3, administering drugs to obtain or facilitate unlawful sexual act; Charge 4, administering stupefying or overpowering drug with intent to commit an indictable offence; Charge 5, theft; Charge 6, possession of dangerous drugs; Charge 7, administering stupefying or overpowering drug with intent to commit an indictable offence; Charge 8, indecent assault; Charge 9, administering stupefying or overpowering drug with intent to commit an indictable offence; Charge 10, indecent assault.

Brief Facts

The case involved three victims namely, X, in relation to Charges 1 and 3, A, in relation to Charges 4 and 5, and Y, relating to Charges 7 to 10. I am not going to recount the Summary of Facts in detail here. I will briefly state that the facts are as follows.

Charges 1 to 3

On the night of 15 January 2019, the defendant met X, a woman aged 23 whom he came to know via a mobile dating app just a few days before, in a hotel room. He secretly laced X’s coffee with flunitrazepam (a dangerous drug) and zolpidem (a poison) and then raped her whilst she was rendered unconscious by the drink. During the rape, he did not use a condom and he ejaculated inside her.

On the following day when X came to, she found that she was only wearing a bra with her lower body naked. Moreover, her Apple Watch with band, Airpods, underpants and $400 cash had been stolen. The value of the stolen property was 6,286, not including the underpants.

After the defendant was arrested, the police found in his mobile phone three photographs of X showing her wearing only bra and underpants sleeping in bed and a photograph of X’s Hong Kong Identity Card.

The defendant was charged for offences relating to X on 19 January 2019 and was granted bail.

Charges 4 to 5

On 25 December 2018, the defendant met A, a Filipino visitor whom the defendant came to know the day before via WeChat in a hotel room for sexual services. Upon the defendant’s insistence, A drank some of the whiskey the defendant brought along which, unbeknown to A, was laced. A then felt dizzy and his vision became blurred. When A was taking a shower to try to wake himself up, the defendant took A’s wallet and disappeared. The property which A had been stolen consist of two ATM cards and various foreign currencies equivalent to about HK$57,302.

The defendant was captured by the CCTV of the hotel and as a result he was arrested on 23 January 2019 for the above incident.

Charge 6

On the same day as his second arrest, during a house search at the defendant’s home, the police found a glass bottle containing traces of a liquid containing flunitrazepam (a dangerous drug) and zolpidem, and another glass bottle containing 0.03 grammes of a powder containing 3,4-methylenedioxymethamphetamine (a dangerous drug).

Charges 7 to 10

During the video-recorded interview on 23 January 2019, the defendant admitted that he had laced the drinks of his friend Y, aged 22, who was his former classmate. Examination of the defendant’s mobile phones showed that there were a total of seven video footages showing Y having a shower and two photographs showing Y’s breast. In the defendant’s notebook computer, there were 13 photographs showing Y’s breast, three photographs showing her abdomen, one photograph showing her buttock and 10 videos of her having a shower. Those photographs and video footages had been taken without Y’s consent or knowledge.

Under caution, the defendant admitted that he had laced Y’s drinks with “F Water” which he had purchased online when he visited Y’s home in Yuen Long. He did that because he wanted to have “intimate contact” with her. On each such occasion, after Y had become unconscious, he would touch Y’s breast from outside her clothes, or directly inside her bra and also take photographs of her. The touching would last for about an hour and then he would leave before Y’s family members returned home.

The first such occasion took place in early 2017 when he fondled Y’s clothed breasts outside her clothes and touched her abdomen after she had become unconscious after consuming the “F Water”. She woke up about eight hours later.

There was another occasion between September 2017 and May 2018 when he fondled both of Y’s breasts and nipples inside her bra and her abdomen inside her clothes after she had become unconscious. He also took photographs of Y sleeping on her bed wearing only bra.

Antecedent

The defendant is now aged 25. He holds a Yi Jin Diploma. He is single and he lives with his parents in a public housing estate. He has worked as a waiter between 2016 and 2018, and then as a customer service officer of an amusement game centre. He has a clear record.

Mitigation

Mr Lee, counsel for the defendant, has provided the court with a bundle of mitigating letters written by the defendant, his father, relatives and friends. There were also certificates showing that the defendant had participated in voluntary service.

Mr Lee has said all he can for the defendant, including timely plea, remorse, voluntary service and sparing the victims of the ordeal of giving evidence. However, the previous practise of giving an additional discount for sentence for sparing a victim from the ordeal of giving evidence (and therefore having to recount the traumatic incident or incidents in question) must now be viewed against the general principle that the one-third discount is usually to be regarded as the high watermark of the discount for pleading guilty in good time (see HKSAR v Wen Zelang).

Despite the defendant’s relatively young age, clear record and what the defendant’s family and friends have said about him, this court cannot lose sight of the blunt fact that the offences the defendant committed are extremely serious ones. There was also a persistent perversion in his conduct in that he had repeatedly lured people to accept drinks which he had covertly laces with harmful overpowering substances in order to facilitate his evil deeds.

The crimes were all well-planned and hideously executed with a careless disregard of the hazards that the substances might have done to his unsuspecting preys. In my view, the defendant poses a real risk to the society. Besides, the sentences to be imposed have to factor in the impact on the victims and the family and the abhorrence of the right-thinking members of the society would regard the relevant offences and thus the need for deterrence (HKSAR v Chow Yuen Fai). In short, the defendant can expect no mercy from the court.

The only significant mitigating factor which may reduce the defendant’s sentence is his timely plea to which the customary one-third discount will apply. A small reduction would also be given for the extensive voluntary social service in Yuen Long district which the defendant had undertaken between 2012 and 2018. I note that there is a certificate showing that in 2017 alone, the defendant had devoted 200 hours of his time in voluntary service.

Sentence

Charges 1 to 3, group 1

Among the offences within this group, which were all committed against X, the most serious one was rape. My attention has been drawn to the case of HKSAR v Man Yiu Fai. In that case, there was -- in which drugs were also used to facilitate the commission of rape. In that case, there was an element of breach of professional trust and the peculiar background which is not relevant to the present offence. I am also aware that that case is not a tariff case and each case has to be sentenced according to its own facts.

In the present case, there are a number of aggravating factors present:

(1)  As regard to Charge 1, the defendant committed the rape without using condom and he ejaculated inside her, thus giving rise to the risk and anxiety of pregnancy and transmission of venereal diseases. There was also the talking of the photographs of X when she was only wearing bra and underpants, and the picture of X’s identity card. Although I note that X may not be aware of the fact that had been photographed.

(2)  As regards Charge 2, the defendant added insult to injury by stealing X’s property after raping her. In this regard, it is said she felt heartbroken that the defendant did not leave her with enough cash for returning home in spite of the fact that he knew where she lived.

(3)  As regards to Charge 3, both flunitrazepam and zolpidem were used to facilitate the offence. It is agreed that flunitrazepam may cause anterograde amnesia and annihilation of the will. In more serious cases, it may cause hypertension, respiratory depression, and coma. As regards zolpidem, it may worsen depression along with suicidal ideation and actions. The synergistic effects of these two agents could result in prolonged duration of impaired consciousness.

(4)  As regards to Charges 1 to 3, there is the severe impact of the offences on X. It is said in her victim impact report that she still have intrusive memory about her condition when waking up in the hotel. She continues to ruminate about the possible damage to her body and her life. The experience has aggravated her sense of failure as a person and also further shattered her sense of security. She is now hyper vigilant to her surroundings and becomes socially withdrawn. Emotionally, she is restless, irritable and depressed. Her conditions are expressed to resemble the constellation of symptoms of Post-traumatic Stress Disorder and with severity warranting clinical attention.

As regards the individual charges within group 1, I pass the sentences as follows: Charge 1, the starting point is 9 years’ imprisonment which is reduced to 6 years for plea; Charge 2, the starting point is 2 years’ imprisonment which is reduced to 16 months’ imprisonment for plea; Charge 3, the starting point is 6 years’ imprisonment which is reduced to 4 years for plea.

The criminal conduct underlying each offence is quite different and the fact that they occurred at the same time with the section 121 offence conduct being committed to enable the defendant to rape X, does not mandate concurrent sentences. The conduct involved in the section 121 offence clearly adds to the culpability of the applicant’s conduct that underlies the rape. However, when it comes to the consideration of the overall sentence with this group of offences, I take heed to avoid any double counting.

In my assessment, the overall sentence for this group of offences shall be 8 years’ imprisonment after plea. To this end, I order that 6 months on the sentence of Charge 2 and 1½ years on that of Charge 3 respectively are to run consecutively to the sentence on Charge 1, thus making an overall sentence of (6 years plus half a year plus 1½ years equal) 8 years’ imprisonment.

Charges 4 to 5, group 2

These group of offences were committed against A. My attention is drawn to HKSAR v Hashimi Habib Halim which is a similar case where overpowering drug was used to facilitate the commission of theft of visitors to Hong Kong and a global starting point of 10 years’ imprisonment was upheld on appeal. That case, however, was much more serious as it involved three set of charges against three different victims and that the value of the stolen property was also much higher.

In the present case, the evidence shows that the overpowering substance would at least consist of flunitrazepam and the expert opinion is that when it is combined with alcoholic beverage, the central nerve system effects may be significantly enhanced.

On the other hand, although A was affected by the laced drink, he had not been rendered unconscious. In all the circumstances, I adopt 4 years’ imprisonment as the starting point of each of Charge 4 and 5, and reduce each of the sentences to 32 months’ imprisonment for plea. The sentences are to run concurrently, thus making an overall sentence of 32 months’ imprisonment.

Charge 6, group 3

Although this group consists only of one charge for possession of dangerous drugs, in view of the fact that the case and the sentences of the defendant’s other charges, a DATC report would not be necessary. The quantities of the dangerous drugs concerned were small. However, aggravating features are present.

Firstly, the defendant’s original purpose of having them was to use them not on himself but to facilitate his criminal and evil deeds.

Secondly, whilst I cannot rule out the possibility that the dangerous drugs were just leftovers, I note that the defendant had failed to get rid of the dangerous drug, even after he had been arrested for the offences in respect of X.

In the circumstances, for this charge, I adopt the starting point of 12 months’ imprisonment which is reduced to 8 months’ imprisonment for the plea.

Charges 7 to 10, group 4

This group of offences were all committed against Y and they related to two separate incidents of indecent assault. Among them, the most serious charges are Charge 9 and Charge 10 in terms of the defendant’s violation of Y’s dignity.

In respect of all the charges within this group, there is an element of a serious and blatant betrayal of trust. As Y was, as the defendant puts it, his friend and former classmate whom he had known since they were in secondary school. Moreover, it is also an aggravating factor in that all the offences took place in Y’s home where she should be entitled to feel safe and protected.

In assessing the criminality of the defendant for the two incidents of indecent assault, I take into account the following:

(1)  In respect of Charge 7 to Charge 10, the gravity of the betrayal of trust.

(2)  In respect of Charge 8 and 10, the respective degree of indecency.

I note that in relation to Charge 7, the defendant said he touched Y outside her clothes, whereas in relation to Charge 10 he said he touched her inside her bra and also her clothes.

(3)  In respect of Charge 10, the taking of Y’s photographs, and

(4)  In respect of Charge 7 to Charge 10, the impact of the offences on Y. According to Y’s victim impact report shortly after the discovery, she would frequently ruminate on why the defendant would do such things and felt disturbed by the recurring thoughts. She recalled feeling insecure at the time and often wondering if she was being watched or spied on at home (where the incidents took place). She also noticed a heightened sensitivity towards cameras and tended to avoid being photographed. Besides, she felt easily triggered when she encountered people with a similar appearance as the defendant or when she came across topics of sexual assault on television. She would experience considerable symptoms of anxiety, such as heart palpitation, hand trembling, poor concentration, mind-blanking and fear. Although the frequency of anxiety episodes and intensity of symptoms were said to have gradually decreased over time, the results of the Trauma Symptom Inventory indicated that her clinical profile fell in the normal range, and the victim was not suffering from significant post-traumatic stress at the time of assessment. Her symptoms on the impact of event scale also suggested that she was currently suffering from low levels of distress associated with the incidents, with no significant impairment of her function.

For avoidance of doubt, I should say that although the Summary of Facts seems to suggest that the defendant might have committed other offences in respect of Y than those with which he has been charged, I have not taken into account any uncharged act for the purpose of sentencing.

As regards the individual charges within this group, I pass the sentences as follows: Charge 7, the starting point is 3½ years’ imprisonment which is reduced to 2 years and 4 months for plea; Charge 8, the starting point is 2 years’ imprisonment which is reduced to 16 months for plea; Charge 9, the starting point 4½ years’ imprisonment which is reduced to 3 years for plea; Charge 10, the starting point is 3 years’ imprisonment which is reduced to 2 years for plea.

Similar to group 1 offences, the criminal conduct underlying each of the offences in group 4 is quite different. Moreover, since the charges pertain to two separate incidents, at least partly consecutive sentences are called for as between each pair of charges.

In my judgment, the overall sentence for these group of offences after plea should be 4 years’ imprisonment.

To this end, I order that 4 months each of the sentences on Charge 7, Charge 8 and Charge 10 are to run consecutively to the sentence on Charge 9 and the rest of the sentences are to run concurrently, thus making an overall sentence of (4 months, 4 months, 4 months, and 3 years, equal) 4 years’ imprisonment.

Totality

To recap, the overall sentences for each group of offences are as follows: Group 1 for Charges 1 to 3, 8 years’ imprisonment; group 2, Charges 4 to 5, 32 months’ imprisonment; group 3, Charge 6, 8 months’ imprisonment; group 4, Charges 7 to 10, 4 years’ imprisonment. The aforesaid imprisonments are imprisonments after plea.

Having regard to totality, I stand back and look at the whole of the defendant’s criminality in the round. The incident pertaining to group 1, group 2 and group 4 are separate and distinct, concerning different victims, and committed on different occasions.

As regards group 2 offences, the purpose of the defendant was purely financial. In my assessment, the total sentence of all the offences after plea should be 10 years’ imprisonment. However, as aforesaid in view of the substantive voluntary service which the defendant had provided to his community over the years, I would allow a 2-month reduction.

To that end, I order that 10 months of the overall sentence of group 2 offences and 1 year of the overall sentence of group 4 are to run consecutively to the overall sentence of group 1. The rest of the sentences are to run concurrently, thus making a total sentence of (8 years plus 10 months plus 1 year equals) 9 years and 10 months’ imprisonment.

The defendant is sentenced accordingly.