HKSAR v. Roxas Mark Angelo Miguel Lazaro

HCCC 278/2020

[2021] HKCFI 980

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 278 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 rape on 16 November 2020 before Magistrate Mr Cheang Kei-hong, admitted to the summary of facts supporting his plea, and was committed to the Court of First Instance for sentence.

2.The defendant confirmed his plea of guilty and his admission to the facts before me and was duly convicted.

Summary of facts

3.Particulars of the count are that the defendant on 31 January 2020, in Lantau Island raped female X.

4.X was born in the Philippines and came to Hong Kong when she was two. At the time of the offence in 2020, she was living in a flat on Lantau Island together with her brother, sister-in-law and some other relatives.

5.The defendant is the cousin of X’s sister-in-law and he lived in Macau.

6.The defendant got connected to X via Facebook in 2013 and had since been sending X flirtatious messages.  X kept a distance and had stopped responding to the defendant’s messages since 22 August 2013.

7.In 2017, they met for the first time at a family gathering in Hong Kong.  Thereafter the defendant would occasionally stay in X’s flat after similar family gatherings, sleeping on their sofa in the living room.  There had been about five occasions since 2019 when the defendant had a sleepover.

8.On 30 January 2020, X and her family had a barbeque to celebrate a relative’s birthday.  The defendant was also at the party.  The barbeque ended at around midnight and X returned home together with the defendant and seven others at around 1 am the following day, where they chatted and consumed more alcoholic drinks.

9.X went to her bedroom to sleep at around 2:30 am.

10.At around 5 or 6 am, X suddenly felt pain in her vagina. Thinking that she was dreaming, X said ‘no’ and tried to push the thing away from her vagina.  She heard someone saying her nickname and realized that the defendant was behind her in her bed, thrusting his penis into her vagina for over 10 times.  X was naked from her waist down and her bra had been loosened. X kept struggling and told the defendant to get out of her room in no uncertain terms but the defendant kept saying her nickname and carried on.  The defendant gave up eventually.  He got up from the bed, switched on the lights to look for his clothes.  X saw that the defendant was not wearing a condom.  The defendant then left the bedroom and X did not know if he had ejaculated or not.

11.X got up and went into the living room and saw the defendant lying in the sofa.  X grabbed a cooking pan from the kitchen to hit the defendant, saying words to the effect that the defendant was a rapist and that X had told him not to have sex with her.

12.X’s brother stopped the defendant from leaving the flat and the Police was called, who arrived soon after and arrested the defendant.

13.The defendant sustained some injuries.  He had tenderness on his left upper lip corner and an abrasion on the right forehead.  He told the Police that he had injured himself when trying to leave the flat.

14.Subsequent DNA examination confirmed that the semen found inside X’s vagina belonged to the defendant.

Previous convictions

15.The defendant is of previously clear record.

Background and mitigation

16.The defendant is 30 years old, born and educated up to university level in the Philippines, obtaining his bachelor’s degree in Hotel and Restaurant Management in 2012.  The defendant was living in Macau prior to the offence and was working as a bartender and waiter, earning about 7,500 Macanese pataca per month (equivalent to around HK$7,700).

17.The defendant would visit his extended family in Hong Kong two to four times each month and would stay with his father in Tung Chung.  The defendant’s mother lives in the Philippines and is suffering from cancer.  The defendant would send her money regularly.

18.The defendant has a long term girlfriend who lives with their three-year old son in the Philippines. They are not married but the defendant has been supporting them financially.

19.In mitigation, Ms Herbert submits that authorities in Hong Kong suggest that a five-year starting point for the offence of rape without any aggravating or mitigating features is the norm.  Ms Herbert also submits that the only possible aggravating factor in the present case is that the defendant did not wear a condom, use of which would have lessened the likelihood of transmission of disease or causing pregnancy.

20.Ms Herbert points out that the defendant was not a trespasser who had gained access to X’s home; that there was a minimal amount of force involved with no threats made; and that there is no evidence to suggest that the rape was pre-meditated.

21.Ms Herbert refers to the case of HKSAR v Singh Balwinder, HCCC 351/2013, where the accused was a lodger who shared a flat with the victim.  The accused returned to the lodging one night, drunk, and was let in by the victim.  The accused indecently assaulted the victim twice and raped her after the second time.  The court found that there was a certain degree of violence involved.  A starting point of five years was adopted, which was enhanced for the accused’s not using protection and for violating the victim in her own home by 12 months.  The final sentence after trial was six years’ imprisonment for the rape offence.

22.Ms Herbert submits that the facts of Balwinder are similar but perhaps more serious than the present case in that violence was used in the rape.

23.It is Ms Herbert’s submissions that the present case is towards the lower end of the scale of seriousness, albeit with the aggravating features of the defendant not wearing a condom and committing the rape in X’s home.

24.Given the circumstances of the defendant’s commission of the present offence, I found that it would be prudent to call for a psychologist’s report on the defendant prior to sentencing.

The defendant’s psychologist report

25.In gist, Clinical Psychologist Mr Woo is of the opinion that the defendant may have an alcohol abuse problem, but does not show any signs of major psychopathology.  He finds the risk of the defendant re-offending to be low and there is no recommendation for any psychological treatment.

26.Although the defendant told the Clinical Psychologist that he believed that the victim had consented to having sex with him, Ms Herbert had confirmed with the court that the defendant does not seek to reverse his plea.

27.The defendant himself wrote to the court to express his remorse.  He also wrote a letter to X to apologize and to seek her forgiveness.  The underlying theme of the defendant’s letters of remorse and apology is that he acted the way he did because of his alcohol consumption.

The Victim Impact Report

28.X was interviewed by Clinical Psychologist Ms Wong in January 2021.  It is Ms Wong’s finding that X displays a set of chronical emotional and cognitive responses which are commonly found in victims of trauma of a sexual nature.  X’s emotional profile as a depressive, anxious and hyperarousal person is impacting her daily life as well as her self-perceptions and relationship with others.  Although X knows that she is not to be blamed for the assault, the feeling of shame and pity remains.

29.Ms Wong is of the opinion that X would benefit from psychotherapy to help her to work through the trauma and address her emotional issues.

Sentence

30.The maximum sentence for the offence of rape on conviction upon indictment is that of imprisonment for life.

31.As Ms Herbert pointed out in her most helpful written submissions in mitigation, there are no sentencing guidelines for the offence, but that a starting point of five years’ imprisonment is the norm in most cases, subject to adjustment for any mitigating or aggravating factors.

32.As Ms Herbert recognized, there are aggravating factors in the present case, being the defendant committing the offence in the victim’s own home; his familial relationship with X, and his failure to use any protection.

33.X wrote a four-page letter detailing what she has been going through one year after the rape.  It is clear that X has suffered a great trauma.  What she finds most devastating is that the perpetrator is a relative, someone whom she considered family.  The contents of the letter paint the picture of a damaged person, someone’s whose life has been turned upside down.

34.Yet, it also allows a glimpse of hope in that X still has a lot of fight in her and will no doubt progress with the passage of time.

35.Bearing in mind the traumatic effect the rape has on X, I find that an appropriate starting point in the circumstances is that of five years’ imprisonment. For the said aggravating factors, I will enhance the sentence by nine months, leading to a sentence of five years and nine months’ imprisonment.

36.I find that there are no meaningful mitigating factors in the case to warrant a discount in sentence other than the one-third discount to be granted based on the defendant’s guilty plea.

37.As such, the defendant is granted the full one-third discount for his timely plea of guilty and is sentenced to three years and 10 months’ imprisonment.

Mr Dominic Ngai, SSP of Department of Justice, for the HKSAR

Ms Elizabeth Anne Herbert, instructed by Choy Yung & Co., assigned by Director of Legal Aid, for the Defendant