The jury found that, you, the defendant, in regard to the rape offence, raped “X” on day unknown between 28 February 2018 and 31 August 2018. At the time, “X” was about 14 years of age and you were 15 years old. In respect to Count 4, this offence was committed, that is the offence of non-consensual buggery, this offence was committed between 1 February 2019 and 8 March 2019. At that time, “X” was about 15 years old and you were about 16 years old. In respect of the third offence, that is one of indecent assault committed against “X” on 25 February 2019 and that was “X”’s 15th birthday and at that time you were 16 years old.
The offences were all committed at your family home in Un Chau Street, which you and “X” shared with your parents and a younger brother. The rape and buggery committed sometime in the middle of the night when you climbed into your sister’s bed in a bedroom you shared. After each occasion you went back to your own bed and slept as if nothing had happened. In the meantime, “X” described how she felt disgusted and after the rape, she had thought about jumping off the roof of the building because she did not want to have sex with you. In relation to the indecent assault, this happened in the afternoon whilst you and her were at home alone. It was her 15th birthday. At the time, she was lying on the sofa, watching TV, and you suddenly went over to her and removed her trousers and touched her bottom with your hands for a few seconds. She shouted at you as she was angry and you then stopped, left her and went to the gym.
These offences came to light in March 2019. “X” was found in your school, but in the toilet by her schoolmates. “X” was in an emotional state. “X” was taken to see a teacher and a couple of days later, on 11 March 2019, the teachers brought “X” to make a report to the police.
In sentencing you, Defendant, I have considered the victim impact report compiled on “X”, psychologist report, psychiatrist report and a training centre report on yourself. As a matter of background, the family had come to Hong Kong from Pakistan. Your mother, yourself and “X” moved to live in Hong Kong when you were 4 and “X” was 2 as your father was working in Hong Kong. You and “X” attended the same school and were in the same year, but in different classes. At the time of your arrest for these offences in March 2019, you were studying in Form 3 and aged 17. You have a clear record and you have been remanded in jail custody since the date of your arrest.
Your father is now unemployed, but used to be a construction site worker, who lives alone in Prince Edward. Your mother is living apart from your father and lives with your younger brother. “X” is now 17 years of age and she has been arranged to live in a hostel ever since her report was made on 11 March 2019.
I shall not go into detail of the training centre report, but briefly it appears that your academic performance was unsatisfactory throughout your years and you obtained poor results in most subjects except the English language. Conduct-wise, your performance was satisfactory and there were no behavioural problems. You liked to play table tennis and football in school and with your schoolmates. Today, I have received a letter written by your two former school teachers who say that you were willing to help teachers, were quite obedient, friendly and polite to teachers. Absent-minded as you always forget to bring books and needed to be reminded often to submit your homework on time. And were talkative in class, which explains why the training centre report says that you were weak in most subjects and became inattentive in classes.
The report says that you are polite and cooperative in revealing your background information, but regarding the present offences you were frustrated because you have denied committing the present offences. You do not know why these charges were laid against you. In discussing your future, you wished to further your secondary schools and sit for the Hong Kong Diploma of Secondary Education Examination in future. The report says that you are -- concludes that you are mentally and physically fit for detention in training centre. Mr Delaney has urged it upon me to sentence you to training centre. He recognises the offences of rape and non-consensual buggery are serious offences.
In the present case, the offences occurred when “X” was aged between 14 and 16 years of age and you were between 15 and 16 years old. You maintain your innocence and you maintain your defence at trial, that is the sexual abuse were fabricated as your sister wanted to be free of the strict conformity of the Islam faith imposed upon her by your father, which prevented her from having a boyfriend or friend, so that she could live away from her family. The jury has clearly rejected this.
Incidentally, “X” at trial agreed in cross-examination that she thought her father imposed too strict and restrictive rules on her to conform to the Islamic faith. She agreed that she did not like the disparity of the treatment by the father between herself and you. Examples were given. You were permitted a mobile phone, while she was not. You were allowed to go out to play football or go to the gym, while she was not. She was to be accompanied by you or a male of the family if she did go out, while you were not. In the victim impact report, she added that your father did not allow her to watch TV at home, nor meet her friends, and hit her for joining the basketball team.
There is nothing from the reports that show to me that you, Defendant, are psychologically or psychiatrically imbalanced. What may perhaps be inferred from the family background and the disparity and treatment between you and “X” is that you, the brother, had an authoritative male role in the family over your sister despite the narrow age gap between you both, as a result of which you were able to take advantage of “X”.
I have confirmed with your counsel, Mr Delaney, that I cannot sentence you in a vacuum, in that I accept you have only committed three criminal -- you have committed three criminal offences. Mr Delaney has agreed I cannot ignore the background to these offences, which background, really, refers to the uncharged acts which were referred to at the trial. These uncharged acts relate to incidents which “X” says took place between yourself and her, and allegations against your grand-uncle and uncle. In the trial, your father was the 2nd defendant and she had made allegations of sexual abuse against him. The jury found him not guilty of both charges of indecent assault.
The uncharged acts referred to by “X” relates to a time when she was first assaulted at a very young age of about 7 to 8 years old. She refers to you had -- were one of the first who had touched the outside of her vagina. It was also her allegation that you had first raped her a number of times, which she doesn’t remember. I’m referring to these uncharged acts purely as it is important for me to look at these offences not in a vacuum. And it may be a course of misconduct by you, sexual misconduct of which explains why there was no complaint by “X” and explained why perhaps you felt confident in repeating the offences with impunity.
As Mr Delaney has said, between siblings it may be at first innocent interference of sexual acts, and when both you and your sister, more particularly your sister grew older, she realised these sexual acts were wrong and hence she then resisted in some shape or form. So whether these sexual acts were taken by you because “X” had made no complaint, and why you felt confident to commit the offences you did, is a factor which I have to take into account to see what is the most appropriate sentence for you. Therefore, these three offences are not what I can look at as isolated incidents, acts occurring suddenly without any reason or any circumstances to link them in any way. In other words, they did not appear out of the blue or happen out of the blue. So I must place these offences in the context of “X”’s account of the whole of your alleged conduct.
I accept in this case there was no violence used. It was clear at least in these offences that “X” was unwilling and disgusted by your abuse of her. She lived with you and your father and was wholly at the mercy of your father. She was not in a position to protect herself, having shared the same room as you. It came to light at the trial that when her mother had first caught you abusing her when she was a very young child, your mother punished you both.
As I mentioned, “X” was removed from the family as soon as the report was made to the police and has been living in a hostel arranged by the Social Welfare Department. As can be seen from the victim impact report, when approached by the psychologist “X” became distressed and fretful and requested not to talk about her abusive experiences again. “X” is still suffering a wide range of post-traumatic stress disorder symptoms, particularly on domains of thought, intrusion and anxiety depressive moods. She had frequent nightmares and flashbacks of different parts of the abuse episodes. She had difficulty keeping her emotions under control, feeling herself helpless and pitiful. She expressed great fear that she would be killed by her father, and she realised that as a result of these allegations against her father and resulting conviction against her brother that she had lost her family. She could not help feeling lonely and sad.
It goes without saying the sexual abuse has caused great trauma to her and will manifest itself in interpersonal relationships, particularly in the long run. What transpires from the report is that “X” is severely traumatised, was not ready to face or handle the trauma. I have to accept from Mr Delaney that the trauma or the impact on “X” may not be fully on account of you,the defendant. As is clear from the evidence of “X”, she had made allegations not only against her father, who was acquitted, but against her paternal grand-uncle and paternal uncle.
Defendant, you have committed two very serious sexual offences against your sister over a period of one year, though this is not to make light of the other offence of indecent assault. I have given long and anxious thought to the most appropriate sentence to be imposed. I recognise that they are serious offences and call for immediate custodial sentences. For that reason, my immediate reaction when I adjourned for sentence the first time was to call for psychological and psychologist reports as, if you were an adult, you would be facing a substantial term of imprisonment as clearly these offences have adversely affected the life of your sister. I was, however, at the adjourned hearing with the cases provided to me, persuaded by Mr Delaney to call for a training centre report.
The task now is for me to select the penalty that is most appropriate to you and the offences, and take into account the background of this case between you and your sister. The only two options are either a sentence of imprisonment or training centre. Mr Delaney has urged me to sentence you to training centre. He has submitted a wide range of cases, and more particularly, drew my attention to the cases of my learned brothers in Chiu Man Ki, HCCC 96/2013 and C.C.W, HCCC 408/2015, both cases dealing with incest. Previous cases and their sentences are of limited value since there are many factual variables save for the principles as set out in those cases.
In Attorney General v Fong Ming Yuen, [1989] 1 HKC 327, the Court of Appeal did not interfere with a training centre order imposed upon a 19-year-old rapist, which it called a finely balanced judgment. Silke VP explained:
“It is in the public interest and in the respondent’s own interest that his eventual reintegration - for he must at some point start to live out his life again in the wider world - into society be a gradual and assisted one.”
The training centre order:
“will bring home to him the gravity of his offence and should greatly assist, by its nature, in making him a useful member of the community.”
Defendant, now you are 18 years and 3 months of age. It is a fundamental principle when the court is dealing with a young offender that it is necessary to ensure, as far as the law permits, that he receives a sentence that is appropriate in light of his personal circumstance and needs, and would give him the best to reform and rehabilitate. However, this principle needs to be appropriate, considered together with the circumstances and seriousness of the offence.
In Chau Ho Wan, CACC 389/1993, P Chan J referred to the principle of R v Smith [1964] CLR 70 where it was said, “the public have no greater interest than that young offender should become a good citizen”, and added that a “training order will no doubt benefit the applicant as much as it will benefit society”. As long ago in 1997, Litton VP emphasised in Attorney General v Kong Kin Man [1997] 1 HKC 537 “that training in a training centre is not a soft option”.
At the training centre, the defendant stands to benefit from the discipline and also the care and training that he is being given there, and the supervision that he will have when he leaves.
Defendant, I accept of course you have been in custody for 2 years and taking into account all the relevant factors and my assessment of information and evidence provided to me, I consider that a period of more comprehensive training programme, including education and vocational training, value life skill development followed by a long period of aftercare supervision will be beneficial to your rehabilitation. Under the ordinance, you will be kept in the training centre for a minimum period of 6 months and a maximum period of 36 months, and upon your release you are subject to a further 3 years of supervision.