This is the retrial of the defendant ordered by the Court of Appeal, CACC 261/2018, on the Count of 1 and 2 concerning the complainant X. Count 1 is a charge of indecent assault and Count 2, rape, both of which occurred on 10 December 2016 at the defendant’s home in Lung Mun Oasis, Tuen Mun.
The defendant’s conviction on the old Counts 5 to 7, which were about a similar but more serious incident concerning the complainant Y, have been upheld.
The history of the first trial, which is protracted, is outlined in the judgment of the Court of Appeal (“Judgment”) which I am not going to repeat. It suffices for me to say that as a result of the judgment, the defendant is currently serving a sentence of 14 years’ imprisonment for the offences concerning Y.
The retrial was supposed to begin with a voir dire, that was notwithstanding that the defendant’s caution statement had been ruled in by Barnes J on the previous occasion. For that purpose, a new set of grounds of objections (containing some fresh allegation against the police) was filed and an identification parade was conducted at 9.30 am on 28 October 2021.
However, the voir dire did not commence immediately after the identification parade but was put off to 2.30 pm in the afternoon. That was because the Judgment happened to be handed down at 10 am that morning and its contents needed to be interpreted to the defendant.
At 2.30 pm, before pleas were taken from the defendant, this court drew the attention to paragraphs 98 and 99 of the Judgment. After that, Mr Yip asked for time to take instructions. Eventually, on 1 November 2021, Mr Yip obtained firm instruction and the defendant pleaded guilty to Count 1 and Count 2 before this court.
The Summary of Facts
Sentence was then adjourned pending the preparation and agreement of the Summary of Facts. Today, the defendant agrees to the Summary of Facts before me and he is formally convicted of the two charges.
I am not going to repeat what has been recorded in the Summary of Facts. Briefly stated, the complainant X was aged 20 at the time. Before the offences under consideration, she and the defendant had met only through Facebook but never in person. On the date of the offences, she was lured by the defendant to his home on the pretext that he needed her to help looking after his store for a few hours and she was promised $400 as a reward. When X arrived, she was asked to follow the defendant to his bedroom. Once inside the bedroom, and when X was looking away, the defendant looped a plastic strap around her neck from behind, blindfolded her, tied her hands, threatened her with a sharp, cold, hard object and said that he would cut her face if she shouted.
Afterwards, he used a vibrating sex toy on X against her will, forced her to perform oral sex on him and eventually had sexual intercourse with X without her consent. It is of note that during the rape, the defendant had at one stage been wearing a condom, but he subsequently took it off and penetrated her again without a condom.
Once X was permitted to leave, she immediately contacted her boyfriend and the crime was duly reported to the police. X was examined by a forensic pathologist who found reddish bruises on her neck. Vaginal swabs were also taken from her and later analysis confirmed the presence of the defendant’s DNA in them.
The defendant was arrested on 22 December 2016. Under caution, he admitted having had sexual intercourse with X, but denied raping her, alleging that she had consented.
The defendant’s background and criminal records
The defendant was born in the mainland in April 1990. Therefore he was aged 26 at the time of the offences and is now aged 31. He is the only son of his parents. He is single and used to live in a flat in Lung Mun Oasis, the scene of the present offences. He studied up to Form 4 and after that had worked as a salesman and a warehouse attendant. He once operated a telephone accessories shop. At the time of the offence, he was a self-employed phone repairer.
Not counting the offences concerning another victim Y, the offences against whom happened about a week after those of X, the defendant has six previous convictions. Actually, it should be seven, including two thefts, four unlawful sexual intercourses with girls under 16, one indecent assault and one possession of equipment fit for the intake of dangerous drugs. Although the defendant’s last two convictions of unlawful sexual intercourse were in March 2018, I am told that they actually related to incidents prior to the present offences.
There were a psychiatric report and a psychologist report of the defendant when he last appeared before Barnes J for sentence. In short, it was found that the defendant did not suffer from any psychiatric disorder but he showed a lack of concern for others and had an anti-social personality. Mr Yip agrees that it is not necessary to obtain any updated report for the defendant for the present purpose.
Sentencing
I note that, for Count 1, indecent assault, the maximum sentence is one of 10 years’ imprisonment and for Count 2, rape, the maximum sentence is life imprisonment.
As far as the sentencing authorities are concerned, there are no guideline cases for Count 1 and the sentence is fact-specific. For Count 2, I bear in mind the sentencing principles enunciated in R v Billam and R v Millberry and Others, HKSAR v Chan Wai Tung at paragraph 33 to 36. I am aware, however, that the English case authorities, though helpful, are not guideline cases as such in Hong Kong, see Secretary for Justice v Leung Yuet Hung, CAAR 1/2014.
The present case is, in any view, an appalling one. There are a number of aggravating factors that elevated the offending to a high level of seriousness. First of all, judging from the facts, the offences were clearly pre-planned in that the defendant befriended X on Facebook and then lured her to his place. Secondly, there was the looping of X’s neck with the cable, the blindfolding of her eyes with an eyeshade, the tying of her hand with plastic ties, the threatening of her with a sharp object and that must have been a terrifying experience for X.
As regards the indecent assault, X was subjected to the indignity of having a sex toy placed near her private parts and was forced to perform oral sex on the defendant. As regards the rape, there was the defendant’s deliberate removal of his condom which added to X’s fear of contracting venereal diseases and becoming pregnant.
Although the defendant was relatively young at the time of the present offences, he was no stranger to sexual offences. His criminal history shows an escalation of sexual transgressions, from non-violent ones to seriously violent ones which plainly calls for a deterrent sentence. Besides, this court must have regard to the public abhorrence of the defendant’s conduct and must also redress the grievances suffered by X for her ordeal. In this regard, I note that there was a psychologist report of X prepared by Ms Mak of the Social Welfare Department back in August 2018. In that report, Ms Mak concluded by saying that X felt confused and distressed about her sex attitude. The rape has imposed adverse impact on X’s moral values and self-image. Notably, X’s sense of purity has been “contaminated” and she worries of being taken advantage by men.
Although Ms Mak observed that X has developed coping strategies to deal with her stress, she cautioned that X’s distress and struggle on sex and moral values may bring undesirable impact on her psychological wellbeing in the long run. I am fully aware that the psychologist report was prepared three years ago. However, in view of the fact that the incident occurred almost five years ago, in order not to cause any additional stress to X by requiring her to attend another interview and to recount her painful experience, I refrain from calling an updated victim impact report from her: see HKSAR v Leung Yuet Hung. For the present purpose, I would assume that X’s trauma has lessened after the first trial; which is not to say that she will be other than always affected by the experience.
While this court is not bound to follow the sentences passed by Barnes J on the previous occasion, and that this court should come to its own conclusion on sentence, I also come to the view that a proper starting point for Count 1 would be 2½ years. Having regard to the aggravating factors identified above, I too enhance the sentence by 1½ years to 4 years.
For Count 2, I agree with Barnes J that the starting point should be one of 7 years’ imprisonment, which is enhanced to 9 years for the presence of the aggravating factors.
Discount for plea
I trust that Mr Yip has tried his best to mitigate but realistically speaking, not much can be said on the defendant’s behalf apart from his plea. However, in view of the history of the case and what happened recently, this plea is indeed a very belated one. In this regard, I note that on the previous occasion, Barnes J gave the defendant a discount of 1 year for his plea which was only offered after his cautioned statement had been ruled in and Y had given her evidence. That discount of 1 year was indeed a generous discount given the fact the defendant had displayed no remorse at all by refusing to admit any facts for sentencing purpose.
Although the defendant succeeded in overturning his previous convictions on Count 1 and Count 2 on appeal, he was not successful in seeking leave for his appeal against sentence. As pointed out by the Court of Appeal in the Judgment, the events that follows the pleas of guilty before Barnes J are matters that this court may take into account when sentencing the defendant upon his conviction.
The defendant cannot realistically expect to receive the same amount of discount now as he did before. The pragmatic policy reasons for granting discount to an accused for plea is the saving of the court’s time and public money. However, the defendant has wasted further court’s time and public money this time around by choosing not to plead guilty on the first day listed for the retrial.
Although the Judgment was only available in the morning of 28 October 2021, the order for retrial was made on 22 December 2020, so that the defendant had more than 10 months to consider his options. On the other hand, X was all along kept in suspense as to whether she would be required for the retrial. Against this backdrop, in the afternoon of 28 October 2021, when the defendant had been informed of the contents of the Judgment and when Ms Crebbin was about to call her first witness for this special issue, the defendant still had not made up his mind. Indulgence was granted and the defendant was given time to consider his plea overnight. On the following morning, however, there was yet another application for indulgence and the matter was adjourned over the weekend. This court made it plain that there would be no further indulgence, bearing in mind that the incident took place in 2016 and fairness to all parties demands that there should be no further delay.
In view of all the circumstances, I give a 6-month discount each for Count 1 and Count 2, reduce the sentences to 3½ years’ imprisonment and 8½ years’ imprisonment, to run concurrently with each other. The defendant should count himself lucky that this court is minded to grant him any discount at all, as it could easily be otherwise.
Totality
Lastly, there is the issue of totality in view of the fact that the defendant is currently serving a 14 years’ imprisonment for the offences concerning Y. Although the incidents of X and Y were separate and distinct, there was a proximity in time: see R v Ng Chung Keung and HKSAR v Leung Ting Fung.
Having stepped back and looked at the matter in the round, to take a most generous view in favour of the defendant, I consider that an overall sentence of 18 years’ imprisonment would be appropriate in all the circumstances in order to reflect the overall criminality of the defendant. To achieve that, I order that 4 years of the total sentence on Count 1 and 2 is to run consecutively to the current 14 years’ imprisonment sentence of the defendant making an overall sentence of 18 years’ imprisonment.