COURT: The defendant has been convicted after trial of one count of rape. The jury found that the defendant had on 19 January 2020 raped X, the victim, at a hotel in Kam Tin, Pat Heung.
The defendant is now 24 years old. He had a clear record. The victim, X, is an Indonesian lady. She worked as a domestic helper in Hong Kong at the material times. She was around 25 years old when the offence took place.
X came to know the defendant via a dating application “Skout” since December 2019 and they later chatted via WhatsApp. At the material times, X was not happy with her current employer and she was desperate to look for a new employer. In her communications with the defendant via WhatsApp, she complained to the defendant and said she wanted to look for a new employer. The defendant said he could introduce a new employer to X. In their communications, the defendant also asked for sex or intimate relationship with X.
X only met the defendant for the first time on 19 January 2020 since they came to know each other. On 19 January 2020, the defendant told X that he could arrange a job interview for X and the two finally met at the Kam Sheung Road MTR Station, they then took a taxi and arrived at Kam Tin Hotel. X was told the job interviewer was having a meal and they would wait for the job interviewer in the hotel.
After they checked in at the hotel lobby, X was forcibly taken into a room by the defendant against her wish. The two then had a chat in the room. After a while, the defendant started to sexually molest X. He forcibly kissed and bite the right nipple of X, fingered her vagina, subdued X and raped X without using a condom. X tried to resist but the defendant was too strong for X.
After the defendant stopped, X went to the toilet to clean herself. The defendant and X then left the hotel. X made a complaint to PW2 on the same day and reported the case to the police on the following day.
The defendant’s semen was found inside the underpants of X upon examination. X was medically examined and was found to have sustained 0.5 cm linear abrasions on both breasts, linear abrasion of 1 cm on right wrist and abrasions of 1 cm times 0.5 cm in her genital area.
I have before me a victim impact report of X prepared by Ms Christine Tam, clinical psychologist of the Social Welfare Department. Ms Tam in paragraph 6 of the report opines that the assault has triggered distress and traumatic responses on X with lasting impact on her various life aspects.
In view of her current situation and personal background, X is recommended to receive follow-up intervention by organisations specialised in serving ethnic minorities to facilitate better coping for the distress as triggered by the assault. Ms Tam recommends community support for X to strengthen social support around her.
Ms Herbert has kindly prepared a detailed written mitigation for the defendant. In her submissions, Ms Herbert addresses me on one, the degree of harm to X and level of culpability of the defendant; two, level of risk posed by the defendant to society; and three, the victim impact report of X.
I have considered all the matters raised by Ms Herbert and the authorities she placed before me, including R v Millberry [2002] EWCA Crim 2891, [2003] 1 WLR 546 and SJ v Lau Yun Leung [1999] 3 HKLRD 289.
Ms Herbert submits in paragraph 27 of her submissions that there was a history of communication between the defendant and X in which discussions took place regarding sex, romance and kissing. In my judgment, the jury must have accepted the evidence of X that she was given to understand that the meeting on 19 January 2020 was for a job interview and had nothing to do with sex or intimate acts.
I find it an aggravating factor that the defendant did not use a condom when he raped X. Although no pregnancy ensued and there was no transmission of STDs, the defendant had exposed X to the dangers of pregnancy and transmission of STDs.
Ms Herbert submits that there was no planning on the part of the defendant and from the start the defendant had made it clear that he wanted sex with X. The evidence which the jury must have accepted is that X was lured to meet the defendant on the day in question thinking that the defendant had a job interview for her. The defendant was taking advantage of the desperate situation of X and he lured X to go to the hotel with him thinking that there would be a job interview for her. In my judgment, there was planning on the part of the defendant.
There was some violence used but the degree of violence used was not over and above the force necessary to commit the offence of rape.
All matters taken into consideration, in my judgment, this case calls for a starting point of 5 years’ imprisonment. Given the facts that no condom was used by the defendant and given the degree of planning, the sentence should be enhanced by 9 months.
The defendant had hitherto a clear record. I am prepared to give him a reduction of 3 months for his clear record. The sentence is reduced therefore to 5 years and 6 months.
I see no other mitigating factors which can further reduce the sentence. For the above reasons, I sentence the defendant to 5 years and 6 months’ imprisonment.