COURT: The defendant was charged with one count of burglary, one count of wounding and one count of attempted rape.
On 3 May 2021, the defendant as a trespasser entered a unit in Shek Lei (II) Estate, Kwai Chung, New Territories and stole therein a bra, two handbags and a wooden box containing some cash. In the same unit, the defendant attempted to rape the lady living in the unit, Madam X, and unlawfully and maliciously wounded a man, namely, Mr Tsang, who is Madam X’s friend.
The defendant pleaded guilty to all three charges before the magistrate at the committal stage and was committed to the Court of First Instance for sentence on 13 September 2022.
He appeared before me at the hearing on 16 December 2022, confirming his plea of guilty and his admission to the Amended Summary of Facts produced by the prosecution. The case was then adjourned for sentence as I called for a victim impact report on Madam X and a psychological report on the defendant. Mr Jim appearing on behalf of the defendant, reserved his mitigation pending the availability of these reports, which he did, and I have considered fully the submissions he made both in writing and orally in court today.
Facts of the Case
The facts giving rise to this case are as follows:
On 3 May 2021, at around 2.26 am, Madam X found that the iron-gate and the main door of her unit was opened. After she closed the gate and before she closed the main door, she saw someone hiding behind the curtain next to her bed. At that moment, the defendant rushed out from the curtains, got off the bed and rushed towards Madam X. Madam X yelled for help, turned around and tried to leave the unit. When Madam X tried to use her phone to call Mr Tsang, her friend, the defendant asked Madam X not to do so and close the main door of the unit.
Afterwards, Madam X tried to maintain a conversation with the defendant. However, he then started to molest Madam X’s breast on top of her clothes. The defendant asked Madam X to have sexual intercourse with him and threatened to stab Madam X with a knife if Madam X refused to do so. The defendant also tried to push Madam X onto the bed but to no avail.
Madam X tried to engage in some dialogue with the defendant and called her friend, Mr Tsang, at the same time. After hearing Madam X’s conversation with the defendant over the phone, her friend, Mr Tsang, immediately headed towards the subject unit. During this time, the defendant tried to push Madam X onto the bed again and succeeded on his third attempt. He molested Madam X’s breast and private part on top of her clothes, and laid his body on top of Madam X. He also tried to take off her camisole and underwear. Madam X told the defendant that she was too scared and needed to drink some alcohol. The defendant agreed and allowed Madam X to stand up while he continued to lie on the bed.
At around 3.05 am on the same morning, Mr Tsang arrived and banged on the door of the unit. Having received no response, Mr Tsang kicked open the door. He then saw the defendant and asked the defendant to come out of the unit. The defendant picked up a wine bottle on the table, walked towards Mr Tsang and hit him with the wine bottle. Mr Tsang fended off the bottle and pushed the defendant onto the ground. When Mr Tsang was rushing back to the unit, the defendant threw the broken wine bottle towards him which hit Mr Tsang’s forehead. That constituted the wounding offence.
The defendant tried to force open the main door but Mr Tsang held it tight. At this time, Madam X reported the case to the police.
After the police arrived at the scene, Madam X discovered that there were some items missing from the unit, including a grey handbag, a green pouch which contained miscellaneous items and make-up products, a blue bra and a wooden box containing around $500 petty cash. Save for the petty cash, all the items were later found on the ground floor of the subject public housing unit, outside the window where the defendant had been hiding behind the curtain.
The Defendant’s Background
The defendant is now 35 years old. He was 33 at the time of the offences. He was born in China and came to Hong Kong when he was about 11 years old. He received education up to Form 5 in Hong Kong. After graduation, it is reported that he had been working as a waiter. Before his arrest, he worked as a manager in a Chinese restaurant.
I have been told that both of the defendant’s parents are living in China and do not have jobs. Today, his mother, stepfather and aunt are present in court to show support to him. Before the defendant was arrested, he made a monthly contribution to his parents of around $15,000 per month, out of his monthly income of $23,000, a rather substantial part, according to him. The defendant has no previous criminal conviction record.
Mitigation
On behalf of the defendant, Mr Jim submits that the commission of the offences was out of the defendant’s usual character and was not premeditated. He told the court that the defendant had been drinking with his friends for hours that night and was under the influence of alcohol when he committed the present offences.
Mr Jim also handed up a mitigation letter written by the defendant, in which letter the defendant explained that at the material time, his restaurant in the mainland was affected by the pandemic and was forced to be shut down. He returned to Hong Kong, trying to look for a job and to source money for paying salary to his staff as well as the outstanding rent. Soon after, his girlfriend who had been with him for many years left him. These matters had heavily influenced his mood, and it was against this backdrop that he made himself so drunk on the material night and committed the present offences under, apparently, the influence of alcohol. The defendant expressed regret about the incident and asked for leniency and another chance.
However, it has been well established that a defendant should not be given a material sentencing reduction on the basis that he was drunk at the time of the offence. Even assuming the court accepts that alcohol had contributed to the defendant’s commission of the present offences, he cannot expect to use his self-induced intoxication to any material extent to his advantage as a matter of mitigation. See R v Rosenberger; Ex parte Attorney-General (1994) 76 A Crim R 1 and Attorney-General v Lee Kui Man [1997] 1 HKLRD 576, 579.In this regard, it has been sensibly accepted by Mr Jim that the commission of the offences out of self-induced intoxication is not a valid mitigating factor.
I have also read the two mitigating letters respectively written by the supervisor of the defendant at his workplace and the aunt of the defendant in which they ask for leniency on behalf of the defendant, saying that he committed the present offences out of his own character.
Sentencing Principles
(i)Burglary (unreported, CACC 36/1988, 23 February 1989)
Domestic burglary is more serious than commercial burglary due to the possibility of confrontation with the occupant whose privacy is clearly invaded. See HKSAR v Ng Wai Hing [2003] 2 HKLRD 338.
With reference to authorities, including R v Chan Yui Man [1989] HKCU 36 and HKSAR v Lau Pang [2004] 3 HKLRD 565 , the proper starting point for a first offender of full age in a case of domestic burglary is one of 3 years’ imprisonment. However, this starting point can be increased in the presence of aggravating factors, for example, where the offence occurs at night when the premises are occupied: see HKSAR v Tong Fuk Sing [1999] 3 HKLRD 710; or where the offence is accompanied by wanton injury to the victim against whom force is used or threatened by the accused: see R v Brewster [1998] 1 Cr App R(S) 181.
(ii) Wounding
There is no applicable sentencing guideline for the offence of wounding. The appropriate level of sentence would depend on the facts of each case. The maximum sentence for an offence of wounding under section 19 of the Offences Against the Persons Ordinance is one of 3 years’ imprisonment.
(iii) Attempted Rape
It is the general rule that the starting point for the offence of rape, in the absence of any aggravating features, is one of 5 years’ imprisonment. Whilst the starting point for attempted rape should normally be lower than that for the completed offence, as the Court of Appeal has elucidated in Secretary for Justice v Leung Yuet Hung [2014] 3 HKLRD 304, it is neither safe nor logical to assume that an attempted rape is necessarily less serious than the full offence. The seriousness of the offence depends on the facts of the case at hand.
When considering the appropriate sentence for this charge of attempted rape, it may also be helpful to consider the aggravating factors identified in R v Millberry [2002] EWCA Crim 2891 in rape cases, including these factors:
(1) the use of violence over and above the force necessary to commit the rape;
(2) use of a weapon to frighten or injure the victim;
(3) that the offence was planned;
(4) an especially serious physical and mental effect upon the victim; and
(5) the offender’s breaking-in or otherwise gaining of access to the place where the victim is living.
Moreover, it was held by the Court of Appeal in Hong Kong in the case of Secretary for Justice v Lau Yun Leung [1999] 3 HKLRD 289 that:
“If drunkenness is a factor which leads to violence over and above the force necessary to commit rape, drunken violence will nevertheless aggravate the offence with the result that the sentence will be increased.”
Sentence
The 1st Charge : Burglary
In relation to the 1st charge, this is clearly a case of domestic burglary. It is agreed in the Amended Summary of Facts that the defendant, on the night in question, entered Madam X’s unit without her consent and stole the various items identified in the charge.
Whilst it is indisputable that a degree of force was used by the defendant against Madam X on the night in question, I accept Mr Jim’s submission that no violence in the sense of forced entry into the premises was involved in relation to this charge of burglary in the defendant’s breaking in of the premises in question. However, it is clearly an aggravating feature, as established in cases such as Tong Fuk Sing, that the offence had taken place at night when the unit was occupied by its occupant in this matter, Madam X, the victim, and this must have been so expected by the defendant at the material time.
In this light, I would adopt a starting point of 3 years for this charge of burglary, and enhance it to 3 years and 3 months due to the aggravating feature that I have just identified, namely, that the offence was committed at night when the subject unit was occupied.
The 2nd Charge: Wounding
According to the agreed Summary of Facts, on the night of the incident, Mr Tsang, the friend of Madam X, went to Madam X’s unit after he heard the conversation that she had with the defendant in the unit over the mobile phone. When Mr Tsang asked the defendant to come out of the unit upon his arrival, the defendant picked the wine bottle on the table and hit Mr Tsang with that wine bottle. He also threw the broken wine bottle towards Mr Tsang which hit Mr Tsang’s forehead.
As a result, Mr Tsang suffered a 1-cm laceration over his right eyebrow and a 0.5-cm laceration over his right hand as well as abrasions on his right face and bilateral knees.
Regarding the appropriate sentence for this charge, Mr Jim refers me to authorities including HKSAR v Clifford Martin Frank (unreported, HCMA 1113/2001, 17 January 2022), Lee Kui Man as well as R v Vu Van Tien (unreported, HCMA 996/1986, 12 November 1986).
In the first case, Clifford Martin Frank, the defendant in that case attacked two victims in a bar. The first victim was attacked by a wooden pole, and was kicked and punched. As a result, the victim in that case suffered 3-cm and 2-cm lacerations over his scalp. The second victim in that case received punches on his forehead, causing him head wounds which required three stitches. Those facts I accept are more serious than what we have seen in the present case, and I note that in that case, the court had adopted a starting point of 18 months’ imprisonment.
Taking into account the circumstances of the present case and the seriousness of the injuries sustained by Mr Tsang as well as the condition in which the defendant was in, namely, that he had been influenced by his excessive drinking of alcohol, I take the view that a starting point of 15 months is appropriate for the charge of wounding.
The 3rd Charge: the Attempted Rape
In attempting to rape the victim, Madam X, the defendant first threatened to stab the victim with a knife and tried to force sexual intercourse upon the victim. He then kept trying to push the victim onto the bed and eventually succeeded on his third attempt. On the bed, the defendant molested the victim’s breast and private part on top of her clothes and laid his body on top of the victim. He also tried to take off the victim’s camisole and underwear. The defendant only stopped when the victim told him that she was scared and needed to drink some alcohol.
It has also been agreed in the Amended Summary of Facts that when the defendant tried to push the victim onto the bed, the victim was scratched by the watch that the defendant was wearing, which caused her abrasions and superficial marks and dots over the victim Madam X’s right hand.
Further, according to the victim impact report, it is recorded that the incident has exacerbated Madam X’s pre-existing mental health challenges. She has suffered symptoms that are largely in line with post-traumatic stress disorder, including increased irritability, depressive mood, poor sleep, loss of volition and motivation, and excessive worries about her safety as a result of this incident. It is also recorded in the report that Madam X’s emotional distress has caused her interpersonal difficulties and made her more socially anxious. According to the report, she quitted her part-time job last month due to these difficulties, including the interpersonal conflicts arising out of her condition.
According to the psychological report on the defendant that I have called for, the clinical psychologist finds that the defendant encountered his life crisis of having trouble and loss of both his business and his girlfriend at the material period of time, and that his commission of the present offences was likely to relate to his alcohol drinking and distorted sexual attitude towards the victim as well as absence of intimate relationship and some sexual preoccupation.
According to the psychologist, it is assessed that the defendant’s risk of sexual re-offending is in the low end of the moderate spectrum. That said, the defendant has reportedly demonstrated some insight into his personal weakness and shown adequate readiness for positive change with professional intervention.
In passing the sentence for the offence of attempted rape, I have duly considered the findings in the victim impact report and the psychologist’s report on the defendant. I have also reminded myself that I must give due consideration to the pertinent facts of this case relating to the offence in question, the circumstances of the commission of the attempted rape which reveals the culpability of the defendant and upon which I should base my sentence.
Whilst I accept that the sexual offence committed by the defendant was not one that is carefully planned or premeditated and the degree of force used did not cause serious physical injuries to the victim, suffice it to say that the defendant did not desist from the conduct that he had embarked on and it was only until the intervention of Madam X’s friend, Mr Tsang, that luckily brought the incident to an end.
On this note, I note that the defendant, when he was first interviewed under caution by the police, claimed that it was the victim who had opened the door, allowed him in, and invited him to take a rest on her bed. That was a version put forth by him under caution to the police when he was arrested. That is relevant to the degree of remorse when he was first apprehended.
In the meantime, the fact that the defendant gained access to the unit where the victim was residing at without her requisite consent amounts, according to the authorities, to an aggravating factor which warrants an enhancement of the sentence.
Taking all these into account and in the circumstances of this case, I would adopt a starting point of 4 years and 6 months for the attempted-rape charge, and enhance it for 3 months for the aggravating features that I have just identified to a resultant starting point of 4 years and 9 months, due to the defendant’s unlawful entry into the victim’s place of abode which aggravates the offence in question.
The Defendant’s Plea of Guilty
Taking into account the defendant’s early and timely plea of guilty, I am prepared to give him the full one-third discount to allow him the respective deduction from the starting point that I have just identified as follows:
For Charge 1, that is the charge of burglary, the starting point of 3 years and 3 months would be reduced on his plea by one-third to 2 years and 2 months.
For Charge 2, the wounding offence, the starting point of 15 months would be reduced to one of 10 months for his plea.
For Charge 3, the starting point of 4 years and 9 months would be reduced to 3 years and 2 months to take account of his early plea.
Totality Principle
In the sentencing process of a case involving more than one offence, I must take into account the totality principle in ensuring that the overall sentence to be served by the defendant is appropriate to the culpability of the offences in question.
In this regard, Mr Jim invites me to consider that all three offences charged against the defendant arose out of the same transaction that occurred at the same location on the same night. He invites me to consider making most, if not all of the sentences for the offences concurrent. However, as explained by Stock VP, Stock J as he then was in the case of HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 at paragraphs 19 to 23:
“The one transaction’ rule was no more than a practical rule of thumb in exercising the power to impose consecutive sentences so that the final sentence was fair to the offender and to ensure that the overall effect was sufficient in terms of deterrence, rehabilitation and denunciation. If the second offence added to the culpability of the first offence, the sentence for the second offence would normally run wholly or partially consecutive to that for the first, depending on the appropriate totality for the conduct as a whole.”
Bearing in mind those principles alluded to by the Court of Appeal, and having considered all the relevant facts of the case pertaining to the three charges, I take the view that the defendant’s commission of the offence of burglary as well as the offence of wounding and the offence of rape, whilst bear some overlap, involve distinct features and involve added culpabilities which require the court to consider wholly or partially consecutive sentence. Having considered the overall criminality of the offence as well as the defendant’s background, I would sentence the defendant as follows:
For Charge 1, the sentence would be 2 years and 2 months’ imprisonment.
For Charge 2, the sentence of 10 months’ imprisonment, 7 months of which is to run consecutively to the sentence for the 1st charge, totalling 2 years and 9 months’ imprisonment for the first two charges.
For Charge 3, the sentence of 3 years and 2 months’ imprisonment with 2 years and 7 months of that sentence to run consecutively to the sentences that I have just imposed on Charge 1 and Charge 2, making a total of 5 years and 4 months’ imprisonment.
Standing back and taking into account the mitigating features present as well as the overall criminality involved, the seriousness of the individual offences together with the overall facts of this case, I come to the view that the above sentence reflects the true culpability of the defendant and is neither too heavy nor too light. Hence, the total sentence that I would impose on the
defendant is one of 5 years and 4 months’ imprisonment.