HKSAR v. Iqbal Asif

HCCC 197/2022

[2023] HKCFI 2586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 197 OF 2022

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant has been convicted after trial of one count of rape and the facts are most unusual. It emerged from the evidence that the defendant met the victim in a park. Eventually, as can be seen from the CCTV, they started talking and chatted and then after exchanging some personal information with each other, they then spent quite a bit of time, according to Mr Keung it was about 15 minutes, I think that’s about right, talking to each other. They moved from one part of the roof garden to another part of the roof garden and continued to talk. And then subsequently, according to the victim X, the defendant suggested leaving that second rooftop garden to go to a staircase and therefore she followed him and they went to the staircase where there was no CCTV camera.

And it is the evidence of X that whilst they were in the staircase, sitting on the steps, she was communicating with her friends on WhatsApp and the defendant was charging his phone because he borrowed her charger as his phone was running out of battery, they spent a bit of time in that staircase. And at one stage, the victim actually took a picture of the defendant and sent it on WhatsApp to her friends.

Of note was that X never communicated during that time to her friends that they should call the police for her. And X then said that the defendant then forced her to have sexual intercourse with him.

Now, subsequently, both of them left the staircase and then CCTV cameras caught the two of them walking along the footbridge to the MTR station. There did not appear to have been any sort of undue force on X. And subsequently, X then went to her friend’s home where she contacted her friend and said she was downstairs. And then the friend said to her that she will finish eating her fruit first before coming down and then after coming down, she noticed her friend, X, was in distress but eventually they played about an hour of basketball with some other friends.

And then subsequently, her mother was alerted and then the mother reported the matter to the police and that is how this whole matter became overt.

But meanwhile, X and the defendant, prior to the defendant leaving her at her friend’s home, they had exchanged telephone numbers and so once the police were alerted, the police then managed to get the telephone number of the defendant from X’s mobile phone and with one officer pretending to be X, then made an appointment for the defendant to come out to meet her. The defendant then duly showed up at the appointed time and then he was arrested.

X was subsequently examined. There was no physical injuries on her. As Ms Crebbin pointed out, there were some ejaculation found on X’s underpants and also on the high vaginal swab. However, X said she felt no pain, just some discomfort, and that during the sexual intercourse, she did try to push the defendant away but was unable to do so.

Now, it is also clear that according to the victim impact report, X was described by the psychiatrist as largely stable, although she did suffer from some nightmares and had frequent spells of low mood and reduced appetite.

X was 14 years old at the time but from the CCTV, I can see that her height was reaching just above the shoulder of the defendant who was aged 22 at the time. She was certainly physically strong in that she was a sporty young lady who played a lot of sports.

Now, the defendant was, as I said, 22 years old and he came to Hong Kong in 2004 to be reunited with his family. At the time of the offence, he worked on a construction site and was living by himself. He has one previous conviction for theft and apart from that, this is the first time that he has committed any offences in relation to rape or indecent assault or whatever.

And the defendant said in his evidence he lived in the Cheung Sha Wan area in the area where X also lived and that he had seen X around in that area, although X said she did not recognise him.

Now, as far as sentencing is concerned, the facts as I have heard them and as I have briefly described here does not seem to make it one of the worst case scenario for a rape offence. There was minimal force used. X herself appeared to have followed the defendant to the staircase. X herself was using WhatsApp freely and in fact as I said on one occasion even took a picture of the defendant during the time in the back staircase where the sexual intercourse took place.

So after the sexual intercourse, X went to her friend’s home rather than back to her mother and played an hour of basketball before going home. So as far as the facts are concerned, I would consider it to be on the lower end of the scale of rape.

Mr Keung, in his written submissions, has cited the case of R v Billam in 1986 where the court in England said the usual starting point should be 5 years’ imprisonment apart from any aggravating or mitigating features. However, the courts in Hong Kong in, for example, in the case of Lau Yuk Ming in 1994 had said that the 5 year suggestion may be taken only as a reference and that it is not a suggestion that a Hong Kong court necessarily should follow.

I agree with Mr Keung that the violence, the force, was minimal and that it was not planned, obviously. And that X did not suffer any indignities or perversions and was able to use her mobile phone throughout. And the fact that they exchanged telephone numbers after the defendant walked her to her friend’s home showed that it was not an unfriendly episode.

And Mr Keung then urged this court to impose a training centre or a detention centre order by citing the case of AG v Fong Ming Yuen in [1989] 2 HKLR 177. Now, that case, the facts were entirely different and it involved two rival gang groups and so it really is not a case which has any relevance to the present case.

The fact of the matter is that the courts have a duty to protect underage girls from unwanted sexual advances. The defendant knew at the time, according to his VRI, that she was a schoolgirl. He had seen her in school uniform. And so as I said, the court has a duty to do that and whatever happened, it did cause X some trauma because her friends found that she did cry and although the facts were not as horrific as some rape offences could be, nevertheless it did cause X some emotional trauma.

So in view of that, all I have said, the defendant being the first time he has committed any sexual offences and in view of the surrounding circumstances, I would sentence the defendant in this case to 5 years’ imprisonment.