HKSAR v. Yip Ka Yu

HCCC 128/2022

[2023] HKCFI 2683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 128 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 was convicted after trial of one count of rape. The jury found that the defendant had, on 16 March 2021, raped the victim, X in his car parked near Tai Tam Reservoir late in the evening.

The defendant is now 26 years old and had a clear record. The victim X is now 18 years old and a student. She was 16 years old at the time of the offence.

(Discussion re the victim’s age)

The victim X is now 19 years old. A week before the material date, the defendant was fishing at the promenade at Siu Sai Wan by himself near midnight. X and a friend sat near the defendant. They sang songs and they struck up a conversation. X and the defendant exchanged contact details and were messaging each other within an hour or so of meeting. Their prolific messaging went on every day for a week before they agreed to meet up on 16 March 2021. The agreement was to meet late evening for something to eat. Those messages can be described as chatty and somewhat flirtatious.

They met that evening and went to buy some food before driving and parking near Tai Tam Reservoir. There is a photograph of them having bought food with the defendant’s arm around X’s shoulder as they walked along. Later, in the vehicle, they chatted, listened to music, and ate food in the front seats of the defendant’s car. He suggested they move into the back seat and X voluntarily climbed into the back.

Her evidence is that the defendant kissed her without invitation and without her consent. There was further conversation between them whereby X either upset him or offended him and she felt bad and patted his shoulder in apology. Then, the defendant kissed her again without her consent. Her evidence is he took off her leggings and underpants, fingered her vagina before he raped her on the back seat. She agrees there may have been mixed signals from her at the beginning, but she did say no to him repeatedly and no to rape. He then asked her for oral sex and she agreed, hoping that meant she could get away sooner. He drove her home, arriving just after midnight.

She alighted from the vehicle and he drove away. She discovered she did not have her face mask and went back to find him. She had to call him, meet him, and retrieve her mask before going home. At home, she saw some blood in her underpants and decided to bag all her clothes, shoes, and underwear in case she needed to give these items to the police as evidence. She messaged a friend and said she thought she had been raped. She also later made an audio recording of the incident on her own phone. The following day, she went to a family planning clinic and was given some contraceptives, but told the doctor she had not decided whether she was calling the police.

Two days later, she saw a psychologist who advised her to make a police report, which was done. She was examined by a doctor and the medical findings was one of no external bodily injury. There was a finding of a tear of her hymen indicative of recent penetration. Forensic examination showed there was evidence of semen in her underpants.

X agreed the defendant fingered her vagina and rubbed his penis against her vagina. The defendant’s case was that that was all they did in the backseat. There was no actual penis penetration. Those two actions could have resulted in the medical finding and the semen detected. X, however, said there was penetration after that.

Her evidence was contradictory. She agreed she said in court there was penetration by his penis for 5 to 10 minutes. She felt it and saw it. She told the police in her interview she was not 100 per cent sure there was penetration. There were other material discrepancies suggested which she agreed with. The jury nevertheless believed her evidence. The defendant elected not to give evidence.

I have a victim impact assessment report and a clinical psychologist report. She interviewed both the victim and her mother. I will not repeat the contents of the report, but X manifested symptoms of post-traumatic stress disorder after the incident. It has been noted it has significantly impacted her self-esteem and interpersonal relationships with other people. Psychologist said the incident impacted her emotionally, socially, as well as academically.

She has now gone abroad to continue to study. She has received treatment and therapy and no longer blames herself, but she still lacks confidence and remains vulnerable. Her mother has been distressed by the incident and lonely since X has moved abroad. The psychologist recommends continued treatment.

Mitigation

I have heard mitigation on behalf of the defendant as well as obtained a background report. I will not repeat his details and family background nor his employment history. He is now 26 years old and living with his family. He was, at the time of his arrest, a part-time football player as well as a part-time driver. He maintains his innocence and believed that he was embarking on a relationship with X. He never forced himself on her in his vehicle nor did he rape her. All that can be said in mitigation under such circumstances has been put forward by Mr Lau and I have considered the contents of the report as well as letters from his girlfriend, various family members, and previous employers.

Mr Lau has addressed the degree of harm to X, the low future risk to society of a repeat offence as well as the victim impact report. I have taken into account the sentencing principles involving sexual offences, including the authorities of HKSAR v Lee Hon Wah [2011] 4 HKLRD 319 and HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427.

The fact is there are no sentencing guidelines for the offence of rape, but that a starting point of 5 years’ imprisonment is the norm in most cases subject to adjustment for any mitigating or aggravating factors. One aggravating factor here was that no condom was used.

From all matters taken into consideration in my judgment, this case calls for a starting point of 5 years’ imprisonment. Given the fact that no condom was used by the defendant, the sentence should be enhanced by 6 months.

The defendant had a clear record and I am prepared to give him a reduction of 3 months for this clear record. This would reduce the starting point therefore to 5 years and 3 months’ imprisonment.

I see no other mitigating factors which can further reduce the sentence. For the above reasons, I sentence the defendant to 5 years and 3 months’ imprisonment.