HKSAR v. Jin Zhenming

HCCC 347/2024

[2025] HKCFI 2972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 347 OF 2024

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

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COURT: The defendant, Jin Zhenming, pleaded guilty to one count of rape, contrary to section 118(1) of the Crimes Ordinance, Chapter 200, before a Magistrate, and is committed to the Court of First Instance of the High Court for sentence.

Summary of Facts

At all material times, X, the victim, and the defendant were residents in the Mainland, acquainted with each other since 2017.

In October 2023, the defendant created a WeChat group and added X into the group. In the group, the defendant introduced to X a business opportunity in Hong Kong. X was then asked by her own employer to explore such a business opportunity with a male colleague, we will call him “A”. At the time, X did not know A, so X then created a WeChat group with A and the defendant and made an appointment to meet the defendant in Hong Kong on 5 December 2023 at the Regal Riverside Hotel in Shatin, New Territories. We will refer to that as “the Hotel” from now on. The defendant was the one who arranged the booking of the Hotel.

So X arrived at the Hotel in Hong Kong in the evening of 5 December 2023 and met up with the defendant, and then X, the defendant, and A, the three of them went to Shatin Club House, that is the Jockey Club clubhouse for dinner. And the dinner was attended by X, the defendant, A, and five other men. X drank a lot of alcohol during the dinner, but she was still sober.

After the dinner, X then went to meet a friend at a clubhouse in Heung Yip Road, Wong Chuk Hang, and she took the defendant and A with her. And A stayed only for less than half an hour at this club and went back to the Hotel first. X, accompanied by the defendant, stayed at this clubhouse and X became drunk after a few drinks and lost consciousness.

The defendant then returned to the Hotel with X at around midnight on 6 December 2023. X was unconscious and the defendant requested assistance from the Hotel to send X back to her own room. A staff member of the Hotel assisted the defendant to carry X back to her room and she left the defendant and X alone in the room afterwards.

So when X and the defendant were in the room, the defendant raped X. The defendant then returned to his own room around 2.30 am.

At about 6 am in the morning, X woke up and found herself wearing only her bras. Her underpants were placed next to her pillow. As she felt drunk, she went back to sleep. And she was then woken up at around 11 am when the defendant entered her room using a key card. The victim X hid herself under the blanket and asked the defendant to leave when she put on her clothes.

So after putting on her clothes, X asked the defendant what happened the previous night. The defendant replied that he had sent X back to the Hotel. X then asked the defendant if he had molested her because she had no habit of sleeping naked. The defendant first said that he had only kissed on X’s lips once, but X pressed and asked who removed her underpants and whether the defendant had penetrated her vagina with his penis. The defendant then admitted that he had penetrated but did not ejaculate. X felt disgusted and asked the defendant if he had X’s consent for doing those things to her. The defendant replied that X was drunk. X then evicted the defendant from her room and removed the defendant’s contact from her WeChat.

X then went out to meet a friend later that day but she did not tell her friend about what had happened. When she went back to the Hotel, she asked to meet the defendant again in her room to discuss the incident on the previous night. X confronted the defendant again, and again the defendant apologised to X without denying that he had raped her, saying that he had had too much to drink. X video‑recorded her confrontation against the defendant with her mobile phone.

X then reported the case to the police. The defendant was arrested at the Hotel, and under caution the defendant asserted that he did not make love but only kissed the lips of X once.

A cautioned video-recorded interview was conducted with the defendant on 7 December 2023 in the presence of a Putonghua interpreter.

Under caution, the defendant asserted, among other things, the following. He went to a party with X and A after the dinner. He consumed a glass of wine while X drank a lot. He and X left the party at around 12.30 am and went back to the Hotel. X was drunk, and he was nearly drunk. He had brought X back to the Hotel from the bar by way of taxi.

At the reception of the Hotel, he requested assistance from a female staff member to carry X back to her room. At that time, the defendant was sober but felt dizzy. They arrived at the Hotel at around 1 am. He observed that X was nearly unconscious.

After bringing X back to her room, he put X on the bed. He removed the shoes, socks, and trousers of X. He saw that the lips of X were dry, so he drank some water and kissed on X’s lips. He sat for a while and kissed X again. He then removed X’s underpants and felt aroused. He then penetrated X’s vagina with his penis for five to six times, which lasted for around two minutes. He pulled out his penis before ejaculation. He said X had reaction to his sexual advances by making soft moaning sounds, yet X was never awake. X did not say anything during the intercourse.

On the next morning, he was confronted by X and admitted to X that he had penetrated X. He was confronted again in the afternoon. He was shown the video footage taken by X. As to X’s accusation of rape, he said he had misunderstood the meaning of X asking him to stay for the party. He explained his apology to mean that something had happened, but it should not have happened. He agreed with the accusation made by X but he could not help it as he had consumed alcohol.

Seminal staining were found on the cotton quilt and pellet fractions of seminal staining were found on the bed sheet in X’s room. The DNA obtained from the seminal staining and the pellet fractions of the seminal staining could all have originated from the defendant.

Probable salivary staining were found on X’s bras, from which a mixed DNA was obtained. The accused and X could both be included as the possible source of the mixture.

So by pleading guilty, the defendant admitted that at the material time, on or around 6 December 2003, he raped X in that he had unlawful sexual intercourse with X, who at the time of the intercourse did not consent to it. And at that time, the defendant either knew that X did not consent to the intercourse or was reckless as to whether X consented to it.

Background and Mitigation

According to the antecedent statement, the defendant was born on 29 June 1984, so he will be 41 years age in a few days’ time. He had no criminal record in Hong Kong. He claimed to have completed middle school education in the Mainland and worked as a legal representative of a company in the Mainland. The defendant’s father had passed away and his mother and sister lived in Korea.

Defence counsel, Mr Ching Wan-fung, after referring to the authority submitted by the prosecution, that is HKSAR vLau Yun Leung[1999] 3 HKLRD 289, HKSAR vTai YiNam[2006] 1 HKLRD 468, HKSARv Leung Yuet Hung [2014] 3 HKLRD 304, and HKSAR vHo Man Ho[2012] 1 HKLRD 188, submitted that the defence does not dispute the starting point for rape would be no less than 5 years in the absence of aggravating factors. Defendant understands that it makes no difference that he had taken alcohol and that he had not planned in advance. The defendant did not use violence in the commission of the offence.

Mr Ching submitted while the absence of violence is not a mitigating factor, there is no aggravation on account of violence here. Mr Ching also submitted that the victim here is an adult and they had known each other for years. This is the case of the defendant taking the opportunity when X was drunk.

The defendant did not force or induce X to drink. Mr Ching asked this court to adopt a starting point of 5 years and give the defendant the full one-third discount.

My Consideration for Sentence

Rape is a serious offence. A person convicted of rape on indictment is liable to imprisonment for life. Rape causes physical and emotional harm to the victim and amounts to grave violation of the victim’s body and mind. Generally speaking, an offence of rape would attract a sentence of no less than 5 years, see the case of Tai Yi Nam. Of course, one has to consider all the circumstances of the offence, including whether there are any aggravating factors present. The English case of the RvBillam[1986] 82 Cr App R 347 listed a non-exhaustive list of aggravating factors.

From the authorities submitted, one can see that depending on the circumstances of the offence, an attempted rape does not necessarily attract a lower sentence than a full offence of rape (see the case of Lau Yun Leung and Leung Yuet Hung). Of course, I am not dealing with an attempted rape here. I accept the mitigation advanced by Mr Ching. The defendant’s own drunkenness is not a mitigation. X got herself drunk. The defendant did not force her or induce her to drink.

On the other hand, the defendant clearly made use of the drunkenness of X who was not able to resist to have sexual intercourse with X purely to satisfy his own sexual desire. There is no evidence of any violence used over and above what was needed to commit the act of rape.

On the evidence before me, the defendant did not use a condom to avoid getting X pregnant or to transmit sexually transmittable disease should he had any, which is an aggravating factor. Further, I do not consider raping a friend of over 10 years standing is necessarily less serious than raping by a stranger.

Having considered all the circumstances of this case, I am of the view that a starting point of 6 years appropriate. The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. There are no other mitigating factors to further reduce the sentence.

So for the offence of rape, the defendant is sentenced to 4 years’ imprisonment.