HKSAR v Elton CHAN

[English Translation － 英譯本]

HCCC 93/2023

[2026] HKCFI 2774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 93 OF 2023

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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 by the jury of one count of rape. From X’s condition before her entry to the room and during her departure therefrom in the morning as captured by the CCTV, the evidence given by X, and the evidence given by the medical expert, it can be certain that the jurors have accepted that X was under the influence of certain drug during the sexual intercourse. The jury have also accepted that it was the defendant who applied the drug to enable his sexual intercourse with X.

According to the evidence of the medical expert, it is extremely probable that the drug applied was 1,4-butanediol, a GHB prodrug. The charge of applying drugs to obtain unlawful sexual act was not brought against the defendant. This was probably attributable to the fact that the test results showed no drug in X’s system. These circumstances are taken into account during sentencing and they are considered to be an extremely significant aggravating factor. The above is indicative of a planned and premeditated crime, in contrast to an impulsive or spontaneous act, such as the defendant kissing X during their first meeting. This is the second aggravating factor.

The third aggravating factor is that the defendant committed the sexual intercourse without using any protection or precaution. The risk of pregnancy and contracting sexually transmitted disease, or the worry for such, have exacerbated the harm suffered by X. Worse still, the defendant testified that he had chosen not to use a condom despite being in possession of one. In his evidence, the defendant insisted that X was conscious at the time of the offence; however, the defendant never mentioned that he had sought X’s opinion on whether a condom should be used. It is obvious that the drug had rendered X defenceless, leaving her completely at the mercy of the defendant. And the defendant, to satisfy his desire, chose not to use the condom in his possession.

Based on the relationship between X and the defendant, the offence did not constitute any breach of trust. Nevertheless, X did drop her guard against the defendant for she had placed trust in the decent, honourable job that the defendant had (see paragraph 4 of the psychologist’s report of X). Indeed, the setting aside of the first trial soon after its commencement was due to no fault of the defendant. However, the second trial was postponed upon the defendant’s application for engagement of an expert. In fact, if the defendant was to solicit the assistance from an expert, he should have done so before the commencement of the first trial. The uncertainties arising from these delays have undoubtedly affected X psychologically (see paragraph 6 of X’s report).

The psychologist has diagnosed X with post-traumatic stress disorder. It had a severe impact on her daily life, social life and her acquaintance with new friends, not to mention the seeking of a suitable partner (paragraph 8 of the report). The psychologist was of the opinion that X had sound support from her family and her psychiatrist; however, avoidance of recalling was of limited efficacy in dealing with psychological pressure. The expert recommended psychological treatment and X was motivated to do so (paragraph 13 of the report). The court also hopes that X is able to move on from this unfortunate incident.

When considering the sentence of rape, the court has to take into account the need to redress the grievance suffered by the victim. The defence submitted that there was a delay in the present case that had caused the defendant anxiety, and that it could thus constitute a mitigating factor. The complexity of the present case lies in the fact that the test results showed no drug in X’s system. However, judging from X’s condition during her entry into and departure from the room, it is obvious that she was under the influence of certain drug or physically unwell. It is understandable that the Department of Justice sought expert opinion on the possibility that drug (for instance, GHB or other drugs) was applied. Therefore, the court is of the view that, since the defendant’s arrest, the police had not obtained all the evidence until May 2022 when the expert report became available. The court has also considered whether the nine-month gap between May 2022 and the defendant’s formal charging on February 2023 constituted an unusual delay. Having considered the circumstances back then and the backlog of other cases in the society, the court is of the view that this is not a significant delay causing any anxiety to the extent that would constitute a mitigating factor that the court has to consider.

The defendant was 30 years old at the time of the offence, and is currently 34 years old and of clear record. It can be seen that the defendant has been striving to equip himself. Having completed Form 5, he proceeded to take a course in building services and air conditioning at the VTC, a course in reinforcement fixing at the Construction Industry (Council) and so on. The court has also read the mitigation letters from his family and friends. In these letters, it was pointed out that the defendant was not bad-natured and was responsible to his family, and that he studied diligently and tirelessly to improve his living conditions. However, the court is also of the view that, for a defendant who committed a serious crime, his personal background carries limited significance in mitigation.

The defendant on his own wrote two mitigation letters with similar contents. At the beginning of both letters, the defendant stated, “I offer my sincerest apologies to my family, friends, colleagues and the members of the public who were affected by the present case.” This has, unavoidably, left me in wonder, for I do not see how his friends, colleagues and the members of the public were affected by the crime he had committed. Meanwhile, in respect of the most-affected individual, I do not see the slightest sign of contrition the defendant showed towards her.

Ms Lau for the defendant contended that the present case differed from the case of MAN Yiu-fai in various aspects, and that many of the aggravating factors featured therein were absent in the present case. By contrast, I agree that MAN Yiu-fai was more serious in the sense that its defendant committed the offence by holding himself out as a Chinese medicine practitioner to gain the trust of the victim. Furthermore, MAN Yiu-fai was of a more serious nature because, on top of committing the sexual offence, the defendant or the appellant in that case secretly filmed the course of the offence with equipment. However, as the court has mentioned, there are three serious aggravating factors in the present case: (i) drug was applied; (ii) no protection was used; (iii) the act was planned. With reference to MAN Yiu-fai, I consider the suitable starting point to be one of 8.5 years. As mentioned, I see neither a grain of remorse from the defendant despite his conviction, nor any sign of contrition towards X. When approaching sentence, in addition to deterring the defendant, the court also has to consider the need to redress the grievance suffered by the victim. As mentioned, I sympathise with the family background of the defendant. However, that is insufficient to constitute a mitigating factor. Therefore, I have eventually arrived at the decision that you are sentenced to a term of imprisonment of 8.5 years.

Translated by the Court Language Section of the Judiciary and vetted by Mr P Y Lo, Barrister-at-law.