HKSAR v. Lee Sze Lung and Another
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HCCC209/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO. 209 OF 2009 -----------------
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---------------------------------------------------- Transcript of the Audio Recording ---------------------------------------------------- COURT: Lee Sze-Lung, D1; Ng Ka-ming, D2, stand up. You have each been convicted by the jury of separate offences of rape, involving the same complainant, on the same night at the New San Diego Hotel in Jordan. This case, in a nutshell, it comes to this, that on the night of 18 and 19 June, 2008, the complainant, Miss Ma, a young woman aged 20 at the time, went to the bar called Coins Club in Tsim Sha Tsui with her friend, Miss Wong Yuk-fung. You, D1, had been at school at the same time as the complainant - and it appears Wong Yuk-fung - some years before, but not as classmates. You are older than she, and you had not spoken to PW1 at school. You, D2, worked at the Coins Club as a barman at the time, and were a friend of D1’s. There had been some contact between you, D1, and Miss Ma, through MSN over the preceding three months. Then you met her briefly on 14 June at your birthday party, also at the Coins Club. You, D2, also met her for the first time on that evening, though not with sufficient contact even to be able to remember her name. On that day, 14 June, there were a large number of people at the party, and you, D1, were drunk. So there was limited contact between you. The first substantial contact between any of you was on that evening of 18 June when she went to the Coins Club with Miss Wong. During the late evening and into the early hours of the next morning the two young women became intoxicated. We have heard during the course of this trial that they subsequently suspected that their drinks had been contaminated with drugs, that they had been spiked, because, certainly in Miss Ma’s case, she became drunk very quickly to an extent which she felt was out of proportion to the quantity of drink taken. But, as I told the jury in this trial, there was no evidential basis to conclude that the drinks had been drugged in any way, and it would not be safe to come to such a conclusion. Therefore, I do not do so now for the purpose of sentence. If I were to have made such a finding, I would have regarded it as a very serious aggravation of these offences. However, these young women were intoxicated. PW2 slept on a sofa in the bar. PW1, having vomited, became weak, excessively sleepy, drifting in and out of consciousness and awareness. In due course Miss Ma was taken to the New San Diego Hotel in Jordan by both of you in a taxi. No satisfactory explanation has been given as to why both of you took her there; but it is evident that you kept in contact after D1 and Miss Ma had left the taxi and gone into the hotel. We have seen CCTV footage of her leaving the Coins Club before you went in the taxi and being picked up from the floor by you, D1, outside the lift. At the hotel she walked across the lobby and sat in a seat and slept, whilst you, D1, made the arrangements to book a room. In due course you took Miss Ma to that room. There, D1, you took advantage of her intoxicated state. You removed her clothing. You heard her say “No” during the course of that, but you went on and had sexual intercourse with her. She was wholly unconscious of that. She did not know you had actually had sexual intercourse with her until after you admitted that fact to PW2 later on during the course of the next day. On the admissible evidence, you used a condom. Later, you, D2, returned to the hotel with Miss Wong, and the two of you went to the room, where D1 and Miss Ma were. Miss Wong attempted to wake Miss Ma with a view to leaving, but could barely do so. In the result, the four of you lay on the bed. At some point after you, D2, had been kicked away by Miss Wong, having attempted to climb onto her, she believed, for sexual purposes, you started to sexually molest Miss Ma, who was still in a largely unconscious state. D1 said to you, “She is okay. You can do it.” This shows that the situation was not wholly the result of chance. It must have been discussed between you. You, D2, knew that D1 had already had sexual intercourse with Miss Ma, shortly before you. Nevertheless, you went on to have sexual intercourse with her yourself. You did not use a condom. Eventually she became conscious enough to say no, to tell you not to interfere with her. You then immediately stopped having sexual intercourse with her. You said that you did not ejaculate. Those acts of sexual intercourse were, as the jury have found, rape. Each of you challenged the allegation, admitting, each of you, that you had sexual intercourse with Miss Ma, but asserting that she was a conscious, willing, active and consenting partner in each of those acts of sexual intercourse. The jury have rejected that claim. You are each young men of clear record. I have testimonials presented to me on behalf of each of you. You, D1, are well thought of by a number of people who have written such testimonials. You were regarded by a senior member of the Hong Kong Polytechnic University as a good student, with a high talent in soccer, and a coach and captain of a team at the university, and other similar positive statements are made about you. As to you, D2, I have already remarked that during the course of the trial character evidence was presented to the jury on your behalf from Mr Tang who knows your family well, who knows you well, who spoke well of you in many respects, and who regards your behaviour giving rise to this conviction as being totally out of character. I bear those matters in mind. It is not possible, on the evidence, to say that this was a planned rape by each of you, that is that she was deliberately induced into intoxication with a view to sexual intercourse; in the sense that it is not possible to say that she was deliberately induced to intoxication with a view to sexual intercourse. But you each deliberately took advantage of the fact that she was intoxicated and incapable of resisting you in order to have sexual intercourse with her. The fact that you, D2, did not use a condom is to be regarded as an aggravation. But I also note that in your case you ceased to have sexual intercourse when she became conscious enough to tell you to stop. That balances the aggravating factor, and I will not, therefore, increase sentence because of that. There was no violence used and no other particular aggravation exists beyond the fact this was a young woman who was unable to resist either of you. For the effect upon her, one need look no further than the almost contemporaneous text messages exchanged between her and you, D1: “Do you know that it will be very hard for me to face my boyfriend and husband in the future?” “I can’t face you, not to mention facing myself.” “I feel I am very awful, not good enough for anything.” “I dare not date anyone again.” I am in no doubt that those were genuine expressions of anguish by the complainant having realised what had happened to her. The fact that a young woman becomes intoxicated is not a ground for any man to take advantage of her state to have sexual intercourse with her without her consent, and young women are entitled to protection from such behaviour. There is simply no mitigation available to either of you. Your clear records, and even the testimonials, do not amount to substantial mitigation given that you have been convicted after trial. You are, each of you, entitled to plead not guilty, and your sentence is not to be increased for having done so, or for having advanced a false defence. But you forfeit the substantial mitigation that a plea of guilty would have brought you. That would have shown some remorse, and it would have relieved the complainant of the burden of having to testify as to these events. You do not have that mitigation. I accept that both of you are otherwise decent young men. I accept that you regret and probably immediately regretted what you had done, but your actions were predatory that night in the sense that you each saw an opportunity to take advantage of Miss Ma, and you took it. I see no ground to distinguish between you. I judge that a term of 6 years’ imprisonment is appropriate in each of your cases, and that is the sentence that I impose. A1's appeal to Court of Appeal allowed. A1's conviction quashed. A2's application to Court of Appeal dismissed. Please refer to CACC16/2010 dated 14 October 2011 |