HKSAR v. Gurung Krishna

HCCC57/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 57 OF 2009

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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 a jury of an offence of having sexual intercourse with a mentally incapacitated 21-year-old woman.  The victim was mildly mentally retarded and had the mental age of an 8½-year-old child.  She had formed a relationship with a person Ah Sam, who she believed was her boyfriend.  Ah Sam took her to his rented room in a shop in Western and allowed at least four other persons to have some form of sexual intercourse with her on two separate occasions in October 2008.  The defendant was one of those persons, and had intercourse with her on one of those occasions. 

The victim was ambivalent as to whether this was against her will, and, when spoken to by a welfare officer as to whether she had wished to report the matter to police, was reluctant to do so as she regarded these people as her friends.  There is no evidence before me that the victim suffered any lasting trauma from these incidents.  Indeed, after she had divulged to her welfare officer what had happened on the first occasion she then returned that night to Ah Sam and his friends, contrary to the expressed instructions of her welfare officer.  And it was on that occasion that it is likely the defendant had sexual intercourse with her.

The victim’s intellectual incapacity is regarded as being mild, displaying only subtle symptoms, and she requires only intermittent supervision in her daily life.  She is capable of travelling to work by herself, but plainly she is not capable of living alone, and indeed lived with her parents.  She is not capable, on the facts of this case, of guarding herself against serious exploitation.  Such people require the protection of society, and individuals who would otherwise take advantage of them must be deterred. 

I have been referred to several authorities so far as sentence is concerned.  I take into account the penalties referred to or imposed in R v Hung Siu Yee, HCMA 712/2002, R v Li Fat Sang, CACC 480/1997, Queen v Man Ming Hing [1993] 2 HKC at 522, and Queen v Leung Kwong [1993] 2 HKCLR at 224.  Those cases are provided to me simply as examples of comparative sentences and for no other purpose.  Indeed, Li’s case and Leung’s case relate to offences charged under different provisions to the present case, though also involving sexual offences committed against mentally incapacitated persons. 

The level of sentences approved of or imposed in respect of those cases is surprisingly low, being in the vicinity of 12 months’ imprisonment, even allowing for the fact that the maximum penalty for this offence is now 10 years’ imprisonment, and that that maximum sentence was apparently increased from a maximum of 5 years’ imprisonment in 1995 after some, at least, of those cases were decided. 

Sentencing an individual for an offence such as this is not without difficulty.  On the one hand, the very real interest of the community in protecting people such as the victim in this case must be recognised.  On the other, the enormously varied circumstances that can comprise the offence and the corresponding range of culpability of an individual defendant must be taken into account.  It may well be that where a mildly disadvantaged woman - such as the victim in this case - forms a genuine and reciprocated attachment to a man and has intercourse with him, then that, in the event a prosecution is even warranted, may mean there may be no need for any significant custodial sentence or other penalty.  On the other hand, it may well be that where a much more disadvantaged woman is seriously and continuously exploited and otherwise abused by a person responsible for her care in circumstances causing her real trauma, a custodial sentence at the upper end of the range would be appropriate. 

In the present case I have no doubt that the person Ah Sam was primarily responsible for the serious sexual exploitation of the victim.  He played upon her affections so as to cynically make her available to others, including the defendant.  The role of the defendant was in those circumstances that of a person who took advantage of an individual along with a number of other men, at least suspecting her to be mentally disadvantaged to some extent and knowing she was being exploited by Ah Sam in the way she was.  In this regard I do not think it assists the defendant to assert that he thought her to be acting as a prostitute.  If that was so, her exploitation by Ah Sam would have been no less.

But I do take into account that there is no reliable evidence that the defendant believed that the victim was other than consensual in her participation in these events.  The victim quite clearly, on 14 October, had returned to Ah Sam and his friends of her own freewill.  It is that day, in my view, which is by far the most likely upon which the defendant committed this offence.

I also take into account that the victim is only mildly disadvantaged and was not, apart from the acts of intercourse, abused or mistreated in any other way.  Nevertheless, in my judgment the facts of this case require a deterrent sentence.  Taking into account the matters I have mentioned, an appropriate starting point is a sentence of 2 years 6 months’ imprisonment.  I take into account the previous good character of the defendant.  That warrants some consideration as to his sentence, as does his admission at trial that the victim was mentally incapacitated and his not disputing sexual intercourse took place with her.  That made the victim’s evidence less of an ordeal. 

I allow a reduction in sentence of 3 months.  There is no other material mitigation.  The defendant is sentenced to imprisonment for 2 years and 3 months.