HKSAR v. Chan Tung-hing, Band

CACC 219/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 219 OF 2008

(ON APPEAL FROM HCCC NO. 42 OF 2008)

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BETWEEN

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Before : Hon Ma CJHC and McMahon J in Court

Date of Hearing : 5 March 2010

Date of Judgment : 5 March 2010

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.The Applicant applies for leave to appeal against sentence in relation to a conviction of rape. He was tried before Deputy High Court Judge Toh and unanimously convicted by a jury on 3 June 2008. The same day, he was sentenced to a term of imprisonment of 8 years. The Applicant submits that the sentence is manifestly excessive.

2.The rape, which took place on 17 September 2007, was of a domestic helper. At the time, the Applicant was aged 39 and married. The victim, a married mother of two, was aged 30. She was employed at the Applicant’s flat. She had only just arrived in Hong Kong, commencing employment on 13 September 2007. The evidence at trial was that this was her first time in Hong Kong.

3.On the day in question, after the Applicant’s wife and daughter had left the flat in the morning, the victim was called into the Applicant’s bedroom where he was at the computer. He had invited her into the bedroom to enable her to telephone her family in Indonesia. She did so and made calls to someone in Indonesia. In the course of one of these calls (she had said she was calling an Indonesian agency), she was pushed by the Applicant who held her tightly. She fainted, although before doing so, she bit and scratched him.

4.After the victim regained consciousness, she was naked and crying. The Applicant was trying to put her pants back on and used a tissue to wipe her vagina. He helped put on her T‑shirt, and told her not to cry, said that he would give her some money and asked that she did not tell his wife about the incident. It is clear that while the victim was unconscious, he had raped her.

5.In sentencing the Applicant, the Judge accepted that the rape was committed on “the spur of the moment” and that it was not one of the more serious of this type of offence (this is not to say that it was not serious; it was). The Judge had also heard from the Applicant’s counsel that he had a clear record and that the offence was committed out of character. Nevertheless, the Judge emphasized a number of features that, in her view, aggravated the situation : ‑

(1)  There was a breach of trust in that the Applicant was the victim’s employer.

(2)  The victim was also vulnerable in that she was new in Hong Kong and homesick.  The Judge was of the view that the Applicant should have looked out for her interests.

(3)  It was perhaps because the Applicant realized that the victim was vulnerable that he was able to invite her to his bedroom that day.  The Judge said this “You lured her into your bedroom under the pretext of helping her call her family”.

(4)  The Applicant did not use a condom.

6.In addressing us, Mr Andrew Macrae SC referred to a number of authorities which showed that the sentence for rape carried out on domestic helpers has ranged between 5 and 7 years’ imprisonment. We have found the usefulness of this exercise to be limited, given that the particular facts of the cases have all differed from those in the present case. In addition, save for one case, in none of the authorities has there been any discussion on sentence by the Court of Appeal. They are really mere examples of the type of sentence given in cases of rape involving domestic helpers. One or more common features may exist but not all.

7.The one case in which this Court had occasion to deal with sentence is HKSAR v Lo Cheung On, unreported, CACC 335 of 2001, 12 November 2002. In that case, the accused was the 38‑year old employer of a 20‑year old Indonesian helper. The accused had asked the victim to massage him and in the course of this, he forcibly had sexual intercourse with her. Force was used and the victim struggled. No condom was used. Afterwards, when the victim was having a bath, she noticed that her private parts were bleeding. At trial, the accused denied that anything untoward had occurred. The accused was sentenced at the Court of First Instance to a term of 8 years’ imprisonment. In dealing with this sentence, the Court of Appeal emphasized the fact that the rape was a traumatic one, particularly given that the helper was far away from home and having only recently arrived in Hong Kong from Indonesia. In addition, no remorse was shown by the accused. The Court of Appeal was of the view that the sentence was within the range of sentences that could properly be imposed.

8.We draw attention to this case because of the partial similarity in the facts (the trauma to the victim caused by her being far away from home, the employer/employee relationship of trust) and also of the fact that this was a case in which the Court of Appeal dealt specifically with the sentencing aspect.

9.Lo Cheung On is not of course a case that set out any tariffs or even guidelines for this type of offence. It is no more than an indication of what is seen to be an acceptable sentence when certain circumstances exist.

10.In the present case, we are of the view that the Judge was correct to take into account those aspects (which were clearly identified in the Reasons for Sentence) set out in paragraph 5 above. The Applicant has not shown much remorse either. At trial, he accepted that sexual intercourse took place but ran a defence along the lines that the victim was demanding money from him, and only when she was not paid did she then turn against him. In a statement made earlier to the police, the Applicant had in fact alleged that the victim blackmailed him.

11.We would add that in a relationship of employer and domestic helper, it is often the case that the helper is in a particularly vulnerable position. Not only is the helper financially dependent on the employer, the helper will be far away from her home country and her immediate family. We view the preying on such persons particularly seriously.

12.Finally, for the purpose of the present application, the Applicant sought to introduce a number of letters written for the purpose of demonstrating his good character. These were provided by his wife, former colleagues at work and from a Justice of the Peace. Regardless of whether this evidence should be admitted under section 83V(1)(a) of the Criminal Procedure Ordinance, Cap. 221 (and we entertain some doubts as to this since the material was readily available after his trial), we do not regard the contents of the letters to be sufficient to reduce the sentence referred to. This is no doubt a sad case with extremely unfortunate consequences for the Applicant’s family, but this is often the tragedy in such cases. The letters also go to his good character but this factor does not go very far in terms of mitigation in the present case.

13.For these reasons, we are of the view that the sentence passed by the Judge cannot be said to be manifestly excessive. The application for leave to appeal against sentence is accordingly dismissed.

Mr Edmond Lee of the Department of Justice for the Respondent

Mr Andrew Macrae, SC and Mr Naresh Daryanani, instructed by Messrs Raymond Chan, Kenneth Yuen & Co for the Applicant