CRIMINAL CASE NO. 375 OF 2009
The trial before a jury began on 4 June 2010. On 7 June 2010, one juror was discharged, and the trial continued with six jurors until its conclusion on 11 June 2010.
The accused and the complainant were introduced by a mutual acquaintance who believed that each was looking for a romantic relationship. The accused and the complainant exchanged telephone calls from 25 June 2009, after which they met on 27 June 2009 for lunch. After the meal, the accused talked the complainant into going to an hourly hotel to chat. She was reluctant to do so, but the accused promised her he would not take advantage of her, so she consented, and the room was rented for one hour.
Once in the room, the accused and the complainant hugged and kissed each other, but when the accused tried further intimacies, and in particular, when the accused tried to undress her, the complainant broke away and made it clear to the accused that she did not want to go any further. On that occasion, the accused complied, and soon after, the accused and the complainant left the building together.
The complainant believed that she had come to an agreement with the accused that there was to be no sexual activity or relationship without her explicit consent. The accused told her he would abide by such an agreement. It was in those circumstances that the complainant forgave the accused, and the relationship continued to develop, with meetings, telephone calls and messages.
On 2 July 2009, quite late in the day, the accused arranged to meet the complainant, who had been shopping with her friend, (who gave evidence as PW2), according to a pre‑existing engagement. The complainant left her friend at about 9.30 pm and went to meet the accused, who was waiting for her outside the building where his flat was.
The complainant did not know this flat was his, and the accused tricked her into going upstairs with him under the pretext that he had to leave something at the flat for a friend whose flat he said it was.
The complainant initially waited outside the door of the flat, but eventually was drawn into it. After telling her he had waited so long for her, the accused then forcibly undressed her, and, despite her refusal, her resistance and her protests, the accused forced her to perform oral sex on him and then, after that, despite her continued struggle and protests, the accused had sexual intercourse with the complainant without her consent.
Initially the accused wore a condom, but he removed it at the time the oral sex took place, and thereafter the accused did not wear a condom for the intercourse, although he ejaculated outside her body.
Soon after, the accused told the complainant to stop crying as it was not her first time, and she made her way home. On the way, she telephoned her friend, PW2, and told her what had happened. PW2 arranged to meet the complainant, and later gave evidence that the complainant was very distressed at the time she met her. She stayed with the complainant at the complainant’s family home that night and tried to comfort her. In the morning, she convinced the complainant, who showed some reluctance to do so, that she should report to the police, and a report was made to the Yuen Long Police Station.
The accused was arrested about 10 days later and charged with these offences. At trial, he contended that the complainant was a willing and enthusiastic participant who had consented to the oral sex and the intercourse on 2 July. He gave graphic and detailed evidence about the relationship, and also alleged that the complainant had taken the sexual initiative.
He alleged in evidence that the complainant had been consumed with jealousy because she discovered he had kept photos of and clothing items belonging to an ex‑girlfriend. It was suggested that for that reason, the complainant had made a false report to the police that she had been assaulted and raped. From their verdicts, it appears that the jury did not accept that evidence.
The accused is now aged 23. He is an Indian national who came to Hong Kong as a tourist in the first instance in 2002, albeit on a false passport. His parents and elder brother live in India still. The accused was educated up to Form 5 level in India. I am advised by counsel today that the accused no longer has contact with his parents in India and returned to Hong Kong for that reason.
He has a criminal record, none of the convictions on which are similar. In May 2002 he was convicted of breach of condition of stay. In the same month he was charged with assisting an offender and sentenced to 2 years and 8 months’ imprisonment. In 2004, in June, he was charged and convicted of making a false representation to an Immigration officer and using a false passport. He received a sentence of 4 months in total for those offences. In 2006, in April, he was sentenced to 4 months’ imprisonment for trafficking in dangerous drugs.
I sought a psychological report about the impact of the rape and the indecent assault offences on the victim. Some psychological tests were administered, but the victim was the only interviewee, and that is a matter I bore in mind when I considered the report. Two years after the offences the victim still suffered from some after-effects. Her initial intense distress had subsided, but it was stirred again in the months after the trial proceedings, a process that was no doubt exacerbated by her being required to give evidence.
The psychologist suggests she had a form of post-traumatic stress disorder, which encompassed recurrent disturbing memories of the rape, avoidance of matters that reminded her of it, and physiological effects such as trembling and heart pounding when she is reminded of what happened. She now fears south Asian men as a group and consciously avoids contact with them. Since the rape she has avoided dating anyone and is pessimistic about her chances of marriage and is less actively social. She fears retaliation of some sort from the defendant and considered changing her job to prevent the defendant from locating her, and the psychologist considered that she had a need for some psychological treatment so as to cognitively and emotionally deal with the traumatic experience.
As I said, because she was the only interviewee in this case, I bore that in mind when I considered the conclusions drawn by the psychologist.
In this particular case there were some aggravating features. There appears to have been a degree of planning in that the accused worked to secure the victim’s trust, that he tricked her into coming to his flat, and that although a condom or condoms was or were available, their use was intermittent, and eventually the intercourse with the victim was unprotected. A degree of force and hair pulling was used to effect the indecent assault and in the rape itself, although I accept that the force used was not much more than needed for the two offences.
The maximum penalty for rape is life imprisonment. The maximum penalty for an offence of indecent assault is 10 years’ imprisonment.
I have considered the cases referred to me as comparable cases, and taken all matters into account.
On the 1st count, which is the rape, I consider that the appropriate sentence would be 8 years’ imprisonment for a starting point, and I reduce that to 7½ years’ imprisonment.
For the offence of indecent assault which involved the forced incident of oral sex, I note that that takes the offence into a fairly serious level of indecent assault. I consider a sentence of 6½ years appropriate as a starting point, and reduce that to 6 years, taking all the mitigating factors into account.
I order that both those sentences run concurrently.
The total sentence is 7½ years.
Please refer to CACC462/2010 for the relevant appeal(s) to the Court of Appeal.