CRIMINAL CASE NO. 238 OF 2010
COURT: The jury convicted the 2nd defendant, Chan Ho-yin, of the alternative count of indecent assault, contrary to section 122(1) of the Crimes Ordinance, after acquitting him of the original charge of rape.
According to the evidence, the victim started working as a waitress at the AT Club about November 2009. She came to know both defendants at the AT Club about a week before the incident. On 7 December 2009, she was invited to a private birthday party organised for the friend of the 2nd defendant at the Why Club, Tsim Sha Tsui. All of them drank a lot of whiskey in the party.
At about 4 am, both defendants left the Why Club with the victim. The victim was so drunk that she could not walk properly. The 2nd defendant supported her along the way. Eventually, they took the victim to Kam Yuen Hotel at Mongkok by taxi. They rented a room there. It was the 2nd defendant who paid the overnight room charge. The 1st defendant then went downstairs to buy a packet of condoms.
The three stayed for about 30 minutes inside that room. During this period, the 2nd defendant took off the clothing of the victim, who was so drunk that she could not resist. He kissed and caressed the victim while she was lying in bed. He even put his finger into her vagina. During this period, the 1st defendant was waiting inside the toilet. Later, the 2nd defendant went into the toilet to vomit. The 1st defendant then went out and raped the victim. Shortly afterwards, the 1st defendant left.
Later at about 5 am, the victim left the hotel together with the 2nd defendant. She then complained to her boyfriend and a good friend by phone. A report was made to the police.
The victim was 15 years and 9 months at the time of the offence. She suffered no injury.
The 2nd defendant is 22 years old. He has a clear record. He lived with his parents and an elder sister. He finished Form 4 education and joined his father’s business in electrical appliances. He earned about $9,000 per month. He is offered a job of management assistant trainee by a Korean company based in Shenzhen. This offer is open for six months.
The defendant claims that he has stopped drinking since the incident. He pleads for a non-custodial sentence. During the period pending trial, his family has been under great pressure. Defence counsel, Mr Harris, urges me to treat that as some kind of punishment already.
According to the background report the defendant behaved properly all along. He spent his leisure on online games and sports activities with his friends. He began drinking at the age of nineteen. He had frequented bars in the past few years before the incident. He is now remorseful. The probation officer recommended a community service order for 120-180 hours.
I find the following aggravating features in this case:
1) The victim was 15 years and 9 months;
2) The 2nd defendant took the victim to the hotel with an ulterior motive;
3) It was a calculated plot to take advantage of her drunken state;
4) The indecent assault committed upon the victim was gross and despicable, the 2nd defendant even put his finger in her vagina.
While it may not be helpful to compare the facts of other cases, I have considered the sentencing principles discussed in authorities including:
HKSAR v Wong Ying Ho, [1999] 4HKC 825;
HKSAR v Chan Ching Ho Owen, [2000] 2HKLRD 476;
HKSAR v Kong Yun Chiu, CACC315/2006;
Secretary for Justice v Chau Chi Yan, CAAR7/2008; and HKSAR v Chow Yuen Fai, CACC392/2008.
The starting point for serious sexual abuse on an underage victim is from 2 to 6 years. I discerned from these cases the following factors which need to be addressed in sentencing:
a) the sentence must be severe enough to deter others from acting similarly;
b) the sentence must show the abhorrence of members of the public to such crime;
c) the sentence must redress the grievance suffered by the victim and her family
d) The long-term trauma to the victim can be safely assumed in most cases.
e) For sexual abuse of underage victims, a substantial imprisonment term is called for.
While it is difficult to ascertain the basis upon which the jury convicted the 2nd defendant, from the two questions asked by the jury before the verdict, I am prepared to accept that the conviction was on the basis that the victim had not consented because of her drunkenness. That is the most favourable scenario to the 2nd defendant.
I have considered the letters submitted on the defendant’s behalf. He was commented as a kind and responsible person. I also note that he donated money to charities in the past.
I have considered whether a community service order is appropriate in the 2nd defendant’s circumstances. While he has a good background and has been out of trouble so far, however, there are aggravating features which make this case a serious one. In fact the previous good background or remorse of a defendant committing this kind of offence are not strong mitigating factors (per Stuart-Moore VP in pages 3-5 of Wong Ying Ho).
For the facts of this case, immediate custodial sentence is indicated. Having considered the aggravating factors and the circumstances of the incident, I take a starting point of 2½ years’ imprisonment. I note that it was the defendant who disclosed the act of indecent assault during his evidence-in-chief and that a lot of evidence had been agreed. Had it not been the case, the prosecution might have further difficulties proving the indecent assault. Having said so, this did not absolve the victim from giving evidence. She had to re-live the trauma while giving evidence in court.
Having considered the circumstances, I consider a further reduction of six months is appropriate. The 2nd defendant has to serve a total of 2 years’ imprisonment.