CRIMINAL CASE NO. 22 OF 2010
COURT: The two accused, namely Chow Chung-kan and Cheung Pak-kam, pleaded guilty to the following charges before me:
The 1st accused Chow Chung-kan: one count of indecent assault on another person, contrary to section 122(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong; one count of making child pornography, contrary to section 3(1) of the Prevention of Child Pornography Ordinance, Cap. 579, Laws of Hong Kong and one count of rape, contrary to section 118(1) of the Crimes Ordinance. Originally, he faced one more charge, that is, aiding and abetting rape, but now it is left on file and is not to be proceeded with without the leave of the court.
The 2nd accused Cheung Pak-kam pleaded guilty to one count of rape and one count of making child pornography. Likewise, he originally faced one more charge, that is, indecent assault on another person, which is also left on the court file.
Shortly afterwards, the 2nd accused came back, returned home. Once he stepped into the unit he locked the door and asked the girl, “How old are you?” The girl told him she was only 13. Then the 2nd accused took out a condom from a drawer and took off his clothes. Following that, he caught hold of the girl and began to remove her clothes. She resisted. The 1st accused helped him by catching hold of her hands. When the, the 2nd accused asked the 1st accused for assistance, the 1st accused rendered assistance by catching hold of the girl’s hands. Then the 2nd accused told the girl to perform oral sex on him. She refused. The 2nd accused then pushed the girl into the bathroom and forcibly bathed her. After that, he sat on the toilet and again forced the girl to perform oral sex on him. The girl put up resistance and managed to run out of the bathroom. She got to the room [sic], but the 2nd accused caught her and pushed her onto the bed. He forcibly turned the girl over so that she faced him, and then he tried to insert his penis into her vagina. The victim struggled vigorously, so the 2nd accused asked the 1st accused to help him by getting hold of the girl’s body to stop her from moving about. Later, he changed his position and forced the girl to sit on his body, that is to say, to sit on his penis in such a way that he succeeded in inserting his penis into her vagina. The girl still resisted. At that moment the 2nd accused smacked the girl’s bottom and shouted at her to order her to move to coordinate with his movements. Then he asked the 1st accused to video-record what was going on with his mobile phone. The 1st accused complied with that request. In the meantime, the 2nd accused kept on telling the girl to change her positions and he was all along raping her; yet the 1st accused had the nerve to say to the girl that he video-recorded it because she was uncooperative. Finally, the 2nd accused ejaculated on the girl’s body. Then [he] told her to go to the bathroom to wash away the semen that was stuck on her body and her hair. These are the facts concerning the 3rd charge: the rape against the 2nd accused and the 4th charge: the making child pornography against the 1st accused.
After the girl had a bath, the 1st accused said the sight of all that made him high and he wanted to have fun too. Then he pushed the girl onto the bed and pushed his penis towards her vagina. The girl resisted and moved her body about. However, the 1st accused finally succeeded in inserting his penis into her vagina. When this was going on, the 2nd accused video-recorded how the 1st accused raped the girl. As the girl kept on struggling, the 1st accused could not ejaculate. He flared up and hit the girl, shouted at her telling her not to move; but the girl still move about, and he gave her a punch on the head. The girl kept on crying. The 1st accused lost his temper and said, “I don’t want to play any more.” He told her to have a bath again. Then the girl had another bath. Following that, after the girl had the bath, the 2nd accused blew her hair dry for her. At this moment, the girl’s mother called; she asked the girl where she was. After the telephone conversation, the girl asked the two accused to let her go. At this moment, the 2nd accused again told her that he wanted her to perform oral sex on him. The girl refused and the 1st accused threatened her by saying, “We have a gunnysack. Let’s put her into the sack and throw her into the sea.” Therefore, the girl performed oral sex on the 2nd accused, albeit very unwillingly. When that was finished, the 2nd accused wanted the girl to have photos taken with him. He even told the girl to smile. The girl was actually very upset at the time, but in order to make herself smile for the photo-taking, she had to calm herself down. After the photo-taking, the girl said something about…They told the girl to make certain hand gestures. When they were taking the photos, they told her to make a victory ‘V’ hand gesture and made her caress her own body and say something about whether she would make love again together next time.
The 1st accused asked the girl, “Will you come again?” The girl said no. Then the 1st accused threatened her again. He said the photos / films would be uploaded to the internet. Finally, the 1st accused made the girl delete the messages in her mobile phone about her arrangements with the 1st accused to meet him. Only then was she allowed to leave at last. These are the facts of the 5th charge: the rape against the 1st accused and the 6th charge: the making child pornography against the 2nd accused.
Finally, a report was made to the police. The report was made on the following day. The two accused were arrested. Both of them admitted under caution that they had committed the offences but each of them put the blame on the other accused.
As for the background of the two accused: the 1st accused is 23 years old (at the time of the offences he was 22), single. He has a clear record. He received education up to Form 5. He had worked as a salesman, waiter and pastry apprentice. At the time of the offences, he had quitted these jobs. He was unemployed at the time.
I have called for a psychologist report on the 1st accused. I’m not prepared to go into details. I’ll just mention it briefly. According to the clinical psychologist, the 1st accused is a person of low self-esteem. He is hypersensitive to being refused or rejected, and tends to avoid criticism. He began to look for causal sex partners via the internet when he was 18. He succeeded in having sex with girls who were strangers to him and such experience gave him a feeling of success, therefore… In other aspects of his life he failed to experience any feeling of success, therefore he craved for this feeling of success and became preoccupied with things connected with sex. He has a distorted conception of sex. He tends to regard the female sex as a means to gratify his sexual desires. Furthermore, he is devoid of any sense of sympathy and shows no respect to the female sex at all. Moreover, he blamed the victim and the 2nd accused for this incident and tried his best to minimize his own responsibility for this incident. His attitude to the harm done to the victim can be said to be indifferent. He has no insight into his own problems. His risk of re-offending is high. A long period of psychological counselling for correcting his wrong ideas about sex will be beneficial to him.
The 1st accused has written a letter to me. He said that he committed the offences because at the time he succumbed to a momentary impulse. He regretted it very much and was willing to apologize to the victim and her family. He promised that he would never break the law again and hoped that I would be lenient to him.
Mr. Chan, counsel for the 1st accused, agreed that this case is a very serious case. For this accused, the most effective mitigating factor is that he pleaded guilty, thus the victim was not required to come to give evidence. Mr. Chan informed the court that the accused had written a letter himself. When he was in custody, he wrote a letter to his family members, in which he admitted that he was wrong in this incident and he said he was remorseful. He expressed his concern for his family members as well. I have received a copy of this letter written by the accused to his family members. The accused’s father, mother and his family members also wrote to me, asking me to be as lenient as possible.
Now the 2nd accused. The 2nd accused is also single. He is 24 years old (23 at the time of the offences). He also has a clear record. He received primary school education in the Mainland. He had also worked as a pastry apprentice. At the time of the offences he was unemployed.
The assessment made by the psychologist about the 2nd accused is actually not much different from that about the 1st accused. The report was made by the same psychologist. He also described the accused as a person of low self-esteem, but there are descriptions about his other traits. He is deceitful, self-indulgent, aggressive and manipulative. He fears being refused or rejected by others. He always… he is apt to present himself in a positive light. He is lazy and often takes advantage of other people to satisfy his needs. He is promiscuous. He started to seek sexual partners via the internet in 2009. To him, similarly, his activities in his daily life gave him little feeling of success, so when he succeeded in having sex with girls whom he didn’t know, he experienced a feeling of success. He has no sense of sympathy and no respect for the female sex. He shows only very shallow remorse, and he is also indifferent to the harm done to the victim. He is lacking in insight into his own problems. His risk of re-offending is high. Similarly, the psychologist is of the view that he can be benefited from a long period of structured psychological counselling, whereby his faults can be remedied.
The 2nd accused also wrote to me, stating his remorse in committing the present offences. He said that there was no premeditation and that he committed the offences because he was under the influence of a bad friend, namely the 1st accused. He apologized to the victim and to her family. He realized that there was something deviant about his sexual attitude and he was willing to receive counselling and treatment. He hoped that I could pass a sentence that is not too heavy. The 2nd accused’s elder brother also wrote to me, asking me to be as lenient as I can.
Mr. Ng, counsel for the 2nd accused, accepted that this is a very serious case and that basically the main mitigating factor is his plea of guilty. Mr Ng referred me to a number of authorities. I am not prepared to discuss all of them. Suffice it to say that Mr. Ng relied on a recent decision of the Court of Appeal, CACC 81/2009; the appellant was Chung Chi Wing. The accused lured a 13 year old student into his van, which was parked right outside her school and raped her inside the van. In the course of the rape, he hit her on her head. He did not use any condom and ejaculated inside her. He pleaded guilty and was sentenced to 10 years’ imprisonment. On appeal, the Court of Appeal reduced the starting point from 15 years to 11 years. Mr Ng accepted that the present case is even more serious than Chung Chi Wing. That means the starting point for this case should be more than 11 years.
Another case which Mr. Ng referred to is CACC 405/2004, the case of Chan Kim Kwan, in which a 39 year old man was convicted after trial of raping a 9 year old girl on 13 occasions. The accused abused his position of trust as the husband of the victim’s private tutor and as the victim’s sworn father. The Court of Appeal approved the starting point of 15 years adopted by the trial judge. Mr. Ng submitted that the present case was less serious than Chan Kim Kwan. That is to say, the starting point should be somewhere between 11 years and 15 years.
Mr. Chan informed me earlier that he would rely on these authorities cited by Mr. Ng.
Mr. Ng also urged me to consider giving the accused more than the 1/3 discount, as he pleaded guilty and the victim was spared the ordeal of giving evidence.
Initially, Mr. Ng in his submission tried to convince me that the 2nd accused merited an additional discount for he had offered to testify against the 1st accused though in the end he did not do that. However, upon further clarification, he did not pursue such a submission.
As far as the sentences are concerned, firstly, the offence of rape: a person convicted of rape on indictment is liable to a maximum sentence of imprisonment for life. In the case of indecent assault, the maximum sentence on conviction on indictment is imprisonment for 10 years. As for making child pornography, on conviction on indictment, the maximum sentence is a fine of $8,000,000 and imprisonment for 8 years.
First, I deal with rape. There is an English case Billam about this offence. The Court of Appeal in England, after considering 17 appeal cases, including rape, attempted rape and associated offences, set down sentencing guidelines. The Court of Appeal set out the factors which they considered would aggravate the crime, including: first, violence was used over and above the force necessary to commit the rape; second, a weapon was used to frighten or injure the victim; third, the rape is not an one-off incident, but is repeated; fourth, the rape was carefully planned; fifth, the accused has previous convictions for rape or other offences of a violent or sexual nature; sixth, the victim, in addition to being raped, was subjected to further sexual indignities or perversions or was treated in such a way that intensified her distress; seventh, the victim was either very old or very young; and eighth, the effect on the victim, whether physical or mental, is of special seriousness.
Where these aggravating factors are present, the sentence should be substantially higher. These are of course starting points and aggravating factors applicable in England. In Hong Kong, our Court of Appeal has held, in more than one case, that the aggravating factors mentioned in Billam could be considered and followed by courts in Hong Kong; but that the sentences passed in Billam were not necessarily appropriate in Hong Kong and should not necessarily be followed in Hong Kong. These were the comments made by the Court of Appeal in, for instance, two cases; one is Lau Yun Leung and the other is Sukhmander Singh.
Further, when dealing with a rape case, it is necessary for the sentencing judge to consider three dimensions: firstly, the degree of harm that the rape has done to the victim; secondly, the level of culpability of the offender in the incident; and thirdly, the level of risk in terms of re-offending posed by the offender to the society. This is the principle laid down in both the English authority Millberry and the Hong Kong authority Lau Chin Yu. Just now I have referred to the assessment of the victim made by the psychologist. It is clear that tremendous harm was done to her in this incident and the risk in terms of re-offending in respect of both accused was assessed to be high. As for the level of culpability of the two accused, that is demonstrated by the facts of this case.
Of course, the factors listed in Billam are not exhaustive; that is to say, there may well be other factors not mentioned in Billam which can aggravate the seriousness of a particular case. Now I’ll go into the factors which, according to Billam and in my view, are aggravating factors in this case. The first factor is that the girl was of a very tender age; she was only 13. Secondly, this incident has caused her serious psychological damage. In fact, she is now still suffering from the residual effects. Besides, there is the additional factor that at the material time these two accused acted together and they raped the victim one after the other. This factor certainly renders this case more serious than one in which the victim was raped by one man alone. Moreover, the two accused used more force than what was necessary to commit the rape. When these two accused were actually already raping the girl, one of them smacked her buttock and the other hit her on the head, because she incurred their displeasure by moving her body not enough, by failing to coordinate her body movements with theirs, or by moving too much so that the accused was unable to ejaculate. As far as this factor is concerned, although the girl did not suffer any actual harm, in my view, I think that they were already raping the girl, but they further forced her to cooperate with them in such a way and when she failed to cooperate, they hit her. Such behaviour was very insulting to the girl. In addition to that, there’re still other factors which make this rape even more serious. They are these: The 2nd accused, after he raped the girl, he forced her to perform oral sex on him again. Worse still, besides raping the girl, he ejaculated on the girl’s body, so that his semen was stuck on her body and hair. I also abhor the fact that the 1st accused threatened a 13 year old girl by saying to her that she would be put into a gunnysack and thrown into the sea. This is an aggravating factor. And there is still something more. Not only did they physically maltreated this girl, they also video-recorded it. This is tantamount to putting salt in her wounds, thus worsening the injury done to her, because besides going through the agony which took place at that time, the victim was aware that there was something which could be called a permanent record of the way and manner in which she was raped by the two of you, and she would worry about whether other people would see how she was maltreated.
The making of child pornography is more serious than mere possession, but in the case of Chow Yuen Fai CACC 392/2008, Ma CJHC said that the sentencing guidelines which he set down in an earlier Court of Appeal case Man Kwong Choi were applicable. In Man Kwong Choi, in formulating sentencing guidelines, Ma CJHC divided the seriousness of child pornography into 4 levels: Level 1: images depicting erotic posing with no sexual act or sexual activity; Level 2: sexual act or sexual activity between children, or solo self abuse or masturbation by a child; Level 3: non-penetrative sexual act or sexual activity between adults and children; and Level 4: penetrative sexual act or sexual activity between children and adults, or sadism or bestiality.
The prosecution provided, at my request, a list of the child pornography which the two accused made in this case. In the mobile phone of the 1st accused there was a 15 second film, showing him raping the victim. This is obviously level 4 article. In respect of the 2nd accused, there were 2 photos showing the naked victim, with the 2nd accused’s limbs or back shown. There was another photo, which shows the private parts of the victim and the genitals of a man. All these are level 3 articles. There are also 7 short films, ranging from 1 second to 1 minute and 6 seconds, which is the longest, all showing the victim either being raped by the 2nd accused or being forced by the 2nd accused to perform oral sex on him, except one, which shows her being raped by the 1st accused.
As said before, for the level 3 photos, according to the guidelines set down by Ma CJHC, the sentence should be between 6 and 12 months. All the films are level 4, which calls for an immediate custodial sentence of between 12 and 36 months. However, before sentencing, I have mentioned one point to the parties. I noticed that in the relevant charges only “[a] film” was referred to, without any mention about the fact that there are various films or the photos. Therefore, in passing sentence, what I will consider is that each of the two accused had made a film, depicting the rape or sexual assault of the victim by the other accused.
The 1st accused came to know the girl via the internet and subsequently they arranged to meet each other, but that occasion was to all intents and purposes the first time they met; therefore to the girl the accused, the 1st accused was just a stranger; and the 2nd accused was even more a stranger, as she had no contact at all with the 2nd accused. In this ordeal, she was locked inside a room by them. The room was not a place she was familiar with. She had no connection with the room. She had never been there before. There, she was repeatedly subjected to horrific indignities by the two accused. They sexually assaulted her. They forced her to… The 1st accused put his penis into her mouth. The 2nd accused also put his penis into her mouth. After she was raped, semen was ejected onto her body, so that even her hair was stuck with semen. They made video recordings which vividly depict how she was assaulted. They even went so far as to force her to smile to the recording lens and to make the “V” hand gesture after maltreating her.
The charges against the two accused are certainly very serious. Although the two accused have a clear record, for a case of this gravity, I consider that their clear record is not of much assistance to them.
I have discussed the authorities submitted to me by Mr Ng. I must emphasize that each case must be judged according to its particular facts. Simply comparing one case with another is not necessarily useful. Essentially, what the court needs to do is to consider what offences are involved in this case and the level of culpability of the two accused and then decide on the appropriate starting points.
In this case, I have considered all the circumstances of the offences and the factors I just mentioned which should be considered by a sentencing court. In addition, there is one aspect which should not be overlooked, that is, the sentence must have deterrent effect and must be able to alleviate the grievances felt by the victim and her family members. Finally, the sentence must reflect the abhorrence of the public towards this kind of offences.
I fully understand that a parent or an elder brother will surely hope that his son or his family member will be treated as leniently as possible, but in sentencing, I cannot let their personal hopes take precedence over what I am required to do, that is, I am required to adopt appropriate starting points which are based on the seriousness of the offences in this case and are able to convey an accurate message to the community.
After taking into consideration all these matters, I hold that the appropriate starting points are as follows:
The 1st accused, the 1st charge indecent assault, the starting point is 2 years. I adopt this high starting point because I am of the view that to commit indecent assault in the way he did is very serious. To force his penis into a 13 year old girl’s mouth is such a serious crime that merits a starting point of 2 years. The 4th charge making child pornography, the starting point is also 2 years. The 5th charge rape, after considering all dimensions, I find that the starting point should be 13 years.
The 2nd accused, the 3rd charge rape is 13½ years. The 6th charge making child pornography, the starting point is also 2 years. I use a higher starting point, namely 13½ years, not 13 years, in respect of the 2nd accused’s rape charge to take into account the fact that after he raped the victim, he went on to make the victim…he forced her to perform oral sex on him. Such behaviour was extremely nasty and was an indignity inflicted on the victim. For this reason, a higher starting point is used.
Both the two accused pleaded guilty before me and I give them the usual 1/3 discount. After the discount, the 1st accused, for the 1st charge, 16 months; for the 4th charge, also 16 months; the 5th charge is 8 years and 8 months. The 2nd accused, after the discount, the 3rd charge is 9 years; the 6th charge is 16 months.
In the past there were cases involving sexual offences in which the court gave the accused a discount of more than 1/3 to reflect the fact that the guilty plea saved the victim from the ordeal of having to give evidence. However, now the Court of Appeal has said that, for example, in Chow Yuen Fai it was said that the general principle was that the 1/3 discount was to be regarded as the high watermark of the discount for pleading guilty and that only in exceptional cases should a discount of more than 1/3 be considered. In the present case, I notice that it was only during the pre-trial review that the two accused indicated they would change their pleas to guilty, when it was just a short time before the trial. That being so, I find there is nothing which can enable me to exercise my discretion to give them any deduction in addition to the 1/3 discount.
Now I come to the question of totality. In my view, the sentences imposed for the rape charges and the making of child pornography charges should run concurrently, as I have already taking into account [the facts concerning] the making of child pornography charges in reaching the starting points for the rape charges. Therefore, the sentences for these two offences should be concurrent. As for the 1st accused’s indecent assault on another person, the facts were that he forced the girl to perform oral sex on him before the 2nd accused arrived. To a certain extent it can be said to be part of the same incident, because it took place at the earliest stage and was followed by the rapes and the other offences. However, I think that the sentence for this offence should not be made totally concurrent because before the 2nd accused came, when the 1st accused alone was with the girl, he already began his sexual attack on the girl. When compared with the 2nd accused, his capability, his culpability is higher. Having considered all these factors, I sentence the 1st accused as follows:
The 1st charge indecent assault on another person, 16 months’ imprisonment, 10 months of which are to run consecutively to the sentence for the 5th charge; the 4th charge making child pornography, 16 months’ imprisonment, concurrent with the sentences for the 1st charge and the 5th charge; finally, the 5th charge rape, 8 years and 8 months. In other words, the accused is sentenced to 9 1/2 years’ imprisonment.
As for the 2nd accused, the 3rd charge rape, 9 years; the 6th charge making child pornography, 16 months; both sentences are to run concurrently. That means the total sentence is 9 years.
Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.