CRIMINAL CASE NO. 274 OF 2010
COURT: Defendant is convicted, after trial, of three counts of indecent assault, one count of attempted rape and one count of rape.
Victim was a proprietress of a boutique. Defendant worked in a nearby restaurant and delivered takeaways to her. On various occasions prior to the first incident he touched her hands but she brushed and told him off.
The occasions relating to the first two counts of indecent assault happened within 10-odd days. On the first occasion defendant dragged the victim into the inner part of the shop, touched her breasts and private parts over her clothings and also tried to kiss her. On the second occasion he grabbed her neck, tightly, and covered her mouth whilst leaning his lower body against hers.
These sexual advances progressed to an attempt to rape the victim on Christmas Day of 2009. He overpowered her and tried to penetrate her. She put up resistance and, on failing to penetrate, he forcefully opened her legs, ripped open her private parts and hit her private parts with great force. He also blamed her, using foul language, and masturbated in her shop before he left.
About two months later, he succeeded in raping her in her shop. When she put up a struggle he grabbed her by the neck, tightly, and warned that if she should make any noise he would grab her to death.
Two weeks afterwards he went back to the shop. She told him that she was menstruating and begged him not to touch her. She was desperate and pointed a pair of scissors at him. He snatched it from her and used it to cut her underpants and then stuffed it into her mouth and then into her private parts before he took her underpants away.
Defendant is now aged 29. He comes from a family where child discipline was strict. He lagged behind in his secondary studies and was sent for further studies in England. Still unable to cope, he returned to Hong Kong, joined the workforce and maintained steady employment.
He started to exhibit criminal behaviour in 2008 and 2009 by taking under-skirt video of female strangers on a bus and in a lift. Those ended up in two criminal convictions for disorderly behaviour for which he was sentenced to community service order and a fine, respectively. He attributed his acts to curiosity and impulse.
According to the psychiatric report, apart from a depressive disorder of which he has been in remission for years, the present offences were unrelated to his mental illness. However, his lack of concern for the feelings of others, irresponsible attitude and low tolerance to frustration indicate this social personality which warrants psychological intervention preventing sexual relapse.
Psychologist’s report reveals his intelligence to be in the borderline spectrum and the present offences might be caused by his unfulfilled sexual needs, inadequate sexual self‑regulation and sexual preoccupation. His risk of re‑offending is assessed to be moderate/high.
In sentencing the defendant, I have taken into account facts of the case, mitigation forwarded and contents of the reports that I have called for. The facts of this case are appalling. It was not just a single, isolated incident, but the incidents occurred over a period of approximately six months and were escalating in degree. It was something more than momentary loss of control that led him to go too far. His behaviour is disgraceful and debauched in a sense that it shows a total disregard of the law and social norm and a lack of concern for feelings of others. He exploited the victim’s weakness and helplessness.
During the attempted rape as well as the rape incidents, no condom was ever used. By choosing to fight the charges, the victim was made to go through the whole ordeal by having to come to court and relive each of those horrible moments and cross-examined to the minute details.
The following are the sentences that I will pass on each of the charges. Since the defendant is convicted after trial there will be no discount.
Charge 1, 9 months’ imprisonment; Charge 2, 9 months; Charge 3, that is the attempted rape, 5 years’ imprisonment; Charge 4, the rape charge, 7 years’ imprisonment; Charge 5, the indecent assault, 3 years’ imprisonment. I have taken into account totality principle. I consider an overall sentence of 10 years appropriate for all five charges. So I will order partially consecutive sentence to Charge 4, that is the 7 years, then 6 months out of each of Charges 1 and 2, 1 year out of Charge 3 and 1 year out of Charge 5 to run consecutively to the 7 years’ imprisonment, making a total of 10 years.
I would also remark that if the Correctional Services Department sees fit, they shall send him for psychological counselling. I would also further remark that should there be future relapses after his release and that he commits further sexual offences, the court will have to resort to other more serious punishment than a definite term of imprisonment.