The defendant has pleaded guilty in the magistracy to sexual offences involving all three daughters of a most horrendous nature. He has been committed for sentence in respect of six charges of rape and one charge of indecent conduct towards a child under the age of 16 years.
In respect of four of the charges of rape the victim is the eldest daughter, ‘X’. These rapes occurred between 2006 and June/July 2009, when the child was between the ages of 12 and 14.
In respect of the remaining two rape charges the victim is one of the twins, ‘Y’. These rapes occurred on two occasions between the summer of 2009 and November 2010 when the child was only 10 and 11 years of age.
The other twin, ‘Z’, is the victim of the indecent conduct charge.
Most of the offences were committed on the Mainland where the defendant’s family were living until in 2007 they were granted right of abode in Hong Kong. However, only the mother and the eldest victim initially took advantage of this right and the twin sisters remained in the Mainland.
The twins have visited Hong Kong from time to time and in November 2010 moved here permanently.
The offences came to light when in November 2010 the eldest daughter disclosed to a school social worker that the defendant had raped her when she was 12 years old in the Mainland and had continued raping her after she had moved to Hong Kong. The matter was then reported to the police. Shortly after this the twin ‘Y’ also reported to a social worker the abuses to which she had been subjected by the defendant.
The circumstances of these rapes involving a father abusing his young daughters are appalling enough but the manner in which the defendant committed one of the offences raises their seriousness to another level. One of the rapes of the eldest daughter took place in the presence of her mother who was also naked. There is no suggestion that the mother was a willing participant in the defendant’s offences and so the only inference I can draw is that the defendant intended to humiliate his wife, put her in fear of him and make her and his daughter realise that they were powerless to prevent him from doing with them whatever he wanted.
In respect of the twin daughter, ‘Y’, the abuse started at an even younger age. She was only 10 when the first rape occurred and because of her physical immaturity this would have been a painful as well as an emotionally and psychologically distressing experience. Her second rape occurred when she was only 11 and it may be that she was protected from more extensive sexual abuse by reason of the fact that she continued to reside in the Mainland after her mother and elder sister moved to Hong Kong.
The other twin, ‘Z’, was fortunate not to have suffered to the same degree as her sisters. However, the fact that this offence of indecent conduct occurred suggests that the defendant was turning his attentions to her and it may be that it would have only been a matter of time before he preyed upon her more extensively.
The incident involving her on its face seems trivial involving as it did a request that the daughter pluck his pubic hair. But this request must be placed in context. The defendant was a sexual predator of the worst possible kind who enjoyed using his own children as his sexual toys. What perverse pleasure he got from having his daughter pluck his pubic hair I cannot imagine, but that he did it for a sexual purpose I do not doubt. It may have been for his own sexual pleasure or to exercise sexual dominance and authority over his young daughter. There certainly seems to be a theme of exercising sexual power and dominance underlying his criminal conduct.
When raping the two daughters the defendant did not wear a condom and ejaculated inside them. As a consequence the eldest daughter, ‘X’, became pregnant after the fourth rape in June or July of 2009 and in September of that year was taken to Shenzhen by the defendant for an abortion. She was only 14 years of age.
She was accompanied to the abortion by her grandmother but the defendant instructed the daughter not to reveal to the grandmother that it was he, the defendant, who was responsible for her pregnancy. Unbeknown to the defendant the daughter had complained to the grandmother back in 2007 that the defendant was raping her. But the only response she had then got was advice to avoid the defendant.
Also, both daughters contracted a vaginal infection and the probabilities are that this was a consequence of the defendant’s abuse.
Reports by clinical psychologists on the effect of the offences upon the victims have been tendered to me and not surprisingly they make for very grim and heartbreaking reading. The victims have suffered more than the ordinary person can imagine in ways that loving parents could never comprehend.
In addition the twins have provided the police with victim impact statements. The eldest daughter has declined to give a victim impact statement and I can well understand that she would not wish to revive the memories of this dreadful period of her life. However, the psychological report on ‘X’ provides me with some insight into the extent to which she has been traumatised by her experiences.
She suffers a very high level of sexual distress and she has recurring memories of the abuse. When these memories emerge her mood goes down. She becomes irritable and engages in self-mutilation. She has turned to alcohol and smoking to relieve her emotional distress and to numb the painful memories. She is disinterested in her studies and in conflict with her teachers. She is dysfunctional in respect of her heterosexual relationships and feels unworthy of love. She has a sense of a shortened future and is pessimistic of ever being able to have a happy life. She has given up on life and has no plans for the future. She sees only darkness in life. There is a high risk of her becoming a victim of further exploitation and progressing into substance abuse.
‘X’ is receiving counselling but whether she will ever be able to lead a happy and productive life and form normal heterosexual relationships is still uncertain. All one can do is hope that with the passage of time, the right assistance and with the love and support from others she will be able to become more optimistic about life and focus more on her future and less on the past.
The twin daughter, ‘Y’, who was also raped suffers flashbacks of the sexual abuse to which she was subjected. As a result of her traumatisation she is now confused about sexual norms and standards. Her relationship with her mother has been affected by what she has endured, for even though she sees her mother as also being a victim she is nonetheless disappointed that her mother failed to protect her.
During the period she was being abused she lived in constant fear and felt helpless and trapped. Her fear of her father and her feelings of powerlessness continue to this day and as a result she readily succumbs to episodes of anxiety. She now has a negative self-image and feels guilty and ashamed of what has happened to her. Because her father sometimes gave her gifts in return for sexual favours she holds herself partly responsible for what happened.
Her perception of herself as useless and ugly in combination with a general distrust of others has discouraged her from developing meaningful relationships with others. Her association of sex with fear, anger, revulsion and powerlessness is likely to hamper her ability to enjoy a normal heterosexual relationship. Because of the traumatic experiences that she endured she also has unresolved anger and an extreme fear of the dark. The clinical psychologist concludes that she will need long-term psychotherapy.
The other twin, ‘Z’, who is the victim in the indecent conduct charge also suffered a psychological impact from the offence and from the sexually abusive environment that was her home. She was aware of her father’s sexual abuse of her sisters and of his treatment of her mother. As a consequence of his treatment of ‘Z’ and his conduct generally, ‘Z’ also suffers from a negative self-perception. She is restless and distrusting of others and has unresolved anger towards her father. She also needs long-term psychotherapy.
From the two twins’ victim impact statements, it is very clear that both are relieved that their suffering is over and both are pleased that the truth about their father’s treatment of them has now been revealed. They seem keen to focus on the future and I believe that in both their attitudes it is possible to discern a positive outlook. I can only hope that once these court proceedings are brought to an end they will be able to deal more effectively with their trauma and over time create a new life for themselves.
What the daughters need to know is that they are all totally blameless for anything which this defendant did to them and they must not view themselves as in any way being responsible for having been victimised in the way that they were.
They were entitled to enjoy what every child should have, a loving, caring family life and a normal childhood. Instead they had a childhood where innocence was replaced by evil. Their father stole from them their childhood. Although they will need much help from others it will ultimately be up to each of them to ensure that they do not allow their father’s past actions to also take from them any hope for future happiness in their adult lives.
Mr Delaney for the defendant has expressed concern that I not use any information in the victim impact statements or the psychological reports on the victims that relates to the offences or conduct of the defendant which has not been admitted by him in the Summary of Facts. He accepts that the victims have been traumatised by the offences but wishes their statements and the reports of the psychologist who examined them to be used by the court for the limited purpose of describing their traumatisation and helping the court to understand the full effect of the offences upon the victims.
I accept that this is the appropriate course for me to adopt subject to the qualification that I can use the information on the impact upon the victims and the information admitted by the defendant in the Summary of Facts for the purpose of drawing inferences of other facts where such inferences reasonably flow from this information.
The offence of rape carries a maximum sentence of life imprisonment and the offence of indecent conduct towards a child under the age of 16 years carries a maximum sentence of 10 years’ imprisonment. These rape offences are accompanied by so many aggravating features that they are placed at a very high level of seriousness and border on the worst possible case category where a sentence of life imprisonment would be appropriate were the defendant to be regarded as a danger to the community. The aggravating features are:
(1) The defendant’s parental relationship to the victims.
(2) The very young age of the victims.
(3) The failure of the defendant to wear a condom.
(4) The fact that the offences were repeated.
(5) The impact on the victims, including the suffering of severe psychological trauma and becoming pregnant and having to undergo an abortion for victim ‘X’ and contracting a vaginal infection for both ‘X’ and ‘Y’.
In order to consider whether an indeterminate sentence is necessary I called for psychiatric and psychological reports on the defendant. The psychiatrist concluded that the defendant was not suffering from any formal psychiatric illness but also commented, “Nevertheless, there is doubt on his paedophilic tendency.”
I understand this comment to mean that the doctor has a doubt as to whether the defendant has a paedophilic tendency but cannot definitely exclude this possibility. The psychologist could find no evidence suggesting the defendant has a paedophilic tendency.
However, the psychologist was of the view that because the defendant possessed a high degree of psychopathic traits and displayed an absence of insight into his problems, his risk of general re-offending was very high, whilst his risk of sexual recidivism was moderate to high.
In the light of these opinions I must decide whether this defendant represents such a danger to the community that he should be made the subject of an indeterminate sentence. He will only represent such a danger if he is unstable, untreatable and likely to commit similar offences for an indefinite period in the future, see HKSAR v Cheung Lai Man [2004] 2 HKLRD 473 and HKSAR v Chan Li Fat [2010] 4 HKLRD 109.
The imposition of an indeterminate sentence was described by the Court of Appeal in Cheung Lai Man at paragraph 88, as a sentence that should only be imposed:
“In the most exceptional circumstances when it is clear that in the interest of the public, a defendant must be kept in prison until those who are observing him consider that he is fit to be released.”
This defendant does not have a serious history of sexual assaults on women. The incidents that are the subject of his criminal record do not reveal a person disposed to unlawful, violent sexual behaviour. Nor is there sufficient evidence for me to conclude that he is a paedophile.
What the reports and the offences do suggest is that when placed in a position where he can exercise control or authority over women, such as in a marriage or cohabitation relationship, he is likely to behave violently and abusively. Where such relationships bring him into contact with younger females his abusive behaviour may extend to them. However, I do not believe that these aspects of his personality and behaviour justify the imposition of an indeterminate sentence of imprisonment.
In assessing what would be an appropriate determinate sentence I have been referred to a number of authorities but each case tends to be fact sensitive. There is no tariff for the offence of rape and even identifying a sentence range is difficult where the offences, as with those here, involve the presence of so many aggravating features.
A high watermark for determinate sentences is probably HKSAR v Cheung Lai Man [2004] 2 HKLRD 473 where the Court of Appeal adopted a starting point of 18 years in respect of a defendant who had pleaded guilty to three counts of rape on students aged between 12 and 21. After discounting for the mitigation the Court of Appeal imposed a total sentence of 24 years’ imprisonment.
The case of Secretary for Justice v Singh [2000] 2 HKLRD 187 involved only one count of rape and the Court of Appeal said that the trial judge’s starting point of 7 years should have been 10 years. This was a case where the principal aggravating feature was that the rape was committed in the privacy of the victim’s own home.
In this case the Court of Appeal also said that the English case of Billam 82 Cr App R 347 provided helpful guidance on those factors that might aggravate the crime of rape but that the list in that case was not exhaustive, see also Secretary for Justice v Lau Yun Leung [1999] 3 HKLRD 289. The Court of Appeal also made the point that in respect of a offence as serious as rape, previous good character is a factor of only minor or peripheral relevance.
Sentencing cases on incest must be read bearing in mind that the penalties were increased in 1998. For most of the incidents of sexual intercourse that are the subject of the rape charges, the maximum penalty for incest had it been charged would have been the same, namely life imprisonment.
However, I note that cases such as HKSAR v Chan Hang Yuk, CACC 366 of 2005, and HKSAR v Lam Chung Tak, Jemy [2008] 1 HKC 281, indicate that starting points of 10 years and 9 years were held by the Court of Appeal not to be manifestly excessive where the victim daughters were under 13 years of age and were said by the Court of Appeal to be well within the bracket of sentence for this kind of offence.
There is no case which indicates what the bracket is, merely examples which suggest that it is a broad one, as inevitably it must be in order to cater for the wide range of levels and types of seriousness. From an examination of the cases it would appear that the bracket for serious cases of rape/ incest can start as low as 9 years and rise to as high as 18 years, but these are not fixed and do not represent in any way minimum or maximum parameters of the bracket.
Rather than trying to discern from other cases what sentence should be imposed on this defendant, I think it is more helpful to identify the sentencing principles or objectives that must be addressed and accommodated when sentencing for an offence of this nature and level of seriousness. In my view the core principles or objectives are retribution, denunciation and deterrence.
Although each of these principles serves a different purpose and has a different goal, each also contributes to the attainment of the goals of the other principles. This overlapping of the principles helps to ensure that the final sentence that is imposed achieves the sentencing goals that are relevant for the conduct being punished and is a balanced, proportionate and just one.
The first principle, retribution, simply means the punishment of the offender. This is not an emotive, vengeful punishment but:
“an objective, reasoned and measured determination of the appropriate punishment which properly reflects the moral culpability of the offender.”
(Per Lamer CJC in R v M [1996] 105 C C C (3d) 327 at 368.) The punishment must be just and proportionate.It will be this aspect of the sentence that will address the victims and their relatives and friends’ expectation of justice.
The second principle, denunciation, is the court giving voice to the community’s disapproval of the crime. The criminal law reflects society’s values and sentences for breaches of the criminal law should reinforce those values. As Lamer CJC said in R v M:
“Our criminal law is also a system of values. In addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values.”
The objective of a denunciatory sentence is to communicate society’s condemnation of a particular offender’s conduct. The court may be the voice but it is in fact speaking on behalf of society and in condemning the crime it is also reaffirming the society’s values.
As Lamer CJC said in R v M:
“A denunciatory sentence represents, ‘A symbolic collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.’”
The third principle is deterrence. Here what is relevant is primarily general deterrence so that others who may be tempted to abuse their power and authority over children, whether their own or others, will pause, consider their position and resist that temptation.
In respect of the offences of incest and rape the Court of Appeal has repeatedly said that deterrence is a very substantial sentencing objective, see R v Hui Yee Chun [1991] 2 HKLR 150, Secretary for Justice v Lau Yun Leung [1999] 3 HKLRD 289, HKSAR v Tam Kam Fai CACC 329 of 2001.
Insofar as there may be a likelihood of the defendant re-offending the sentence should contain an element of personal deterrence. In view of the psychiatric and psychological findings in respect of the defendant there is also a need to protect society but this need can be accommodated by imposing a lengthy sentence of imprisonment.
Finally, there is also the need to address the rehabilitation of the offender. However, when crimes are as serious as the ones committed by this defendant the issue of his rehabilitation is overshadowed by the other principles of sentencing that I have mentioned.
With these sentencing principles in mind I turn to the offences to which this defendant has pleaded guilty. The Court of Appeal has endorsed the approach taken in England in assessing the gravity of rape offences. In R v Millberry & Ors [2003] 2 All ER 939, the English Court of Appeal referred to the comments of the Sentencing Advisory Panel and at pages 942 to 943 of the Law Report, Lord Woolf CJ said:
“The panel begins its proposals by suggesting that –
‘there are, broadly, three dimensions to consider in assessing the gravity of an individual offence of rape. The first is the degree of harm to the victim; the second is the level of culpability of the offender; and the third is the level of risk [posed] by the offender to society.’
We accept that courts should consider each of these dimensions whenever a sentence for rape is imposed. We endorse was what stated by Lord Lane CJ in R v Billam, and repeated by the panel in its advice, that while rape will always be a most serious offence, its gravity will depend very much upon the circumstances of the particular case and it will always be necessary to consider an individual case as a whole taking into account the three dimensions to which we have already referred.”
In respect of the first two dimensions the offences of this defendant are at a very high level of seriousness, almost within the band of the worst cases of their kind. The impact upon the victims I shall not repeat. It has destroyed their lives and they are now going through a process of rebuilding new lives for themselves. But at this time how successful they will be in doing so remains uncertain.
It has also had a major impact upon the mother. One of the clinical psychologists interviewed the mother and noted that she had little ability to cope with what she had endured and had previously attempted suicide in response to the defendant’s maltreatment of her and her daughters. Achieving the objective of retribution necessarily requires the imposition of a substantial and severe sentence.
In respect of the moral culpability of the defendant for his conduct there is little that can be said to lessen it. He is not suffering from any mental impairment. The psychiatrist concluded that there is no evidence that the defendant is suffering from any formal psychiatric illness and no psychiatric treatment is warranted.
The defendant has said the reason he pleaded guilty was to spare his daughters from having to appear in court and this I accept. However, the defendant’s explanation to the psychiatrist and the psychologist as to the reasons for committing these offences and his acceptance of the circumstances of their commission does not reveal any genuine remorse by him.
From all the materials placed before me it is clear to me that the defendant is a man with a strong but perverted sexual drive and no inclination to curb it. Quite the contrary. He seemed to enjoy the extraordinary opportunity that a wife and three daughters provided him for indulging it. This despite the fact that he had many outlets for satisfying his sexual desire as he had multiple wives and girlfriends.
Instead he turned to his daughters treating them as his sexual toys to do with as he wished. He was completely indifferent to the pain and suffering both physical and psychological that he caused them. It is quite clear that the way the defendant lived his life was the result of his own choices. He committed these crimes in full control of his faculties and with full knowledge of what he was doing.
I can find nothing in the psychiatric and psychological reports and what the defendant’s counsel has submitted to me that lessens to any meaningful degree the moral culpability of the defendant for these crimes. Indeed, quite the opposite. The psychologist’s report portrays the defendant as a person who views people: “As tools to be manipulated to satisfy his needs.” The psychologist said at paragraph 13 of the report:
“He manipulated the love of his daughters to him. He treated them as only two of his casual sex partners instead of his daughters.”
This comment sums up the attitude of this defendant to his daughters. These are extraordinarily horrific crimes which call for a singularly severe response from the court. There are no words which can adequately convey this court’s nor society’s condemnation of this defendant’s conduct. When a father replaces parental love with animal lust and treats his children as though they were less than human, as just sexual objects who existed solely to satisfy his lust, how does one respond to such conduct?
At such times language seems quite a poor medium for conveying the depth of feeling that these crimes generate. Words such as “revulsion” and “despicable” seem quite inadequate in expressing the court’s and society’s denunciation of his conduct. Let there be no doubt that what this defendant did is wholly contrary to the values by which Hong Kong people live and the courts will reflect and affirm that fact by not just making statements condemning that conduct but by imposing sentences sufficiently severe and substantial to protect and preserve those values.
Although the offences in respect of each victim are separate, I shall nevertheless treat the rape offences vis-à-vis each victim as one course of conduct and enhance the starting point to reflect the fact that the offence was repeated. As one course of conduct I shall order the sentences for the rapes in respect of each victim to be served concurrently with each other.
However, because there are three different victims the final sentence must reflect the defendant’s overall culpability. This will involve the use of the power to order the sentences for the offences in respect of each victim to be served consecutively or partially consecutively to the sentences for the other victims. This final sentence will then be subjected to the application of the totality principle.
The defendant is 51 years of age with a significant criminal record, mostly for offences of dishonesty. Other than the plea of guilty there is no other mitigation. Nevertheless, I see from the cases that an additional discount is sometimes given for the fact that by his plea the defendant has relieved the victims from having to give evidence and in so doing relive the trauma of the past.
Here that benefit to the victims is considerable. All three victims are young and the twins are very young. All have been severely traumatised and I am sure that giving evidence would have been a most distressing experience for them.
For the offences in respect of the eldest daughter, ‘X’, that are the subject of Charges 1 to 4, I take as my starting point 18 years’ imprisonment on each count. For the plea of guilty I discount the sentence to 12 years’ imprisonment and allow a further 6 months discount for the fact that ‘X’ is relieved from having to testify. I order that the resulting sentences for each count of 11 years and 6 months’ imprisonment run concurrently with each other.
For the offences in respect of the twin, victim ‘Y’, that are the subject of Charges 5 and 6, I take a starting point of 18 years and discount it to 12 years and allow a further 6 months discount for the fact that ‘Y’ is relieved from having to testify. The sentences for the two counts of rape of ‘Y’ then become 11 years 6 months and I order that they be served concurrently with each other.
For the count of indecent conduct in respect of the other twin, ‘Z’, that is the subject of Charge 7, I take as my starting point 12 months’ imprisonment and reduce it to 8 months. I allow a further 1 month discount for the fact that ‘Z’ is relieved from having to testify and sentence the defendant to 7 months’ imprisonment for this offence.
In terms of legal principle there is no doubt in my mind that the sentences for the offences in respect of each victim can be ordered to be served consecutively to the sentence imposed for the offences committed in respect of the other victims. This would make a total of 23 years and 7 months’ imprisonment.
The question I must now address is whether such a sentence fairly reflects the overall culpability of this defendant or whether it results in a crushing and unjust sentence that is disproportionate to his culpability for these crimes.
After carefully considering all that has been said on behalf of the defendant by Mr Delaney and taking into account the contents of the reports on the victims and the high level of seriousness of these crimes, I am of the view that a sentence of 23 years and 7 months’ imprisonment is not a disproportionate punishment but rather is one which meets the culpability of the defendant’s conduct and that is the sentence that I impose.
To achieve that sentence I order that sentences for the two offences of rape that I impose for Charges 5 and 6 in the indictment should run consecutively to the sentences in respect of Charges 1 to 4 and the sentence for the indecent conduct offence in Count 7 should run consecutively to the sentences for the other offences.
Mr K would you stand up. For the reasons that I have just given I sentence you to a total sentence in respect of all these charges to 23 years and 7 months’ imprisonment. You may sit down.