HKSAR v. Tsang Chiu Tak

[English Translation – 英譯本]
CACC 386/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINSTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 386 OF 2011

(ON APPEAL FROM HCCC NO. 4 OF 2011)

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BETWEEN

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Before: Hon Cheung CJHC, Hon Tang V-P and Hon Cheung JA in court

Date of Hearing: 29 May 2012

Date of Judgment: 29 May 2012

Date of Reasons for Judgment: 4 June 2012

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving reasons for judgment of the Court):

1.The Applicant was charged with 2 counts of “Rape”, contrary to Section 118(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. Following a trial in the Court of First Instance before Madam Justice M. Poon and a jury, the Applicant was convicted on both counts and sentenced to 12 years’ imprisonment. He applied for leave to appeal against conviction and sentence. He acted in person for his application in relation to the conviction whereas Mr James Tze of Counsel acted for him for his application in relation to the sentence. On the hearing day, he abandoned his application for leave to appeal against conviction and the application was dismissed by the Court right away. After hearing his application for appeal against sentence, the Court dismissed it for reasons as follow.      

Facts of the case

2.The victim of the case, X, was a girl of 15 years old at the material time. The other defendant of the case was X’s mother (“Mother”). The Mother and the Applicant were a cohabiting couple. They lived with X and her younger brother. The Mother was charged with aiding and abetting the commission of the 2 counts of “Rape” by the Applicant. At the trial, the Mother pleaded guilty to one of the “Abetting” charges and was sentenced to 7 years’ imprisonment.

3.The facts of the case indicated that one night in mid-August 2003, X was sleeping in her room at home. At about 12 midnight, the Applicant and the Mother returned home. The Applicant entered X’s bedroom and attempted to lift up her quilt to fondle her. He told X that he was her sworn father and could do whatever he wanted. X did not allow it and had a struggle with him. He could not have his way as intended and then returned to his bedroom. He asked the Mother to persuade X to go into their room. The Mother said X would not agree. He asked the Mother to tell X that he would not destroy her virginity. The Mother then asked X to go into her room and told X that she would not give X any pocket money if X did not agree to do so. In fact, such “pocket money” was to pay for X’s and her younger brother’s meal boxes. X told the Mother that she was just having her period and did not want to go into her room. The Mother said that she had made such an excuse to stall off the Applicant one week ago already and that this time she could not use it again. Eventually, the Mother pushed X into her room. After X had entered the room, the Applicant took off her clothes and had sex with her while the Mother was sleeping on the other side of the same bed. After that, X kicked off the Applicant with force and left the room (the 1^st count).    

4.After that occasion, X became afraid of sleeping in her room. She and her younger brother slept on the floor of the living room together. A few days later, the Mother asked X to go into her room again. X refused. The Mother told X again that X would not get any pocket money if X did not go into her room and she pulled up X forcibly. X had no alternative but to go into the Mother’s bedroom. The Mother told her that the Applicant would not “interfere with her and wanted to touch her only”. On that occasion, the Mother did not accompany X into the room. After X had entered the room, the Applicant took off her clothes and had sex with her again. Soon afterwards, X kicked off the Applicant and left the room (the 2^nd count).   

5.In September, shortly after the incidents, X complained to a few schoolmates that she had been abused by her mother’s boyfriend.     

6.Seven years later, X had a boyfriend. She told him that she had been sexually abused by the Applicant. Her boyfriend suggested that she tell a social worker about the incidents and call the police. However, ‘the Applicant’ (sic) did not do so because at the time the social worker whom she trusted had left his post, her mother was suffering from heart disease and her younger brother was moderately mentally retarded. In May 2010, X met the social worker whom she trusted again and revealed to him that she had been sexually abused by the Applicant. After several twists and turns, the social worker of the housing estate where X lived eventually accompanied her to make a report to the police.

7.The Applicant had committed many offences of “Possession of a Dangerous Drug”.

The Sentencing Principle

8.The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.  

9.The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:

(1) The age difference between the defendant and the victim;

(2) The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;

(3) Whether the defendant had used threats or inducements to make the victim succumb;

(4) The number of occasions of committing the offences and the duration of the offences;

(5) Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6) Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant; 

(7) Whether the sexual abuses have caused physical or psychological trauma to the victim;

(8) Whether the offences have impact on the family members of the victim;

(9) Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and

(10) Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.

See HKSAR v. Chow Yuen Fai [2010] 1 HKC 181, HKSAR v. Lee Hon Wah [2011] 4 HKLRD 319, HKSAR v. Ng Ka Kin (CACC 328/2010) and HKSAR v. Lee Kwok Wai (CACC 199/2011).

The Sentence of this case

10.Undoubtedly, 12 years’ imprisonment was a severe sentence. Nevertheless, the sentencing principle was that the court should pass an appropriate sentence in accordance with the facts of the case. Sentences of similar cases could serve as reference, but ultimately the court passed the sentence based on the distinctive background of the case. This Court agreed that the sentencing approach adopted by Madam Justice M. Poon was appropriate because the facts of the case were really serious and there were many aggravating factors in the case:

(1) The Applicant was 40 years old at the material time. He had abused X twice. At the time, X was just 15 years of age and she was vulnerable and could not protect herself.

(2) The Applicant was the Mother’s boyfriend and they lived in the same residence at the material time. X called the Applicant “sworn father” and there was a special relationship of trust between them. Being an elder member of the family, he bullied X in order to satisfy his sexual desire.

(3) From the facts of the case, the Applicant wanted to abuse X long ago. Having failed to abuse X at his first attempt, he took advantage of his intimate relationship with the Mother to egg her on to force X to succumb. The Mother was X’s closest family member but not only did she fail to protect X and stop the Applicant from abusing X, she also took part in the offences and coerced X to have sex with the Applicant. X said that under such desperate circumstances, she did not resist and was raped by the Applicant. By fair means or foul, the Applicant got the Mother to sell out her daughter to achieve the purpose of raping X. Such modus operandi must be regarded as more serious amongst similar cases.      

(4) Although the Applicant pointed out that he did not ejaculate inside X’s body, he did not take any safety measures at all in the course of abusing her, thereby putting her at risk of getting pregnant and contracting venereal disease.

(5) X suffered tremendous psychological and physical trauma after the offences. According to X’s trauma report, although the offences took place many years ago, she had perpetual depression which affected her normal living functions. She suffered from Post-Traumatic Stress Disorder and the agonizing scenes of being abused kept appearing in her mind. She often felt helpless and incapable and resorted to self-evasion. She had symptoms of serious depression. She had tried hard to forget the incident, including moving out of the residence and avoiding contact with anything that could intrigue unpleasant memories. However, she still often felt panic-stricken and a lack of sense of safety. She tried to persuade herself into forgiving her mother and even came up with various exculpatory reasons for her but in vain. The Applicant had taken her virginity and so she often felt herself as dirty and had a poor self-image. In order to alleviate the pressure, she even chose to harm herself by cutting her wrist/s. She showed symptoms of perpetual exhaustion, headache, dizziness and sexual numbness, etc. Apart from physical and psychological suffering, her trust in her mother was completely destroyed because her mother only cared about her own interests and ignored her welfare. She also blamed herself for reporting the incidents to the police, causing her younger brother to be sent to a residential care home.

(6) Besides, the Applicant’s acts had broken X’s family. X’s mother was sent to jail and X needed to take care of her moderately mentally retarded younger brother put in a residential care home.  

11.The Applicant said that he acted under the influence of alcohol at the material time. He now felt deeply remorse for the incidents. However, it was not a mitigating factor.

12.This Court dismissed his application for reasons given above.

The Applicant, in person, present (Conviction)

James Tze, instructed by Herbert Tsoi and Partners and assigned by the Legal Aid Department, for the Applicant (Sentence)

Ira Lui, Senior Public Prosecutor, of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law