HKSAR v. Chan Wai Tung

HCCC 428/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 428 OF 2012

-----------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT: The defendant was found guilty of one count of rape after a six-day trial before a jury. At the conclusion of the trial I heard mitigation and adjourned the sentencing until an updated psychiatrist’s report on the victim of the rape was obtained. The victim of the rape, who was referred to throughout the trial as “Miss X”, gave evidence from behind a screen with the consent of the court and with the agreement of prosecution and defence.

On 14 June 2012 Miss X, who suffered from long‑term depression which was serious enough to warrant psychiatric treatment, left her home and went to a nearby park intending to commit suicide. She took with her a large quantity of prescription medicines, a can of beer and cigarettes. When she arrived at the park, she took what she believed was over a hundred pills and washed them down with the beer. She did not die but felt very dizzy, felt nauseous and wanted to vomit. While she was in that state she moved from the park to a staircase and eventually came to a seat or bench against which she said that she sat down or lay down. Later she became aware of somebody placing her on a trolley and pushing her along. When the trolley stopped moving she found herself in a quiet place, but had no idea where she was. By this stage she was likely to have been passing in and out of consciousness. She was unable to open her eyes, probably as a result of the tablets that she had taken, so she could not see who was with her and she was not able to stand up or walk.

She became aware of somebody trying to remove her top garment and pulled her top down to prevent it being removed. Having succeeded in preventing her top being pulled down, she became aware that her shorts had been removed. She pushed away the person who was with her, a person she believed to be a man and felt he had no clothes on. That person put his finger into her vagina and then thrust his penis in and out of her vagina more than ten times. Although she twisted her legs and moved to prevent this intercourse taking place, she was unable to prevent it from happening. She thought she had said something, either “no” or “help”, to the man as he was lying on top of her having intercourse. She was adamant that she did not consent to the intercourse.

After a time she heard voices asking what was going on, but essentially she was not aware of anything further until a woman police officer tried to rouse her and she was sent to hospital. Later Miss X told the police officer and a doctor in the hospital that she had been raped. The police officer said that Miss X was unconscious when she saw her at the scene and she was unable to wake her.

Prior to the incident, a security guard had seen the defendant pushing Miss X on a trolley. She appeared to him to be unconscious so he made enquiries and the defendant told him that the woman was his girlfriend and that he was taking her to get help. At first the guard, who gave evidence as PW6 at the trial, accepted this explanation but later he found it very strange so he reported to his supervisor, who was PW3 at trial. He and his supervisor went to look for the defendant. They came across him and Miss X in a rectangular open store room, or equivalent, at the base of a staircase. What they saw and described supported the allegation that the defendant was having sexual intercourse with the woman. They saw the woman who was apparently unclothed from the waist down, with the man lying on top of her between her legs. He had no clothes on. His hips and upper body were seen to be moving. At first the supervisor told the man not to engage in immoral behaviour and to leave because it was a public place. The man gave her the impression that he and his girlfriend were having sexual intercourse and essentially ignored her. The two guards went away and then came back a short time later. This time the defendant used foul language and told the supervisor to stop being so nosy, but eventually he left the woman and went off. The second security guard saw the defendant putting on his clothes having first put the woman’s shorts on for her. The shorts were later found to be inside out.

The defendant went to a nearby 7-Eleven store and was seen there on the CCTV buying various items. The supervisor and the guard called the police and Miss X was taken to hospital. Later, after a description had been circulated through the police console, the supervisor saw the defendant being questioned by a plainclothes officer. She recognised him and identified him as the man she had seen having sexual intercourse with Miss X.

Subsequent analysis by the Government Chemist and the Forensic Pathologist showed the victim had not taken any alcohol but that she had taken a number of tablets, three of them being tablets she had been prescribed and one being an over-the-counter remedy for sleeplessness.

The defence advanced at trial was that sexual intercourse had not taken place and it was suggested on behalf of the defendant that Miss X was confused because of the large quantity of tablets she had taken and that therefore she was hallucinating or delirious when she gave the account of what had happened to her; in other words, it was all her imagination. Clearly, the jury did not accept that.

The defendant did not give evidence himself, nor did he call any witnesses. A lot of the evidence was agreed between the parties.

In mitigation I was advised that the defendant is aged 28 and was educated to Form 3 level. He had previously been a construction site worker and then a transportation worker. He was single and lived with his parents in Aberdeen. Counsel submitted on his behalf that although the defendant did not give evidence, he had made no objection to the victim giving evidence from behind a screen. He pointed out that there had been no violence over and above that needed to carry out the rape, and there had been no injuries caused as a result of the rape itself.

Defence counsel said that the prosecution had suggested that a condom was used at the time. There was no evidence showing that a condom had been used. No used condom was found, although two unused condoms were found in the defendant’s back pocket at the time he was arrested. It is correct that there was no DNA evidence or contact evidence to support the sexual intercourse that had taken place. That may indicate that a condom was used.

As for the injuries, the victim herself when she gave evidence in court had spoken of having a right knee injury, but the doctor at A&E noted abrasions on both her legs, presumably caused by her being carried on the trolley, with her legs trailing on the ground.

I saw a psychiatric report obtained before trial reporting on the victim’s depression and prior to sentence sought an updated report which I have received today. The victim was shown to be remarkably less depressed compared to the weeks before the legal proceedings. It is stated that she was less troubled by catastrophic thoughts and was no longer overwhelmed by immense negative cognition. The victim had improved sleep quality. She had no more flashbacks or imagery during sleep and the psychiatrist put this down to the news of the court case being concluded. Miss X was showing good compliance with her medication and was no longer harbouring active suicidal ideation. She was assessed to be mentally fit and was currently stable and calm, showing very gradual improvement.

This was a very serious rape although I accept it was opportunistic rather than carefully planned. The defendant came across a woman who was obviously in a comatose or semi-comatose state and who very obviously was in need of some care. Without making any attempt to find out whether she was ill from a stroke or a heart attack, whether she had overdosed, was drunk or dying, the defendant commandeered a trolley left around the estate and used it to transport Miss X to a quiet place where he proceeded to remove her shorts and rape her.

He lied to the guards that she was his girlfriend; said that she was drunk and that he was taking her to seek help. He had sexual intercourse in public with a woman who was unable to consent. He ignored directions to stop and to leave, but continued raping Miss X until such time as it suited him to leave.

He made no report to police, or to the security personnel on the estate. He made no attempt to seek medical help. It is not known clearly whether or not he used a condom, thus the victim would have had reason to fear pregnancy and/or a sexually transmitted disease until such time as she could receive results of tests. Clearly there were risks to the victim in being subjected to intercourse when she was suffering from the effects of an overdose, even if that was not known to the defendant at the time. Clearly, he was reckless as to any consequences.

The defendant does not have a clear record but he has no previous sexual offences recorded. Most of his offences relate to violence, dishonesty or drug trafficking. His last recorded offence was in 2010, which was trafficking in dangerous drugs. He was given a 32‑month sentence and had been released from prison for about a month before this incident took place.

I have considered all the matters in this case and I note there has been no indication of remorse, although I accept that a lot of evidence was agreed at trial and that the time which was required from the victim to give evidence was comparatively short.

In all the circumstances of this case, I consider that 10 years is an appropriate sentence and that is the sentence that I impose in respect of the defendant.

Please refer to CACC121/2013 for the relevant appeal(s) to the Court of Appeal.