COURT: The defendant is convicted after trial of one count of procuring acts for an unlawful sexual act by false pretences, contrary to section 120(1) of the Crimes Ordinance and one count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap 200.
The victim X came to know the defendant through her twin elder sister who intended to start a romantic relationship with the defendant after getting to know him on QQ. They met twice before the day of the incident. On the day in question, X was asked to go to the defendant’s flat under the pretext that the defendant could cure her son’s mental retardation.
She was shown pornographic pictures and was told that those were taken after the defendant had performed rituals on the husbands and the wives willingly offered themselves to do these acts with him to show their gratitude. The defendant talked her into performing the rituals. X knew that the rituals involved acts of a sexual nature which involved something which would harm her body, although she had no idea of what it entailed or its precise perimeter, but her consent was limited to acts other than sexual intercourse.
She could not offer any explanation as to why she agreed to the ritual. She described a condition of feeling very dazed but conscious during the rituals after she drank coffee from a plastic cup offered by the defendant. Methamphetamine, "Ice", was found in the blood and urine samples of X and traces were found in the cups seized from the defendant’s home.
During the rituals, the defendant covered X’s eyes with a towel and applied salt and then stuck a sausage into her vagina. When she had to answer a call of nature, she was told to urinate into a rubbish bin. Eventually, the whole sausage was inserted into her body and the defendant asked her to force the sausage out with might, like labouring.
During the ritual, the defendant penetrated her with his penis briefly, telling her that this was not for his own benefit but all the benefit was to be credited to her boyfriend. The defendant had also stuck his clenched fist into her vagina. All these were done in the presence of X’s twin sister. X was in the defendant’s flat for more than 12 hours before she left and the defendant had used a purple scarf to tie around her breasts under the pretext of enhancing her drooped breasts.
The defendant is now aged 39. He claimed to have once engaged in successful business in China but all his shops had to be closed down after a fire accident in one of the shops which resulted in a few deaths. The defendant had to sell his properties to settle the matter before he could return to Hong Kong with his daughter, after his wife had deserted him. The daughter is now aged 5 and born with congenital disease, namely angioma.
He had been on Comprehensive Social Assistance. He was interested in meeting women through QQ and he, according to the psychologist, tended to exaggerate his achievement and portrayed himself as a single parent with a successful business to impress the women in order to meet and acquaint with them eventually. The defendant has an aged mother in her 70s and a girlfriend who both described him as a loving, responsible and good-natured person and both begged for clemency on his behalf.
According to his up-to-date medical report, apart from suffering from Wolff-Parkinson-White syndrome, due to be operated on on 25 October, his general health condition remains satisfactory. There is no sign that his life expectancy would be compromised due to the said condition. Even if that medical condition might mean that he might suffer from hardship whilst in prison, the prison services could make special arrangements for him and that condition alone is not a reason to entitle him to a lesser sentence than would otherwise be appropriate to his culpability in this case.
The psychologist and psychiatric reports tell me that he had suffered from depression; he had harboured suicidal thoughts. The clinical psychologist formed the impression that the defendant is a manipulative individual with low frustration tolerance and inadequate problem-solving ability, poor emotion control and low self-esteem. He is impulsive and short-sighted and did not consider the consequences of his actions. He had resorted to substance abuse, that is abusing "Ice", in coping with his multiple psychosocial stressors and maladaptation. His risk of re-offending is assessed to be low to moderate.
Mr Chung, in mitigation, submits that the main problem in relation to the defendant arose from his "Ice" abuse and that he is very remorseful now. Mr Chung urges me to bear in mind the totality principle in sentencing this defendant.
Victim Impact
The victim X is now 38 years old. She married a Hong Kong resident and gave birth to her son back in 2001. Her marriage broke down but she managed to come to Hong Kong by single entry permit. Her son was diagnosed with mild grade mental retardation and she worked as a masseuse and Putonghua teacher to make a living.
According to the clinical psychologist, X refused to talk about details of the incident. She experienced various post-traumatic symptoms such as fear, anxiety, insecurity, shame, irritability and anger. She was paranoid as to drinking water provided by others and even went so far as to avoid walking past those drink-selling counters in the supermarket. She was always in hyper-vigilant state and over-reacted to being touched by others. Her trust for others diminished significantly and she harboured paranoid thoughts that computers would increase her chances of being traced by others. She is receiving, currently, both psychiatric and psychological treatment and counselling.
The facts of this case, as accepted by the jury in convicting this defendant, reveal appalling and despicable behaviour on the part of the defendant. After befriending her sister and coming to know her son’s mental condition, he had deliberately set out to exploit her vulnerability and naivety by telling her that his rituals could help improve her son’s mental retardation. His acts were not impromptu but premeditated.
The victim was subjected to prolonged sexual indignities and perversions and the impact of the incident on her remains strong and will no doubt be immeasurable in terms of time and effect, both physically and psychologically. Furthermore, lacing her coffee with "Ice" to weaken her power of reasoning to enable him to carry out the perverted acts unimpeded is another aggravating feature. Also, the defendant had failed to use a condom during the penile penetration.
This is a bad case of rape which, in my view, warrants a starting point of 12 years’ imprisonment. For the procuring charge which is part and parcel of the whole incident and the aggravation of which has been considered in the rape sentence, I adopt a starting point of 3 years’ imprisonment.
Whilst there is no question of me increasing the sentence regarding his choice to fight this case, the defendant’s choice to have the victim relive the traumatic experience in detail in court and be subjected to attacks on her character has cost him the only real mitigation available on a plea of guilty.
I order the sentences in respect of the two charges to run concurrently. The 12 years’ imprisonment is the sentence I pass.
Please refer to CACC374/2013 for the relevant appeal(s) to the Court of Appeal.