HKSAR v. Azad Mohammad Farhan

HCCC 464/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 464 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The accused, Mr Azad Mohammad Farhan, pleads guilty to one count of rape, contrary to section 118(1) of the Crimes Ordinance, Chapter 200.

The particulars of offence are that the accused, on the 1st day of June 2013, at Room 2, Rhine Guest House, 13th Floor, Block A, Chungking Mansion, Tsim Sha Tsui, Kowloon, in Hong Kong, raped a female ‘X’.

Facts admitted

On 1 June 2013, the victim, Miss ‘X’, then aged 22, came to Hong Kong for sightseeing from China with a girlfriend. They stayed in a room in Rhine Guest House, 13th Floor, Block A, Chungking Mansion, Tsim Sha Tsui. There was no ensuite bathroom inside the room.

At about 11.10 pm, the victim, after having a shower in the communal bathroom, sat on the bed inside the room, just wrapped herself in a towel, chatting to her boyfriend in China over the internet. Her girlfriend then went out to have a shower. The door of the room was closed but not locked.

The accused suddenly opened the door and entered the room and said, “Can we make friends”. The victim asked him to leave. The accused locked the door. The victim was terrified. She did not know the defendant and had never seen him before. She told the accused, in English, that she was scared and again asked the accused to leave. The accused said that he wanted to see the victim’s body. The victim was frightened and asked the accused if he would leave if she allowed him a quick glance, hoping that that would be the end to the matter.

The accused however said, ‘If you cry out, I will...” and then did a throat-cutting gesture with his right hand, whilst patting his trouser pocket with his other hand. The victim thought that the accused might have a knife with him and would kill her if she shouted or tried to resist. The accused pulled off her towel and kissed her two breasts once. The victim started to cry but dared not resist or shout for help.

The accused signalled her to remove her knickers, again making a throat-cutting gesture. He pulled her knickers to one side and licked the victim’s vagina. He took out his penis, wiped it on the victim’s towel and grabbed the victim’s head, sticking his erect penis into the victim’s mouth, in and out for seven to eight seconds. The victim felt sick and humiliated.

The accused held her hand to make her touch his penis. The accused then pulled the victim onto one side of the bed and pressed his penis into the victim’s vagina, thrusting up and down for about 20 seconds. He did not use a condom. The victim did not know if the accused had ejaculated. The victim was very terrified and was suffering great pain so she tried to get rid of the accused by saying that her friend would return to the room soon. The accused put his shorts back on and left.

Later, the victim and her friend made a report to the police.

On 2 June 2013, examination of the victim by a forensic pathologist revealed that the lips of her vagina (inner lining of labia minora) had been damaged and split, causing bleeding and there was also a reddish bruise on her hymen which was consistent with some form of mechanical interference to the private part including sexual intercourse within the preceding 24 hours.

DNA analysis of the high and low vaginal and vulval swabs taken from the victim show that there was semen and sperm of which the donor was the accused.

After studying the CCTV coverage of the building, the police arrested the accused who lived in another block of the building. On being arrested, the accused said he did not know anything because of drink.

In the video-recorded interview subsequently conducted, the accused admitted going into the victim’s room by mistake and the victim encouraged him to kiss her and initiated the sexual intercourse.

On 3 June 2013, the victim identified the defendant as the person who raped her.

Criminal Record

The accused has 5 previous convictions, including one count of rape and one count of non-consensual buggery. He was last convicted of these two offences and an offence of robbery on 13 May 2013 and was sentenced to a total of 18 years’ imprisonment.

Mitigation

The counsel for the accused makes a very thorough mitigation on behalf of the accused. The accused is aged 28, born in India, educated there up to grade 9. Having embroiled in politics in India and facing death threats, the accused came to Hong Kong in 2008 and applied for asylum which he has now withdrawn because, despite the risks to his life, he wants to return to his family in India after serving his sentences.

His parents, who are in India, are in their 50s. He has two sisters and two brothers who are well-educated and the two brothers are businessmen in Hong Kong.

The accused has a clear record and is ashamed and embarrassed of what he had done and apologises to the victim and everyone. The accused worked hard to eke out a living by finding rooms for customers in guesthouses. He was trying to look for the proprietor of the guesthouse to get a room for his customer when he mistakenly entered the room of the victim, thinking that the proprietor was inside the room.

The defence counsel emphasises that the offence in the present case is not pre-planned and that the defendant has pleaded guilty, saving the court’s time and the embarrassment of the victim having to testify in court.

The defence counsel submits a letter of the accused to the court. In the letter, the accused apologises to the court, the victim and the Hong Kong people and asks for forgiveness. He also promises to his God and his mother that he will not commit such offence again.

The defence counsel also draws the court’s attention to the fact that the accused did not use violence and did not use or display any weapon in the commission of the offence and the victim was not restrained. The defence counsel says that there is no evidence that the accused had ejaculated or that the offence has any serious impact on the victim physically or mentally. The victim has not become pregnant or infected with any disease because of the incident.

The defence counsel points out that the sentence of 18 years’ imprisonment the accused is now serving because of the offence of rape, non-consensual buggery and robbery in HCCC 44/2014 is manifestly excessive and unjust. She urges the court to adopt 5 years’ imprisonment as the starting point in the present case and enhance it for the aggravating features of no condom being used, but order the sentence to run concurrently with the sentence in HCCC 44/2014 to reflect the totality of sentence and to achieve a just result, citing R v Tong Hoi Fung [1989] 1 HKLR 610 and HKSAR v Yau Wai Chun, CACC 417/2000, for the reference of the court.

The defence counsel also cites a number of other cases. They are R v Chan Chi Wah [1989] 2 HKLR 133, HKSAR v Cheung Lai Man [2004] 2 HKLRD 473, SJ v Rashid Mahmood [2012] 3 HKC 138, and Mahal v HKSAR [2012] 1 HKC 146, concerning the quantum and the aggravating factors in the case of rape, and Chow Chi Lai & Others v R [1976] HKLR 381, concerning the consideration of starting point and the age of an offender.

Sentence

Rape is a very serious offence. In a considerable number of English authorities, notably the case of R v Billam [1986] 92 Crim App R 347, it was said that an offence of rape committed without any aggravating or mitigating factor, the starting point is no less than 5 years imprisonment.

Although some Hong Kong authorities have said that Hong Kong courts are not bound to follow this practice, the Court of Appeal in Hong Kong has consistently adopted such a sentencing approach.

In the present case, the accused did not know the victim. Although there is no evidence that he pre-planned the offence, he entered the room of the victim and did not leave when he was asked to do so. Even if he had genuinely entered the room by mistake, he no doubt made up his mind to molest the victim when he found her inside the room by herself. He threatened the victim with the gesture of throat-cutting and even hinted that he had a weapon in his trousers pocket. This is a serious aggravating factor.

The room, despite being inside a guesthouse, was in all senses the castle of the victim at that time and was supposed to be her sanctuary, safe from intrusion of outsiders. The accused, however, intruded into her castle and raped her. Although the victim had not been restrained and the accused had not used violence and had not used or displayed any weapon, he threatened to use violence by making a gesture of throat-cutting and patting on his trousers pocket to indicate that he had a weapon.

The victim actually suffered injury to the lips of her vagina and bled. This no doubt was caused by the sexual intercourse which the accused carried out without the consent of the victim.

While there is no evidence that the accused had ejaculated, the case is further aggravated by the accused not using a condom during the rape. It is fortunate that the victim has not got pregnant or infected with any disease, but this by no means mitigates the gravity of the offence. Of course, if the victim has got pregnant or infected with disease, this would be serious aggravating factors the court has to consider in sentencing.

The prosecution furnishes to the court a statement from the victim saying that she still feels scared whenever she remembers this incident, and she is terrified that the same thing may happen to her again whenever she lives in a hotel or apartment house and she now makes sure that the door of the room is properly secured.

The defence counsel asks the court not to give weight to such a statement and emphasises that there is no evidence that the victim has suffered any psychological impact because of the incident. The court accepts that what is said in the statement of the victim has not been assessed by any professionals such as clinical psychologists or psychiatrists.

The victim in the present case is a Chinese national and she is not willing to stay in Hong Kong for assessment to enable a psychological impact report to be compiled. This is understandable in view of what had happened to her in Hong Kong. It is, however, commonsense that in a case of rape, the victim will invariably suffer some degree of emotional and psychological trauma.

Having considered the whole circumstances of the case and the relevant authorities, the court adopts a starting point of 8 years imprisonment. Giving credit to the accused for his plea of guilty, the court sentences him to 5 years 4 months imprisonment.

The case for which the accused is now serving time happened in 2011 while the present case happened in 2013. They are no doubt separate and distinct cases. The sentences should, theoretically, run one after the other. Whether the sentence passed on the accused in the first case is manifestly excessive or unjust is not the question for this court to consider. It is clearly a question for the Court of Appeal if the accused takes it to appeal.

Having said that, in all fairness to the accused, the court does have to take the totality principle into account although, in doing so, the court does not have to form any view in relation to whether the sentence passed on the accused in the first case is proper or otherwise. Having done so, the court orders 2 years of the sentence of the present case to run concurrently with the sentence in HCCC 44/2014.

The total sentence of the two cases is thus 21 years 4 months imprisonment.