COURT: The defendant was convicted by a jury of an offence of indecent assault (being count 2) and one of rape (being count 3) onthe indictment. He was acquitted of another charge of rape (being count 1). All verdicts were unanimous.
The facts of counts 2 and 3 were as follows.
The defendant contacted both victims through social websites and then communicated with them by way of messaging websites. He eventuallysuggested meeting them at Wanchai MTR and subsequently walked with them back to his small serviced apartment block in Queen’s RoadEast.
In regard to the victim of the second count, a strongly built 30-year-old girl referred to as “Miss X” during the trial, oncethe defendant had her in his small room, he showed her some photos of his family and some travel photos. He then tried to kiss her,forced her back onto the bed upon which they had been sitting, and, in spite of her struggles, managed to move aside her upper garmentsand kiss her breast. He then succeeded also in undoing, but not removing her lower garment. While he was occupied with that, shefinally managed to push him aside and rushed out of the room.
In regard to the victim of the third count, who gave evidence as “Miss Y”, the defendant, after a relatively brief contact withher over a messaging website, arranged to meet her and again walked with her back to his room, showed her some family or travel photographsand then, after kissing or trying to kiss Miss Y, pushed her onto the bed. He then removed her lower clothes whilst pressing herdown. She then removed her upper clothing after the defendant had unbuttoned her bra and told her to do so. The defendant then separatedher legs and penetrated her.
Throughout this, Miss Y had been resisting, crying, and had told the defendant to stop. Miss Y was a virgin and eventually startedto bleed. The defendant withdrew and allowed her to go to the bathroom to wash herself.
When she returned to the main part of the room, she was still naked and the defendant, who had not yet ejaculated, asked her if shewanted to try again. To avoid further sexual intercourse, either as a result of her own suggestion or his, she consented to helphim masturbate. When he ejaculated, they both washed their hands and dressed.
The defendant walked with her to the vicinity of the Wanchai MTR and forced her to kiss him goodbye. Miss Y then went home by bus.She had already made a virtually immediate complaint of rape on a messaging site and later, upon reaching home, did so again to anotherperson.
I will firstly deal with sentence in respect of Miss Y. She was a 20-year-old university student at the time of these events and presentedas a naïve and gullible young woman in her evidence.
The defendant was born in Belgium on 12 October 1978 and at the time of the offence was 35 years old.
Having heard all of the evidence in this trial and having looked at the various Internet messages produced in evidence between himself,Miss X and Y on social websites, I am sure that the defendant had embarked, using these websites, on a grooming campaign in respectof both X and Y for the purpose of eventually meeting them and having intercourse with them. To put it bluntly, he was a sexual predatorand the Internet was used by him for those purposes.
Regarding the rape of Y, in arriving at a starting point, I take into account the defendant, at about the time she started bleeding,did withdraw, responding only then to her continuing demands for him to stop and perhaps being aware that she was bleeding at thattime.
In my view, that particular action was a part of the acts forming the offence and goes to the question of the starting point of sentence,rather than being a mitigating factor.
It causes me to take a starting point of sentence of 5 years’ imprisonment, rather than one of 6 years, which I otherwise wouldhave adopted. In doing so, I have taken into account the comments of the court in Leung Yuet Hung, CAAR 1/2014.
There are matters which do amount, in my view, to aggravating factors.
The first is quite simply the fact that this event was planned or at least the preliminary Internet contacts were made, and the meetingof Y with the defendant was arranged, with the purpose of the defendant in mind to have sexual intercourse, potentially, with Y,with or without her consent.
I regard the offence as being aggravated also by Y being a 20-year-old virgin. She said in her first complaint, words to the effectthat she had lost something important, and the culpability of the defendant is thereby increased. I have no doubt the jury acceptedher evidence that she had informed the defendant of this fact at an early stage of the events in his room.
I regard also the defendant not using a condom as an aggravating factor. That cannot have been mere absentmindedness.
And as a final aggravating factor, I take account of Y, in the circumstances in which she found herself, being compelled to assistthe defendant to masturbate.
Those aggravating factors increase the starting point of sentence to one of 7 years’ imprisonment.
There is very little which can be advanced as any meaningful mitigation.
Mr Marash suggested a number of matters which, in my view, do not assist him.
The fact that the defendant had lived in Hong Kong for only a short time, in my view, is not mitigation. The fact that he knows fewpeople in Hong Kong, that he is away from his home country does not assist him. He will suffer no undue hardship in that regard inserving his sentence.
Nor does the submission made on his behalf that he may find it difficult to get a job in the future avail him in any way. That appliesto all who are convicted of serious offences.
Further, given the fact that the defendant has been convicted of two offences some months apart in the short time he had been in HongKong, I ignore as a mitigating factor that he had no criminal convictions in that time.
Nor, in my view, is the fact that no serious violence occurred and no weapon used to threaten Y a mitigating factor. The circumstancesof the rape were considered by me in adopting the initial starting point of 5 years, as was, as I had said, the fact that the defendantwithdrew at the time of Miss Y starting to bleed.
Accordingly, in respect of his conviction on the third count of rape, I sentence the defendant to 7 years’ imprisonment.
So far as the second count of indecently assaulting Miss X is concerned, I take account of the circumstances of the offence and bearin mind that the modus operandi of the defendant was interrupted only by Miss X’s escape from his room. Till that point of time,the defendant had pushed aside her upper garments and had kissed her breast. He had commenced to remove her lower garments, whichmust have been a very frightening moment for Miss X. There was no doubt her escape prevented a worse offence taking place.
I take an initial starting point of sentence of 18 months’ imprisonment.
That, because of the element of planning, is enhanced to a sentence of 2 years’ imprisonment.
There is, as I have said, no substantial mitigation in respect of those matters raised by Mr Marash, which I have already dealt with,and the additional submission that Miss X was not so naïve as Y is, with respect, of absolutely no weight as mitigation.
The defendant is sentenced to 2 years’ imprisonment on count 2.
So far as totality of sentence is concerned, I take into account that these offences were separated by more than two months and involvedseparate victims.
In my view, the correct totality is reflected by ordering that 1 year of the count 2 sentence be served consecutively to the count3 sentence.
That is a total sentence of 8 years’ imprisonment.