HKSAR v. Lai Wing Tat

CACC 363, 364 & 370/2019
(Heard together)

[2020] HKCA 892

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 363, 364 & 370 OF 2019

(ON APPEAL FROM HCCC 227, 352 & 228 OF 2019)

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Before:  Hon McWalters JA in Court

Date of Hearing:  23 October 2020

Date of Judgment: 23 October 2020

Date of Reasons for Judgment:  6 November 2020

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REASONS FOR JUDGMENT

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A.   Introduction

1.The present consolidated application concerns the sentences passed upon the applicant, who had pleaded guilty in the High Court before M Poon J (“the judge”) to the following counts[1]:

(i)  in HCCC 352/2019 , two counts of unlawful sexual intercourse with a girl under the age of 16 years, contrary to section 124(1) of the Crimes Ordinance, Cap 200 that occurred in September and November 2017;

(ii)  in HCCC 228/2019, two counts of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Cap 200 both of which occurred in February 2018; and

(iii)  in HCCC 227/2019, unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Cap 200 that occurred in May 2018.

2.On 12 December 2019, the judge sentenced the applicant to a total term of 9 years’ imprisonment.

3.The applicant subsequently filed Notices of Application for Leave to Appeal (“Form XI”) against his sentences.

4.At the hearing of the applications I granted the applicant leave to appeal his sentences on all grounds of appeal and said I would hand down my reasons for doing so at a later date.  These are my reasons.

B.   The background to the offences

B.1   HCCC 352/2019

5.Around January 2017, Z, who was only 13 years old at that time, became acquainted with the then 24-year-old applicant through her friends.  Z informed the applicant that she was aged 13.   

6.Z originally resided in a dormitory.  In July 2017 she escaped from it and started living with the applicant at his home in Sheung Shui, where they had protected consensual sexual intercourse in mid-September 2017 when Z was still 13 years old, and unprotected consensual sexual intercourse after she had just turned 14.  Later Z became pregnant and eventually delivered a baby. 

7.A DNA test confirmed that the applicant was the biological father of the baby, who was then put under the care of a foster family.  Under caution, the applicant stated that Z was his girlfriend and they were in a sexual relationship during which they sometimes had protected sex and sometimes not.  He was aware that Z was 13 to 14 years old.     

B.2   HCCC 228/2019

8.Y, who was only 12 years old, became acquainted with the applicant.  One evening in early February 2018, Y was with the applicant and a male friend till the very late hours, by which time all public transport services had ceased operation.  As Y could not go home, she accompanied the applicant to his home.  When they arrived there his family was sleeping.

9.Y and the applicant slept on a sofa bed in the living room.  They then had unprotected sexual intercourse and the applicant ejaculated in Y. 

10.In mid-February 2018, Y was with the applicant and some friends in Sheung Shui and again stayed out so late that all public transportation had ceased operating.  The applicant asked Y to go to his home again where they had unprotected sexual intercourse in which the applicant ejaculated in her.  

11.As Y was worried about getting pregnant, she related the two incidents to a social worker who then reported the case to the police.  In a video-recorded interview the applicant denied having sexual intercourse with her.          

12.The applicant was positively identified by Y in an identification parade. 

B.3   HCCC 227/2019

13.X, who was only 12 years old, met the applicant, who was then 26 years old, through her friends.  On the night of 19 May 2018, the applicant met X and took her with him to buy some beer before walking to a park near Tin Ping Estate, Sheung Shui.  There the applicant consumed some beer but X did not.  It was about 4 am.

14.He told X that he had had a row with his girlfriend and that he liked X but she said she did not like him. 

15.The applicant then carried X and laid her down on a stone table nearby, where he held her with one hand and used his other hand to undo his pants.  Without removing the shorts that X was wearing he inserted his penis into one of the legs of her shorts and then had unprotected sex with her.  At that time X was still a virgin and she felt pain during the sexual intercourse, which lasted for several minutes.  The applicant only stopped because he thought someone was nearby.  He was later positively identified by X in an identification parade. 

16.It should be noted that the count to which the applicant pleaded guilty was in fact laid in the alternative to a count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap 200.  The rape count was ordered to be left on the court file and not be proceeded with without the leave of the court.   

C.   The sentencing of the applicant

C.1   The mitigation

17.The applicant was 27 years old at the time of his sentence.  He had five prior convictions[2] one of which was for unlawful sexual intercourse with a girl under the age of 13 for which he had been sentenced to 14 months’ imprisonment on 15 January 2014, some four years before he committed the present offences. 

18.For the purpose of sentencing the applicant, three reports on him were sought.  They were a Probation Officer’s Report, a psychiatrist’s report and a psychologist’s report.  It was submitted that the reports showed that the applicant was not mentally abnormal, there was insufficient evidence to suggest that he was paedophilic and the age gaps between the applicant and his victims were not huge.  However, the applicant’s counsel accepted that it was the clinical psychologist’s opinion that the applicant’s risk of re-offending was very high.       

19.In relation to HCCC 352/2019, the applicant’s counsel accepted that it was an aggravating factor that he had impregnated Z, although admittedly they were in a relationship at that time.  It was put forward on the applicant’s behalf that he in fact wished to win back the custody of the baby.    

20.The applicant’s counsel asked the judge to note that the relevant “Victim Impact Reports” showed that the victims did not suffer from very serious psychological trauma from the offences.    

C.2   The judge’s Reasons for Sentence

21.Having considered the facts surrounding each of the applicant’s offences, the judge addressed the impact of the offences on each of the victims.  X’s report showed that her functioning was significantly disrupted during the period she was expected to testify in court against the applicant, and she was still suffering from psychological aftermaths from the offences that required psychological intervention.  Y exhibited a degree of self-blame for sleeping at the applicant’s home which rendered her his victim but did not suffer subjective symptoms or distress warranting psychological intervention.  Lastly, the judge noted that whilst Z refused to be seen by the clinical psychologist and no assessment could be made of her, it was not difficult to gauge “the long-term impact upon her who gave birth at such an early stage of her life when she herself has not yet even reached full maturity.”[3]

22.The judge then turned to the applicant’s background, the reports on him and the matters submitted to her in mitigation. She noted that the applicant had a conviction which was of similar nature in the District Court.  She therefore called for the case file in order to understand the circumstances of his prior conviction.  In that earlier offence the applicant had taken a 12-year-old girl, whom he had just come to know before he committed the offence, to a flat and there they had unprotected sex twice.  At that time there was no evidence to show that he was paedophilic nor was there any evidence to demonstrate his propensity to re-offend, and so a starting point of only 21 months was adopted. 

23.Unsurprisingly, the judge took the view that the applicant clearly had not learnt his lesson from his previous incarceration. Even though the applicant was not diagnosed as being paedophilic, the judge commented as follows:

“It is clear that the defendant’s sexual problem is not limited to a need for casual relationships but rather a preference of underage girls.”[4]

24.Though he was not diagnosed with any mental illness, the reports showed:

“He was preoccupied with sex and harboured biased perception that it would be lawful for him to have sex with anyone, regardless of their ages, as long as they gave consent.”[5]

25.He continued to claim that he had no knowledge of the girls’ ages and to blame X and Y for initiating the sexual intercourse. The risk of his re-offending was assessed to be very high, and psychological treatment was highly recommended. 

26.The judge concluded her view of the applicant by stating:

“It is clear that what the defendant was doing when interviewed by the clinical psychologist was simply trying to downplay or diminish his role. He exploited the young victims to gratify his sexual needs and he minimized the offences. He blamed X and Y for their mature looks and initiations for his misdeeds. He lacked remorse and victim empathy.”[6]

27.The judge referred to Secretary for Justice v Chung Yui Hung[7], which concerned a teacher who had groomed a 12 year old for sex through the internet and had unprotected sexual intercourse with her.  Upon a review of sentence, the Court of Appeal held that the facts of that case revealed a particularly grave offence, the sentence for which needed to contain a deterrent element. It adopted a starting point of 5 years, saying a long sentence would be called for, even for a first offender, where the circumstances warranted.     

28.Whilst the judge noted that the present case did not share the same aggravating feature of grooming an underaged girl for sex, she found the following aggravating features present.  First of all, more than one victim was involved.  Secondly, unprotected sexual intercourse took place which eventually led to the pregnancy of one of the young victims and thirdly the possibility of the applicant’s re-offending “has become a reality rather than just a risk.”[8]

29.In relation to HCCC 352/2019, the judge adopted a starting point of 2½ years for the first count, and 4 years for the second count from which pregnancy resulted.  When discounted by one-third these starting points then became 20 months and 32 months respectively. Having regard to totality, the judge ordered four months of the first count to run consecutively to the sentence in respect of the second count, making a total of 3 years’ imprisonment. 

30.Regarding the two counts in HCCC 228/2019, the judge adopted 4 years as the individual starting point for each of the counts which, when discounted by one-third, became 32 months’ imprisonment for each count. Having regard to totality, the judge ordered the four months of the first count to run consecutively to the sentence in respect of the second count, making a total of 3 years’ imprisonment. 

31.In respect of the single count in HCCC 227/2019, the judge took the view that the applicant’s act of pushing X onto the bench and having unprotected sex with her caused this offence to be “one close to borderline with rape”[9] and therefore adopted 6 years as the starting point.  She allowed him the full one-third discount[10] and sentenced him to 4 years’ imprisonment.     

32.On the overall culpability of the applicant, the judge said that she adjudged that “a starting point of 13½ years for all the offences is appropriate.  And given his one-third discount, he is sentenced to 9 years’ imprisonment.”[11]  In order to achieve this total sentence of 9 years’ imprisonment, the judge ordered “30 months out of the cases of 325 and 228 each to run consecutively to the 4 years’ in 227 which means that 4 years plus 30 months plus 30 months, making a total of 9 years’ imprisonment.”[12]        

D.   The applicant’s grounds of appeal

33.Mr Andy Hung, counsel for the applicant, raises six grounds of appeal in his Perfected Grounds of Appeal.  In Grounds 1-3 he complains that the starting points for the individual counts in all three cases are manifestly excessive and out of line with sentences imposed in other similar cases.  In Grounds 4-6 he complains that the judge erred in her assessment of the applicant’s overall culpability by adopting an overall starting point of 13½ years, and her failure in applying the totality principle resulted in an unduly crushing sentence of 9 years’ imprisonment upon the applicant, which is manifestly excessive in the circumstances. 

E.   The respondent’s submission

34.Mr Andrew Cheng, for the respondent, opposed the application.  He submitted that there is no tariff for the offences under sections 123 and 124 of the Crimes Ordinance, Cap 200 and that given the age of the victims, the impact on them and the aggravating factors the starting points for each of the offences were not excessive.

35.On totality Mr Cheng argued that the offences against X, Y and Z were undoubtedly distinct and separate, and the applicant’s repeated offending would have inevitably added to his culpability in subsequent offences as observed by the Court of Appeal in the case of HKSAR v Ngai Yiu Ching[13].  The judge could not, therefore, be criticised for ordering partly consecutive sentences. 

36.Mr Cheng fairly accepted that the final total sentence appears to be a high one but argues that in respect of this applicant and these offences a severe deterrent sentence was appropriate and necessary.     

F.   Discussion

37.I have carefully considered the Reasons for Sentence of the judge and can find no obvious error by her in assessing the appropriate sentence for this applicant.  The judge clearly bore in mind the relevant sentencing principles, namely denunciation of applicant’s conduct, deterrence, both general and personal, protection of the community given the risk of recidivism and punishment of the offender for his offending.

38.These are clearly very serious offences which call for a severe penalty.  The judge was correct in saying that the applicant has a preference for young girls.  It may be a preference due to ego and ability to manipulate and control, rather than paedophilic tendencies, but the preference is clearly there.  It is a preference which he implements in an abusive, totally selfish way, wholly indifferent to the harm his actions may cause his victims.

39.For all the reasons identified by the judge, the total sentence of imprisonment on this applicant must be a lengthy one.  The only question is how long it should be.  There is no doubt, as is accepted by Mr Cheng, that the judge’s final total sentence is at the high end of the range.  The question it seems to me is whether the sentence, by its severity, has ended up becoming a crushing one.  This is primarily an issue of totality.  Not without some hesitation, I have reached the view that it is reasonably arguable, and I put it no higher than that, an overall sentence of 13½ years is manifestly excessive.

40.In respect of the individual sentences I find the grounds of appeal less impressive and I have anxiously considered whether I should grant leave on Grounds 1-3.  I have decided I should as it seems to me unnecessarily artificial to consider the totality issue on its own and unhelpful to the applicant and the Court of Appeal to limit the way the appeal is conducted.

41.Before concluding these Reasons for Judgment I should point out one matter which may need correction.  In respect of those victims for whom two charges were laid the judge reached a view of the appropriate totality for each set of two charges.  There is nothing wrong in her so doing.  But when it came to her final sentence she made orders of consecutiveness in respect of her totality for each set of offences without specifying the particular sentence or sentences in respect of which the order of consecutiveness would operate.  I question whether this can be done under section 68 of the Criminal Procedure Ordinance, Cap 221.   

G.   Disposition

42.For these reasons I granted the applicant leave to appeal against his sentences.

Mr Andrew Cheng SPP, of the Department of Justice, for the respondent

Mr Andy Hung, instructed by Ernest Tang, assigned by DLA, for the applicant

[1]  They are set out in chronological order based on the date of commission of the offences.

[2]  In addition to his prior similar conviction, since 2009 the applicant had one conviction for “Criminal Damage”, contrary to section 60 of the Crimes Ordinance, Cap 200; one conviction for “Breach of Probation Order”, contrary to section 5 of the Probation of Offenders Ordinance, Cap 298; one conviction for “Robbery”, contrary to section 10(1) of the Theft Ordinance, Cap 210, and one conviction of “Common Assault, contrary to section 40 of the Offences Against the Person Ordinance, Cap 212. 

[3]  Appeal Bundle, page 25M-N.

[4]  Appeal Bundle, page 26K.

[5]  Appeal Bundle, page 26L-M.

[6]  Appeal Bundle, page 26P-R.

[7]  CAAR 11/2006, unreported, 21 December 2006. 

[8]  Appeal Bundle, page 27Q.

[9]  Appeal Bundle, page 28L.

[10]  There was an issue of whether the applicant was entitled to a full one-third discount for this offence given the circumstances surrounding his plea but the judge decided that as the applicant had always offered to plead guilty to the alternative offence she would award him the full discount for his guilty plea.     

[11]  Appeal Bundle, page 28Q-R.

[12]  Appeal Bundle, page 28R-T.

[13]  [2011] 5 HKLRD 690.