HKSAR v. Chow Yuen Fai
Read the full judgment text of CACC 392/2008 on BabelCite. This Court of Appeal judgment was delivered on 8 December 2009.
1. The present application for leave to appeal against sentence involves the court examining the appropriate sentence for the following offences (for which the Applicant was convicted on his own plea before Deputy High Court Judge Geiser in the Court of First Instance on 20 August 2008) : ‑
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CACC 392/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 392 OF 2008 (ON APPEAL FROM HCCC NO. 81 OF 2008) _________________________ BETWEEN
_________________________ Before : Hon Ma CJHC and Hartmann JA in Court Date of Hearing : 12 November 2009 Date of Handing Down Judgment : 8 December 2009 __________________ J U D G M E N T __________________ Hon Ma CJHC (giving the judgment of the Court) : 1.The present application for leave to appeal against sentence involves the court examining the appropriate sentence for the following offences (for which the Applicant was convicted on his own plea before Deputy High Court Judge Geiser in the Court of First Instance on 20 August 2008) : ‑
2.After his conviction before Deputy High Court Judge Geiser, probation and psychological reports were obtained. The Applicant was sentenced on 12 November 2008 as follows : ‑
3.In total, the Applicant was sentenced to 11 years’ imprisonment and it is this sentence on which he seeks leave to appeal. 4.Before us (as they were in the court below), the Applicant was represented by Mr James McGowan and the Respondent by Mr Isaac Tam (with him on appeal, Mr Raymond Cheng). We are grateful for their submissions. 5.Before going into the relevant principles and arriving at our conclusion on the appropriate sentences, we should first outline the facts in relation to the offences. Facts 6.The following facts are taken from the Summary of Facts which was agreed by the Applicant. We deal with the various charges in chronological order. Count 1 (Indecent assault) 7.Sometime in 2004, the victim (A), aged 9, and his elder brother first became acquainted with the Applicant through online games. After several months, A’s elder brother then invited the Applicant to their home. At first, they just watched television. Later, the Applicant and A went into a bedroom where the Applicant took off his own and then A’s clothes. The Applicant used the tip of his penis to touch A’s penis. Counts 6, 7 and 9 (Indecent assault and making childpornography) 8.In February 2007, the victims (B and C), two brothers aged 8 and 10, became acquainted with the Applicant again through online games. Later that month, after the Lunar New Year, the Applicant invited B and C to his home. After playing some computer games in the living room, the Applicant asked B to go with him alone to his bedroom. There, the Applicant was naked from the waist down. He told B to lie down on a bed. The Applicant then put his penis into B’s mouth, and caressed and masturbated B. 9.In the course of this, the Applicant used his mobile phone to take pictures and make videos. He later downloaded the images and videos onto the hard disk of his computer. These comprised : ‑
10.Afterwards, the Applicant returned to the living room. He then put his hand into C’s trousers and fondled his penis for about 5 minutes. Counts 11 and 12 (Buggery and making child pornography) 11.Sometime in May 2007, the Applicant made contact with the victim (D), aged 13, in an internet discussion forum. He later contacted him again and went to D’s home, ostensibly to repair D’s computer. At first, they were in the living room. Later, the Applicant left the room to make a call. When he returned, he was naked. He then took off D’s clothes and inserted his penis into D’s anus for over 10 seconds. He also inserted his finger and an object into the anus. The Applicant and D performed oral sex on each other; the Applicant also masturbated D. At no stage did the Applicant use a condom. 12.In the course of this, the Applicant used his mobile phone to take pictures and make videos. These were later downloaded onto the hard disk of his computer. The images and videos comprised : ‑
Count 13 (Buggery) 13.On 14 June 2007, the Applicant became acquainted with the victim (E), aged 12, again through the internet. They met the next day when the Applicant took E to his home. There, the Applicant showed E some photographs on his computer. He then took off his and E’s clothes. The Applicant then masturbated. He inserted his penis into E’s anus, who felt pain and swore at the Applicant. After telling E that he loved him, the Applicant re‑inserted his penis for 2 to 3 minutes. Again, no condom was used by the Applicant. Counts 15 and 16 (Indecent assault and making child pornography) 14.Sometime in the Summer of 2007, the Applicant got to know the victim (F), aged 13, once again through the internet. They agreed to meet during a school day. The Applicant invited F home. 15.There, they began by playing computer games in the bedroom. They then went into the living room, where the Applicant took off his trousers. He asked F to perform oral sex on him and F did so. 16.In the course of this, the Applicant used his mobile phone to take pictures and make videos, again later downloading them onto the hard disk of his computer. They comprised : ‑
Count 17 (Possession of child pornography) 17.The Applicant was arrested on 21 September 2007 at his home. The police seized a computer and 57 CD roms. The categorization contained in the following lists of the materials found in the Applicant’s computer and in the CD roms reflect the 4 levels identified by this court in Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519, namely : ‑
18.The hard disks of the computer contained the following still images : ‑
19.The hard disks also contained the following video clips : ‑
20.42 of the CD roms contained the following video clips : ‑
21.Altogether, the Applicant was therefore found to be in possession of the following : ‑
22.The above figures include the images and videos which related to the Counts 7, 12 and 16 (which in turn are connected to Counts 6, 11 and 15). Taking away these images and videos would result in the following : ‑
23.During video recorded cautioned interviews, the Applicant admitted the following (these facts are quoted from the Summary of Facts) : ‑
Principles 24.The offences (and the maximum sentences) with which this application for leave to appeal is concerned, are as follows : ‑
25.The Applicant is a paedophile who preys on young children. It is not possible to have a comprehensive definition of the term “young children”. That said, in the present context, it will certainly include those children who have yet to reach sexual maturity. In sentencing for the type of offences with which we are concerned in the present case, the court must bear in mind the following considerations (some or all of these considerations will be relevant in any given case) : ‑
26.Little needs to be said about the first consideration. It encompasses a standard and important principle of sentencing, and is self‑explanatory. We do, however, wish to make some observations on the second and third considerations : ‑
27.In relation to buggery and indecent assault, as has often been observed, it is neither possible nor practicable to fix a tariff for these offences given the varied circumstances in which these offences can arise. For this reason, references to sentences in previous cases are often of limited assistance. 28.Aggravating features which can exist in certain cases include a breach of trust (for example, see HKSAR v Wong Ying Ho [1999] 4 HKC 825 (indecent assault involving a doctor)) or the risk of re‑offending (sexual recidivism) or a repeated course of conduct (as distinct from a one‑off incident) or the fact that the accused is a sexual predator or the existence of a poor previous record. Physical harm to the victim must also be identified here as an aggravating feature. We have already mentioned the keeping of a record as a seriously aggravating feature (paragraph 26(4) above). 29.Another aggravating feature in relation to the offence of buggery deserves special mention. In the present case, as stated earlier, the Applicant did not use a condom. We view this as a particularly serious aggravating feature. Where an accused is sexually experienced or active, the failure to use a condom gives rise to obvious health risks, risks and consequences the extent of which young children may well be ignorant. 30.As for mitigating factors, it is difficult to conceive of many for the type of offences involved in the present case, apart from a guilty plea. Here, our attention has been drawn by Mr McGowan to a number of cases in which the courts appear to have given more than a one‑third discount for the plea of guilty. In HKSAR v See Tak Man [1998] 1 HKLRD 794, in relation to a charge of indecent assault (the victim was 12 years old; the offence involved oral sex and various other acts falling short of attempted buggery and also ejaculation into the boy’s mouth), the Court of Appeal reduced the starting point by “little more than one‑third” in view of the accused being a first time offender and also the victim being spared the ordeal of having to give evidence. We were also referred to Wong Ying Ho (see paragraph 28 above) where the Court of Appeal left undisturbed a discount of 37.5%. 31.In our judgment, however, these and other cases which suggest that an additional discount may be given where a victim is spared the ordeal of giving evidence (and therefore having to recount the traumatic incident or incidents in question) must now be viewed against the general principle that the one‑third discount is usually to be regarded as the high watermark of the discount for pleading guilty in good time : see HKSAR v Wen Zelang [2006] 4 HKLRD 460; HKSAR v Ng Ngok Wai (吳岳威) [2008] 1 HKLRD 546 (this case involved an indecent assault on teenage children). Only in exceptional cases should a discount of more than one‑third be given for a timely plea. 32.We now return to the offence of buggery and to an argument that was advanced by Mr McGowan and at one stage accepted by Mr Tam. In short, the point was that in sentencing for the offence of buggery with a boy between the ages of 13 and 16, a court had to have regard to (if not be bound by) the maximum term of imprisonment that could be imposed for the offence of unlawful sexual intercourse with a girl aged between 13 and 16 under section 124(1) of the Crimes Ordinance (that is, a maximum 5 years). The argument runs along the following lines : ‑
33.In our view, the approach just articulated, although in a sense logical, is with respect not correct as a matter of principle and ought not to be followed : ‑
34.Lastly, in relation to the offence of possession of child pornography contrary to section 3(3) of POCPO, the appropriate sentencing principles are to be found in Man Kwong Choi. 35.With the above principles in mind, we now examine the sentences passed by the Judge below for each of the offences. We should add here the fact that we have looked at an album (of photographs and still images from videos) which we understand reflects the subject matter of Counts 7, 12, 16 and 17. The buggery offences (Counts 11 and 13) 36.The maximum sentence under section 118C of the Crimes Ordinance is life imprisonment. As Mr Tam pointed out, there are very few previous cases for this offence. The most recent appears to be HKSAR v Loke Yat, unreported, CACC 79/97, 30 July 1997, where the accused pleaded guilty to 5 counts of buggery involving 2 boys aged 13 and 14. Referring to a 1990 case (R v Summers [1990] HKLR 756 where the victim was a 16‑year old boy with some sexual experience; the accused was sentenced to 2½ years’ imprisonment after pleading guilty), the Court of Appeal held that the appropriate sentence was 4 years (after a plea of guilty). 37.Mr McGowan emphasized to us the fact that the victims in the two buggery counts were not of “extreme youth” and also that it had to be assumed that they must have consented to the acts in question. He drew our attention to the case of HKSAR v Chung Yui Hung, unreported, CACC 11/2006, 21 December 2006, in which the accused was sentenced to 20 months’ imprisonment for unlawful sexual intercourse with a girl of 12. No condom was used and the accused also ejaculated during intercourse. The Court of Appeal took a correct starting point of 5 years (which, given the guilty plea, was reduced to 3 years 4 months). We were also referred to HKSAR v Cheung Ho Fai, unreported, HCCC 74/2009, 17 April 2009 in which Deputy High Court Judge Line (now Line J) passed a sentence of 3 years (after plea) in relation to a charge of buggery with a girl aged 13. 38.In our view, these cases do not provide much guidance, although we have to observe that the sentences appear to be very much on the low side. The facts in those cases were, however in any event, quite different. Even when previous cases appear to involve similar facts, it is sometimes difficult to get a ‘feel’ for those cases and therefore an idea of what went through the court’s mind in sentencing. 39.In the present case, the following features are relevant : ‑
40.As for the personal circumstances of the Applicant himself, we have read the probation and psychological reports. He comes from a dysfunctional family. His only previous conviction was in 1994 for common assault, for which he was given a sentence of probation for 12 months. To his credit, he appears to be remorseful (and this is also shown by his guilt plea). However, two aspects cannot be ignored : ‑
41.Deputy High Court Judge Geiser took all these factors into consideration, arriving at a starting point for each offence of 7 years, increased to 8 by reason of the aggravating features. Given the circumstances we have identified, we are of the view that the appropriate sentences are as follows : ‑
42.The maximum sentence that can be passed for indecent assault is 10 years’ imprisonment. 43.The aggravating features in relation to the buggery offences also apply equally to the indecent assault offences (except perhaps for the non‑use of condoms) and must therefore be taken into account. As can be seen from the facts, the ages of the victims ranged between 8 years and 12 years. 44.Again, the references made by counsel to previous cases are of limited assistance, given the difference in facts, but they do provide some sort of indication of the degree of seriousness with which these offences are treated by the courts : ‑
45.In our view, the appropriate sentences for the indecent assault counts are as follows : ‑
46.Although these incidents were separate, we would, in the present case, make the sentences concurrent with each other, but consecutive to the buggery counts. In another case, the sentences may not necessarily be made concurrent to each other. The making of child pornography offences (Counts 8, 11 and 13) 47.As reflected in the maximum sentence for these offences, the making of child pornography is treated more seriously than mere possession (see paragraph 24 above). There are, however, few previous cases for this offence, perhaps even none (we were not referred to any), but some guidance can be taken from Man Kwong Choi. The classification of the levels of child pornography in that case apply equally to an offence committed under section 3(1) of POCPO. 48.The Judge adopted a starting point of 2 years for each of the three offences of making child pornography (before discounting them to 1 year 4 months’ imprisonment). He also made them concurrent with the buggery and indecent assault offences with which they were associated. 49.Given that these offences can, in the present case, only be viewed with the corresponding offences of buggery and indecent assault (and, for those offences, the fact that a record was made has already been taken into account), we would not disturb the Judge’s sentences and approach. In another case, we would not have disturbed a sentence that adopted as a starting point a term of 3 years’ imprisonment. This would be even taking into account the fact that the Man Kwong Choi guidelines may not, strictly speaking, be applicable : see paragraph 52 below. The possession of child pornography offence (Count 17) 50.One of Mr McGowan’s complaints in relation to the Judge’s approach was that the sentence of 1 year 8 months (discounted from a starting point of 2 years 6 months) ought not to have been ordered to run wholly consecutively to the sentences for the other offences. There is some merit to this argument, as we are of the view that the Judge ought to have recognized that there was some overlap between the pictures and videos which were the subject matter of this count, and those for the other counts : see paragraphs 21 to 22 above. Nevertheless, for the reasons that will presently appear, this does not make any difference in the present case. 51.Mr McGowan’s main point, however, was that the starting point adopted (and therefore the sentence imposed) by the Judge was too high. Yet, based on the guidelines laid down in Man Kwong Choi, the quantities of child pornography in the present case would merit, in our view, a sentence of 3 years. Account must be taken not only of the Level 4 child pornography, but also of the quantity of pornography classified under the other levels. 52.However, Mr McGowan submitted, in our view, correctly, that the Man Kwong Choi guidelines ought not apply. In paragraph 29 of the judgment, it is stated that the guidelines should only apply to offences committed after the date of that judgment (namely, 16 July 2008). The offence in the present case was committed, at the latest, well before that date (the Applicant’s date of arrest was 21 September 2007 : see paragraph 17 above). 53.We agree that, generally speaking, sentences for possession of child pornography will have increased after Man Kwong Choi : it was pointed out in paragraph 29 of the judgment that the sentencing guidelines laid down would lead to “considerably increased sentences” for the offence of possession. That said, as was also indicated (in paragraph 2), there had been no consistent sentencing practice before that case : sentences ranged from terms of imprisonment to community service orders. 54.Taking the above into account, we are of the view that the sentence of 2 years’ imprisonment imposed by the Judge was, in the present case, correct. The appropriate overall sentence 55.For the buggery and indecent assault offences alone, the combined terms of imprisonment amount to 12 years 8 years (see paragraphs 41 and 46 above). The sentences for these offences, as pointed out above, ought to be served consecutively to each other. For the offence of making child pornography, the sentences ought to be served concurrently with the offences to which they are related. For the possession of child pornography offence, although in other circumstances, a part of the sentence for this offence ought to be served consecutively with the sentences for the other offences, in view of the totality of sentence to which we must obviously have regard, this would not be appropriate in the present case. We are of the view that a term of 12 years 8 months’ imprisonment was the appropriate sentence in the present case. This would have reflected the extremely serious nature of these offences before us. 56.Although Mr McGowan argued that more than one‑third discount ought to be given on account of the guilty plea (emphasizing the fact that the victims were spared the ordeal of giving evidence), we are of the view that no further discount is warranted. It is true that the victims did not have to give evidence, but the earliest indication that the Applicant gave that he would plead guilty was in June 2008 at the first pre‑trial review for his trial. By that time, the trial was already imminent (the initial date for the trial was 20 August 2008 – the trial was later adjourned). Mr Tam submitted on the other hand that it was only in August that it was formally confirmed that the Applicant would plead guilty. Whichever is the appropriate date (June or August 2008), the indication came at a fairly late stage. By that time, the victims no doubt had already had to recount (and relive) their ordeal, at least to some extent. It will be recalled that the Applicant was arrested in September 2007. Detailed inquiries would have been made of them. 57.As was pointed out to the parties in the course of the hearing, it is possible for this court to increase sentence in any application for leave to appeal against sentence : see section 83I of the Criminal Procedure Ordinance, Cap. 221. We have already indicated that the appropriate sentence would have been 12 years 8 months’ imprisonment. However, given the fact that the Applicant has to a limited extent succeeded on some arguments, and that clarification was needed in relation to the Lee Kin San case, we are of the view (although not without some hesitation) that it would be right to leave the sentence at 11 years’ imprisonment. 58.For the above reasons, we dismiss the application for leave to appeal against sentence.
Mr Tam Sze Lok & Mr Raymond Cheng of the Department of Justice for the Respondent Mr James H M McGowan, instructed by Messrs Christopher K Y Wong & Co for the Applicant |
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