CRIMINAL CASE NO. 181 OF 2010
COURT: You have pleaded guilty to two offences: firstly, buggery on a boy, on 4 January 2010; secondly, indecent conduct with a child under the age of 16, on 6 January 2010.
The victim of the offences was the same, a boy known for the purpose of these proceedings as “X”, who was, at the time of the offences, 13½ years of age. You had become acquainted with “X” through a homosexual website in December 2009, as a result of which you invited the boy to your flat in Tin Shui Wai on 4 January 2010, where the first offence took place.
The second offence took place two days later on 6 January 2010, also at your premises.
The offences came to light later in January this year when a social worker, who provided counselling services on the internet to young people, established contact with “X”. The social worker eventually persuaded “X” to make a report to the police, after he had initially declined to do so. As a result, you were arrested on 10 February 2010, and made an immediate admission to both offences under caution. You expanded on your admissions in an interview taken later the same day.
Offences such as these involving under‑aged boys are taken very seriously by the courts. A 13-year-old child who is going through puberty is often confused by feelings which can be misused or abused by older adults in whom they may place their confidence. As the Court of Appeal has said in HKSAR v Chow Yuen Fai (2010) 354 at 366:
“Children in their formative years, or when they first become aware of their sexuality during puberty, are extremely vulnerable to and easily persuaded by adults.”
It is true that the boy in this case told the social worker involved that he suspected himself to be homosexually inclined, and that he had himself placed his own personal details on a homosexual website, in which he said, according to Mr Delaney, and Mr Tam does not dispute it, that he was looking to make friends with gay men.
However, it is not an acceptable explanation or excuse to say that you were hoping to explore a genuine relationship with this boy. The reality is that he was 13½ years of age at the time, and you were almost 34½. You were 21 years older than him, and the notion that you regarded the boy with genuine affection with a view to possibly forming a relationship with each other as boyfriends is not one which is acceptable in our society, given his age and the difference between your two ages. Put simply, you had no business to be forming liaisons of this nature with someone who was still a child.
Although the boy, “X”, in this case, was of an age where he could be vulnerable and easily persuaded, and where consent was neither possible nor necessarily meaningful, I do accept that the activity in which you were engaged appears to have been consensual in the sense that he was already sexually aware and experienced enough to know what was likely to happen when he willingly went to your apartment, having established contact through the website concerned; that no financial incentive or reward was held out by you on either occasion; and that no force was exerted upon him.
Indeed, when, on 4 January, he complained of pain during the commission of the act concerned, you immediately desisted. I also note that he did not complain, or would not have complained, to the police but for the persuasions of the social worker concerned.
Nevertheless, children often do not complain or want to complain. That does not mean they wittingly and willingly participate in what goes on.
I notice in the Summary of Facts that in this case, “X” did regret his sexual conduct with you, amongst others, and was not sure if he had been abused, yet still did not want to complain. This perhaps highlights the mixed or confused emotions which beset children at that age in this situation, and why the law is there to protect them from people like you and sometimes from themselves.
Nevertheless, notwithstanding what I have said about the limitations on the notion of consensual sex in a case such as this, I do approach sentence on the basis that the boy was not forced, threatened, tricked or paid to do what he did, and that he must have been aware what was likely to happen when he agreed to meet up with you. Moreover, you were not his first homosexual encounter, and he appears to have willingly engaged in both acts.
The consensual nature of what you were both doing also to some extent bears on the issue of psychological harm, although it is not a complete answer to that either. It was said in Chow Yuen Fai at page 366 that so far as trauma, distress and psychological harm to young children and their families are concerned,
“in the vast majority of cases, this can be assumed.”
I do not have any information before me about the effect of your actions on the boy; nor, even if I did, would it tell me how he would look back on these events when he becomes an adult. These things are difficult to gauge in young children, which is why the courts rightly make the assumption and why the law must protect children, sometimes even from their own naïveté, in purporting to want or consent to things they cannot fully understand and cannot validly consent to. So psychological harm is something which I weigh in the balance, although not as heavily had the acts concerned not been consensual in the sense that I have described.
So far as you are concerned, there are two particular matters which trouble me. The first is that you have a previous appearance before the courts on 7 August 2007 for which, for two offences of indecent assault upon another under‑aged boy, you were placed on probation for 18 months. The second is that you are a diagnosed paedophile with an unhealthy interest in young boys, with the obvious risk, as exemplified by your criminal record, of recidivism.
In respect of both matters, Mr Delaney has submitted that you are aware of your problem, but have made serious efforts over the years to wrestle with it. He points to your voluntary continuation of psychological counselling after the probation order ran out, your involvement in church counselling activities, and the attempt at forming a relationship with a girlfriend from church to try and change or control your tendencies, and your attempts to take yourself out of situations, such as working in primary schools, so as to avoid temptation.
He relies on the conclusions of the psychologist at paragraph 23 of her report, who says this:
“It is worth noticing that Mr Lam has begun to tackle his sexual disorder through psychiatric and psychological interventions in recent years. With adequate readiness for treatment, he has developed good insight into his problems and the frequency of deviant sex urge and fantasies has shown a decrease of the past years. The present offence can be viewed as a relapse, suggesting that continuous psychological intervention would be necessary. His risk of sexual reoffending is considered to be in the range of moderate to high. Mr Lam shows genuine remorse for the indexed offences and demonstrates strong motivation to prevent reoffending through psychological intervention.”
Having said that, I note that the psychiatrist puts it slightly less encouragingly at paragraph 12 of her report. She says that:
“Despite being seen at Tuen Mun Mental Health Centre by a psychiatrist and clinical psychologist since 2007, there appeared to be minimal change to his sexual preference for young boys. His insight is fair, but his prognosis is guarded and he has a high risk of recidivism.”
Faced with this slight divergence of opinion, I should indicate that I accept the conclusion of the psychologist that the risk of you reoffending is in the range of moderate to high. Partly, it is giving you the benefit of doubt, but partly also I find the psychologist’s report fuller and more considered.
Nevertheless, it is idle to suppose that your predilections are something you can control by yourself or suddenly change, and you remain inevitably a significant risk to young boys, for which your sentence must carry a strong deterrent element.
However, I am prepared to accept, from your awareness of your problem and the efforts you have made to combat it, however unsuccessfully, that you are not a predator in the sense of someone who trawls the internet or other places knowingly and purposely looking for sex with young boys. If I had found that, I can assure you I would have been considering a higher starting point for sentence than that I am proposing to adopt.
The admitted Summary of Facts indicates that when you met up with “X” on 4 January this year at your invitation, you chatted with each other for several hours. You played the piano and had food with “X” before inviting him to your bedroom. As I have already said, when, during the act of buggery, “X” said it was painful, you immediately discontinued your actions.
A similar but condensed pattern of events unfolded on 6 January, and of course there was no attempt at buggery on this occasion.
Those facts, whilst not necessarily conclusive, are more consistent with the type of person depicted in the reports before me, namely someone unable to resist temptation, while recognising and trying to do something about a problem, rather than with someone who does not care about the problem and is solely intent on gratifying himself with a number of under‑aged boys.
With that assessment of the circumstances of this particular case and of you as the perpetrator of these offences, I now turn to the appropriate starting points for your sentence.
Both counsel have referred me to what they contend are relevant authorities in this area of criminal sentencing. However, it has been recently emphasised by Ma CJHC, as he then was, in Chow Yuen Fai at page 366 that:
“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.”
Certain principles are nevertheless clear from these authorities. It was said as long ago as 1974 by the English Court of Appeal in R v Willis (1975) 1 WLR 292 at 295 that:
“The sentencing bracket for offences which have neither aggravating nor mitigating factors is from 3 to 5 years, and the place in the bracket will depend on age, intelligence and education. Few offences, however, have neither aggravating nor mitigating factors. Many have both. When this happens, the judge has to weigh what aggravates against what mitigates.”
Certain aggravating features were set out by the Court of Appeal at page 295, and included, firstly, physical injury to the boy; secondly, emotional and psychological damage; thirdly, moral corruption; and fourthly, abuse of authority and trust.
Mr Delaney submits that none of those apply in this case. I accept there was no physical injury to “X”, nor am I necessarily sure that he was morally corrupted, certainly so far as that term is defined by the Court of Appeal in Willis. I also accept that there was no abuse of authority or trust, in the sense that you were not holding a position of authority or trust such as a doctor, policeman, schoolmaster or relative. As for emotional or psychological damage, however, I am not prepared to wholly discount it, for the reasons I have already given; though I do not consider it weighs as heavily in this particular case as it would in a non-consensual case.
Aggravating features in cases such as this were further amplified by the court in Chow Yuen Fai at page 367. In addition to those set out in Willis, they would also include, fifthly, the risk of reoffending; sixthly, a repeated course of conduct, as distinct from a one‑off incident; seventhly, the fact that a defendant is a sexual predator; eighthly, a poor previous criminal record; ninthly, keeping a record of the acts concerned; and finally, tenthly, the non-use of a condom. The latter two features were described by the court as “a seriously aggravating feature” and “a particularly serious aggravating feature” respectively.
Of these additional matters, there is, in your case, a significant risk of reoffending, and the conduct was not what one might describe as “one-off”, because two days later, you were involved in further sexual activity with this boy, albeit that buggery was not repeated on that occasion.
You do have a relevant criminal record, although not one which would perhaps be described as “a poor previous record”, but the record confirms the risk of your reoffending, because that is what you have indeed done. I find, however, that you are not a sexual predator, nor did you keep any record of your actions, and nor is this a case where you failed to use a condom.
Two of the other cases cited by Mr Delaney warrant mention as having features which are similar perhaps to your case, though in other respects dissimilar. The first is Attorney‑General’s Reference No. 31 of 1996 (1997) 1 Cr App R (S)308, in which Willis is referred to. The court approached sentence on the basis that the boy, who was 13, consented. The appellant, who was 50, had pleaded guilty, had himself sought help, and had a clear record. However, the boy concerned was buggered for the first time for money.
It would seem, given the fact that the court arrived at 3½ years’ imprisonment after taking into account the double jeopardy involved in a review of sentence, that the starting point after trial for a single offence of buggery would have been in excess of 5 years’ imprisonment.
The other case is R v Wells (1999) 1 Cr App R (S)320. In that case, for a consensual buggery and indecent assault offence with a 14-year-old boy who was, the court accepted, believed by the appellant to be older - the appellant had specifically confirmed with the boy concerned if he was 18 - where the appellant had a clear record and where the social inquiry report authors concluded that the appellant had the capacity to change and the will to do so, the court considered 3 years’ imprisonment after guilty pleas to be appropriate.
It would seem there were no aggravating features as I have described, but considerable mitigation. The starting point would presumably have been in the region of 4½ years’ imprisonment.
The other cases referred to by your counsel, Mr Delaney, I consider less relevant on their facts. None of them can be determinative of the appropriate starting point in this case, and of course the three cases I have referred to are English cases. Hong Kong does not necessarily apply the same levels of sentence, although the principles should be equally valid and applicable.
The prosecution has brought the recent Hong Kong case of Chow Yuen Fai to my attention, a case decided less than a month before these offences with which I am concerned were committed. Chow Yuen Fai does not directly refer to any English authority, although the Hong Kong case of Summers, which it does cite, does refer to Willis. Summers concerned a boy who was over 16 years of age.
However, Chow Yuen Fai was, on its facts, an extremely bad case, and, as I have already said, it did not purport to lay down tariffs for the offence of buggery. It will also be remembered that the appellant in that case was found to be, and clearly was, a sexual predator who actively sought out young boys. I have found in your favour as regards that issue. Of the several offences involving no less than six boys, the particular case which has certain common features with the present case concerns the fifth victim, Count 13, at paragraph 13 on page 361. The court considered, at page 372, that the correct starting point should have been 8 years’ imprisonment. However, the distinction between that case and this is that the appellant, in relation to Count 13, was found to be a sexual predator; no condom was used, notwithstanding his promiscuous lifestyle; and the appellant continued with the act notwithstanding that the boy expressed pain and apparently swore at the appellant. The boy concerned was also younger, though there can be little difference, for present purposes, between a 12-year-old and a 13-year-old.
In my judgment, bearing in mind the circumstances in which the offences came about and should be regarded, and the aggravating features which I have found and to which I have earlier alluded, the appropriate starting point on Count 1 is 5 years’ imprisonment; and on Count 2, 2 years’ imprisonment.
I have been persuaded by your counsel that the efforts you have made in confronting what you know to be a problem are at least genuine, and that you are not a sexual predator. However, I have already reflected the latter finding in my overall assessment of the gravity and circumstances of these offences. Furthermore, I am dealing with your case on the basis that the sexual activity was consensual, despite the limited application of that notion where a 13-year-old boy is concerned, and have also reflected that in the starting point.
Therefore, whilst I am impressed by some of the letters written on your behalf, and sympathetic with your mother’s illness, the only real matter of mitigation is your plea of guilty which was made clear at the pre-trial review stage.
Accordingly, the sentences are reduced on Count 1 to 3 years and 4 months’ imprisonment, and on Count 2 to 16 months’ imprisonment.
The final question is whether, and, if so, to what extent, any part of the sentence on Count 2 should be made consecutive to the sentence on Count 1.
The Count 2 offence, for which the maximum sentence is 10 years’ imprisonment, was a separate offence committed on a different occasion, albeit with the same boy. It seems to me that there should be a consecutive element for what was another offence committed on another day. However, one of the aggravating features I have already taken into account in your sentence on Count 1 is that Count 1 was not a one‑off offence of sexual activity with “X”, because two days later, you committed the offence in Count 2, although I stress it was not an offence of buggery.
A repeated course of conduct is one of the aggravating features I have taken into account in my overall assessment of the gravity of the offence on Count 1.
Accordingly, while I am intending to order part of the sentence on Count 2 to be consecutive to the sentence on Count 1, I am mindful of avoiding the pitfall of double counting, which is presented when the fact of the second offence itself becomes one factor in the assessment of the overall gravity of the first offence. I also bear in mind that the sexual activity comprised in Count 2 was consensual and with the same boy.
Bearing these considerations in mind, I am going to order only 2 months of the sentence on Count 2 to run consecutively with the sentence on Count 1, leaving the remainder to run concurrently.
Accordingly, the sentence on Count 1 will be 3 years and 4 months’ imprisonment, and on Count 2, 16 months’ imprisonment, 2 months of which will run consecutively to the 3 years 4 months, the remainder to run concurrently with the sentence on Count 1.
You will go to prison for 3½ years.