HKSAR v. Tsang Cho Kiu

CACC 42/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 42 OF 2014

(ON APPEAL FROM DCCC 573/2013)

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Before: Hon Cheung JA and D Pang J in Court

Date of Hearing: 17 October 2014

Date of Judgment: 17 October 2014

Date of Reasons for Judgment: 27 October 2014

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REASONS FOR JUDGMENT

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Hon D Pang J (giving the Reasons for Judgment of the court):

1.On 25 November 2013, before Judge A Kwok in the District Court, the applicant pleaded guilty to one charge of ‘indecent assault’ (Charge 2), two charges of ‘indecent conduct towards a child under the age of 16’ (Charge 3 and Charge 4) and one charge of ‘possession of child pornography’ (Charge 6)[1] . On 9 December 2013, he was sentenced to a total term of 3 years and 8 months’ imprisonment[2]. On 5 February 2014, the applicant gave notice to apply for leave to appeal against sentence out of time[3]. On 17 October 2014, we dismissed his application. These are our reasons.

THE FACTS

2.Insofar as it is relevant to this appeal, the Summary of Facts to which the applicant had pleaded guilty was as follows:

“1. In February 2012, PW3 (Girl X) came to know the defendant who claimed himself a photographer as she wanted to be a part-time model. On 26 February 2012, PW3 also arranged to bring PW2 (Girl W), PW4 (Girl Y) and PW5 (Girl Z) to meet up with the defendant for photo shooting.

2. At about 1600 hours, PW2 to PW5 went to Room 1008 at the Gold Coast Hotel where they met the defendant who took the pictures for them for about two hours. When they had finished taking photos, the defendant asked them if they could masturbate for him and he would pay them. PW3 negotiated the price with the defendant and, after negotiation, PW2 agreed to let him to touch her breasts. PW2 to PW4 also agreed to masturbate for him. PW5 only stayed in the toilet throughout.

3. PW2 asked PW4 to keep her company at first and they both lied down in bed with the defendant in between.  The defendant touched the breasts and private parts of PW2 and she did not resist.  After a while, PW4 went into the toilet leaving PW2 alone with the defendant in the room.  The defendant took off his underpants and rubbed his penis against the private parts of PW2 over her underpants.  PW2 then moved away immediately.  [Count 2 – Indecent assault on PW2]

4. At that time, PW3 and PW4 came out of the toilet. The defendant asked PW3 to masturbate for him and she did [Count 3 – Indecent conduct on PW3]. After having masturbated the defendant for a while, PW3 said her hand was tired. The defendant also complained that she was doing it too hard. He then asked PW4 to masturbate for him and she did. [Count 4 – Indecent conduct on PW4]

5. After the defendant had finished, he paid HK$800 to PW3 for their service. PW2 to PW5 soon left the hotel.

6. PW2, PW3 and PW5 were all less than 14 years old while PW4 was 14 years and one month old on the date of offence.

7. In May 2012, PW2 felt itchy at her private parts and she was worried that she might have contracted sexual disease.  She told PW6, her schoolmate, who asked PW7, the school social worker, about sexually transmitted disease. The matter then came to light and the case was reported to the police.”

3.The applicant did not take issue with his sentence on Charge 6.  Suffice it to say that upon arrest, the applicant’s home was searched and in his computer, five image and 75 video files of child pornography were discovered.  Of the 75 video files, 56 were viewed by police officers. The result, in terms of a break-down by number and classification including that of the five image files, was as follows[4]:  

Classification	Quantity of image files	Quantity of video files
Level 1	4	3
Level 2	0	11
Level 3	1	20
Level 4	0	22
Total	5	56

BACKGROUND AND MITIGATION

4.The applicant is aged 25; 22 at the time of the offences.  He left school after Form 7 and was single and working as a part-time tutor.  He had no previous conviction.  It was said that he broke up with his girlfriend, which seriously upset him, and which made him want to be in the company of other females through having photo-sessions with girls whom he met online.  For what he did, the applicant said he was deeply sorry.  He apologized to the victims in a letter and in another letter, expressed gratitude to the police officers who arrested him and put an end to his “indulgence”.  He said his true interest was in adult as opposed to child pornography – he just failed to delete them all after viewing.  Subject to a number of “clarifications”[5], the applicant accepted the findings and recommendations in his psychological report.

THE SENTENCE

5.The relevant parts of the judge’s Reasons for Sentence read as follows:

“22. The present offence with which the defendant was convicted involved very serious sexual offences involving under‑aged girls. The child pornography charge have depicted children who were as young as eight years old in the video files or photographic images performing grossly indecent and sexually implicit conducts with adult ….

23. The recent judgments by the Court of Appeal shows that the court have always taken a serious view on these matters. In my mind, the sentences that I am going to pass this time on the defendant must have a sufficient deterrent effect so as to mark the public abhorrence and the need to protect the children, especially young girls and to address the grievances of the parents of those young female victims.

24. By age difference, the defendant is at least eight to nine years older than the girl victims. The law is there to ensure that it will protect those vulnerable members of the public, like the three girl victims in this case as they are not truly capable of giving any consent before they reached the age of 16.

25. In this case, it is clear to me that all the three girls have been lured by the defendant or induced by him into consenting to perform the masturbation for the defendant or being allowed herself to be molested by the defendant as truly they were incapable of giving consent. Thus, even there were consent by these three girls in the course of the offences, those consent were obtained by the monetary rewards as an inducement to make these girls succumb and falling prey to the exploitation by the defendant.

26. Although it is true that in the conclusion paragraph, the psychologist concluded that at this stage, the defendant cannot be said to be a paedophile from the present assessment, the psychologist clearly told the court that the defendant was found to have distorted sexual belief and he had limited insight into his problem.

27. What worry the court most is that the psychologist also concluded by saying that considering the defendant’s young age, criminal history psychological profile, victim characteristics and the nature of the present offence the risk of recidivism of sex offence was assessed to be at the high end of moderate range.

28. The psychologist had said that psychological services would be beneficial to the defendant in reducing his threat of re‑offending but he was afraid that the defendant had shown little motivation for psychological treatment. To this point, Mr Khattak had reassured the court that defendant have every motivation for psychological treatment and he is ready and willing and able to receive any treatment as directed by the court.

29. Taking all these matters into account, I would now first deal with the sentences on the three sexual offences.

30. For count 2, which is the ‘indecent assault’ count, I shall use 36 months as a starting point. For count 3 and 4, the ‘indecent conduct’ counts, I shall use 30 months as starting point respectively. The sentences on those counts would of course be reduced by one-third to reflect the guilty plea of the defendant. In the end, the sentences on count 2, 3 and 4 would be reduced to 24 months on count 2 and 20 months on count 3 and 4 respectively.

31. For the possession of child pornography (count 6) …. I accept that those material were downloaded for his own viewing purpose and not for re-distribution as submitted by the defence. He had already explained that he had deleted some but not all the video clips after viewing.

…….

34. In the end, I consider that a starting point of 2 years would be sufficient and appropriate and this sentence will of course be further be reduced by one-third and therefore reduced to 16 months.

35. It is clear to me that the court has to further adjust these sentences that I have passed in order to reflect the overall criminality of the matter because of the principle of totality.

36. In the end, I make the following orders. 6 months of the sentences on count 3 and count 4 shall run consecutively to, and the remainder concurrently with, the sentences on count 2. Therefore making a total for those three offences 3 years’ imprisonment. Half of the sentences of count 6, that is 8 months are to run consecutively to, and the remainder concurrently with, the total of 3 years’ imprisonment in relation to count 2 to 4.

37. Accordingly, the total sentence in relation to these four charges is therefore 3 years and 8 months.”

GROUNDS OF APPEAL

6.Mr Khattak who also represented the applicant in the lower court raised the following grounds.

Ground 1

7.The sentences on Charge 2 to Charge 4 were manifestly excessive because:    

(a) a deterrent sentence was wrongly imposed on each of the charges;

(b) the indecent acts involved in these charges were not of the most serious kind; and

(c) insufficient weight was given to such mitigating factors as the applicant’s hitherto clear record, full cooperation with the police, genuine remorse, strong family support, stable employment record and the absence of breach of trust.

Detailed Submissions

8.In paragraph 23 of his Reasons for Sentence[6], the judge stated that he would pass deterrent sentences on the applicant.  Mr Khattak submitted that to be an erroneous approach.  He prayed in aid the case of HKSAR v Lam Sze Kei & Another [2005] 3 HKLRD 274 where the Court of First Instance reiterated that the principle against imposing a deterrent sentence on a first offender was a general principle.       

9.Mr Khattak referred us to a number of other cases, some of them first instant decisions.  The offences covered were unlawful sexual intercourse (eg HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432; HKSAR v Chan Kwong Pui [2003] 4 HKC 208; HKSAR v Lai Yip Sing [2001] 2 HKLRD 601) and indecent assault/conduct (eg HKSAR v Lee Hon Wah [2011] 4 HKLRD 319; HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690; HKSAR v Chan Chuen Hin [2004] 2 HKLRD 339; SJ v Wong Tsz Kin [1998] 4 HKC 32).  The point being made was that lighter sentences had been passed on offences graver than the present ones.

10.Mr Khattak set great stall by what he identified as the mitigating factors in this case.  His speech on the topic ran to 26 pages of transcripts before the judge passed sentence[7].  He highlighted various aspects of the applicant’s past and present and urged upon the judge (and this Court) that this was a case that called for “individual justice”, not a stern general approach in sentencing based on policy reasons: HKSAR v Leung Pui Shan CACC 317/2007 (unreported). 

11.Straying beyond his original ground of appeal, Mr Khattak also submitted that given the guilty pleas, which spared the victims from having to give evidence in the witness box, the applicant’s sentence should be discounted by a more than one-third reduction: R v Pang Siu Hong CACC 698/1995 (unreported).  

Ground 2

12.The overall sentence of 3 years and 8 months was manifestly excessive and in breach of the totality principle.

Detailed Submissions

13.Charge 2 to Charge 4 arose from one and the same occasion; their sentences should be concurrent. That was Mr Khattak’s submission.  He relied on the case of R v Chan Kui Sheung CA 13/1996 (unreported).  He did not complain of the fact that the sentence on Charge 6 had been made partially consecutive.

DISCUSSION

Are deterrent sentences wrong?

14.Quoted in full, the first holding in Lam Sze Kei & Another (a sentencing appeal on managing vice establishments)[8] reads as follows.  It does not assist Mr Khattak’s submission:

“The principle against imposing a deterrent sentence on a first offender was a general principle. The court could depart from the principle where the offence was serious in nature and prevalent, in which case public interest must prevail over individual sentencing considerations. Here the vice establishment was a large-scale and organised operation, and it was proper to impose deterrent sentences on front-line staff such as Ds. The only question was whether the starting point adopted here was manifestly excessive.” (emphasis provided)

15.Whether or not prevalent, the sexual abuse of children in whatever form is an egregious crime.  This sentiment received powerful expression in the case of HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354.  Where sentencing is concerned, the stress was on the protection of children and not the rehabilitation of offenders.  Ma CJHC (as he then was) had this to say at page 365:

“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):

(a) The individual circumstances of the offender, including in particular in the present context, the risk of re‑offending;

(b) The impact on the victim and the victim’s family; and

(c) The abhorrence that right-thinking members of society would regard the relevant offences, and thus the need for deterrence.”

16.The same theme was picked up in HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239.  There, Cheung JA spoke of an overview of sentencing considerations regarding cases of child sex abuse.  He identified three points – the upward trend in sentences, the need for deterrence to meet all forms of abuse and the safe assumption that victims would be psychologically impacted by an offence.  The following is what he said at page 247 of the judgment:

“14. …. the following overview should be considered:

(1)The courts have taken a serious view on paedophiles preying on young children. This is reflected in the heavy sentences imposed in recent judgments ….

(2)The mischief that the deterrent sentences are targeted at is the sexual exploitation and abuse of children. This may take the form of sexual conduct with young children, child prostitution and depicting children in pornographic materials ….

(3)The trauma, distress and psychological harm that are caused to young sexual victims have been recognised and the Court has indicated that in the vast majority of cases it can make such an assumption even without victim psychological reports.  Views to the contrary have been disapproved by this Court ….”

17.Admittedly, some of the victims in the above two cases were very young (they were aged 8 to 13) and the defendants in both cases were characterized as paedophiles (no doubt because they faced multiple charges of the same nature) but the principles derived must be taken to apply generally to all cases of child sex abuse.  Older children deserve protection from first offenders just as younger children deserve protection from recidivists.  Such distinctions rarely matter.  The judge in the present case was not wrong to pass deterrent sentences.  The allegedly small age difference between the applicant and his victims (8 years), a point Mr Khattak had taken some time to labour, was of no help to him.

A case for individual justice?

18.Leung Pui Shan was a case of credit card fraud[9].  In an attempt to regain the affections of her boyfriend, the 19-year old defendant took the credit cards of two of her colleagues to buy designer label products.  The idea was to pretend that they were from a new male friend to invoke the former’s jealousy.  The products were valued at the relatively small sum of $16,600 for which there was full restitution.  In substituting probation for her original sentence of training centre, this Court noted the following: the defendant had a clear record; in fact, she helped out in various voluntary organisations and was of positive good character; she was in constant employment and had excellent references; she came from a cohesive, law-abiding and supportive family.  It was observed that the defendant did not set out to defraud others purely for personal gain. It was observed that she broke the law amid emotional confusion when her judgment was clouded.  It was accepted that she was genuinely remorseful for her infraction.

19.By contrast, the applicant who was 22 at the time of the offences was not of positive good character.  He had a “detached” relationship with parents who were troubled by marital problems.  Prior to the lady with whom he allegedly broke up, the applicant had had six “casual relationships” and two “sex partners”.  He claimed not to have inquired about the age of the victims in this case but admitted to being “doubtful” as to whether they were minors.  This and other information which was not subject to Mr Khattak’s clarifications[10] no doubt formed the basis of the psychologist’s conclusion that the applicant was “sexually preoccupied”, and that he “tended to treat females as objects”, hence the stated level of risk of re-offending.  It is in this context that the applicant’s professed remorse must be considered.  Coupled with some very unpleasant features surrounding the offences[11], it is far from appropriate for individual justice to apply in the present case.

More than a one-third discount?

20.Again, this matter received attention in Chow Yuen Fai [12] where Ma CJHC (as he then was) stated at page 367 of the judgment:

“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 ….

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; 香港特別行政區訴吳岳威[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.”

21.We take that to be the current position in law[13].  The present case is not a case for departure from the general principle[14].

Are the sentences manifestly excessive?

22.As has been mentioned, decided cases have been referred to us for comparison on the facts and outcome.  In this regard, we will repeat what this Court has said in the past that first instance decisions are but mere examples of how the courts have sentenced offenders based on the facts of each case.  They are of limited value in deciding whether the present sentences are excessive having regard to the jurisprudence to be found in the appellate judgments.

23.For the offence of unlawful sexual intercourse, Lau Chi Cheung[15], first on Mr Kattak’s list, involved a 22-year old student.  He paid money to a 12½-year old girl to have sex with her.  Contrary to judge’s finding, there was no “grooming” on the part of the defendant.  Instead, the girl was said to be “sexually precocious”, as was evidenced by her very explicit conversations with men on-line.  This Court took this and the age and background of the defendant into account and lowered the starting point from 3 to 2 years.  

24.In Chan Kwong Pui[16], a 34-year old man had sex with a girl aged 15 years and 8 months.  He committed buggery on her when she was aged 16 years and 2 months.  The girl, who was the daughter of a business associate, and whom the defendant had known and “befriended” for some time, agreed to being filmed.  Notwithstanding such aggravating factors, this Court considered it appropriate to lower the starting point for unlawful sexual intercourse to 2 years.

25.In Lai Yip Sing[17], the defendant, who was 24, pleaded guilty to two charges of unlawful sex with a girl aged 14 years and 4 months.  Having met over a phone chat hotline, the two had developed a relationship for two months before the offences took place.  It was accepted that the girl held herself out to be 18 and was believed.  On appeal, the 3-month overall sentence imposed by the magistrate was upheld.  

26.Turning to indecent assault/conduct, Lee Hon Wah was Mr Kattak’s first authority[18].  It involved indecent conduct and buggery.  The core facts being X (aged 14) was paid to perform various homosexual sex acts with the two defendants separately.  It was not in dispute that X took the initiative to offer his services.  He “touted for business” on the internet.  In fact, at paragraph 47 of the judgment, X was described as being “more corrupt than Lee”.  X had, without success, tried to persuade Lee to let another client of X to watch their intimate acts so that X could make more money.  On appeal, as against Lee (D1), aged 34, this Court reduced the starting point for indecent conduct to one of 18 months.  As against Yan (D2), aged 26, the starting point for buggery was reduced to one of 2 years.

27.The next case was Ngai Yiu Ching[19]. There, a woman aged 30 was indecently assaulted by her friend who was 69.  It involved a plan to entice the victim to an empty house where she was gagged and bound and was, during a period of seven hours, subject to three separate attacks.  On appeal, three concurrent terms of 3 years were upheld for the indecent assaults.  They were made to run consecutively to the 3-year term for false imprisonment.

28.In Chan Chuen Hin[20], the defendant who was 60 indecently assaulted a girl aged 5 years and 10 months.  She was one of three children who had been lured into the defendant’s home with sweets.  Whilst sitting on the defendant’s lap, the girl’s anus and private parts were touched from under her skirt.  The magistrate sentenced the defendant to 16 months after plea.  On appeal to the Court of First Instance, it was reduced to 9 months.

29.In SJ v Wong Tsz Kin[21], the defendant pleaded guilty to two charges of indecent assault.  His victim, aged about 8, was a girl under his mother’s care.  In the first attack, the defendant called the girl into his room, removed her shorts and underpants and fondled her genitals.  In the second attack, he called the girl into the bathroom, asked the girl to suck his penis and ejaculated into her mouth. There was no force or coercion used on either occasion.  Aged 22, the defendant was a student at the Hong Kong Polytechnic.  Pre-sentencing reports attributed his offences to school pressure.  The defendant had no paedophilic tendency and the risk of his re-offending was said to be remote.  On an application for review of sentence, this Court set aside the 240-hour community service order and substituted it with an overall sentence of 6 months.

30.This completes Mr Khattak’s list.  All the cases cited under it share a lower range of sentences.  But it is immediately apparent that they were either old (Chan Kwong Pui (2003); Lai Yip Sing (2001); Chan Chuen Hin (2004); and SJ v Wong Tsz Kin (1998)) or must be understood on their own merits (Lau Chi Cheung (2008); and Lee Hon Wah (2011)).  For example, in the latter two cases, the victims in their early teens were respectively described as sexually precocious and more corrupt than his abuser[22].  These are, to say the least, uncommon features amongst underage victims.

31.Cheung JA in Lee Kwok Wai[23] had drawn up a list of factors relevant to sentencing in this area.  Some of them are aggravating factors applicable to the applicant.  The first one is the multiplicity of offences, albeit that they were committed on the same occasion.  The fact is they involved three victims.  Second, in asking these girls to masturbate him for reward, and he did ask all three of them, the applicant was engaging them in prostitution.  It does not matter whether these girls were experienced.  They do not appear to us to have reached the stage of being corrupt or precocious in the identified sense so either way, the applicant’s act was a shove towards the mire.  Third, all Charges 2 to 4 were committed in the presence of a third party – Charge 2 on PW2 with PW4 present, Charge 3 on PW3 with PW4 present and Charge 4 on PW4 with PW3 present.  This is highly unsavoury. It is depravation of a kind unfound in any of Mr Kattak’s cited cases.  Its effect on the girls can only be enormous.  Fourth, the risk of the applicant re-offending is at the high end of the moderate range.

32.The above four points will find their counterparts in factors number (3), (4), (9) and (10) on the list provided by Cheung JA[24].  To us, it is also apparent that the applicant was using the photo-session as an excuse to find and approach his victims.  Mr Khattak admitted as much during mitigation.  He said the applicant had asked if “special services” would be provided by the “models” before meeting them at the hotel[25].  This is evidence of planning.  But it was not a specific finding of the lower court so we will not place any weight on it.  That is not to say, however, that we do not otherwise find the case to be sufficiently serious to warrant the sentences imposed.

Wholly concurrent sentences?

33.Finally, we come to Ngai Yiu Ching[26], the last of Mr Khattak’s cases.  If it was counsel’s intention to show how in a bad case of indecent assault involving false imprisonment, a defendant might still receive a light sentence, it has not served its comparative purpose.  The reasons are as stated in the two preceding paragraphs.  Rather, we have been assisted by its discussion on the totality principle.  Stock VP (as he then was) said this at page 699 of the judgment:

“22. The importance of the totality principle cannot be overstated. It is there to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment, but it is also a tool by which to ensure that ‘the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation’: R v KM [2004] NSWCCA 65 at para 55.

23. The emphasis therefore should be on a reflection in the sentence of true culpability disclosed by the offences of which the accused has been convicted.  This is an approach which this Court has consistently adopted in recent times, for example in HKSAR v Kwok Shiu To [2006] 2 HKLRD 272 and HKSAR v Iu Wai Shun [2008] 1 HKC 79.  It is likely to be a more effective approach in reflecting an offender’s overall culpability than one which becomes overly concerned with the one transaction rule, although in the case of more than one offence, the court must guard carefully against punishing twice for the same act.  If the second offence which takes place in the course of the suggested single episode adds to the culpability of the first offence, it will normally follow that the sentence for the second offence will run wholly or partially consecutive to that for the first; to what extent, if at all, will depend upon an assessment of the totality appropriate for the conduct as a whole.  As with most sentencing exercises, the approach is an art, sensitive to the individual circumstances of the case and the offender.”

34.We respectfully agree.  There were three separate assaults on three different victims, albeit that they were committed on the same occasion. The judge was correct to order part of the partially concurrent sentences on Charge 3 and Charge 4 to run consecutively to the sentence on Charge 2.

CONCLUSION

35.We do not find the individual sentences manifestly excessive.  Nor is there any ground for complaint about the overall term.  Accordingly, we dismissed the application.

Mr Simon Tam, SC, SADPP of the Department of Justice, for the respondent

Mr Khattak, S K (Kelly Lam), instructed by Ho & Ip, assigned by Legal Aid Department, for the applicant