HKSAR v. LAW CHUN YIN

CACC 216 /2019

[2020] HKCA 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 216 OF 2019

(ON APPEAL FROM HCCC NO 383 OF 2017)

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J U D G M E N T

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1.  On 16 October 2017, the applicant pleaded guilty in the magistrates’ court to a charge sheet containing seven charges for which he was committed to the High Court for sentence. On 5 February 2018, he appeared before Li J in the High Court, where he confirmed his pleas to all seven charges, namely:

(a)     Indecent assault on another person, namely X, contrary to section 122(1) of the Crimes Ordinance, Cap 200 (Charge 1);

(b)     Indecent conduct towards a child under the age of 16, namely X, contrary to section 146(1) of the Crimes Ordinance (Charges 2 and 6);

(c)     Homosexual buggery with a man under the age of 16, namely X, contrary to section 118C(a) of the Crimes Ordinance (Charges 3 and 7); and

(d)     Making of child pornography, contrary to section 3(1) of the Prevention of Child Pornography Ordinance, Cap 579 (Charges 4 and 5).

2.  On 5 March 2018, having earlier called for various reports on the applicant and the victim, the judge sentenced the applicant to an overall term of 8½ years’ imprisonment.  By a Notice of Application for Leave to Appeal (Form XI) filed on 19 July 2019, he now seeks leave to appeal against sentence out of time.

The facts accepted by the applicant

3.  When renewing his pleas of guilty to the charges in the High Court, the applicant accepted a comprehensive set of facts in respect of each offence.  In 2016, on an Internet forum involving discussions on the topic of homosexuality, the applicant told X, who was 14 years old at the time, that he wanted them to become lovers.  Thereafter, they maintained contact with each other via WhatsApp messaging and ultimately agreed to meet on 3 September 2016 at a guesthouse in Kowloon.  Nevertheless, X subsequently changed his mind and refused to meet the applicant.  As a result, a person claiming to be the applicant’s younger brother sent WhatsApp messages to X, saying that he would meet up with X for a chat if he was found to be deceiving his elder brother.  X felt scared and, accordingly, went to meet the applicant in Kwun Tong, Kowloon in the morning of 3 September 2016.

4.  When he saw X, the applicant gave him a box of sweets and led him to a guesthouse in Sau Mau Ping, Kowloon.  However, there was no room available and they both left through the rear staircase.  When they reached the rear staircase, the applicant suddenly squeezed X’s buttocks with his hand over his trousers for a few seconds.  After the meeting, X said he wanted to end the relationship with the applicant, and that he had never promised to be his lover.  However, the applicant threatened to commit suicide if X broke up with him and asked him to speak to his younger brother.  Thereafter, X continued to receive messages purportedly from the applicant’s younger brother, who told him the applicant was very upset and that he would not let X off if anything happened to his brother.  These facts constituted Charge 1.

5.  On the following day, 4 September 2016, the applicant met X for the second time in the latter’s home in Kowloon.  X’s parents were not at home.  The applicant gave X a box of chocolates and then took off X’s clothes.  He requested X to perform oral sex on him, which X thought he could not refuse since the applicant was taller and bigger than he was. After performing oral sex on the applicant for between 10 and 15 minutes, the applicant ejaculated in X’s mouth and asked him to swallow his semen, which X did.  X subsequently received threatening messages from someone who claimed to be the applicant’s sworn brother, saying that he should continue to perform sexual acts with the applicant, otherwise his family would be harassed.  The relationship between the applicant and X continued, during which the applicant would call X his “wife” and X would call the applicant his “husband”.  These facts constituted Charge 2.

6.  In the first or second week of September 2016, the applicant went to X’s home again.  They lay on X’s bed and the applicant inserted his fingers, followed by his penis, into X’s anus.  The applicant was not wearing a condom, nor was he using any lubricant.  Accordingly, X found the applicant’s movement inside him painful.  The applicant then ejaculated in X’s anus.  These were the facts of Charge 3 and constituted the first offence of buggery.

7.  On 26 September 2016, X went to the applicant’s home in the New Territories, having previously told the applicant that he did not want their sexual acts to be video-recorded.  However, X received yet more messages from the applicant’s younger or sworn brother urging him to participate in making sex videos with the applicant.  At the applicant’s home, the applicant made a video lasting 8 minutes and 20 seconds of his sexual acts with X.  The video was kept in his mobile telephone and depicted, inter alia, the following images:

(a)     The applicant hitting X’s penis and buttocks, and slapping his face and penis, while X responded “thank you Master”;

(b)     X performing oral sex on the applicant;

(c)     The applicant inserting his finger into X’s anus.

8.  These facts constituted Charge 4.  It is relevant to note that, as part of the facts accepted by the applicant when pleading guilty, the images depicting penetrative sexual activity between a child and an adult, as well as sadism, brought the material within Level 4 of the classifications adopted for pornographic depiction of children set out in Secretary for Justice v Man Kwong Choi[1].

9.  On 9 October 2016, the applicant went to X’s home, again using his mobile telephone to make a video of their sexual activity, the duration of which was 17 minutes and 13 seconds.  The following images were found in the applicant’s mobile telephone:

(a)     The applicant hitting the victim’s penis and X responding “thank you Master”, while his eyes were covered with a towel;

(b)     The applicant performing oral sex on X, and instructing X to perform oral sex on him, which he did;  

(c)     The applicant hitting X’s buttocks and touching X’s anus with his penis and fingers.

10.  These facts constituted Charge 5.  The penetrative sexual activity between a child and an adult, as well as sadism, brought the above images within Level 4 of the Man Kwong Choi classifications.

11.  On a date in October 2016, in the applicant’s home, the applicant asked X to kneel on the floor and perform oral sex on him as he sat in a chair.  Having done so, the applicant hit X’s buttocks and penis.  X responded by saying “thank you Master”.  They then both got onto the bed, where the applicant penetrated X’s anus with his penis until he ejaculated. No condom or lubricant were used.  These facts constituted Charges 6 and 7; with Charge 7 being the second offence of buggery.

12.  In November 2016, X wished to end the relationship with the applicant and ignored his messages and telephone calls, notwithstanding that the applicant again threatened to commit suicide.  Then in December 2016, X’s classmates received some unsolicited naked photographs of X through Facebook.  The photographs were circulated among X’s classmates and in due course came to the attention of one of X’s teachers.  A report was duly made to the police, leading to the arrest of the applicant on 21 December 2016.  Under caution, the applicant admitted having a sexual relationship with X, but claimed that it was consensual.

13.  On 20 December 2016, a medical examination was conducted on X but no injury or abnormality was found.

The sentencing of the applicant

14.  The applicant was either turning or had turned 29 years of age at the time of the offences, and was 30 at the time of sentence. He had received education up to Form 3 level.  At the time of the offences, he was a cross-border vehicle driver, earning $11,000 per month. He had previously been convicted on four charges of indecent assault in the magistrates’ court in 2005, for which he had been sent to a Rehabilitation Centre; three counts of homosexual buggery in the High Court in 2016 for which he had been sentenced to a total term of 28 months’ imprisonment; and one count of criminal intimidation, also in the High Court, for which he received a consecutive sentence of 8 months’ to the 28 months’ imprisonment.

15.  Before sentencing the applicant, the judge had received and considered a psychological report and a psychiatric report on the applicant as well as a victim impact report on X.  He noted, in particular, that as a result of the offences, X had suffered post-traumatic stress symptoms, albeit not perhaps very severe ones.

16.  The judge considered that there were a number of aggravating factors in the present case, including the applicant’s similar previous convictions in 2016, a high risk of his re-offending, the use of coercion and threats on X, a substantial difference in age between the applicant and X, the non-use of a condom and the fact that many of the sexual acts were video-recorded and photographs subsequently published on Facebook.

17.  Having considered the applicable sentencing principles in Man Kwong Choi, and also HKSAR v Ipp Tin Fan[2], the judge adopted the following starting points:

(a)     For Charge 1: 3 months’ imprisonment.

(b)     For each of Charges 2, 4, 5 and 6: 3 years’ imprisonment.

(c)     For each of Charges 3 and 7: 5 years’ imprisonment.

18.  The judge gave the applicant a full one-third discount on each charge to reflect his timely pleas of guilty and sentenced him as follows:

(a)     For Charge 1: 2 months’ imprisonment.

(b)     For each of Charges 2, 4, 5 and 6: 2 years’ imprisonment.

(c)     For each of Charges 3 and 7: 3 years and 4 months’ imprisonment.

19.  He further ordered that the entire sentence on Charge 1, as well as one year of each of the sentences on Charges 2, 4, 5, 6 and 7, should run consecutively to the sentence on Charge 3, making an overall sentence of 8 years and 6 months’ (or 8½ years’) imprisonment.

The reasons for delay in applying for leave to appeal

20.  In his affirmation filed on 5 December 2019, the applicant acknowledged that there was a delay of 1 year and 3 months in lodging the present application.  He explained that it did not come to his attention until late March 2019 that there had been developments in the approach to sentencing for offences of homosexual buggery, which might consequently afford him a good ground to appeal against his sentence.  On or about 25 June 2019, he had read in the newspapers of the first instance decision in HKSAR v Ho Wing Hong[3], in which Deputy Judge Woodcock had acted on the proposed remedial interpretation of section 118C of the Crimes Ordinance.  Accordingly, he filed Notice of his intention to appeal out of time on 18 July 2019, even before the decision of the Court of Appeal in HKSAR v Yeung Ho Nam (No 1)[4] was delivered on 25 September 2019, confirming that remedial interpretation.

The grounds of appeal

21.  Mr Victor Lee, on behalf of the applicant, advances two grounds of appeal.  Firstly, he argues the substantive ground that section 118C of the Crimes Ordinance has, since the Court of Appeal’s decision in Yeung Ho Nam in September 2019, been remedially interpreted by the Court so as to reduce the maximum sentence for the offence from life imprisonment to 5 years’ imprisonment.  And although this occurred after the applicant was sentenced, and indeed after the time within which he should have appealed against sentence had lapsed, he should be allowed to take advantage of the change in the law.  For, if the law was unconstitutional on 25 September 2019, it was unconstitutional before that date as well.  As a result of the change in the law, he submits that the starting point of 5 years for Charges 3 and 7, which now represents the maximum sentence for the offence, was manifestly excessive.

22.  Secondly, Mr Li argues the more general ground of appeal that the overall sentence passed was wrong in principle and/or manifestly excessive.

The respondent’s submissions

23.  Whilst accepting that the judge had effectively adopted the maximum starting point for sentence of 5 years’ imprisonment in respect of Charges 3 and 7 as the law has now been interpreted, Mr Derek Wong, on behalf of the respondent, contends that the applicant’s conduct fell within the most serious end of the bracket for this offence and the judge was entitled to pass a heavy sentence.  Furthermore, the ultimate overall sentence of 8½ years’ imprisonment was appropriate given the very serious and aggravating features involved.

Consideration

24.  Mr Li’s principal point concerns the recent change to the maximum sentence for the offence of homosexual buggery with a man under the age of 16 from life imprisonment to 5 years’ imprisonment.  In my judgment, it is reasonably arguable that the applicant should benefit from this change, notwithstanding that the amendment came about only after the applicant was convicted and sentenced for the offences he faced.  It is quite clear from the way the judge expressed himself that he considered the most serious offence to be the buggery offence in Charge 3, since that was the anchor to which all other offences were attached, by being made either wholly consecutive or partly consecutive to it^[5].

25.  Since the judge cannot have intended to impose the maximum sentence for the offences of buggery, for which in the normal course he should have signalled his intention to defence counsel; and given that, if he had so intended, there would be little or no room left for offences committed on even younger, multiple victims where there was a greater age differential, a breach of trust element or the spread of a sexually transmitted disease, it is reasonably arguable that the ‘anchor’ was too heavy.

26.  Accordingly, I shall grant leave to appeal on both grounds of appeal.  However, in granting leave to appeal, I should caution the applicant that the facts were very serious and there were a number of aggravating factors at play, which were correctly identified by the judge.  The most significant were the way the applicant had coerced and manipulated X into complying with his demands, culminating in his publishing naked photographs of X to his classmates when X ended their relationship, and the fact that he has previous convictions for similar offences.  It is clear both from his antecedents and the psychiatric and psychological reports that the applicant poses a danger to young boys, and there must inevitably be a strong element of both public and private deterrence in the overall sentence.

27.  The Court of Appeal will no doubt bear these matters in mind when assessing the appropriateness of the overall sentence.  It does not necessarily follow that simply because two of the constituent elements of the sentence may be considered to be manifestly excessive, the overall sentence must be manifestly excessive.  These will be matters for the Court of Appeal to consider in assessing the overall criminality of the applicant’s conduct. 

[1] Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519.

[2] HKSAR v Ipp Tin Fan [2016] 4 HKLRD 486.

[3] HKSAR v Ho Wing Hong (Unrep., HCCC 298/2018, 24 June 2019).

[4] HKSAR v Yeung Ho Nam (No 1) [2020] 1 HKLRD 91.

[5] Appeal Bundle, pp 25R-26A.