HKSAR v. LEE KWOK WAI

CACC 289/2021

[2022] HKCA 1575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 289 OF 2021

(ON APPEAL FROM HCCC NO 49 OF 2021)

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REASONS FOR JUDGMENT

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1.  The applicant, who had pleaded guilty before a magistrate and was thereby committed to the High Court for sentence, duly appeared before Toh J on 16 November and 9 December 2021, when he was sentenced to an overall term of 9 years and 4 months’ imprisonment in respect of the following five counts on an indictment:

(1)  Homosexual buggery with a man under the age of 16 years[1], for which he was sentenced to 3 years and 4 months’ imprisonment;

(2)  Indecent conduct towards a child under the age of 16 years[2], for which he was sentenced to 4 years’ imprisonment;

(3)  Indecent assault[3], for which he was sentenced to 2 years and 4 months’ imprisonment;

(4)  Making child pornography[4], for which he was sentenced to 1 year and 4 months’ imprisonment;

(5)  Publishing child pornography[5], for which he was sentenced to 2 years’ imprisonment.

2.  The judge ordered 2 years of the sentence on Count 2 to run consecutively to the sentence on Count 1; 2 years of the sentence on Count 3 to run consecutively to the sentences on Counts 1 and 2; the whole of the 2-year sentence on Count 5 to run consecutively to the total sentences on Counts 1, 2 and 3; while the sentence on Count 4 was ordered to run concurrently with the total sentence on Counts 1, 2 and 3; thus making an overall sentence of 9 years and 4 months’ imprisonment.

3.  On 20 December 2021, the applicant filed Notice of his intention to appeal against his sentence. His counsel at the leave hearing, Mr Trevor Beel, argued two grounds of appeal: firstly, that the starting point in respect of Count 2 was manifestly excessive and/or wrong in principle (Ground 1); secondly, that the judge’s ordering of consecutive elements in respect of some of the counts resulted in a total sentence that was manifestly excessive and/or wrong in principle (Ground 2).

4.  On 14 October 2022, I granted leave to appeal against sentence and said I would give reasons for my determination in due course, which I now do.

The facts admitted

5.  In the early hours of 9 September 2019, the applicant who was then 46 years of age, accosted a 15-year-old boy (referred to as “X”), who was on his way to a self-service laundry in Shek Kip Mei, Kowloon, and enticed him to come home with him by claiming to be very rich and offering to support his living expenses by becoming his father. X agreed to go to the applicant’s home, which they did by taxi.

6.  When they arrived at the applicant’s home in Chai Wan, Hong Kong, the applicant took away X’s mobile telephone. The applicant undressed himself and said he wanted to have sex with X, whom he wished to be his wife. He pressed X down on his bed and undressed him, while kissing him on the mouth and face, and licking his ear and body. Subsequently, the applicant committed the five offences referred to above.

Count 2 - Indecent conduct towards a child under the age of 16 years

7.  Having removed X’s clothes, which X tried to resist but in vain, the applicant and X had a shower together, during which the applicant touched X’s penis and made X touch his penis. Following the shower, he pulled X into the bedroom where, after they had chatted for a while naked, he kissed and licked him again before requesting X to perform oral sex on him. X complied unwillingly for about 10 minutes.

Count 1- Homosexual buggery with a man under the age of 16 years

8.  The applicant later applied some lubricant to his finger and repeatedly inserted it into X’s anus. He then penetrated X’s anus with his penis, without wearing a condom. The sexual activity continued for about 20 minutes in different sexual positions, culminating in the applicant ejaculating into X’s anus, which the applicant photographed on his mobile telephone. The applicant then took X into the shower again to wash his anus.

Count 3 - Indecent assault

9.  The applicant then made X sleep that night with him naked, telling X that he had to do so since he was his wife. However, X did not dare to fall sleep. During the night, the applicant touched X with his penis, kissed him and fondled his body and penis. On three occasions on which X tried to get up, he was pulled by the applicant to lie down again.

Count 4 - Making child pornography

10.  During the course of the incidents of oral sex and buggery, the applicant took both photographs and videos. Subsequently, 12 pornographic photographs depicting X’s naked body including his genitals and anus, and 9 videos capturing the acts of oral sex and buggery, were found on the applicant’s mobile telephone.

Count 5 - Publishing child pornography

11.  Further examination of the applicant’s telephone revealed that the applicant had sent two of the photographs and three of the videos to another person, who was also a minor, via WhatsApp on the same day.

Report to police

12.  On the following morning, having missed several calls from his mother, X told the applicant that he wanted to leave because he was worried he would miss school. However, he was only permitted to leave after he promised to return to the applicant’s home. X further agreed to give his contact details to the applicant. Having left the applicant’s home, X immediately called his mother and the matter was reported to the police on the same day.

Arrest and cautioned statements

13.  The police arrested the applicant the next day. Under caution, he admitted that he had had sex with a boy the previous day, and that it was wrong for him to have done so. He made further statements in the course of three video recorded interviews (“VRI”) to the effect that:

(i)  He had met X and asked him if he was willing to be his boyfriend; X had replied that since his family was “in a mess” and his father had left home, he wished the applicant to be his father;

(ii)  He invited X to his home for sex; X agreed after first confirming that he had no sexual disease, but X requested money from the applicant, saying that he was willing to do everything if the applicant would buy him a computer;

(iii)  He learned that X was a 15-year old Form 2 student;

(iv)  He detailed the sexual activities he had had with X, and how he had given HK$80 to X and obtained his contact details;

(v)  He said he took the photographs and videos for his own records, but admitted that he had sent some of them to an acquaintance, who claimed to be a Form 1 schoolboy, to show that he had had buggery with a boy.

Medical Examination of X

14.  A medical examination performed in the afternoon of the day of incident revealed two superficial mucosal splits to X’s lower rectum, which were consistent with recent anal penetration, including penile penetration.

Background of the applicant and mitigation

15.  The applicant was, at the time of sentence, a 48-year-old divorced man with a 12-year-old son. He had one previous court appearance in which he was convicted after trial in the High Court of more than 10 similar offences, including homosexual buggery, indecent assault and making child pornography[6], for which he had received a sentence of 12 years’ imprisonment. He was released from prison for those offences on 29 July 2018.

16.  Acknowledging that the applicant is a paedophile, it was submitted by his counsel at trial that his condition as noted in his psychiatric report was stable and he showed no signs of mental disturbance.

17.  For the commission of the present offences, it was submitted that after the applicant was discharged from prison in 2018, he continued to take prescribed drugs to supress his sexual urges, had regular follow-up treatment, and scheduled his work so as to avoid any potential contacts with young boys during the daytime; however, on the day of incident he had forgotten to take those drugs.

18.  So far as the question of re-offending was concerned, the applicant had apparently promised to check the age of his sexual partners more carefully in future. However, the judge was not persuaded and commenting that such a promise was hardly encouraging in light of his previous convictions[7].

19.  With regard to the sentencing factors set out in HKSAR v Lee Kwok Wai[8], an appeal case which derived from the applicant’s previous court appearance, it was submitted that only the age difference, the failure to use protection, the trauma to X and the impact on his family members were relevant to the present case.

20.  Defence counsel urged the court to consider the fact that Counts 1-5 were committed within a short period of time, and should therefore be treated on a concurrent basis. However, if there were to be a consecutive element between the two sets of sentences in Counts 1-3 and 4-5, the resulting sentence should be subject to the totality principle.

Reasons for sentence

21.  The judge observed that the applicant had caused significant trauma to a 15-year-old boy: X had refused to receive psychiatric treatment and counselling because he did not want to recall the events, and had declined help from professional psychologists to deal with his suicidal ideation. Moreover, the applicant had been released from prison just over one year before the present offence. If he was taking medication, it obviously did not seem to help.

22.  In respect of Count 1, having referred to the sentences in Yeung Chu Wing v Secretary of Justice[9]and HKSAR v Yeung Ho Nam[10]as well as the factors considered in Lee Kwok Wai[11], the judge identified certain factors to be relevant in the present case: there was a large age differential between the applicant and X; the applicant had spent a full night with X, during which he had committed various offences; there was some physical pressure exerted on X, if not unnecessary violence; there was a potential health hazard since no protection was used; there was an injury to X’s anus; severe psychological trauma had been caused to X and his family; the applicant had made and published pornographic photographs and videos; the applicant was a paedophile; and the risk of re-offending was evidently high, given his relatively recent release from prison for similar offences.

23.  The judge took a starting point of 4 years’ imprisonment on Count 1 and increased it to 5 years for various aggravating factors including the age differential; the absence of protection; the trauma to X and his family; the risk of re-offending; the deliberate preying on an innocent victim on the street; and the need for deterrence. This she reduced to 3 years and 4 months for the applicant’s guilty plea.

24.  On Count 2, the judge considered that the offence was committed on an unwilling victim pulled from the street; that the applicant had not merely touched X’s penis but also made X touch his; and that X had been made to perform oral sex on the applicant against his will. She adopted a starting point of 6 years’ imprisonment, which she reduced to 4 years for the guilty plea.

25.  In respect of Count 3, the judge noted that the applicant had molested and indecently assaulted X throughout the night, pulling him back onto the bed when he tried to get up on three occasions. She adopted a starting point of 3½ years’ imprisonment, which she reduced to 2 years and 4 months for his guilty plea.

26.  In respect of the child pornography offences: the judge adopted a starting point of 2 years’ imprisonment on Count 4, reducing it to 1 year and 4 months for the applicant’s guilty plea; while on Count 5, the judge adopted a starting point of 3 years’ imprisonment, which she reduced to 2 years for the guilty plea.

27.  In considering the issue of totality, the judge considered Counts 1, 2 and 3 to be separate and distinct offences, ordering that 2 years of the sentence on Counts 2 and 3 should run consecutively to the sentence on Count 1. For the same reason, 2 years of the sentence on Count 5 was ordered to run consecutively to the sentences on Counts 1, 2 and 3.

Applicant’s submissions

28.  Mr Beel submitted that the factual circumstances of Count 2 could not be said to be more egregious than the conduct in Count 1; accordingly, a similar the starting point of no more than 4 years’ imprisonment should have been adopted.

29.  In respect of the totality argument, he argued that the offences formed a continuing incident involving a single victim. There was no direct violence or threat of force; at most there was coercion. In the circumstances, the nominal starting point of 13 years and 11 months, which was calculated from the final sentence of 9 years and 6 months, was manifestly excessive.

30.  Counsel did not accept that Counts 1-3 were separate and distinct offences, contending that they formed part of one ongoing sexual activity on a single occasion. Accordingly, the sentences should all have been concurrent.

31.  Alternatively, he submitted, the criminality involved in Count 3, in the context of the incident as a whole, was relatively minor in nature, and there should have been no consecutive element ordered in respect of this offence; while, for Counts 1 and 2, only 1 year of the sentence on Count 2 should have been ordered to run consecutively to Count 1. Allowing for a consecutive element in respect of Count 5, the total sentence should have been 6 years and 4 months’ imprisonment.

Respondent’s submissions

32.  Mr David Chan, on behalf of the respondent, submitted that the judge had correctly applied the relevant principles, and considered all relevant factors; accordingly, the starting point of 6 years’ imprisonment on Count 2 was neither manifestly excessive nor wrong in principle:

(i)  The facts of Count 2 concerned the applicant undressing X, touching each other’s penises during the shower, kissing and making X perform oral sex against his will;

(ii)  X was interviewed by a clinical psychologist, and according to the three reports, he had been severely traumatised by the incident. He was still suffering symptoms of post-traumatic stress disorder after 18 months, since the incident was “too horrible and traumatising for him, resulting in development of paranoid and suicidal ideation”[12]; X had nightmares and was socially withdrawn, he planned to kill himself and showed avoidance, suppression and dissociation. X need urgent assistance but had resisted both psychiatric and psychological intervention;

(iii)  The age difference between the applicant and X of 32 years was greater than when he committed his previous offences;

(iv)  X had resisted when the applicant removed his clothes, but in vain; he had complied with the applicant’s demand for oral sex unwillingly;

(v)  The applicant accepted in his VRIs that X had told him he was 15 years of age and a Form 2 student. It was not a case, therefore, of the applicant making a mistake about a victim’s age; in circumstances where the applicant knew he was a paedophile, at least from 2012;

(vi)  The applicant had been placed on medication to control his sexual desires following his earlier discharge from prison. Accepting his claim of a single lapse in taking medication for one day, he was clearly unable to control himself. He remained, therefore, a real danger to children;

(vii)  The applicant’s previous incarceration had not deterred him at all. There should, therefore, be a strong element of personal deterrence;

(viii)  The applicant had taken videos in the course of the oral sex.

33.  In respect of the argument on totality, Mr Chan submitted that the egregious acts involved in Counts 1-3 took place over the course of several hours until the following morning when X was permitted to leave the applicant’s home; accordingly, they should be viewed as separate and distinct sexual attacks on X over a sustained period. The requirement that X should perform oral sex against his will on the applicant, and the subsequent detention of X in order to further gratify his sexual desires, caused particular anguish and trauma to X and added to the culpability of the applicant’s conduct in Count 1. Mr Chan argued that the case demonstrated a disturbing repetition and escalation of the applicant’s abuse of underage boys, which, given the severe harm that has been caused to X and his family, properly merited an overall sentence of 9 years and 4 months’ imprisonment.

Consideration

34.  There are a number of particularly serious aggravating features in this case: firstly, the applicant committed these offences after emerging from prison only 13½ months earlier, having served a lengthy sentence of 12 years’ imprisonment for the same offences, involving no less than six young boys; that suggests, secondly, that the applicant, who is an acknowledged paedophile, is a continuing danger to young boys and the sentence required a significant element of personal and public deterrence; thirdly, the victim has been so severely traumatised that he has suffered from suicidal ideation. There are, of course, other aggravating features but these will strike any appellate court as of particular concern.

35.  I am not particularly impressed by the argument that the starting point on Count 2 was manifestly excessive. As Mr Chan correctly pointed out, its features added to the applicant’s culpability on Count 1; in any event, an appellate court will be more interested in the correctness of the 2-year consecutive element of imprisonment than with the starting point for this offence. However, Mr Beel is certainly entitled to use the consecutive nature of the sentence on Count 2 to fortify his general argument that the cumulative sentence, which was reached by a number of consecutive elements being added to the sentence on Count 1, was manifestly excessive and/or wrong in principle. It seems to me that Mr Beel’s main argument really concerns the totality of sentence for the criminality involved when all the offences are viewed together.

36.  Mr Chan did acknowledge in argument that the sentence may be on the high side but he nevertheless submitted that that did not make it manifestly excessive and/or wrong in principle. He is correct. The Court of Appeal is not there to tinker with sentences or pass the sentence it feels it would have passed, but to correct appealable error or those sentences whose length is manifestly excessive (or, correspondingly, manifestly inadequate). Nevertheless, I consider it is reasonably arguable that the overall length of sentence in this case is manifestly excessive and/or wrong in principle.

37.  I accordingly granted leave to appeal against sentence on both grounds of appeal.