HKSAR v. IPP TIN FAN

CACC 9/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 9 OF 2016

(ON APPEAL FROM DCCC NO. 685 OF 2015)

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J U D G M E N T

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Hon Macrae JA (giving the Judgment of the Court):

1. With the leave of Lunn VP, granted on 19 May 2016, the appellant appeals against his sentence of 34 months’ imprisonment passed by HH Judge Sham (“the judge”) in the District Court on 16 December 2015, following convictions on his own pleas to two offences, namely making child pornography on 6 May 2015 of a girl X, who was 13 years of age at the time, contrary to section 3(1) of the Prevention of Child Pornography Ordinance, Cap 579 (Charge 1); and indecent assault on X on the same day, contrary to section 122(1) of the Crimes Ordinance, Cap 200 (Charge 2). The judge passed individual sentences of 12 months’ imprisonment on Charge 1 and 28 months’ imprisonment on Charge 2, before ordering that the sentence on Charge 2 should run consecutively to 6 months of the sentence on Charge 1 and concurrently with the remainder, thus making an overall sentence of 34 months’ (or 2 years and 10 months’) imprisonment.

The facts

2. The appellant had placed an online advertisement on the internet for the recruitment of part-time models.  X, who was 13 years and 11 months of age at the time, saw the advertisement and entered into an exchange of WhatsApp messages with the appellant.  At the time, the appellant was 41 years of age and aware that X was under 16.  The two eventually agreed that X would allow the appellant to take photographs of her naked in return for HK$1,400.

3. At about 4:30 pm on 6 May 2015, the appellant met X at Prince Edward MTR station.  The appellant proceeded to lead her to a guest house in Mongkok, where he rented a room for two hours.  Upon entering the room, the appellant handed over the agreed amount of HK$1,400 to X.  She then took a shower, after which the appellant told her to remove the towel, which was wrapped around her body, and to lie down on the bed naked.  This X did.  Photographs of her naked body were then taken by the appellant, using his iPhone.

4. In the course of these events, the appellant hugged, kissed and touched X’s naked body.  He then manipulated the opening of her vagina with his fingers before removing his underpants and placing his erect penis next to her vagina.  The appellant took close-up photographs of X’s breasts, vagina, the manipulation of her vaginal opening with his fingers, and his own erect penis next to her vagina.  He also made video recordings of his assault, in particular the insertion of his thumb into X’s vagina.  The appellant further requested oral sex with X, but she refused.  Instead, the appellant then masturbated as X, who had covered herself with the towel to avoid being ejaculated over, lay on the bed.

5. After staying with the appellant in the room for a little over an hour, X went home and recorded the above events in her diary.  On 12 May 2015, the diary entry was read by her mother, who reported the matter to a social worker, and subsequently to the police on the following day.

6. In a controlled police operation at Prince Edward MTR station on 15 May 2015, during which X arranged to meet up with the appellant, the appellant was identified and subsequently arrested.  Under caution, he admitted that he had committed the offences alleged.  He further admitted that he had transferred some of X’s photographs and video recordings from his iPhone to his desktop computer, which was at his home in Ma On Shan.  He denied publishing any of the photographs and video recordings.

7. The police accordingly conducted a search at the appellant’s home, where a desktop computer containing 67 photographs and 4 video recordings (64 of the photographs and all 4 video recordings formed the subject matter of Charge 1[1]) was found and seized.

8. The depictions of the material which formed the subject matter of Charge 1 were categorised in the admitted Summary of Facts within the following levels of classification set out by this Court in Secretary for Justice v Man Kwong Choi[2]:

(a)  18 photographs and 3 video recordings were classified as Level 1 child pornography, being described as “images depicting erotic posing with no sexual activity”; and

(b)  46 photographs and 1 video recording were classified as Level 3 child pornography, namely “non-penetrative sexual activity between adults and children”.

9. Of the content of the 4 video recordings:

(a)  one video recording captured what was described as “a thumb half inserted into X’s private parts”;

(b)  another video recording captured X’s vagina “with a penis wearing a condom next to it”; while

(c)  the remaining two video recordings depicted X’s private parts.

The video recordings ranged in duration from 20 to 39 seconds.

The psychological report

10. Before hearing mitigation, the judge called for a psychological report to be prepared on the appellant. In his report, Mr Charles Pau, a clinical psychologist with the Correctional Services Department, considered that the appellant had a distorted sexual attitude but without any deviant sexual interest; and that he had a low to moderate risk of re-offending.[3]  In the course of his interview with the appellant, the appellant disclosed that X had told him through their WhatsApp exchanges that she owed people money.[4]  As to how the offences had been committed, Mr Pau recorded the following explanation:

“Mr Ipp insisted he had told the victim that it was fine with him if they only chatted in the room. But he said the victim took a shower and then wrapped herself in a towel. Mr Ipp admitted that he felt sexually excited and lost control…”[5]

11. Based upon that explanation, Mr Pau formed the view that the appellant “subtly blamed the victim for luring him to commit the present offences”.[6]

Mitigation

12. Mr Davies, counsel for the appellant both here and below, submitted before the judge that most of the photographs in Charge 1 concerned were generated by continuous filming, and so were almost identical.  He emphasised that the appellant had never tried to share or circulate the material in question on the internet.

13. He pointed out that it had been agreed in the Summary of Facts that the worst of the child pornography concerned fell within Level 3 of the classifications set out in Secretary for Justice v Man Kwong Choi.  By reference to the starting point for possession of Level 3 child pornography set out in that particular case, he submitted that the appropriate starting point should likewise have been 6 to 12 months’ imprisonment.

14. As for Charge 2, counsel contended that the offence was committed as a result of a momentary sexual urge; and that the sexual act involved a single insertion of the appellant’s thumb into X’s vagina, without inflicting any permanent injury or harm on her.

Reasons for Sentence

15. In passing sentence, the judge acknowledged that the appellant was a man of previous good character.  However, he expressly rejected any suggestion that the appellant had somehow been encouraged into committing the offences and noted that the following aggravating features were present:

(a)  The offence in Charge 2 had lasted a lengthy period of time and involved the insertion of the appellant’s finger into X’s vagina[7];

(b)  There existed a substantial age difference between the appellant and X of some 28 years[8];

(c)  X was at a vulnerable age, which required protection[9]; and

(d)  The appellant had kept a record of the child pornography obviously for his future enjoyment; nevertheless, any further improper use of the images would have been beyond X’s control.[10]

16. The judge had express regard to the principle of totality before passing the sentences referred to.

Grounds of appeal against sentence

17. In his original Perfected Grounds of Appeal, Mr Davies advanced two grounds of appeal, complaining that the starting points of 18 months’ imprisonment in respect of Charge 1, and 42 months’ imprisonment in respect of Charge 2 (Ground 2) were manifestly excessive.  Following the grant of leave by the Single Judge, Mr Davies subsequently added an additional ground of appeal, namely that the judge “erred in not making the sentences in respect of Charges 1 and 2 wholly concurrent” (Ground 3).

18. Most of the submissions before us in respect of Ground 1 had been advanced by Mr Davies in the court below.  He emphasised that the number of pornographic images concerned was not particularly large; the images and video recordings were not published; X could not be described as “extremely” young; and there were no other particularly aggravating features.  He referred to HKSAR v Chow Yuen Fai[11], where the sentencing judge had adopted a starting point of 2 years’ imprisonment for each of three charges of making child pornographic images involving boys aged 8, 11 and 13, which starting point was not disturbed by the Court of Appeal.  The images depicted them performing various sexual acts with the applicant.  Mr Davies submitted that the present case was much less serious than the facts and circumstances of that case, where the applicant was said to have had a fairly high chance of re-offending and, further, was a paedophile who actively sought out young boys.

19. In relation to Ground 2, Mr Davies contended that the age difference between the appellant and X formed the only real aggravating feature in the present case.  However, by comparing the facts and circumstances of the present case with other decided cases, he argued that the sentence on Charge 2 was too high.  In particular:

(a)  In Secretary for Justice v Huang Long Wei[12], the respondent, aged 18 at the time of the offences, had originally been sentenced to probation for 18 months for indecently assaulting two boys, both aged 7, by touching the private parts of one boy on three occasions, and of another boy on one occasion.  Mr Davies pointed out that that case involved a breach of trust as well as the exertion of a degree of force.  The Court on review varied the sentence to a rehabilitation centre order, with a period of detention of not less than 3 months or more than 9 months;

(b)  In HKSAR v Lee Hon Wah & Anor[13], the Court reduced the starting points to 18 months’ imprisonment for one count of indecent assault, which involved a 14-year-old boy willingly performing oral sex on the 34-year-old 1^st appellant for money; and to 2 years’ imprisonment each for two other counts of buggery, both involving a 14-year-old boy providing sexual services to the 26-year-old 2^nd appellant for money.  Mr Davies argued that the offences committed by both appellants in that case were far more serious than the present offence in Charge 2;

(c)  In Attorney General v Ho Yu Ping[14], the Court on review considered that a starting point of 18 months’ imprisonment would have been appropriate for fairly minor indecent assaults on school girls aged 10 to 13 by the respondent who was their school teacher;

(d)  In Secretary for Justice v Wong Tsz Kin[15], the Court held that the appropriate starting point for two charges of indecent assault should have been between 9 and 12 months’ imprisonment.  The 22-year-old respondent, who was the son of a mother who provided care for the 8-year-old victim, called the victim into his room, where he fondled her genitalia on one occasion; and also called her into the bathroom where he asked her to perform oral sex on him to ejaculation on another occasion; and

(e)  In HKSAR v Tsang Cho Kiu[16], the Court upheld a starting point of 3 years’ imprisonment in respect of one count of indecent assault, which had taken place in a hotel room where the applicant met four girls, all under the age of 16, for the purpose of a photo-shoot.  He then invited them to masturbate for him by giving them money in return.  He further touched the breasts and private parts of one girl and rubbed his penis against her private parts over her underpants on the bed where a second girl was lying next to them.  The aggravating features noted by the judge in that case, included (i) the multiplicity of offences committed; (ii) the applicant had effectively engaged the victims in prostitution; (iii) the offences were all committed in the presence of a third party; and (iv) the risk of re-offending was at the high end of the moderate range.

20. Mr Davies did not file any further written submissions in respect of his new Ground 3, which with respect he should have done in accordance with the Practice Direction.[17]

Respondent’s submissions

21. In respect of Ground 1, Mr Kuan SPP, for the respondent, acknowledged that in Secretary for Justice v Man Kwong Choi, this Court had propounded a sentencing range of between 6 and 12 months’ imprisonment after trial for possession of Level 3 child pornographic material. However, the Court was dealing with, and prescribing guidelines for, possession of child pornography under section 3(3) of the Prevention of Child Pornography Ordinance: it was not dealing with making child pornography under section 3(1).  By comparing that authority with HKSAR v Chow Yuen Fai, which was a case concerned with making child pornography, he argued that an offence of making child pornography would attract a sentence of imprisonment significantly more severe (something in the order of 3 to 6 times heavier) than an offence of possessionof child pornography; as such, he submitted that the starting point of 18 months’ imprisonment (discounted to 12 months’ imprisonment for plea) imposed by the judge on Charge 1 cannot be said to be manifestly excessive.

22. Further, contrary to the agreed descriptions of the images in question in the Summary of Facts, Mr Kuan maintained that the relevant depictions in the four video recordings should have fallen within higher levels of classification set out in Secretary for Justice v Man Kwong Choi.  Noting that digital penetration was depicted in two of the video recordings and digital manipulation of the opening of the vagina in all of them, Mr Kuan maintained that the first two video recordings should have fallen within Level 4, and the remaining two video recordings within Level 3, of the Secretary for Justice v Man Kwong Choi guidelines.  In support of that contention, Mr Kuan referred us to the classification levels of child pornography depicting such conduct in both the English case of R v Oliver and Others[18] and in the “COPINE Project”[19].

23. Mr Kuan accordingly invited us to provide future guidance on sentencing, so as to make clear that:

(a)  depictions of digital touching between an adult and a child should be classified as Level 3 conduct; and

(b)  depictions of digital penetration, masturbation and oral sex between an adult and a child should be classified as Level 4 conduct.

24. In respect of Ground 2, Mr Kuan argued that the starting point of 42 months for the offence of indecent assault in Charge 2 was on the low side.  In support of that proposition, he highlighted the following aggravating features which he submitted were present in this case:

(i)  There was a significant age difference between the appellant and X;

(ii)  The appellant was fully aware of that age difference and the fact that X was under age;

(iii)  X was corrupted with a $1,400 inducement;

(iv)  The indecent acts included digital manipulation of X’s vagina, penetration with a finger, and the placing of his erect penis next to X’s vagina.  Further, he had asked for oral sex and, when that was rejected, masturbated in her presence;

(v)  The appellant had filmed and photographed his sexual assaults upon X.  Mr Kuan stressed that the Court in HKSAR v Chow Yuen Fai had made it clear that this was a particularly serious aggravating factor[20];

(vi)  The appellant had taken photographs of X’s Hong Kong Identity Card and her school student card without her consent, for reasons which have never been satisfactorily explained; and

(vii)  This was a case of “grooming”, in which the appellant had built up a level of trust through the exchange of WhatsApp messages with X, whom he had met online, in order to carry out an indecent assault upon her.

25. In respect of the totality principle, which is relevant to Ground 3, whilst accepting that the judge may have erred in not ordering the sentences imposed on Charges 1 and 2 to be served concurrently with each other in accordance with the approach approved in HKSAR v Chow Yuen Fai[21], Mr Kuan submitted that this Court must look at the overall sentence of 34 months’ imprisonment (discounted by one-third from a notional overall starting point of 4 years and 3 months’ imprisonment) in determining whether it was manifestly excessive.

Discussion

26. Dealing first with Charge 1, the classifications of the depictions of child pornography in the present case were, in our judgment, wholly inaccurate and misleading.  One only has to read the description given in the Summary of Facts of the penetration of X’s vagina by the appellant’s thumb as “non-penetrative sexual activity between adults and children”, to realise that there has been a clear misclassification of the depiction of the act at Level 3, when it should have been at Level 4.  We should add that we have watched the relevant video recordings and it is clear that the thumb was being moved in a reciprocating, stimulating motion.  As for the video recordings depicting digital manipulation of the opening of X’s vagina, these have also been plainly miscategorised as “images depicting erotic posing with no sexual activity” at Level 1 when they should have been at Level 3.

27. However, Mr Kuan accepted before us that hitherto such classifications have been in accordance with the practice of the police and the Department of Justice.  Accordingly, the appellant, like others, has been the beneficiary of this erroneous practice and we do not think it appropriate to visit the consequences of our view of that policy upon the appellant.

28. In future, however, the portrayal of any digital touching of genitalia between an adult and a child should be classified as Level 3 conduct, within the categories laid down in Secretary for Justice v Man Kwong Choi.  The portrayal of digital penetration, masturbation or oral sex between and adult and a child should henceforth be classified as Level 4 conduct.

29. Further, we cannot accept the submission of Mr Davies that the starting point on Charge 1 should have been between 6 and 12 months’ imprisonment in respect of the more serious child pornography at Level 3 of Secretary for Justice v Man Kwong Choi, even accepting, as we do, that the conduct depicted was misclassified at Level 3, when it should have been at Level 4.  As the Court in Secretary for Justice v Man Kwong Choi explained, at para 21:

“It is important to stress that we are, in the two cases now before us, solely concerned with offences of possession of child pornography. Higher maximum sentences are provided under section 3(1) and (2) of the PCPO where more than mere possession is involved.”

We are in this case dealing, not with possession of child pornography under section 3(3) of the Prevention of Child Pornography Ordinance, but with making child pornography under section 3(1).  As the Court in HKSAR v Chow Yuen Fai later reiterated, at para 47:

“As reflected in the maximum sentence for these offences, the making of child pornography is treated more seriously than mere possession.”

30. This approach is also consistent with the guidelines in England and Wales set out in R v Oliver and Others,where the Court said, at para 12:

“Merely locating an image on the Internet will generally be less serious than down-loading it. Down-loading will generally be less serious than taking an original film or photograph of indecent posing or activity.”

It is further worth noting, at para’s 50-52 of R v Oliver and Others, that the indecent assault in the case of Baldwin, who was one of the other appellants dealt with by the Court, was the digital penetration of a young girl, which the Court considered should have attracted a sentence appropriate to Level 4 conduct, namely “penetrative sexual activity between children and adults”.

31. In our judgment, the starting point on Charge 1 in respect of making child pornography should have been at least 18 months’ imprisonment, even if we ignore the misclassification of the level of the offence, which we do not think it right to use, for the reasons we have explained, to the appellant’s disadvantage.  Had the conduct been properly classified at Level 4, the starting point should have been even higher.

32. In respect of Charge 2, there were, as Mr Kuan has submitted, a number of particularly aggravating features to the offence.  There was one in particular, however, which was not considered by the court below, namely the fact that the appellant had “groomed” X for the purposes of taking photographs of her as he indecently assaulted her.  The verb ‘groom’ in this context is defined in the Shorter Oxford English Dictionary as “Prepare (a child) for a meeting, especially via an internet chat room, with the intention of committing a sexual offence.”  That definition finds resonance with the Court’s description of the facts in HKSAR v Chan Hoi Tat[22], at para 45:

“From the evidence accepted by the judge, clearly the applicant was grooming a 12 year-old via the internet. He talked with her about daily matters before progressing to introducing matters of a sexual nature to this young girl. It is far too easy for an older man to prey on the innocence and/or naivety of a youngster and a deterrent sentence must be imposed to protect the young.”

33. We are satisfied that by placing an advertisement for part-time models on an online forum and then exchanging messages via WhatsApp with X, who had responded to the advertisement, culminating in an arrangement to hold a private photo-shoot, the appellant was clearly embarked on a course of conduct aimed at grooming X, whom he knew was under age, for the purpose of committing a sexual offence.  During the exchange of WhatsApp messages, the appellant explained to Mr Pau, the clinical psychologist, that “he always asked the victim about her school life” and that “after a few days of texting … the victim told him she owed people money.”[23]  It is this cultivation by an adult of the trust of a child by seemingly innocent or innocuous conversation, which is then steered towards more intimate discussion, ultimately designed to result in a sexual liaison, which is the hallmark of grooming.  This was, in our judgment, a clear case of grooming, made worse by financial enticement.  As such, it was a particularly aggravating feature of the offence.

34. In our view, the starting point in respect of Charge 2, given all the aggravating features which we have discussed, should have been in the region of 4½ years’ imprisonment.  The question then is whether there should have been any consecutive element as between the two offences, or whether all of the sentence on Charge 1 should have been ordered to run wholly concurrently with the sentence on Charge 2.

35. The judgment of the Court in HKSAR v Chow Yuen Fai held, as we have seen, that “[f]or the offence of making child pornography, the sentences ought to be served concurrently with the offences to which they are related”.[24]  The reason is that where the maker of the child pornography is himself the perpetrator of the sexual offence being recorded, the fact that he has made the film or the photograph is itself an aggravating feature of that sexual offence, requiring enhancement of the starting point for that offence.  To avoid the problem of double counting, it is appropriate to order that any sentence for making the child pornography be served concurrently with the sentence for the sexual offence.  Similarly, if one looks at the other aggravating features identified by Mr Kuan (at para 24 above), all of which we accept, they are all factors which go (to a greater or lesser extent) to aggravate the sentence for the sexual offence of indecent assault.  Consequently, it is not appropriate to pass consecutive sentences where the perpetrator of the sexual offence in question is himself the one who films or photographs it.

36. It will, of course, be otherwise where the making of unrelated child pornography is unconnected with any sexual offence alleged, or where a defendant commits a sexual offence but is found in possession of unrelated child pornography.  Obviously, in such cases, a judge will have to determine how much, if any, of the sentences for distinct criminal offences should be made consecutive and how much concurrent in the normal way.

37. In the present case, the sentence on Charge 1 should, for the reasons we have just explained, have been made wholly concurrent with the sentence on Charge 2, and to that extent the judge’s sentencing process miscarried.  However, the starting points adopted in respect of each charge, when viewed individually, were on the low side.  The overall starting point for both offences should have been 4½ years’ imprisonment.  To achieve that objective, the starting point on Charge 1 should have been at least 18 months’ imprisonment, and the starting point on Charge 2 should have been 4½ years’ imprisonment; duly discounted to 12 months and 3 years’ (or 36 months’) imprisonment respectively for plea, and then ordered to run wholly concurrently with each other.

38. In the circumstances, the overall sentence of 34 months’ imprisonment cannot be said to be manifestly excessive.  Accordingly, the appellant’s appeal against sentence must be dismissed.

[1] It should be noted that the appellant had also photographed, for reasons which were never satisfactorily explained, X’s Hong Kong Identity Card and her school student card, although these did not amount to child pornographic materials.

[2] [2008] 5 HKLRD 519.

[3] The psychological report, para 10, lines 6-7, 8, 10-11: Appeal Bundle p 22.

[4] The psychological report, para 8, lines 7-8: Appeal Bundle p 21.

[5] The psychological report, para 8, lines 9-11: Appeal Bundle p 21.

[6] The psychological report, para 11, line 9: Appeal Bundle p 22.

[7] Reasons for Sentence, paragraph 18: Appeal Bundle p 13.

[8] Reasons for Sentence, paragraph 19: Appeal Bundle p 13.

[9] Reasons for Sentence, paragraph 19: Appeal Bundle p 14.

[10] Reasons for Sentence, paragraphs 20-21: Appeal Bundle p 14.

[11] [2010] 1 HKLRD 354.

[12] [2009] 3 HKLRD 136.

[13] [2011] 4 HKLRD 319.

[14] [1996] 1 HKC 555.

[15] [1998] 4 HKC 32.

[16] (unrep., CACC 42/2014, 27 October 2014).

[17] In this connection, it should be noted that paragraph 7A(11) of Practice Direction 4.2 states that “Perfected grounds of appeal which are not argued in written submissions and adopted orally will be treated as abandoned”.

[18] [2003] 2 Cr App R (S)15.

[19] COPINE, referred to in R v Oliver and Others, is an acronym for COmbating Paedophile Information Networks in Europe: Irish Probation Journal, Vol 5, pages 65-83.

[20] In HKSAR v Chow Yuen Fai, the Court held, at para 26(d) on p 366, that “[t]he trauma, distress and psychological harm is considerably magnified if, as in the present case, a record (by way of photographs and videos) is taken of the sexual act or acts in question. Both the victim, and his or her family, may well be haunted for many years with the knowledge that the act or acts in question, regarded both as embarrassing and shameful in the extreme quite apart from being illegal, are somehow recorded, and with the possibility that they may even surface when the victim reaches later life. This feature we regard as a particularly serious one.”  The Court further considered that the appropriate starting points in respect of the two counts of indecent assault (Counts 6 and 15) should be increased from 3 years to 6 years’ imprisonment.

[21] In HKSAR v Chow Yuen Fai, the Court held, at para 55 on p 376, that “[F]or the offence of making child pornography, the sentences ought to be served concurrently with the offences to which they are related”, namely buggery and indecent assault.

[22] [2011] 6 HKC 59.

[23] The psychological report, para 8, lines 6-8: Appeal Bundle p 21.

[24] HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, at 376, para 55.