HKSAR v. YEUNG HO NAM

CACC 361/2018

[2019] HKCA 384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 361 OF 2018

(ON APPEAL FROM HCCC NO 285 OF 2018)

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J U D G M E N T

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

1.  Following his plea of guilty before Deputy High Court Judge McMahon (“the judge”) on 28 November 2018, the applicant was convicted of two counts of unlawful homosexual buggery with a man under the age of 16, contrary to section 118C(a) of the Crimes Ordinance, Cap 200. He was sentenced to an overall term of 2 years and 6 months’ imprisonment.

2.  By way of a Notice of Application for Leave to Appeal (Form XI) filed on 7 December 2018, the applicant seeks leave to appeal against his sentence.

3.  On 29 January 2019, the applicant applied for bail pending appeal which was refused. However, it was ordered that the application for leave to appeal be heard expeditiously on 29 March 2019 before a three-member division of this Court.

4.  At the leave hearing, this Court reserved judgment after hearing submissions from the parties, but granted the applicant bail in the meantime.

The brief facts

5.  The facts outlined to the judge and admitted to by the applicant were that he became acquainted with X through an online social platform.  The applicant was 27 years old and X was about to turn 14 years old.  X had told the applicant that his date of birth was 17 October 2003.  They exchanged mobile telephone numbers and X discussed with the applicant his circumstances and sexual experiences.  One day, X told the applicant that he wanted to act as a part-time boyfriend for monetary rewards. The applicant responded by telling X, that he should not “sell his body and soul, and that it was dangerous for him to do so.”  This did not dissuade X, who sent to the applicant his price list for “compensated dating”, telling him that he would not charge him. 

6.  On or about 18 August 2017, X and the applicant agreed to meet for the purpose of having sexual intercourse. The applicant took X to his flat where they played mobile telephone games together.  After playing the games for a while, they went into the applicant’s bedroom and had sexual intercourse.  The applicant used a lubricant and put on a condom, and penetrated the anus of X with his penis for a duration of a few minutes. They then went out and had dinner together. 

7.  They continued communicating with each other through a social medium and agreed to meet again.

8.  On 23 September 2017, as he did on the previous occasion, the applicant took X to his flat and after watching television they went into the applicant’s bedroom and had sexual intercourse.  The applicant used a lubricant and put on a condom, and penetrated the anus of X with his penis for a duration of about 10 minutes.  Afterwards, the applicant accompanied X to the MTR station. 

9.  The mobile telephone of X had been registered by his aunt who had access to his data storage. On 25 September 2017, she saw that X had uploaded on his mobile telephone electronic memoranda with a “price list” for compensated dating and “sex plan.”  On discovering this material, she took X to see a social worker.  The police were alerted of what had been discovered and they commenced an investigation into the matter.  They interviewed X, who told them of the two occasions he had sexual intercourse with the applicant. 

10.  The applicant was subsequently arrested and under caution he admitted that he had sexual intercourse with X.

11.  A medical examination of X showed no signs of injury of his anus to indicate that sexual intercourse had taken place.

The applicant’s mitigation

12.  At the time of sentence, the applicant was 28 years old. He graduated with a bachelor degree from a tertiary institution and thereafter went to work in the family’s food store.  He had a clear record and had never been in trouble with the law before this case. 

13.  Mr Randy Shek, who represented the applicant in the court below, submitted to the judge that the circumstances of the case put it at the low end of the scale of the offence. 

14.  Mr Shek referred to the case of HKSAR v Tsang Chiu Tak,[1] in which the Court of Appeal listed a number of aggravating factors that should be considered when sentencing an offender for this type of offence.  He pointed out that none of those factors were present in this case.  He submitted that the age gap between X and the applicant was not too great; that there was no exploitation of trust or relationship; that the offending was consensual and did not involve any kind of coercion or force; that the applicant took the necessary safety precautions by wearing a condom; that there was no physical or psychological trauma to X or his family; and that the applicant did not adopt any inappropriate behaviour, such as inviting other people to watch or take photographs for the purposes of circulation or threat.  He stressed that this was not a case of a paedophile preying on young persons.  Instead, it was a misguided young man “longing for some sort of connection with a person to share similar experiences”, who unfortunately met someone who was too young.

15.  As for the determination of an appropriate sentence, Mr Shek contended that the judge should make a comparison with cases of unlawful sexual intercourse with a girl under the age of 16.  He submitted that case authorities for the same kind of offence would be of limited assistance because they failed to consider the issue that there is a discriminative element in the setting of the statutory maximum sentence for homosexual buggery with a man under the age of 16, rendering the adoption of a starting point in these offences often higher than those being adopted in cases of unlawful sexual intercourse with a girl under the age of 16.  The rationale of his submission was that the only difference between the two is that one is between a heterosexual couple, and the other between a homosexual couple.  As such, the sentencing of the offence should not be treated differently from an offence involving a  heterosexual couple engaging in underage sex.

16.  As each case must be sentenced on its individual background and facts, Mr Shek submitted that the judge was not bound by the case authority of HKSAR v Chow Yuen Fai,[2] and could adopt an appropriate individual starting point for the present case.  By reference to cases of unlawful sexual intercourse with a girl under the age of 16 with similar factual circumstances,[3] except for the victims’ gender, he submitted that the judge could adopt a starting point of less than 12 months’ imprisonment.

The reasons for sentence

17.  At the outset of his reasons for sentence, the judge noted that there was not much authority concerning sentencing for offences of this kind and that previous cases did not provide much guidance because cases varied significantly on their facts:

“There is understandably little authority concerning sentence for offences of this sort. The offence itself is relatively rare and the possible circumstances are too varied to allow for much guidance from previous cases, as said in Chow Yuen Fai.” [4]

18.  The judge considered that “plainly unique circumstances” existed in the case and that none of the usual aggravating factors were present.  He accepted that the applicant had at no stage taken advantage of X, particularly when X had suggested that he would date the applicant for money.  However, he found that as X was at the time of these offences a mere boy and the applicant, while well aware of this, proceeded to have sexual intercourse on two separate occasions.  The judge was of the view that the sentence imposed on the applicant must reflect an element of deterrence, so as to reflect the public’s expectation that underage persons are to be protected from sexual offenders.

19.  In considering the appropriate sentence for this case, the judge said:

“There is little before me which provides any indication of the defendant’s risk of re-offending, other than inferences which can be taken from the simple facts that he commenced his relationship with the victim by way of an Internet dating site and has no previous convictions.

I accept also that the defendant’s remorse is genuine. He admitted his role in the offence immediately when spoken to by the police.

That being the state of the evidence, I rate his chance of re-offending as being relatively low.

Given the role of the victim in this case, the lack of significant after-effects, the lack of grooming or inducement or other pressures placed on the victim, the use of condoms by the defendant, and the lack of any photographic activity by the defendant, I believe a much lower starting point of sentence than might otherwise have been adopted is justified in respect of each offences.” [5]

20.  The judge also noted that the Hong Kong Law Reform Commission had in its consultation paper recommended the review of sexual offences in Hong Kong involving children.  That recommendation, if legislated, would equate the present offence with the offence of underage sexual intercourse with a heterosexual victim.

21.  Nevertheless, the judge decided not to engage the issue of the constitutionality of the legislation but to sentence the applicant on the gravity of the offence based on the specific factual circumstances of the case.  He adopted a starting point of 3 years’ imprisonment for each count, which he reduced by one-third to reflect the applicant’s guilty plea and clear record.  Accordingly, the applicant was sentenced to 2 years’ imprisonment on each count.  The judge was of the view that given the period elapsing between the two offences and the need to reflect the overall culpability of the applicant, he ordered that 6 months of the sentence imposed for Count 2 be served consecutively with the sentence imposed for Count 1.  As such, a total sentence of 2 years and 6 months’ imprisonment was passed on the applicant.

The grounds of appeal

22.  Mr Gerard McCoy SC, with Mr Randy Shek, for the applicant, advances three grounds in support of the appeal against sentence. They are as follows:

Ground 1:  The statutory maximum sentence of life imprisonment for unlawful homosexual buggery under section 118C(a) of the Crimes Ordinance, Cap. 200 is in breach of Article 25 of the Basic Law, and therefore unconstitutional.

Ground 2:  The judge erred in principle by imposing a heavier sentence for the offence of homosexual buggery under section 118C(a) than that for unlawful heterosexual intercourse under section 124.

Ground 3:  On the peculiar facts of the present case, the adoption of 3 years’ imprisonment as a starting point for sentence was manifestly excessive.

Ground 1: The constitutionality of section 118C

23.  In respect of section 118C(a), Mr McCoy submits that it infringes equality before the law because it differentiates between unlawful homosexual intercourse and unlawful heterosexual intercourse by imposing a different maximum sentence for the respective offences.  Whilst the maximum sentence for unlawful homosexual intercourse by a man under section 118C(a) is life imprisonment, a much lower maximum sentence of only 5 years’ imprisonment is stipulated for the parallel offence of unlawful heterosexual intercourse by a man under section 124. 

24.  Mr McCoy refers to Leung v Secretary for Justice,[6] where the Court of Appeal held that sections 118C and 118H, to the extent that they apply to a man aged 16 or over and under 21, were inconsistent with the rights of privacy and equality contained in Articles 25 and 39 of the Basic Law and Articles 1, 14 and 22 of the Bill of Rights, and therefore unconstitutional.  In giving the judgment of the Court, Ma CJHC (as he then was) said:

“(1) Sexual intercourse between men and women is not just for the purposes of procreation. It also constitutes an expression of love, intimacy and constituting perhaps the main form of sexual gratification. For homosexual men, buggery fits within these definitions. At one stage, societal values dictated that buggery was some form of unnatural act, somehow to be condemned and certainly not condoned. These values have changed in Hong Kong and perhaps one needs to look no further than the 1991 amendments that led to the legalisation of buggery to confirm this.

(2) The courts have consistently treated buggery as a form of sexual intercourse and have certainly treated the two acts as being comparable when examining the constitutionality of legislation dealing with buggery …”[7]

25.  Mr McCoy submits that by the same logic, while subject to the facts and circumstances of individual cases, there is no lawful justification for the difference in the maximum sentence between section 118C and section 124.  The heavier maximum sentence is discriminatory because the only difference between the two is the defendant’s sexual orientation.

26.  However, Mr McCoy acknowledges that differential treatment may be acceptable if it passes the “justification test”. In Secretary for Justice v Yau Yuk Lung,[8] the Court of Final Appeal held that the guarantee of equality before the law does not invariably require exact equality, and therefore differences in legal treatment may be justified for good reason.  It was stated that in order for differential treatment to be justified, it must be shown that the difference in treatment must pursue a legitimate aim, for which a genuine need for such difference must be established; the difference in treatment must be rationally connected to the legitimate aim; and the difference in treatment must be no more than is necessary to accomplish the legitimate aim. 

27.  In QT v Director of Immigration,[9] the Court of Final Appeal added another step that needed to be addressed, namely whether a reasonable balance had been struck between the societal benefits of the encroachment on one hand, and the inroads made into the constitutionally protected rights of the individual on the other.  To this end, one has to ask in particular whether the pursuit of the societal interest results in an unacceptably harsh burden on the individual.

28.  Mr McCoy, rightly points out, that whilst it would be up to the government to discharge the duty of proving that the differential treatment passes the justification test, the court “will scrutinise with intensity” whether the difference in treatment is justified where one is concerned with differential treatment based on grounds such as race, sex, or sexual orientation.[10]

29.  In assessing whether the differential treatment is acceptable, the Court of Final Appeal in Fok Chun Wa v Hospital Authority[11] explained:

“Where, for example, the reason for unequal treatment strikes at the heart of core-values relating to personal or human characteristics (such as race, colour, gender, sexual orientation, religion, politics, or social origin), the courts would extremely rarely (if at all) find this acceptable.” [12]

30.  Such an approach had been taken by the European Court of Human Rights in S.L. v Austria,[13] which held that the former Article 209 of the Criminal Code of Austria was contrary to Article 14 (prohibition of discrimination) of the European Convention of Human Rights.  It was stated that:

“36.     According to the Court’s established case law, a difference in treatment is discriminatory for the purposes of Art. 14 if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realized …

37.      … the Court reiterates that sexual orientation is a concept covered by Art. 14. Just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification.”

31.  Mr McCoy also invites this Court to consider the view of the Hong Kong Law Reform Commission (the LRC) Consultation Paper on “Sexual Offences Involving Children and Persons with Mental Impairment” issued in November 2016.  In the Consultation Paper, the LRC recommended that offences under sections 118C and 118H should be abolished by reason of their discriminatory nature.  As stated in the following passage of the consultation paper, the LRC recommended that sexual offences should be gender neutral:

“We consider that the two homosexual offences should not continue to exist in our statute books. The principles of gender neutrality and avoidance of distinctions based on sexual orientation would lead to homosexual offences being removed. The conduct covered by the two offences will be partly included in the proposed gender-neutral offences of penile penetration of a child under 13/16, penetration of a child under 13/16, sexual assault of a child under 13/16, and causing or inciting a child under 13/16 to engage in sexual activity.”[14]

32.  Mr McCoy submits that section 118C(a) as it stands is unconstitutional in that it is discriminatory in its sentencing regime against male homosexual intercourse.  Until any change in the legislation, the maximum sentence of life imprisonment in section 118C(a) ought to be read down to be aligned with section 124, namely, 5 years’ imprisonment as the maximum sentence.

The respondent’s concession

33.  Mr Martin Hui, SC, with Mr Derek Wong, for the respondent, did not resist these submissions, and in our view, nor could he.

Discussion on Ground 1

34.  The subject offence provision is section 118C, which reads:

“118C. Homosexual buggery with or by man under 16

A man who—

(a) commits buggery with a man under the age of 16; or

(b) being under the age of 16 commits buggery with another man,

shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.”

35.  In order to address the constitutional challenge to section 118C raised in this appeal, it is necessary to examine by way of comparison the related offence provisions for unlawful heterosexual intercourse under sections 123 and 124, which read:

“123. Intercourse with girl under 13

A man who has unlawful sexual intercourse with a girl under the age of 13 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.”

“124. Intercourse with girl under 16

(1) Subject to subsection (2), a man who has unlawful sexual intercourse with a girl under the age of 16 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years.

(2) …”

36.  It should be noted that in relation to unlawful heterosexual intercourse where the victim is under the age of 13, the maximum penalty is life imprisonment, whereas where the victim is over the age of 13 and under the age of 16 the maximum penalty is 5 years’ imprisonment.  As is apparent from the wording of section 118C, no differentiation is made for a victim under the age of 13, because of the obvious reason that the maximum penalty is life imprisonment in relation to any victim under the age of 16.

37.  One of the fundamental core principles that bind us together as a society is that all are equal before the law.[15]  From this core principle flows the right that a person should not be discriminated against because of, amongst other things, gender or sexual orientation.  The law recognises that unlawful discrimination is “fundamentally unacceptable”.[16] However, there may be situations where differential treatment is justified and therefore does not constitute unlawful discrimination.

38.  The initial step of establishing differential treatment on a prohibited ground, which includes gender or sexual orientation, is for the complainant to demonstrate that he or she has been treated differently to a person in a comparable position and that the reason for this difference in treatment can be identified as a prohibited ground.  Only after this is demonstrated does it then become necessary to consider whether such differential treatment is lawful.  If the treatment is held to be unlawful, then the complainant will be entitled to remedies.[17] 

39.  Otherwise, the next step is to apply the justification test to determine whether the differential treatment is lawful. The test consists of four steps or elements: (i) does the differential treatment pursue a legitimate aim; (ii) is the differential treatment rationally connected to that legitimate aim; (iii) is the differential treatment no more than necessary to accomplish the legitimate aim; (iv) has a reasonable balance been struck between the societal benefits arising from the application of differential treatment and the interference with the individual’s equality rights.[18]

40.  We are clearly of the view that section 118 infringes equality before the law because it differentiates between unlawful homosexual intercourse and unlawful heterosexual intercourse, by the maximum penalties it imposes on the respective prohibited sexual conduct.  The maximum penalty imposed for unlawful homosexual intercourse by a man under section 118C is the maximum sentence known to law of life imprisonment, while for the parallel offence of unlawful heterosexual intercourse under section 124 it is 5 years’ imprisonment.  This disparity in penalty is clearly discriminatory and it is surprising that it has not been the subject of immediate reform, bearing in mind the series of judicial pronouncements criticising provisions for their discriminatory nature because of gender and sexual orientation.

41.  During the course of this appeal a constitutional challenge had been mounted against section 118C in Yeung Chu Wing v Secretary for Justice,[19] in which the applicant of the judicial review asked the court to declare, amongst other things, that section 118C was unconstitutional.  The judgment of the judicial review was handed down by Au J (as he then was) on 30 May 2019 and was therefore relevant to the present application.

42.  Au J held that the court has the implied power to adopt remedial interpretation for the purpose of making a statutory provision Basic Law or Bill of Rights compliant, while striking down a legislative provision for not being constitutional is appropriate only where a remedial interpretation is impossible.  He also noted that the tool of remedial interpretation however, has its limits to the extent that the court should not make decisions on matters that should be deliberated and determined by the legislature, and the resulting interpretation in the name of remedial interpretation should not be wholly different from what the legislature has intended.[20]

43.  Au J held that section 118C amounts to differential treatment against male homosexuals to the extent that it criminalizes a man aged under 16 for committing buggery with another man, whereas for the same or similar act between heterosexuals, the participants under the age of 16 would not be held criminally liable; and the man who commits buggery with a man under the age of 16 is liable to imprisonment for life, whereas under section 124 a man who has unlawful sexual intercourse with a girl under the age of 16 (but not below the age of 13) shall be liable to imprisonment for five years only.  He further held, as in Leung v Secretary for Justice, that homosexual sexual intercourse and heterosexual sexual intercourse are regarded as being similar and the maximum sentence for underage sexual intercourse should be the same.[21]

44.  Accordingly, Au J held that section 118C should be read down as follows to make it Basic Law compliant:

“A man who ---

(a) commits buggery with a man under the age of 16; or

(b) being under the age of 16 commits buggery with another man,

shall be guilty of an offence and shall be liable on conviction on indictment to (a) imprisonment for life if the buggery is committed with a boy under the age of 13; or (b) imprisonment for 5 years if the buggery is committed with a boy under the age of 16 but is of or above the age of 13.”[22]

45.  This proposed remedial interpretation was submitted by the Secretary for Justice on the basis that, by: (1) striking out the words “or (b) being under the age of 16 commits buggery with another man”, the man under 16 is no longer criminally liable if the other man with whom he commits buggery is above 16; and (2) reading down the maximum sentence for buggery to imprisonment to 5 years if committed with a boy under the age of 16 but is or above the age of 13 brings it in line with the sentence for unlawful sexual intercourse with a girl under section 124.[23]  

46.  This was accepted by Au J, who went on to explain that the clear objective fundamental feature and essential principle of the legislative scheme of this provision is to protect a man under the age of 16 from buggery.  The remedial interpretation had the effect of reducing the maximum sentence if the buggery is committed with a boy under the age of 16 but above 13 from life imprisonment to five years’ imprisonment, making it in line with the sentence for unlawful sexual intercourse with a girl under section 124.  He concluded that the remedial interpretation did not go beyond the limitations of adopting a meaning inconsistent with a fundamental feature of the legislative scheme and making a decision which requires legislative deliberation for which the court is not equipped to make.[24]  

47.  It would seem that the remedial interpretation involved both “reading down” and “reading in” as seen by the removal of words and the inclusion of others so as to make the section Basic Law compliant. 

48.  It goes without saying that we entirely agree with the remedial interpretation by Au J and would have taken the same course as he did to correct this obvious unequal treatment of homosexual males.

49.  There needs to be a proper and effective review of the laws and policies that discriminate against same-sex relationships, which should not be left for the courts to ultimately resolve through lengthy legal proceedings when there is no resistance to the challenge of the discriminatory nature of the law in question, particularly where persons may be inappropriately or unfairly treated, prosecuted or even punished in the meantime. 

50.  There have been occasions where the courts have given jurisdiction to a party to mount a challenge against a law where there is a clear and apparent issue as to its constitutional validity.  This was seen in the case of Leung v Secretary for Justice where the Court of Appeal in 2006 endorsed the granting of jurisdiction to the applicant to judicially review the constitutionality of an offence under section 118C prohibiting homosexual buggery with or by a man under 21.  The Court made the point back then that if a law is unconstitutional, the sooner this is discovered the better, and that it was undesirable or prejudicial to force interested parties to adopt “a wait and see attitude” before dealing with a matter.[25]  The Court also noted that courts in Hong Kong are duty bound to enforce and interpret the Basic Law so that if any legislation infringes the Basic Law (or the Bill of Rights), that law must be held invalid, and “this was all the more so where fundamental rights are involved and even more acute if a risk exists of a wrong prosecution”.[26] Clearly, with equal force that applies if the risk exists of a wrong sentence. 

51.  As already noted, the Court in that case held that the section infringed the right to privacy and equality and that there was unequal treatment.  The Court observed that homosexual intercourse and heterosexual intercourse should be regarded as similar sexual expressions and went on to remark that there was no justification for either the age limit of 21 or, for the different treatment of male homosexuals compared with heterosexuals, noting the disparity of the age of consent between a man and a woman being 16, while under the offence provision the minimum age requirement for homosexual intercourse was 21.

Ground 2:  Equality of punishment in order to render this type of offending gender neutral

52.  Mr McCoy submits that the judge erred in principle for having adopted a starting point of 3 years’ imprisonment.  He submits that the proper approach in sentencing for unlawful homosexual intercourse under section 118C ought to be approached no differently from unlawful heterosexual intercourse.

53.  Mr McCoy argues that the judge ought to have considered the applicant’s case along the same lines as in HKSAR v Lee Kin San.[27] This case involved unlawful sexual intercourse between the defendant and a girl under the age of 16 (section 124) and buggery with a girl under the age of 21 (section 118D).  The defendant was convicted after trial and sentenced to concurrent terms of 18 months’ imprisonment in relation to the two offences.  As section 118D carries a maximum sentence of life imprisonment, the Court of Appeal correctly considered the buggery offence should be sentenced on the same basis with that of the section 124 offence.  He submits therefore that Lee Kin San is analogous with the applicant’s case, but for the difference in the sexual orientation of the defendant.

The respondent’s concession

54.  Mr Hui accepted that the approach that sentencers should take for the offence of unlawful homosexual intercourse under section 118C should be no different from the approach that is taken for the offence of unlawful heterosexual intercourse.   

Discussion on Ground 2

55.  We agree that the proper sentencing approach for an offence against section 118C should be the same as for unlawful heterosexual intercourse.  Constitutional principle requires the courts to view the offences in a gender neutral way.  Cases which do not view the offence in this way and which assume a maximum sentence of life imprisonment no longer have relevance on the question of an appropriate starting point.

56.  We wish to stress, as it was explained in Choi Wai Lun, that the statutory purpose of these offences is to treat girls and boys under the age of 16 as a vulnerable class in need of a high degree of protection against sexual exploitation, and in some cases against their own emotional or sexual immaturity.  This is apparent from the deeming provision of these offences that such persons are incapable of giving consent to indecent conduct and that would be the case even if it was established that consent was given.[28]

57.  This is not to say that every case will require an immediate custodial sentence in order for courts to give emphasis to the protection purpose of this offence provision.  A sexually experienced victim who is close to 16 years of age and who has the physical appearance of a young person and who has been engaged in compensated dating is not in the same need of protection as a physically immature 13 years old. This is not an offence which lends itself to a sentencing tariff and the assessment of a just sentence in any particular case must be left to the unfettered sentencing discretion of the court.   However, it is important that a sentencing court bear in mind the abhorrence that right thinking members of the society would regard the exploitation of the young, and thus  the need for deterrence.[29]

58.  Nevertheless, considerable assistance can be obtained from the guidance provided by the Court of Appeal in HKSAR v Tsang Chiu Tak.[30]  This case concerned the rape of a 15-year-old girl in which the Court of Appeal listed ten factors that should be considered when dealing with offences of sexual assault on a underage victim.  They are:

“(1) The age difference between the defendant and the victim;

(2) The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;

(3) Whether the defendant had used threats or inducements to make the victim succumb;

(4) The number of occasions of committing the offences and the duration of the offences;

(5) Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6) Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7) Whether the sexual abuses have caused physical or psychological trauma to the victim;

(8) Whether the offences have impact on the family members of the victim;

(9) Whether the defendant was involved in other inappropriate behaviour such as inviting other people to watch or take photos or videos of the offence he committed; and

(10) Whether the defendant is psychological imbalanced and paedophilic and the likelihood of re-offending.”

Ground 3: The appropriateness of the sentence in the present case

59.  Of an appropriate sentence on the applicant, it is submitted that the starting point of 3 years’ imprisonment is manifestly excessive, as none of the factors listed in Tsang Chiu Tak were present to aggravate the offence. 

60.  Mr McCoy points out that whilst there was an age difference between the applicant and the victim of 13 years, there were none of the factors listed in this case that came into play to aggravate the present offence.  He adds that there were circumstances that diminish the gravity of the offence which should have been resulted in a low starting point.  He also referred to a number of cases where terms of imprisonment of 9 months or less were passed on defendants in cases contrary to section 124, involving unlawful sexual intercourse with the girl under the age of 16.  It seems that these cases usually involved the parties becoming acquainted through a social medium where a sexual liaison was discussed or offered.

61.  Mr McCoy referred to HKSAR v Choi Wai Lun,[31] a typical case involving a scenario of compensated dating.  The case involved a number of defendants each facing a charge of unlawful sexual intercourse with a girl under the age of 16.  All of them were customers of the victim.  They were sentenced to probation variously for 12 and 18 months.  He contends that the mere engagement in unlawful sexual intercourse with a young person under the age of 16 in a compensated dating context without more would attract a non-custodial sentence. He points out that from the statistics supplied by the Duty Lawyer Scheme the usual sentence for cases involving unlawful sexual intercourse with a person under the age of 16 is a non-custodial sentence.[32]

62.  As compensated dating involves payment for the sexual “services”, reference was also made to HKSAR v Lau Chi Cheung,[33] where Tang VP (as he then was) expressed the view that payment to the victim was a serious aggravating factor because of its corrupting influence.  Tang VP said:

“16. Another aggravating factor identified by the learned judge was the payment of $2,200. This is a large sum for a young girl and its corrupting influence is obvious…

17. So far as the payment to the victim is concerned, Mr Lok submitted that the $2,200 was paid after the act of sexual intercourse, and there was no prior agreement as to payment.  With respect, I agree with Ms Sin for the respondent that there is a sufficient element of corruption by the mere fact of a large money payment. Mr Lok complained that the learned judge had failed to inform him that material mitigation submissions regarding such payments would be disregarded.  I do not find it necessary to decide this question since I regard the mere fact that a large sum of money was paid is a serious aggravating factor, because of its corrupting influence ...”

63.  The Court of Appeal held that a starting point of 2 years’ imprisonment was appropriate in Lau Chi Cheung.  Mr McCoy, however, sought to distinguish the present case and submits that compensated dating is a social phenomenon not known to the law when Lau Chi Cheung was decided.  The role of payment has differed.  Whilst the payment in Lau Chi Cheung was considered to have corrupted the victim and turned her into a prostitute, the victim in the present case had already systematically engaged in compensated dating.  He submits that the starting point to be adopted in the present case ought to be significantly lower than those cases of which the “corrupting influence” of payment played a central role.  He adds that the circumstances in the present case were entirely different.

64.  It is submitted that the following facts and circumstances were accepted as present in this case, and were matters that would have a significant bearing on the sentence passed on the applicant:

(i) X was a co-instigator of the offences;

(ii) X was familiar with the sex industry;

(iii) X suffered no injuries and little likelihood of significant psychological trauma;

(iv) the applicant did not offer or direct any threat, inducement or deception to X despite the material age difference;

(v) the applicant did not take advantage of X.  He even told X not to ‘sell his body and soul’ and it was dangerous for him to do so;

(vi) there were no signs of injury to X;

(vii) the applicant used a condom on both occasions;

(viii) the applicant’s genuine remorse;

(ix) the applicant had relatively low risk of re-offending;

(x) there was no grooming of X by the applicant; and

(xi) there was no photographic activity.[34]

65.  Having regard to these facts and circumstances, Mr McCoy submits that it puts this case at the low end of the scale of the offence. He further submits that the cases relied on by the respondent which suggest 2 or 3 years’ imprisonment as the starting point,[35] are ones in which young persons are being groomed or turned to compensated dating to be sexually exploited or manipulated by a third party.  He suggests that cases which involve merely engaging in unlawful sexual intercourse with a person under the age of 16 in a compensated dating context, without more or the involvement of third parties, are at the lower scale of seriousness.  He further submits that if the facts so merit, a sentence of community service order or probation order could be considered as an available sentencing option.

The respondent’s submission

66.  Mr Hui accepts that apart from the apparent age difference between the applicant and X, none of the aggravating factors set out in Tsang Chiu Tak were present.

67.  Mr Hui also acknowledges that the sentence imposed in present case could be considered excessive, but disagrees that the usual sentence for cases involving compensated dating is a non-custodial sentence.  He points out that the statistics provided by the Duty Lawyer Scheme, as submitted by the applicant, only covered cases heard in the Magistrates’ Courts which he says may be presumed to be less serious in nature.  The statistics therefore did not reflect the sentences imposed in the more serious cases.

68.  Mr Hui referred to various cases of unlawful sexual intercourse with a girl under the age of 16 which he said were comparable to the present case, having compensated dating as a feature of the case.

69.  In HKSAR v Wong Wang Yip,[36] the defendant professed to be an agent for compensated daters on the internet and advertised that girls could earn money as an escort.  He then manipulated the girls, took advantage of them and photographed them.  The defendant was predatory and the highest starting point adopted was 2 years and 6 months’ imprisonment.

70.  In HKSAR v Tong Lap Hon,[37] the defendant became acquainted with a girl, Q, through the internet and paid to have sex with her.  The defendant also filmed the sexual intercourse.  Subsequently, having known another girl, R, was in need of money, he arranged to have sex with her.  On that occasion, R brought with her another friend S, who was also 13 years old.  The defendant paid and had sex with both of them.  The court adopted 2 years’ imprisonment as the starting point for each offence.  The charge concerning Q also involved the threats to release the film footage, and the court adopted 2 years and 6 months’ imprisonment as the starting point.

71.  In HKSAR v Ho Siu Wai,[38] the defendant came to know various girls individually through a mobile telephone application and told them that he would refer customers to them for compensated dating to which the girls agreed.  The defendant then asked the girls to have sex with him for the purpose of training.  The court adopted 2 years’ imprisonment as the starting point for the charges concerning two girls and 15 months’ imprisonment concerning another girl.

72.  In HKSAR v Chan Wing Jim,[39] the defendant was acquainted with the girl through the internet and suggested that she work in compensated dating.  When the defendant interviewed the girl, he had sex with her without using a condom.  The defendant gave her $100 as travelling expenses.  Thereafter, the defendant arranged three customers for the girl and charged $100 for each customer from the girl as commission.  The court adopted a starting point of 36 months’ imprisonment and enhanced it to 42 months’ imprisonment to reflect his poor record.

73.  Mr Hui submits that the promise or actual payment of monetary reward in the context of compensated dating would amount to manipulation and corruption of the minds of the young and immature.  In such circumstances, this would constitute an aggravating factor.  Whilst no clear sentencing pattern can be discerned from the statistics available in respect of the offence of unlawful sexual intercourse with a girl under the age of 16, he submits that a starting point of over 12 months’ imprisonment is common, depending on the factual matrix of the individual case.

74.  He adds that while the present case is far from being the worst type of its kind, the need to protect the young from their own immaturity and the message to the public of the court’s disapproval of sexual activities that engage the vulnerable and immature should not be overlooked.  We entirely agree.

Discussion on Ground 3

75.  Having decided that the maximum sentence for this offence is 5 years’ imprisonment, we turn to sentence the applicant afresh on the two offences to which he pleaded guilty. 

76.  Before we do, we should briefly outline a history of this case and the parallel judicial review proceedings where no issue had been taken by the Secretary for Justice that section 118C, amongst other sections, infringed the right of privacy and equality.  She sought a remedial interpretation that would result in a maximum penalty of 5 years’ imprisonment if the buggery is committed with a boy under the age of 16 but who is of or above the age of 13. 

77.  The applicant was arrested on 27 September 2017 and eventually brought before the Magistrate’s Court on 15 February 2018 in relation to the two offences to which he pleaded guilty.  The prosecution elected to have the applicant’s case committed to the Court of First Instance for trial.  There were a series of hearings in the committal proceedings and eventually after the provision of a summary of facts, the applicant pleaded guilty to the two offences on 3 September 2018 and he was committed to the Court of First Instance for sentence.  He was refused bail and remanded in custody.  As already noted, his case came before the judge for sentencing on 28 November 2018.

78.  There are two observations that we wish to make. First, it is surprising that the prosecution was not aware of the concession made by the Secretary for Justice in the judicial review proceedings for remedial interpretation of this offence provision so that the maximum penalty would be 5 years’ imprisonment.  This case was mentioned by Mr Shek before the judge at the time of sentencing and while the judge queried the prosecution about it, even questioning why the offence provision had not been amended as “Times are changing”.  In response, he was simply informed by the prosecution that the judgment was outstanding.  We were informed by Mr Hui that the proposed remedial interpretation was raised in the course of argument in the judicial review proceedings which was left for the court to determine.  However, the concession had been made by the Secretary for Justice at least by the hearing of the judicial review on 27 September 2018, and prior to the sentencing of the applicant on 28 November 2018.  Secondly, the facts and circumstances of the case did not seem to warrant it being placed in the Court of First Instance for disposal.

79.  The applicant has been in custody from 3 September 2018 until 29 March 2019 when he was granted bail by this Court, pending the handing down of its judgment.  In the meantime, the judgment in the judicial review proceedings was handed down on 30 May 2019, which has been the subject of written submissions to this Court.

80.  It must be said from the outset that this is an unusual case, consisting of circumstances and features that in our considered view, place it at the low end of the scale of this offence.

81.  An important aspect of this case is X himself. Whilst he was close to 14 at the time of the offence, it seems that he was aware of his sexuality and his sexual orientation, and that he was very much a willing participant in his sexual relationship with the applicant.  His aunt and guardian had informed the court that he was not much affected by the matter. To some extent that may be due to the fact that he was an instigator of the sexual liaison and openly offering sexual services for monetary reward, although that was not the basis of their sexual encounters.

82.  We are in no doubt that the judge, had he applied a maximum sentence of 5 years’ imprisonment, would have adopted a starting point considerably lower than he did in light of his findings and reasons for sentence.  He noted the applicant’s good character, genuine remorse, and his cooperation with the police and immediate admission to these two offences.  He highlighted that there had been none of the aggravating factors that are justifiably condemned by the court in this type of crime: there was no grooming, inducement or other pressures placed on X; there was no untoward conduct or inappropriate behaviour toward X, such as the taking of photographs or the involvement of third parties; and there was no high-risk sexual behaviour as the applicant used a condom on each occasion.  He concluded that the applicant was not a person with sexual predatory tendencies and there was little risk of him reoffending.

83.  There is a feature in this case that we need to address. X appeared to be involved in compensated dating and was offering sexual services for monetary reward.  This was a matter that the applicant discussed with X and warned him of the risks and dangers of doing so.  The term “compensated dating”, which is sometimes described as “part-time girlfriend and boyfriend services”, usually entails a young person advertising his or her sexual services in exchange for money or gifts, often on a social medium.  We have been referred to cases where underage girls have been involved in “compensated dating” and the defendant has been punished by either a non-custodial sentence or a short-term custodial sentence. 

84.  It seems to us that the involvement of a victim in “compensated dating” is not a matter that necessarily means that the offence should be treated more leniently.  It will very much depend upon the particular facts and circumstances of the case.  We can envisage situations where the victim is involved in “compensated dating”, but far from diminishing the gravity of the offence, may, depending on the circumstances of the case, be an aggravating factor.  A victim may be coerced into “compensated dating”, or forced or exploited to perform or participate in sexual services or other acts that she or he was unwilling to do.  In the present case, X had on his own volition offered sexual services for monetary reward but his relationship with the applicant appears to be based on friendship and not on money.  There was no grooming or any other untoward behaviour by the applicant in his dealings with X. 

85.  Nevertheless, what does stand out in this case is that the applicant is a mature adult, the victim is towards the young end of the 13 – 16 year age range and that, as a consequence, there is a significant age difference between them.  

86.  In the unusual and unique circumstances of this case, which we have already set out, we are of the view that an appropriate starting point on each count is 12 months’ imprisonment and after a one third discount for the applicant’s guilty plea this results in a sentence on each count of 8 months’ imprisonment.  Taking into account the totality principle, and that the two offences occurred a month apart, we order that 2 months of the sentence on Count 2 be served consecutively with the sentence on Count 1, thus resulting in a total sentence of 10 months’ imprisonment.  We have been informed that the applicant is entitled to the usual one third remission for good conduct which means that he has served the period in custody required by this sentence.[40] This results in the applicant’s immediate release from custody, and we so order.

Conclusion

87.  For the foregoing reasons, we grant the applicant leave to appeal against his sentence, treating the leave hearing as the appeal we set aside the applicant’s sentence and substitute it with a total sentence of 10 months’ imprisonment which will result in the applicant’s immediate release from custody.