HKSAR v. A.J.B.D

HCCC 22/2023

[2024] HKCFI 3111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 22 OF 2023

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REASONS FOR SENTENCE

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Introduction

1.  Defendant pleaded guilty in the Magistrate Court to a total of sixteen charges, consisting of eight charges of indecent conduct towards a child under the age of 16 years, contrary to section 146(1)  of the Crimes Ordinance, Cap.200 (Charges 1,3,9,10,11,12,14, and 16), five charges of making of child pornography, contrary to section 3(1)  of the Prevention of Child Pornography Ordinance, Cap.579 (Charges 2,4,8,13, and 15), two charges of non-consensual buggery, contrary to section 118A of the Crimes Ordinance (Charges 6 and 7), and one charge of indecent assault on another person, contrary to section 122(1)  of the Crimes Ordinance Cap.200 (Charge 5).

2.  All these charges involved the same victim (“X”), a boy whose date of birth is 22 April 2006.  Defendant and X are both Filipino males born in Hong Kong.  Defendant is in fact the step-brother of X and they have the same biological father.  Defendant’s date of birth is 17 January 1992 and hence there was a 14 years age gap between them.  The offences took place at two period from 22 July 2017 (when the victim was only 11 years old)  in Charge 1 to various dates between 8 August 2020 and 8 January 2021(when the victim was 14 years old)  in the remaining charges.  Defendant was hence 25 and 28 years old when he committed these charges.

The facts

3.  At all material times, X, the younger brother, was sexually abused by his elder brother, the defendant.

4.  The incidents were disclosed on 3 April 2021 when X resisted further demands by the defendant for sex and finally relayed the incident to his cousin and his other family members who subsequently arranged for him to go to the hospital and reported the case to the police.

5.  After the case was reported, the police conducted a video-recorded interview (“VRI”)  with X with the assistance of a social worker on the same day.  During the VRI, X complained that during the period described and in several occasions, he was sexually abused by his half elder brother, the defendant.  X also complained that the defendant had asked / demanded / invited X to smoke / inhale from a bottle after which X felt dizzy and his mind turned blank or confused.

6.  During the VRI, X recalled that when he was studying primary 5, he resided with his grandmother and father in a flat in Tokwawan.  Defendant occasionally visited them and there were occasions when their grandmother was asleep and their father was away, and he took out an Ice bottle and smoked Ice.  Defendant also invited X to smoke the same.  X complied and he suffered dizziness and insomnia.  On one occasion on or about 22 July 2017, Defendant asked X to kneel down and performed oral sex for him after X was made to smoke Ice.  Defendant then removed his own pants and asked X to open his mouth.  X asked for the reason but Defendant did not explain.  He held his penis and inserted his penis into X’s mouth, and asked X to move his head back and forth.  Defendant’s penis erected inside X’s mouth.  He also grabbed X’s head with force and shook his head.  X felt scared and did not know how to react.  The whole sexual act lasted for one to two hours until D ejaculated into X’s mouth.  D asked X to swallow his semen.  X later rushed to the washroom to throw up.  During the incident, X at first found the act disgusting.  He later became confused and his mind went blank after inhaling at the Ice bottle.  X once told the defendant that he did not want to perform the act but the defendant ignored him.  (Charge 1)

7.  The police found a number of video clips from the USB device belonging to Defendant.  One video clip, which was created on 22 July 2017, depicts X who was wearing school uniform and Defendant who was naked.  X performed oral sex for Defendant. Defendant later masturbated and ejaculated onto his own palm.  X then tasted the semen on Defendant’s hand and X later threw it up.  (Charge 2)

8.  X’s father subsequently passed away.  Since August 2020, X moved to live with the defendant at his flat in Mong Kok as their grandmother was too old to look after X.  X still moved in August 2020 to live with the defendant despite being abused by him before because X did not want to live with his biological mother who had ditched him long time ago.

9.  During the night on 7 August 2020, the defendant sent a text message to X, asking him to stay awake.  Defendant later returned to the flat with his male friend Alex.  Later, the defendant asked X to smoke the Ice bottle.  X resisted at first but later complied with the request.  X then started to feel dizzy and weak.  Defendant later lowered X’s pants to his ankle and he performed oral sex for X and he later also grabbed X’s head near his penis and inserted his penis into X’s mouth. The oral sex took place in the presence of Alex who had also sexually abused X.  The whole incident only ended at around 0600 hours in the next morning and during which, Defendant took break occasionally to smoke the Ice bottle and occasionally grabbed X’s head.  X confirmed that Defendant did not ejaculate at last after he performed the oral sex but Alex did not wear condom at the time. (Charge 3)

10.  The other two video clips found by the police in Defendant’s USB device, both created on 8 August, 2020, clearly depict the sexual abuse of X as described in Charge 3. In both video clips, Defendant and X were naked.  In the first video clip, X performed oral sex for Defendant and inserted dildo into D’s anus while in the second video clip, Defendant and X performed oral sex for each other.  Screenshots of the two video clips were shown to X by the police and X recognized Defendant and himself in the screenshots.  He said the videos were taken by Defendant at his home in Mong Kok.  Defendant forced X to perform oral sex with him and held the sex toy as requested or else Defendant would use violence on him.  (Charge 4)

11.  During the VRI, X further recalled that at around 2300 hours on 9 August 2020, X returned to the Defendant’s flat.  Defendant was lying on the bed with his body naked and he asked X to perform oral sex for him.  X rejected at first but Defendant insisted X to do so or otherwise he would not be allowed to return to his own upper bunk bed.  X later conceded and performed the oral sex for Defendant at Defendant’s lower bunk bed.  During the time, Defendant was smoking the Ice bottle and when they took break during the oral sex, Defendant also asked X to smoke the Ice bottle as well.  Defendant did not ejaculate and he did not wear condom.  Defendant later requested X to remove his own pants and he asked X to perform buggery with him.  X rejected at first but Defendant elevated X’s buttock and inserted his right hand finger into X’s anal.  X felt painful and he turned around and told Defendant that he was in pain.  Defendant soon inserted an additional right hand finger into X’s anal.  (Charge 5)

12.  About 5 to 10 minutes later, Defendant drew back his fingers and inserted his penis into X’s anal.  X was shocked.  Defendant grabbed X’s waist with his hands and moved his body in a back-and-forth direction.  After Defendant drew back his penis from X’s anal, Defendant used his own hand to rub his own penis and used another hand to turn X around facing himself.  Defendant then ejaculated onto X’s chest.  Defendant then went to take a shower and when he returned, he passed the Ice bottle to X and X inhaled from it.  (Charge 6)

13.  The police found another four video clips which were created between 9-10 August 2020, depicting the sexual abuse by the Defendant on X in his flat.  The first video depicts X performing oral sex for Defendant who was naked after he returned home. Defendant then gave X an unknown bottle to inhale.  In the second and third video, both X and Defendant were naked.  Defendant passed the Ice bottle for X to smoke and X performed oral sex for him.  In the fourth video, Defendant and X were both naked.  X was moving forward and backward behind Defendant and was unwillingly having sex with defendant from behind.  (Charge 7)

14.  Screenshots of these four video clips were shown to X by the police.  X recognized D1 and himself in those clips.  X told the police that these videos were taken by Defendant at his flat at the time.  X was unwilling to have oral sex with Defendant but he was forced to do so.

15.  As for the four video clips, X recalled that at that time, Defendant was demanding X to have sex with him.  X was unwilling and not consenting when he committed buggery with Defendant captured in the footage which was an occasion other than that mentioned in Charge 6, but if he refused, Defendant would use force on him. (Charge 8)

16.  The police also found another video clip from the defendant’s USB device which was created on 14 September 2020.  In this video, both X and Defendant were naked.  Defendant performed oral sex for X and inhaled the Ice bottle.  X was tied up and he sucked the defendant’s nipple.  X recognized Defendant and himself in the video when the screenshots of the video were shown to him during the interview.  The video was taken by Defendant at his flat.  Defendant was trying to make X ejaculate but X was unwilling to let him do that.  (Charge 9)

17.  In another video clip seized which was created on 19 September 2020, both X and Defendant were also naked and Defendant performed oral sex for X.  When it was shown to X, he recognized Defendant and himself in the screenshots of the video shown by the police.  (Charge 10)

18.  During the VRI, X recalled that on an unknown day in October 2020, Defendant brought another male friend (“WP”)  to his flat whom X did not know.  Later, WP approached X and removed his clothes.  Defendant was naked and lying in the bed when he asked X to perform oral sex for him and WP.  Defendant grabbed X’s head with his hand and inserted his penis into X’s mouth.  Defendant did not ejaculate and then he pushed X’s head towards WP’s penis and X performed oral sex for WP.  Around 10 minutes later, WP drew back his penis from X’s mouth and ejaculated onto Defendant’s body.  (Charge 11)

19.  In another video clip seized which created on 11 November 2020, the content depicts Defendant was naked while X performed oral sex for him.  Screenshots of the video clip were shown to X by the police.  X recognized Defendant and himself in it.  The video was taken by Defendant at his flat.  X was trying to make Defendant ejaculate but X was unwilling in doing so.  (Charge 12-13)

20.  In another video clip seized which was created on 22 November 2020, the content depicts Defendant was naked and X performed oral sex for him.  Later X went naked on his upper body and he carried on to perform oral sex for Defendant.  Later Defendant masturbated and ejaculated onto X.  Screenshots of the video clip were shown to X by the police.  X recognized Defendant and himself in the video. The video was taken by Defendant at his flat at the time.  In the video, X was trying to make Defendant ejaculate and Defendant later ejaculated on him.  X said he was unwilling to do so.  (Charge 14-15)

21.  In another video clip seized which was created on 8 January 2021, the content depicts X performing oral sex for Defendant when Defendant was naked.  Screenshots of the video clips were shown to X.  In it, X recognized Defendant and himself. The videos were taken by Defendant at his flat at the time.  (Charge 16)

22.  Before hearing the mitigation, I called for a psychiatric report and a psychological report on the defendant and also a victim impact report on X.

Defendant’s Psychiatric and psychological reports

23.  According to the psychiatric report obtained for the defendant, he is a homosexual.  He admitted having casual sex with males acquainted on a gay dating app.  On the other hand, he denied sexual interest in children or adolescents, or paedophilic tendency especially when he was not under influence of drugs.  Defendant started to abuse methamphetamine (“ice”)  from 2017.  From what he described, he was using ice once per month and there was no dependence feature.  He reported increased sexual desire after abusing ice.  He admitted his acts of sexual assault and buggery against X but he attributed his acts at the time of the offences to increased sexual desire after abusing ice.  He also admitted that he did not take any preventive measure to protect X.  He could only explain that he obviously placed his priority of substance abuse over and above the protection of X.  The psychiatrist opined that Defendant is an abuser of ice.  There is no psychotic symptom, suicidal or aggressive idea elicited.  Defendant is not diagnosed suffering from any formal psychiatric illness and psychiatric care is not warranted in his case.

24.  According to the clinical psychologist, the offences were uncharacteristic of the defendant, as he acted under the influence of ice.  Defendant is remorseful and accepted responsibility for all his wrongdoings.  He does not place the blame on the drug but acknowledges his own choice to abuse it.  He is making sincere efforts to confess his wrongdoings and is asking for forgiveness from his mother and family.  He expressed a commitment to overcoming his sex and drug addictions.  Should he persist his drug use, mingle with his dubious peers and continue to be sexually promiscuous, his risk of sexual recidivism is considered average compared to other individuals with prior sexual convictions.  Upon his release, he plans to work for the prison missionary.  Drug rehabilitation and psychological intervention should be beneficial to him.

Victim Impact Report on X

25.  The psychological report gives an in-depth analysis and assessment on the impact of the sexual abuse on the victim.  According to the report, the abuse by his elder brother have profoundly traumatized X, leaving him feeling powerless and isolate, which in turn led to academic struggles and even suicidal thoughts.  He faced additional stress from legal proceedings that forced him to confront traumatic memories.  The abuse not only caused confusion about his sexuality but also resulted in feelings of shame and guilt, complicating his ability to form healthy relationships.  As a result, the incidents have affected negatively every aspect of his life ─ from his self-esteem, academic performance, personal relationships to emotional well-being and sexual development.  After all these years, even when the victim is now 18, he is still in a state of distress and he tends to adopt avoidance coping strategies to manage his life.  In view of the above, continuous psychotherapy is recommended to address his complex emotions stemming from the abuse.

Defendant’s background and mitigation

26.  Defendant is now 32 years old with a clear criminal record.  He was born in Hong Kong and at the age of four, he moved back to Philippines with his mother and was educated there until he graduated from the University in Philippines with a Bachelor degree in 2012.  Defendant returned to Hong Kong in 2015 and started to work as a waiter in a hotel in Central for two years.  At the time of the arrest, he worked as supervisor at a steak house in Central, earning $25,000 per month.  Defendant is a homosexual and he has suffered from HIV since 2018.  He is taking regular oral medication and his condition is under control.  He was single and at the time of the offences except for Charge 1 and 2, he lived with his younger brother X in a subdivided flat in Mong Kok from August 2020 until he was arrested on 4 April 2021.

27.  In mitigation, Mr. David Khosa, counsel for the defendant, emphasized the defendant’s guilty pleas which saved X from giving evidence in court.  Mr. Khosa also emphasized that Defendant committed these offences only because he was under the influence of drugs.  After the incidents came to light, his entire family and relatives were understandably extremely upset.  Defendant feels very ashamed and is very regretful for his wrongdoings.  Since he was remanded into jail custody, he joined the prison missionary and had become a devoted Catholic.  His decision to plead guilty to all the charges, he submitted, is a clear indication of his extreme remorse which also saved a lot of court time.  In addition, Defendant also assisted the authority by giving a witness statement and actually gave evidence against the co-defendant in his trial.  It is submitted that defendant is doing all he can to correct his misdeeds and turn a new leaf.

28.  Defendant has written a letter to the court expressing his apologies and asking for forgiveness.  Defendant’s mother, brother and aunt have also written letters of support.  They all said the defendant have had a good relationship with the other family members and spoke favourably on Defendant’s hitherto good character.  They all expressed shocks and disbeliefs when they learned of the misdeeds committed by the defendant.  They believed the defendant has learned a bitter lesson and urged the court to still give him a chance to rehabilitate and to be as lenient as possible.

Sentencing principles

29.  The Court of Appeal has set out principles to take into account during sentencing in relation to sexual offences involving young children, (see HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239).  These principles apply to the indecent conduct towards a child, indecent assault as well as the non-consensual buggery charges in the present case.  In Lee Kwok-wai (supra.), the applicant pleaded guilty to 12 counts of sexual offences, namely, four counts of indecent assault, six counts of homosexual buggery with a man under 21, and one count of making child pornography as well as one count of indecent conduct towards a child under 16.  He was sentenced at the Court of First Instance to a total of 12 years’ imprisonment.  The sentence was upheld by the Court of Appeal.

30.  The applicant was 37 and the victims were six boys aged between 11 and 13.  Those offences took place over two periods of time, from 2005 to 2007, and in 2010.  The Court of Appeal found that that the applicant was a paedophile.  Although there is no tariff in sentencing sexual offenders involving young children, the court there identified the following factors as relevant in similar cases in paragraph 13:

“(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 at the time of the offence?

(3)  Whether the defendant had used threats or inducements to make the victim succumb, falling prey to his licentious exploitation?

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

(5)  Whether inappropriate and unnecessary violence was involved in committing the offences and whether any harm or discomfort was caused to the victim?

(6)  Whether any suitable safety measures were taken in committing the offences and whether any hazard to the health and safety of the victim and the public was caused?

(7)  Whether the offences have caused physical or psychological trauma to the victim?

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

(9)  Was the defendant involved in other inappropriate behaviours such as inviting/permitting other people to watch or take photos/videos?

(10)  Whether the defendant is psychologically imbalanced or paedophilic and the likelihood of re-offending?”

31.  In addition to the above factors, the Court of Appeal in that authority found that the following overview should also be taken into consideration when sentencing:

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

(2)  Deterrent sentences should target the mischief of the sexual exploitation and abuse of children. The exploitation and abuse are usually the result of inducement or coercion. Inducement often takes the form of rewarding the children with money or gifts before or after the abuse. The exploitation and abuse may take the form of sexual conduct with young children and depicting children in pornographic materials.

(3)  The trauma, distress and psychological harm that are caused to young sexual victims have been recognised. In this case, it is sadly evident and supported by a psychological report on the impact of the victim. Even if there was no such report, in the vast majority of cases, that harm can be assumed to have been inflicted.”

32.  In HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, the Court of Appeal stressed that in sentencing sexual offences against young children, the sentencing court must consider the background of the defendant, whether there is risk of re-offending, the impact of the offences on the victim and his family, and the sentence must reflect the abhorrence of the public to these offences, and thus the need for deterrence.  The Court of Appeal was also of the view that it was not practical or possible to lay down tariffs or guidelines for the offences of buggery and indecent assault because the circumstances of the offences will vary from case to case.

33.  The Court of Appeal has also identified the usual aggravating factors which can be found in these types of offences:

“28. Aggravating features which can exist in certain cases include a breach of trust (for example, see HKSAR v Wong Ying Ho [1999] 4 HKC 825 (indecent assault involving a doctor))  or the risk of re-offending (sexual recidivism)  or a repeated course of conduct (as distinct from a one-off incident)  or the fact that the accused is a sexual predator or the existence of a poor previous record. Physical harm to the victim must also be identified here as an aggravating feature. We have already mentioned the keeping of a record as a seriously aggravating feature (paragraph 26(4)  above).

29. Another aggravating feature in relation to the offence of buggery deserves special mention. In the present case, as stated earlier, the Applicant did not use a condom. We view this as a particularly serious aggravating feature. Where an accused is sexually experienced or active, the failure to use a condom gives rise to obvious health risks, risks and consequences the extent of which young children may well be ignorant.”

34.  In relation to the offence of Making of child pornography, the Court of Appeal held in Chow Yuen Fai (supra.)  that as reflected in the maximum sentence for these offences, the offence of Making of child pornography is to be treated more seriously than mere possession.  The leading authority is Secretary for Justice v Man Kwong Choi & Anor [2008] 5 HKLRD 519.

35.  The depictions in the videos in relation to the five Making of child pornography offences in this case were classified according to the four levels of child pornography as set out by the Court of Appeal in Man Kwong Choi (supra.)  The classifications are as follows:-

Level 1: images depicting erotic posing with no sexual activity;

Level 2: sexual activity between children, or solo masturbation by a child;

Level 3: non-penetrative sexual activity between adults and children; and

Level 4: penetrative sexual activity between children and adults, or sadism or bestiality.

36.  The Court of Appeal also noted that aggravating features would include the following:

(i)  a previous record involving similar offences against children;

(ii)  the age of the children depicted;

(iii)  the purpose for which the defendant possesses the depictions, whether he intends to disseminate the images for commercial or non-commercial gain, or intends to publish them; and

(iv)  the number of images.

37.  In this case, both the prosecution and defence have agreed with the following classifications in relation to the five Making of child pornography offences:-

Charge 2 - Level 3

Charge 4 - Level 3

Charge 8 - Level 4

Charge 13 - Level 3

Charge 15 - Level 3

38.  In Man Kwong Choi (supra.), the Court of Appeal considered that:

“(1)  The sentence for child pornography at level 1 can range from a community service order, probation or fine, to 1 to 6 months’ imprisonment.

(2)  Depending on the number of depictions, sentence for child pornography at level 2 could be up to the immediate imprisonment of 9 months.

(3)  Depending on the number of depictions, sentence for child pornography at level 3 should be imprisonment of 6 months to 12 months.

(4)  For child pornography at level 4, serious treatment is warranted. Generally, sentences should range from 12 months (even for a few images)  to 36 months.”

Sentencing Considerations

39.  In sentencing the defendant, I have had regard to his background, mitigation put forward on his behalf, the sentencing principles and relevant factors specific to this case.  This includes the facts and in particular, the filming of the assaults, as well as the circumstances of the buggery offences.  I have taken into account the half-blood relationship between the defendant and X, especially during the second period of offences when X was specifically placed under the care and trust of the defendant by the family.  I did not overlook the very young age of X when he was first assaulted by the defendant, and especially how the defendant had always lured X to inhale ice and made X succumb to his temptations and sexual demands and sometimes even by threat of violence and how it continued for so many occasions and with increasing depravity and in some occasions, even in the presence of his other homosexual companions.  I have also considered the psychological trauma and emotional distress suffered by X, and the profound and damaging effect it is having on his teenage life, and possibly well into the foreseeable future.

40.  Mr. Khosa has said all he can say on behalf of the defendant in mitigation.  The features and aggravating factors I have identified as relevant to sentencing in this case apply both equally to the indecent assault and indecent conduct offences as well as the buggery offences. I have taken into account the totality principle and the defendant’s early pleas.  His pleas and his assistance to the authority by testifying against the co-defendant are his strongest mitigation.

41.  I shall divide the sixteen charges into three groups of offences.  The first group is the two non-consensual buggery offences (Charges 6 &7), the second group is the nine charges of sexual abuse offences (Charges 1,3,5,9,10,11,12,14 &16)  and the third group is the five charges of making child pornography (Charges 2,4,8,13 &15).  

42.  Firstly, in respect of the two “non-consensual buggery” offences in the present case (Charges 6 and 7), those are the most serious among all the charges.  The maximum sentence under section 118A of the Crimes Ordinance (Cap.200)  is life imprisonment.  Thus, it is self-evident that the offence of non-consensual buggery is just as serious as the offence of rape which by its definition, is also committed without the victim’s consent, and it makes no difference whether it is homosexual buggery or not, and in most cases, there is no basis to distinguish between the sentence to be imposed in respect of rape and that imposed in respect of non-consensual buggery in relation to a female victim.  

43.  In this case, the relevant sentencing factors which I will take into account include the followings:-

(1)  Defendant is the step-elder brother of X and there is a significant age difference between the defendant and X. There was a 14-year age gap, and X was only 11 when first abused by the defendant;

(2)  Except for Charge 1 and 2, X was living with the defendant in his Mongkok flat and he has since been placed under defendant’s care and supervision by the relatives at the time of the remaining offences. The defendant thus has seriously breached the trust that was reposed on him and as said, also on some occasions, he even brought his other gay companions to his flat and used threats and inducements (in the form of inhaling ice)  to make X succumb and falling prey to the sexual exploitation;

(3)  The number of occasions he committed the offences and the repeated course of conduct during a span of over 3 ½ years;

(4)  The fact that the defendant is HIV positive and did not take any safety precautions, a lack of condoms worn on all occasions, especially when buggery was committed;

(5)  The fact that the offences have caused serious psychological trauma to the victim and has had an impact on his family life;

(6)  The additional aggravating factor of the defendant filming and making a record of some of the offences.

44.  In Chow Yuen Fai (supra.), the Court of Appeal adopted starting points of 10 years and 8 years respectively for the two offences of “commits homosexual buggery with a man under the age of 21”.  The appellant in that case committed buggery on two boys aged 13 and 12 respectively.  No condom was used on either occasion.  The Court of Appeal imposed a term of 10 years for the 1^st buggery charge on the ground that the appellant had taken photos and videos when molesting the victim, and imposed a term of 8 years for the 2^nd buggery charge in the absence of other aggravating factors.  The maximum sentence for the above offence at that time is also one of life imprisonment, which is the same as that for “non-consensual buggery” with which the applicant in the present case was charged. 

45.  In HKSAR v Tang Kwok Hei, Joe  CACC 438/2012 (unrep., 16 June 2014),  the applicant invited a 12-year-old schoolboy to his residence to play video games and pinned him down on the bed, and then inserted his penis into his anus.  This lasted about two minutes, during which the schoolboy kept on shouting and saying he felt pain and asking the applicant to stop.  Finally, the schoolboy burst into tears.  The applicant did not use a condom during the anal intercourse.  The schoolboy managed to push away the applicant once or twice but was immediately pinned down again.  Afterwards the applicant told the schoolboy not to disclose what happened, otherwise he would get someone to beat him up. 

46.  The Court of Appeal compared the facts of the above two cases and concluded that what distinguishes the two cases was that in Tang Kwok Hei, Joe (supra.)  the schoolboy did not consent to the buggery and put up resistance, but was subdued by the applicant.  The applicant imposed violence when committing buggery on the schoolboy forcibly, and in the course of the offence he kept on crying out for pain but the applicant just ignored the child’s imploration.  The applicant even threatened not to disclose what happened, otherwise he would get someone to beat the schoolboy up.  In these serious circumstances, there is nothing wrong for the trial judge to adopt a higher starting point (i.e. 12 years)  for the non-consensual buggery offence.

47.  In my judgment, the facts of the two non-consensual buggery offences in this case are even more serious than the above two cases in that it consists of far more aggravating factors.

48.  For the above reasons, I shall also adopt a notional starting point of 12 years’ imprisonment in respect of the two non-consensual buggery offences (Charge 6 and 7)  and increase it by 2 years to 14 years’ imprisonment due to the presence of those additional aggravating features identified.

49.  As for the remaining nine charges of sexual abuse in the second group of offences, the facts of these charges are also serious which involves oral sex and even inserting of fingers into X’s anus and in some cases, even ejaculation by the defendant after masturbation onto X’s body or even into his mouth.  The aggravating features identified in the two buggery offences also applied in these nine charges and because of this reason, I shall adopt a starting point of 4 years in each of the nine offences in this group.  

50.  For the last group of child pornography offences, I only have to reiterate what the Court of Appeal has said in relation to making child pornography in paras.35-37 and 39 above.

51.  Both parties in this case has agreed that, based on the classification laid down in Man Kwong Choi (supra.), except for Charge 8 which depicts penetrative sexual activity between X and the defendant and thus should be classified as Level 4, the other four charges depict non-penetrative sexual activities and should be classified as Level 3 accordingly. 

52.  I have listed out the sentencing guidelines in Man Kwong Choi (supra.)  in para.38. In relation to child pornography at Level 3, it should be imprisonment of 6 months to 12 months and for child pornography at level 4, sentences should range from 12 months, even for a few images, to 36 months.  However, the guideline is only applicable to “possession of child pornography” and the Court of Appeal has made it clear that “making of child pornography” is treated more seriously than mere possession.

53.  In this case, I take into account the number of videos and the images that they depicted as well as the aggravating factor of the filming of the child victim at the time when he was completely naked and was sexually abused by the defendant during the time of the sexual abuse offences.  For the level 3 depiction, I adopt a starting point of 2 years and 6 months’ imprisonment in Charge 2,4,13 & 15 and for the level 4 depiction, a starting point of 3 years’ imprisonment in Charge 8.

Assistance to Authority

54.  Apart from the usual one-third discount for pleading guilty, Mr. Khosa submits that the defendant is entitled to a further reduction in sentence to the extent of 50% in that he not only offered to assist the authority by giving a non-prejudicial statement against the co-defendant Hung Sze Ho (Alex)  but actually testified in his trial.

55.  In support, Mr. Khosa cited the case of HKSAR v Lo Sze Tung Stephanie [2018] HKCA 421 at paragraph 44 where McWalters JA referred to what Li CJ said in Z v HKSAR (2007)  10 HKCFAR 183 that where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one-third reduction for pleading guilty).

56.  The co-defendant Alex was acquitted by the jury on both counts after trial.  Mr Khosa submits however that the defendant gave evidence against Alex truthfully and to the best of his ability.  He came up to proof.  It is not for him to decide whether his evidence would be believed or not by the jury.  The defendant’s duty is to do his best and give truthful evidence according to his witness statement which he did and he is therefore entitled to the full 50% discount.

57.  Mr. Khosa borrows the example of a co-operating defendant who participated in an unsuccessful controlled delivery and submits that even if the assistance is unsuccessful, a discount should still be given to encourage other offenders to co-operate with the law enforcement agencies.

58.  I have no difficulty in accepting the proposition that where a defendant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a discount as high as 50%.  The question for me to decide is where the testimony of the defendant against the co-defendant in his trial was not believed by the jury and hence the co-defendant was acquitted after trial, whether the defendant is still entitled to any discount for his assistance to the authority.  In this connection, I agree with the defence submission that notwithstanding the result of the trial of the co-defendant, the efforts by the defendant of not only giving a statement but also giving evidence in court represented a genuine attempt by the defendant to assist the prosecution to bring the co-defendant to justice.  To this extent, his efforts should not be ignored and should be encouraged by affording him further discount other than the usual one-third discount for pleading guilty.

59.  However, I think to lavishly award a discount as high as 50% as submitted by defence just because defendant had testified in the trial irrespective the outcome of the trial cannot be right and it also ignores the plain fact that in the trial against the co-defendant, the majority of jury (5 to 2)  had chosen not to accept the defendant’s testimony that he had already told the co-defendant that his younger brother was only 15 years old before they went back to the flat together to commit the assault.

60.  In a more recent case HKSAR v Sysoev Igorevich Iurii [2023] HKCA 638, Zervos JA said:

“131.  It should be appreciated that the Court in HKSAR v Lo Sze Tung Stephanie [143] was not setting out sentencing guidelines for assistance to the authorities. It was explained in general terms that specific categories of assistance would usually fall within a range of percentage discounts between 33.3% to 40% and 40% to 50% (incorporating a one third discount for a timely guilty plea). It was not restricting a sentencing court from exercising its discretion when determining an appropriate discount for assistance to the authorities which may be more or less than the usual range of percentage discount depending upon the circumstances of the case. Therefore, the Court of Final Appeal in Z v HKSAR was careful when referring to percentage discounts for assistance to the authorities to describe them as the ‘usual’ discount.

132. We would stress that care needs to be taken when considering an appropriate discount for assistance to the authorities other than slavishly applying the range of percentage discounts usually given for a particular category of assistance. There are many factors that need to be considered when a court exercises its sentencing discretion in respect of an offender on the ground of assistance to authorities. Hence, generalisations should not constrain or corrode the sentencing process. This was succinctly encapsulated by Gleeson CJ (as Gleeson NPJ then was)  when discussing sentencing for assistance to authorities in R v Gallagher [144]:

‘… it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by ‘tariffs’ derived from other or different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice.'

133. To deliver individual justice, a court should exercise its sentencing discretion with the necessary degree of flexibility and sensitivity when addressing the circumstances of the offence and the offender.”

61.  In HKSAR v Chan Yat Wah CACC 154/2023 (unreported: 9 July, 2024), Zervos JA also said:

“32. Even when a defendant, after pleading guilty, gives evidence against an accomplice, it is not automatic that he or she will receive the “usual” 50% discount. It depends on whether he or she has given “truthful and material” evidence, which will require an overall assessment of the nature and circumstances of the evidence, including the outcome of the case and the bearing the defendant’s evidence has had on the result….” (emphasis added)

62.  Taking into account the circumstances of the offence and offender, I am satisfied that the present defendant is entitled to a discount greater than 45% but certainly less than 50%.  It is true that his evidence against the co-defendant was not accepted by the majority of jury but at the same time what he told the jury was what he had told the police in his non-prejudicial statement and he had no control as to whether his evidence would be believed or not.  Having regard the totality of the defendant’s assistance and assessing the matter in the round, I am of the view that the appropriate discount for this defendant is around 46.5%.

Totality

63.  I find a total term of 18 years’ imprisonment would have been appropriate for all sixteen charges if the defendant have been convicted after trial.

64.  As said, I have divided all the charges into three groups according to their nature as well as the seriousness of the charges.

65.  For Group 3, the offences of making child pornography, the sentences ought to run concurrently with the sexual offences in Group 2 to which they related.  The starting point of those sexual offences have already reflected the aggravating factor of the defendant filming and making a video record of the indecent acts and therefore, it is not appropriate to pass anything but concurrent sentences.

66.  The defendant is sentenced as follows:-

Charge	Starting point	After around 46.5% reduction
1	4 years	26 months
2	2 ½ years	16 months
3	4 years	26 months
4	2 ½ years	16 months
5	4 years	26 months
6	14 years	90 months
7	14 years	90 months
8	3 years	19 months
9	4 years	26 months
10	4 years	26 months
11	4 years	26 months
12	4 years	26 months
13	2 ½ years	16 months
14	4 years	26 months
15	2 ½ years	16 months
16	4 years	26 months

67.  I consider that an overall term of 9 years and 8 months’ imprisonment is appropriate for all 16 charges after taking into account the totality principle, his plea of guilty and the further sentencing discount due to his assistance to the authorities which is around 46.5%.  To achieve this sentence, I effectively pass concurrent sentences within each group.  I will also make the sentences on Group 2 offences concurrent with the sentences on the Group 3 offences but consecutive to the two non-consensual buggery offences in Group 1 (i.e. 26 months + 90 months = 9 years and 8 months).  The remainder of the terms in each charge will run concurrently to all terms of imprisonment.

68.  The defendant is therefore sentenced to 9 years and 8 months’ imprisonment for all the sixteen charges.