HKSAR v. WONG KA YIP, KEN

CACC 46/2023, [2023] HKCA 1359

On Appeal From [2023] HKCFI 1154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 46 OF 2023

(ON APPEAL FROM HCCC NO 146 OF 2022)

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REASONS FOR JUDGMENT

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1.  The applicant (originally D2) applied for leave to appeal against his sentence of 9 years’ imprisonment imposed on 1 March 2023 by Deputy Judge Keith (“the judge”) in the High Court, following his pleas of guilty on 5 September 2022 to the following four counts:

(1)  Burglary[1] (against D1 and D2);

(2)  Indecent assault on another person[2];

(3)  Indecent conduct towards a child under the age of 16 years[3]; and

(4)  Making child pornography[4].

(D1 was also indicted for another drug-related offence, Count 5.)

An overview of the four offences

2.  The four offences arose out of an incident, which occurred on 1 April 2021 in a flat of a building in Sau Mau Ping, Kowloon. The applicant and D1 essentially tricked their way into the premises in question and, having done so, stole a mobile telephone, HK$1,000 in cash and RMB 130 (Count 1). In the course of the burglary, the applicant indecently assaulted, and performed indecent conduct towards X, a 12-year-old girl residing in the flat (Counts 2 and 3 respectively); and made videos of what he was doing (Count 4). The applicant admitted the following facts in respect of each offence.

(Count 1)

3.  In the early evening of 1 April 2021, the applicant, who was then aged 47, and his accomplice D1, a woman in her 30’s, were captured on CCTV alighting from a bus and going into a shop in Sau Mau Ping to buy gloves. They then hovered around the main gate to the residential building in question until they were able to enter when someone opened the main gate to leave. They proceeded by lift to the 16^th floor of the building, from which they walked via a staircase to the flat in question, where they rang the doorbell of the flat. When X answered the door, D1 asked if there was any adult at home, explaining that they were there to conduct a survey and give away facial masks. X said her mother was not at home but would be back soon. The applicant asked to use the bathroom but became angry when X refused to let him into the flat. However, when the applicant and D1 threatened to report the presence of a dog in the premises, and cause it to be removed, it being the building’s policy not to allow residents to keep pets, X reluctantly allowed the two to enter.

4.  After the applicant had used the bathroom, D1 began looking for money and valuables in the premises. X witnessed D1 take away about HK$1,000 from the safe, as well as her own mobile telephone.

(Count 2)

5.  After emerging from the toilet, the applicant pushed X onto the lower bunk of a bunk bed, and made her sit on his lap facing away from him. X was unable to resist. He inserted his hand through her camisole and touched her breasts for about 1 minute, before pushing her onto the bed and crawling on top of her. Having pulled up her camisole, the applicant bit on each of her breasts for some 2 minutes, which caused X pain. He then pulled down X’s shorts and, after forcefully pulling her legs apart, licked and bit her lower private parts for some 3 minutes. During this time, the applicant told X to cover her face with a pillow; however, she was still able to see what was happening. X felt the applicant’s tongue in her vagina, after which he kissed X on the mouth, touching her tongue with his.

6.  At that stage D1, who was holding a screwdriver, came over and asked X whether there were any other valuable items at home. D1 subsequently left the premises.

(Count 3)

7.  The applicant then pulled down his own pants, forcing X to lick his penis and take it into her mouth. X complained but the applicant insisted. She closed her eyes when the applicant inserted his penis into her mouth and told her to “shake and move” it. He also pulled X’s head towards him while his penis was in her mouth. The applicant then ejaculated into X’s mouth, and forced her to swallow his semen. This session of forced oral sex lasted between 5 and 10 minutes.

8.  The applicant then left the premises, but returned very shortly afterwards to threaten X that if she told anyone what had happened, he would “cause trouble” to her mother.

9.  After the applicant had finally left, X reported the matter to the police, recalling that the entire incident had lasted about 30 minutes. She subsequently positively identified the applicant and D1 in identification parades conducted on 6 April 2021.

(Count 4)

10.  Upon examination of the applicant’s two mobile telephones, one seized at the time of the arrest, the other on 12 April 2021, the police found the same 3 videos on each telephone recording what he had done to X, the content of which were subsequently classified as Level 3 child pornography. The content of the videos was as follows:

(1)  A 23-second video (V1) showing X on the bed, and an adult (the applicant) inserting his hand through the leg of her shorts and under her underpants, playing with her vaginal opening and then touching her breasts.

(2)  A 75-second video (V2) capturing the applicant touching X’s breasts for about 40 seconds, during which the applicant asked X to close her eyes, while D1 and then D2 asked “What’s the password?”, which she gave. The applicant then asked X to stick out her tongue. At this point, X is heard crying and looking frightened.

(3)  A longer video lasting 3 minutes 54 seconds (V3), which began with X sticking out her tongue and covering her eyes with her hands, whilst licking sounds can be heard in the background. X complained twice that it was “so painful” and opened her hands, revealing her face. The applicant said something and X stuck out her tongue again and covered her face. The video then went dark but the audio continued to record licking and deep‑breathing sounds from the applicant, with the applicant occasionally saying “lick, lick” and “move”. This went on for some 1 minute and 20 seconds. X’s vagina was then filmed, while the applicant’s hand fondled and played again with her vaginal opening. At one point, X’s face was seen, but the applicant told her to cover up her eyes.

11.  At one point towards the end of the third video recording, D1 is heard saying in the applicant’s presence, “(X) of course won’t say anything now… now that she is filmed.”

12.  The police also found from one of the applicant’s mobile telephones, certain Internet browsing history searches concerning “非禮女童 (indecent assaults on young girls)” conducted on 24 March 2021. There was also a note on the telephone, which had been created on 3 April 2021 in the following terms:

“Could you tell me if anyone wants to see a neighbor’s little beauty being exposed body video for the first time, this is definitely not a downloaded video! Some things are not convenient to say! The owner is 13 years old, looks sweet and cute. I don’t say too much! Please contact me if you are interested! Make arrangement later. These three videos are definitely not uploadable for sharing. I won’t give it for free, the price will be later!”

The psychological report on the victim

13.  A psychological report prepared about 18 months after the incident concluded that X did not, at that stage, require professional help, since the trauma had predominantly subsided. However, it was noted that X’s reaction towards others had changed, and the psychologist could not discount the possibility that her relationships with others in future would be affected[5].

The criminal record of the applicant

14.  The applicant had been before the courts since 1989 on 16 previous occasions for various criminal offences, including 7 offences of dishonesty, and 1 similar offence of indecent assault; as well as several offences involving the possession of dangerous drugs and Part I Poisons.

Sentencing

15.  In sentencing the applicant, the judge stated:[6]

“I take 10½ years’ imprisonment as my overall starting point for the offences relating to your abuse of the girl, broken down as follows: 9 years’ imprisonment for the offence of indecent conduct towards a child under 16 (as this was as close as you can get to the worst case of its type), no separate penalty for the offence of indecent assault, and 18 months’ imprisonment to be served consecutively for the offence of making child pornography. For the offence of burglary, I take 3 years’ imprisonment to be served consecutively as my starting point.

When I stand back and look at the totality of your offending, a total starting point of 13 years and 6 months’ imprisonment is not, I think, too long. It adequately reflects the gravity of the totality of your offending, which must be reduced by one-third to 9 years’ imprisonment to reflect your pleas of guilty on the return date when you were committed to the High Court for sentence, and thereby relieved the girl of having to relive her ordeal by having to give evidence at your trial.

Accordingly, the sentences I pass on you are as follows: 6 years’ imprisonment for the offence of indecent conduct towards a child under 16; no separate penalty for the offence of indecent assault; 12 months’ imprisonment for the offence of making child pornography, to be served consecutively to the sentence for the offence of indecent conduct towards a child under the age of 16; and 2 years’ imprisonment for the burglary to be served consecutively to these two sentences. That makes 9 years’ imprisonment in all.”

The grounds of appeal

16.  Mr Mughal, with him Ms Yu, on behalf of the applicant, took no issue with the sentence on Count 1. His complaint was that the starting point of 9 years’ imprisonment on Count 3 was manifestly excessive, while the starting point on Count 4 was on the high side and ought to have been made wholly concurrent with the sentence on Count 3. Although no separate sentence was passed on Count 2, the overall sentence of 7 years’ imprisonment in respect of Counts 2, 3 and 4 was also said to be manifestly excessive.

17.  Reference was made to a number of cases where it was suggested that lesser sentences had been approved on similar facts.

The respondent’s reply

18.  Mr Chen, on behalf of the respondent, argued that while the judge may have gone about the sentencing exercise in an unconventional way, for example, by not imposing any separate penalty at all on Count 2, the overall sentence for the criminality involved in all four counts could not be said to be manifestly excessive.

Consideration

19.  Mr Mughal has made a wise tactical decision not to attack the sentence of 2 years’ imprisonment for burglary (Count 1), since the applicant was perhaps fortunate that he did not get a rather longer sentence for this offence. This was clearly a planned, premeditated burglary, in which the applicant sought to trick and threaten his way into private, domestic premises, which he knew to be occupied at the time; thereby subjecting the 12-year-old occupant to the terror of having her home entered and defiled by no less than two intruders, who then set about ransacking the premises looking for valuables. In that process, she was forced to reveal the password to her mobile telephone, as she watched helplessly. The fear and powerlessness she must have felt could only have intensified when she was then subjected to the further torment of the sexual indignities forced upon her by the applicant.

20.  It must not be forgotten that the maximum sentence on indictment for burglary under section 11(4) of the Theft Ordinance, Cap 210 is 14 years’ imprisonment. Many appellate courts might well regard the circumstances of this burglary, leaving aside the separate sexual offences which were to follow, as lenient. What happened was, in reality, akin to a robbery to the extent that the circumstances of the burglary and theft were pregnant with menaces, while X was powerless to resist the two intruders. For that reason, Mr Mughal was wise tactically to leave the sentence on Count 1 alone. However, that does not mean that an appellate court must leave it alone.

21.  Moreover, it is not, with respect, realistic to look at each of these sentences individually, comparing what the sentence on one offence was with another case with different facts. Any appellate court must look at the overall criminality of what took place that evening, the aggravating features applicable and the mitigating factors present, and then ask itself whether the overall starting point of 13½ years imprisonment, and the resulting sentence of 9 years’ imprisonment after plea, was manifestly excessive and/or wrong in principle.

22.  There were a number of very serious aggravating features revealed by this set of facts, which were properly set out in an indictment before the High Court rather than a charge sheet before the District Court. Some of these factors can be broken down further and, of course, it is important to recognize the pitfall of double counting. Nevertheless, the aggravating features in this case may be listed as follows:

(i)  The offence of burglary was premeditated and pre-planned;

(ii)  Private premises were targeted and entered by two adults using trickery and threats on a 12-year-old girl, who was alone, frightened and powerless at the time;

(iii)  X remained inside witnessing her home being ransacked, her mobile telephone being taken and her password revealed, and her safe being prized open and plundered;

(iv)  X was subjected to appalling sexual indignities in her own home, where she ought to have been completely safe, at the hands of a stranger who was 35 years her senior;

(v)  X was required to perform sexual acts, which she should never have been expected to encounter as a minor, including sucking the penis of a complete stranger, having her nipples bitten and her vagina played with and licked;

(vi)  The applicant ejaculated into X’s mouth and then forced her to swallow his semen;

(vii)  (iv) to (vi) above indicated the overbearing control and manipulation of a vulnerable child into doing what the applicant asked;

(viii)  The applicant filmed his sexual assaults on X, which would have added to X’s indignity and sense of shame. Moreover, it would seem from what was recorded that this may have been done to ensure that she would not report the matter, knowing that she had been filmed[7];

(ix)  The videos were made not just for the Applicant’s sexual gratification but so that he could profit from X’s anguish by making them available for sale;

(x)  The applicant threatened X not to report the matter or he “would cause trouble” to her mother;

(xi)  X’s ordeal lasted some 30 minutes and X suffered pain;

(xii)  The applicant has a bad criminal record, which included multiple offences of theft and one previous conviction for indecent assault. Clearly, he has gone beyond being a nuisance to society and must now be regarded as a real danger, for which personal and public deterrence are paramount considerations; and

(xiii)  X will undoubtedly have suffered trauma from her ordeal whether it has manifested itself fully yet or not. Clearly, her attitude to others has already been affected, which may well impact on her relationships with, and her perception of, other people.

23.  As to (xii) above, I should also point out that, with regard to one of his previous convictions, that is, Access to a computer with dishonest intent, which was the result of a reversal of the acquittal after a successful case-stated appeal[8], the applicant was alleged to have placed a mobile telephone in the ladies’ room of an office premises in order to film the toilet bowl area; and had admitted under caution that his purpose was to secretly film a female colleague using the room. It is clear that the applicant did not learn his lesson and has now committed an even more serious offence using his mobile telephone to film his sexual assaults on a 12-year-old girl.

24.  Given this catalogue of aggravating features and the particularly unsavory facts of the case, I do not regard it as reasonably arguable that the judge’s overall starting point of 13½ years’ imprisonment, or the resulting sentence of 9 years’ imprisonment after plea, was manifestly excessive. Indeed, it may be that the applicant was fortunate that an even higher overall starting point was not adopted. I make this observation because there was one particular aspect of the judge’s sentencing exercise, which an appellate court may consider to be wrong in principle, thus prompting it to intervene and re-sentence the applicant afresh. The decision not to pass any separate penalty on Count 2, whose facts were themselves extremely serious, is very unusual, if not unique, in this jurisdiction and creates obvious problems on appeal where multiple offences are concerned. The much better and invariable course, with respect, is to pass a sentence for the offence concerned and either make it wholly concurrent, or partly concurrent and partly consecutive, to other sentences. This will allow the appellate court to see how serious the particular conduct was regarded by the sentencing judge in the overall scheme of offending and culpability.

25.  It is here that I should engage Mr Mughal’s argument that the sentence on Count 4 ought to have been made wholly concurrent with the sentence on Count 3. He relied for this submission on passages in HKSAR v Chow Yuen Fai[9] and HKSAR v Ipp Tin Fan[10], in which the respective Courts had explained that where the maker of the child pornography is himself the perpetrator of the sexual offence being recorded, the fact that he has made such a video or film should be an aggravating feature in the sentencing for the sexual offence; and any sentence for making child pornography should, therefore, be made concurrent with the sentence for the sexual offence. This avoids the problem of double counting when it comes to sentencing for making child pornography.

26.  However, this cannot be an inflexible rule and must depend on the circumstances of individual cases; as this case perhaps illustrates. Here, the making of the child pornography had a number of apparent motives or purposes, according to the evidence: firstly, for the applicant’s own sexual gratification; secondly, to ensure that X kept quiet and did not report the matter to anyone; and, thirdly, so that he could sell the videos and profit from X’s misery. The judge distinguished the approach in Chow Yuen Fai and expressly stated that he had “not taken your filming of the girl into account when deciding on the sentence for the offence of indecent conduct towards a girl under 16”[11]. In those circumstances, the judge was clearly alive to the problem of double counting and entitled to pass a consecutive sentence in respect of a particularly unpleasant manifestation of the offence, the maximum sentence on indictment for which is 8 years’ imprisonment and a fine of HK$2 million. The sale of home-made pornography showing terrified young children being tormented and abused is something which the courts must treat with particular severity.

27.  There is another practical reason why concurrence cannot be an inflexible rule. Had these sentences been passed after trial, the judge’s sentence on Count 3 would have been 9 years’ imprisonment and his sentence on Count 4, 18 months’ imprisonment. If one were to treat the filming of the sexual offence as enhancing the sentence for that offence, the resulting sentence would have been in excess of the maximum for the sexual offence, which is 10 years’ imprisonment. It may be that this was why the judge decided not to treat the filming of what the applicant had done as an aggravating feature, but as a separate sentence altogether. If so, he was correct. It was separate criminal conduct deserving a separate penalty, subject to the issue of totality.

28.  However, given the fact that the applicant was searching indecent assaults on young girls on the Internet a week before this incident, had targeted these particular premises, had made three videos of his actions, which he had duplicated onto another telephone, and had been intending to sell the videos publically, the sentence on Count 4 could have been much longer. That is why I say, the applicant may have been fortunate in the overall sentence he received.

29.  This application is refused. Whilst the applicant does, of course, have the right to renew his application for leave to the Court of Appeal, I should nevertheless warn him, particularly in light of my remarks about the overall length of his sentence, that the Court of Appeal does have power to give leave to appeal but re-sentence him if it were to regard the original sentencing process as having miscarried; or to order that any time he has spent in custody pending the appeal should not count towards his eventual sentence, if it were to come to the conclusion that the application should not have been renewed.