HKSAR v. A

CACC 17/2020

[2021] HKCA 391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 17 OF 2020

(ON APPEAL FROM HCCC NO 161 OF 2019)

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J U D G M E N T

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1.  On 8 January 2020, following his conviction on his own plea of eight counts of incest of his daughter (referred to as “X”)[1] and one count of perverting the course of public justice[2] before Toh J (“the judge”), the applicant was sentenced to a total term of 17 years and 6 months’ imprisonment.

2.  On 4 February 2020, the applicant filed a notice of application for leave to appeal against his sentence.  He was initially granted legal aid but it was subsequently discharged and he now appears in person in this application. 

3.  When the applicant was first arrested, he admitted under caution that he had sexual relations with his daughter but claimed that it was consensual.  He was originally charged with a single offence of rape with six additional offences of rape laid against him on 7 November 2018.  He was later also charged with a single offence of perverting the course of public justice on 8 April 2019 in relation to events that took place in early November 2018.  On 20 May 2019, upon the applicant electing that he would plead not guilty to the charges, he was committed to the Court of First Instance for trial on seven counts of rape and one count of perverting the course of public justice. 

4.  On 27 May 2019, an indictment was filed against the applicant which contained eighteen counts of rape (Counts 1 to 18) [3] and one count of perverting the course of public justice (Count 19).  The applicant’s case was fixed for a case management hearing on 26 November 2019 and a trial to commence on 3 February 2020.  It appears discussions took place between the parties for a plea bargain in or about August 2019.  In a letter from defence counsel dated 17 October 2019, the court was informed that a plea bargain agreement had been reached between the parties, in which the applicant offered to plead guilty to (1) incest as an alternative to the rape offences in Counts 1, 2, 13 to 18; and (2) the perverting offence in Count 19.  In accordance with the plea bargain, an amended indictment dated 25 November 2019 was filed with the court, which contained eight additional counts of incest as alternatives to eight of the counts of rape. 

5.  The counts on the amended indictment were as follows:

Count 1: on an unknown day in 2006, the applicant raped X.  She was then aged 11 years. 

Count 2 (as an alternative to Count 1): on an unknown day in 2006, the applicant had sexual intercourse with his daughter, X. 

Count 3: between 1 and 10 January 2007, the applicant raped X. She was then aged 11 years. 

Count 4 (as an alternative to Count 3): between 1 and 10 January 2007, the applicant had sexual intercourse with X.

Count 5: between 1 and 10 January 2008, the applicant raped X. 

Count 6: between 1 and 10 January 2009, the applicant raped X. 

Count 7: between 1 and 10 January 2010, the applicant raped X. 

Count 8: between 1 and 10 January 2011, the applicant raped X. 

Count 9: between 1 and 10 January 2012, the applicant raped X. 

Count 10: between 1 and 10 January 2013, the applicant raped X.

Count 11: between 1 and 10 January 2014, the applicant raped X.

Count 12: between 1 and 10 January 2015, the applicant raped X.

Count 13: between 1 and 7 January 2016, the applicant raped X.

Count 14: between 1 and 7 January 2017, the applicant raped X.

Count 15: on 7 July 2018, the applicant raped X.  She was then aged 22 years.

Count 16 (as an alternative to Count 15): on 7 July 2018, the applicant had sexual intercourse with his daughter, X.

Count 17: on 9 July 2018, the applicant raped X.

Count 18 (as an alternative to Count 17): on 9 July 2018, the applicant had sexual intercourse with his daughter, X.

Count 19: on 10 July 2018, the applicant raped X.

Count 20 (as an alternative to Count 19): on 10 July 2018, the applicant had sexual intercourse with his daughter, X.

Count 21: on 11 July 2018, the applicant raped X.

Count 22 (as an alternative to Count 21): on 11 July 2018, the applicant had sexual intercourse with his daughter, X.

Count 23: on 12 July 2018, the applicant raped X.

Count 24 (as in an alternative to Count 23): on 12 July the applicant had sexual intercourse with his daughter, X.

Count 25: on 16 July 2018, the applicant raped X.

Count 26 (as an alternative to Count 25): on 16 July 2018, the applicant had sexual intercourse with his daughter, X.

Count 27: between 3 and 6 November 2018, the applicant with intent to pervert the course of public justice did a series of acts which had a tendency to pervert the course of public justice in that he had written two letters dated 3 and 4 November 2018 to X, inciting and inducing X not to testify in the proceedings against him.

6.  On 26 November 2019, the applicant pleaded guilty to the incest counts (Counts 2, 4, 16, 18, 20, 22, 24, and 26)  and the perverting count (Count 27) and not guilty to the rape counts, which were left on the court file and ordered not to be proceeded with without the leave of the court.

7.  In his application, the applicant complains that he was initially charged with offences of rape, which were amended after negotiation to offences of incest to suitably reflect the offending involved.  He submits the following matters which were in his favour were not taken into account when he was sentenced: (1) he agreed to plead guilty to the offences without hesitation which obviated the need for X to attend court and suffer any further trauma; (2) he had never applied any violence or intimidated X; and (3) he had been forgiven by X. 

The offence of incest

8.  As far as material, section 47 of the Crimes Ordinance (Cap 200) provides:

“Incest by men

(1) Any man who has sexual intercourse with a woman, who is to his knowledge his granddaughter, daughter, sister or mother, shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years:

Provided that if, on an indictment for any such offence, it is alleged in the indictment and proved—

(a) that the woman is under the age of 16 years but is of or above the age of 13 years, he shall be liable to imprisonment for 20 years;

(b) that the woman is under the age of 13 years, the same punishment may be imposed as may be imposed under section 123.

(2) It is immaterial that the sexual intercourse was had with the consent of the woman.

…”

9.  The penalty for incest with a woman under the age of 13 years is the same penalty as provided under section 123 for the offence of unlawful sexual intercourse with a girl under the age of 13 years, which is a maximum penalty of life imprisonment.  This is also the maximum penalty for the offence of rape under section 118. 

The summary of facts

10.  The facts outlined to the judge and admitted by the applicant included his admission in his video record of interview that he continuously had sexual intercourse with his daughter from when she was 11 years until she was 22 years.

11.  It was stated that X was born in the Mainland on 21 July 1995.  She lived with her mother (referred to as “Y”) in the Mainland until 2002, when they came to Hong Kong to join the applicant.  She was 7 years.  The applicant worked as a driver and Y as a waitress, and they lived in a flat in a public housing estate (“the Flat”).  X had a step-brother who lived with them at the Flat but he had moved out in recent years.

12.  It is appropriate to set out the factual background to the incest counts (referred to as “charges”) as contained in the summary of facts. 

“Charge 2: 2006

4. On a day during summer holiday in 2006 when X was about 11 years old, X, Y and D were scheduled to go to the Mainland to attend a banquet. Just before leaving, it was discovered that X’s Mainland Travel Permit had expired. Thus, X and D remained in Hong Kong while Y proceeded to the Mainland alone.

5. In the morning after Y left, D suddenly asked X to sit on his bed. X did as told as she was unsure why such a request was made. When D asked X to take off her clothes, X thought D was playing with her and she complied.

6. After that, D took off his underpants, the only clothing he was wearing at that time. D started to molest and kiss X’s breasts. He then pushed X onto the bed, separated her legs, pressed his body on top of X and inserted his penis into X’s vagina. X could feel the penis erected and felt great pain. She told D she was painful and asked him not to continue. D stopped just for a second but continued to thrust his penis into X’s vagina. When D withdrew his penis, X could see D has a condom on and there was semen inside.

7. Since X was young, she had no idea what the aforesaid acts meant. However, she was very sacred of what D did to her. Further, D told X not to tell anyone about the incident. Hence, X did not disclose the incident to anyone or to her mother even after her return from the Mainland.

8. The above incident was X’s first sexual experience. It was only when X received sex education at Form 1 in secondary school that she came to realise what D’s act towards her was wrong.

Charge 4: 2007

9. On a day between 1 January 2007 and 10 January 2007 when X was 11 years old, D had sexual intercourse with X at the Flat while Y was not at home.

10. D specifically told X not to disclose the sexual advance to anyone. Moreover, D has been strict and very controlling towards X. He did not allow X to have any contact with any male and imposed strict time when she went out. X therefore acceded to D’s request for sexual intercourse so that D would let her go out with friends more freely.

11. Also, D had used a camera and/or his mobile phone to take video of the sexual intercourse between him and X. X has asked him to stop but that was ignored. X never requested to see the clips. As D had the said videos and Y often threatened to commit suicide, X dared not to disclose D’s sexual abuse to Y, lest the family would break up after such disclosure.

12. On 2016, X told her female friend (“PW2”) that she had been sexually abused by her father without disclosing any details.

13. Between May and 6 July 2018. X found a summer part-time job which required her to work during day time. Hence, D did not have the opportunity to have sexual intercourse with X.

14. On 6 July 2018, X quitted the summer job and could spend more time at the Flat. As of 6 July 2018, X was 22 years old.

Charge 16: 7 July 2018 (X was 22 years old)

15. X was alone at the Flat at about 7:00 pm on 7 July 2018 when D returned home from work. D asked X to take a shower with him. As D would get angry and scold X and further not allow her to go out, X complied with his request. During the shower, D molested X’s breasts and instructed her to get onto his bed after the shower. X lay on her side facing the wall and D embraced her closely at her back. D then inserted his penis into X’s vagina from behind and thrusted for a while. D did not use a condom and moved X to supine position after the intercourse. He then ejaculated on X’s stomach. X told D that she did not want to have sex with D but D asked X if she enjoyed it. X told D not to ask anymore as she did not want it, to which D just ignored her. X said she has repeatedly told D not to do it anymore and D promised not to have sex with her when X grew up. However, D continued to do so.

Charge 18: 9 July 2018

16. X was alone at the Flat at about 7:00 pm on 9 July 2018 when D returned home from work. When D asked X to take a shower with him, X sensed D want to have sex with her and tried to avoid him. D however repeated the request and started to get angry, hence X complied. D molested X’s breasts during the shower. After the shower, X quickly got out but D instructed X to get onto D’s bed, to which X reluctantly complied. X lay on her side facing the wall so she could avoid seeing D. D embraced X at her back and inserted his penis into X’s vagina from behind. D did not use a condom and he ejaculated on X’s stomach after the intercourse. D then instructed X to have a shower with him during which he molested X’s breasts again and talked about the sexual intercourse with her, to which X did not make any response.

Charge 20: 10 July 2018

17. X was alone at the Flat at about 7:00 pm on 10 July 2018 when D returned home from work. D instructed X to take a shower with him but X pretended that she did not hear him. Upon D’s repeated requests, X complied. D molested X’s breasts during the shower. Afterwards, D instructed X to lie on his bed. X lay on her side facing the wall and D embraced her from behind and inserted his penis into X’s vagina and thrusted, during which D asked if X enjoyed it. X told him to stop talking about it as she did not want to do it. She also asked him to be quick so that she could be “released”. D did not use a condom and he ejaculated on X’s stomach. He then instructed X to take a shower with him.

Charge 22: 11 July 2018

18. X was alone at the Flat at about 7:00 pm on 11 July 2018 when D returned home from work. D asked X to take a shower with him. Afraid D would become angry, X complied. D molested X’s breasts during the shower. Afterwards, D instructed X to get onto his bed. X lay on her side facing the wall whilst D embraced her from behind and inserted his penis into X’s vagina and thrusted for a while. D did not use a condom and he ejaculated on X’s stomach.

Charge 24: 12 July 2018

19. X was alone at the Flat at about 7:00 pm on 12 July 2018 when D returned home from work. D instructed X to take a shower with him. X told D that she would go to a gathering with her primary school friends and teachers the next day. As D did not say anything, implying he would allow X to attend the gathering, X acceded to his request and went to have a shower with D, during which D molested X’s breasts. After the shower, D instructed X to get onto his bed. X lay on her side facing the wall while D embraced her from behind and inserted his penis into X’s vagina and thrusted for a while. D did not use a condom and he ejaculated on X’s stomach.

20. D was angry at X the next day as she returned home from the gathering at about 4:00 pm. Nothing untoward happened on 14 and 15 July 2018 as Y was at home.

Charge 26: 16 July 2018

21. X was alone at the Flat at about 7:00 p.m. on 16 JuLy 2018 when D returned home from work. He instructed X to take a shower, to which X complied as she was afraid that D would stop her from going out again. D molested X’s breasts and after shower, X and D went onto D’s bed. X lay on her side facing the wall while D embraced her from behind and inserted his penis into X’s vagina and thrusted for a while. D did not use a condom and he ejaculated on X’s stomach.

22. On 17 and 18 July 2018, X had arguments with D because X was out with friends. Upon X’s return at about 4:00 pm on 18 July 2018, D was again angry and insisted on looking at X’s mobile phone. X refused and went to her bed. Suddenly, D approached X and slapped X’s face. X was shocked and frustrated. She immediately made a complaint by messaging her elder brother, who then dated D out at about 6:00 pm on the same day. When D came back at 7:30、pm, he was still very angry and threatened to take the key of the Flat from X. X was exasperated and message PW2 to help her make a police report. The police arrived at the Flat soon after.

…

24. In the subsequent video-recorded interview, D claimed, inter alia, the following under caution:-

i. He married Y in the Mainland and they had a daughter X;

ii. He has another daughter and a son from other relationships and they do not live with him at the Flat;

iii. He started to have consensual sexual intercourse with X when she was 11 years old until July 2018 on continuous basis; and

iv. He recalled the first time he engaged in sexual act with X was the occasion when Y attended a banquet in the Mainland and X could not go because her Mainland Travel Permit expired and he was alone with X at the Flat.”[4]

13.  As for Count 27, it was stated that the applicant had been remanded in jail custody in July 2018.  During this period, the applicant sent X letters once, and sometimes twice a week.  On 6 November 2018, X received two letters, dated 3 and 4 November 2018, respectively.  In the first letter, the applicant described a case in which a “plaintiff”, accompanied by his lawyer, went to the police station and asked not to proceed with the case against the defendant as he would not give evidence in court.  He said the case was withdrawn because there was no witness.  He also said he would discuss the matter with Y, who was to visit him the next day, and suggested that legal advice should be sought without delay.[5]

14.  In the second letter, the applicant asked X to do him a favour which would change his life and to give him a chance so that he could enjoy his remaining time.  It was X’s understanding that the applicant wished her to not testify against the applicant.  She reported the matter to the police. 

15.  The applicant admitted that he intended to pervert the course of public justice by inciting and inducing X not to testify in the proceedings against him.[6]

The applicant’s mitigation

16.  At the sentencing hearing, defence counsel submitted that the applicant was remorseful and regretted what he had done to his daughter.  He asked that a lenient sentence be imposed on the applicant.  He cited HKSAR v Lam Chung Tak, Jemy [2008] 1 HKC 281, in which a starting point of 9 years’ imprisonment was adopted for two counts of incest, as an indication of the starting point that the judge should adopt.  He also submitted that the applicant was entitled to a discount for having pleaded guilty and saving the victim from giving evidence in relation to the case, noting that the applicant’s guilty pleas were confirmed in a letter dated 17 October 2019 from him to the court.

17.  After discussion about the appropriate discount the applicant should receive for his guilty plea, defence counsel accepted the applicant could not receive the usual one third discount for a timely guilty plea, and that at most he could receive was 25%.[7]

The reasons for sentence

18.  The judge briefly described the counts to which the applicant had pleaded guilty.  She noted that the applicant was initially charged with offences of rape but after successful negotiations the applicant had pleaded guilty to sample charges, which she incorrectly described as originally 26 counts of incest.  She noted that the acceptance of this plea bargain saved the victim from reliving the trauma of what she had gone through, but at the same time highlighted the horror of the sexual abuse that X had been subjected to over a long period of time.

19.  The judge set out the applicant’s background and circumstances.  He was 59 years old at the time of sentencing and a truck driver by occupation.  She then reviewed in detail the victim impact statement from the clinical psychologist.  The psychologist found that X was suffering from Post-Traumatic Stress Disorder (PTSD) and that “given the chronic nature of the emotional and sexual abuse she had suffered, it is expected that intensive and long term psychological treatment would be required for X to recover from her PTSD and mood disturbances.”[8]  The psychologist described X as being too fearful to tell others of her abuse and that she suffered from chronic feelings of loneliness and isolation.  The judge also noted how the victim impact report revealed the applicant’s suffocating control of X since the age of 7, describing how the applicant controlled who she talked with on the phone and monitored her phone conversations with her maternal grandmother and friends; and that any boy that she went out with would be harmed by the applicant’s triad friends.

20.  The judge considered a starting point of 9 years’ imprisonment was appropriate for each incest count because of the aggravating features in the case with the “top amongst them is the breach of trust”.  She increased the starting point to 10 years’ imprisonment on Counts 2, 16, 18, 20, 22, 24 and 26 for the length of the abuse.  She increased the starting point to 11 years’ imprisonment on Count 4, for the aggravating feature of the applicant having filmed the sexual abuse on a camera or his mobile phone.  As for Count 27, which was the perverting count, the judge adopted a starting point of 3 years’ imprisonment.

21.  The starting points of the incest counts were reduced by 25% for the applicant’s guilty pleas to 7 years and 6 months’ imprisonment on Counts 2, 16, 18, 20, 22, 24 and 26, and to 8 years and 3 months’ imprisonment on Count 4.  As for the discount, the judge stated:

“… as Mr So correctly conceded, the defendant is not entitled to the full one third off and he submitted that he should be entitled to 25 percent off. I was of the opinion that it should be less than 25 percent off, however, I do take into account that by his plea the victim has been spared the trauma of giving evidence. So therefore I have decided to accede to the submission of Mr So and give him the 25 percent discount.”[9]

22.  The judge went on to consider the totality principle and the overall sentence that should be imposed on the appellant for the incest counts.  She considered a sentence after plea in the range of around 16 years’ imprisonment to be appropriate.  To achieve this, she in effect ordered that the sentences in Counts 2 and 16 were to run concurrently with one another, that is 7 years and 6 months’ imprisonment; the sentences in Counts 18 and 20 were to run concurrently with each other, 2 years of which were to run consecutively to the total sentence of Counts 2 and 16; the sentences in Counts 22 and 24 were to run concurrently with each other, 2 years of which were to run consecutively to the total sentence of Counts 2, 16, 18 and 20; 2 years of the sentence in Count 26 were to run consecutively to the total sentence of Counts 2, 16, 18, 20, 22, and 24; and 3 years of the sentence in Count 4 were to run consecutively to the total sentence of the other counts. This resulted in a total sentence of 16 years and 6 months’ imprisonment on the incest counts.  

23.  As for Count 27, the perverting count, the judge reduced the starting point of 3 years’ imprisonment by one third for the applicant’s guilty plea to 2 years’ imprisonment.  She ordered that 1 year of this sentence be consecutive with the total sentence of the incest counts.  This resulted in a total sentence of 17 years and 6 months’ imprisonment.

Discussion

24.  The applicant, at the hearing of this application, focused his complaint against his sentence on the fact that he did not receive a full one third discount on the starting points adopted by the judge for the incest counts.  He argued that he admitted he had sexual intercourse with his daughter when he was arrested and as soon as the indictment was amended to include the incest counts he immediately pleaded guilty to them.

25.  It was pointed out by Ms Chan Sze-yan, counsel for the respondent, that negotiations for a plea bargain were only commenced in or about August 2019, after the case had been transferred to the High Court and fixed for trial.  She submitted that the incest counts were alternatives to the rape counts and it was only at an advanced stage in the proceedings that a plea bargain was initiated by the applicant.  She argued that in the circumstances the judge was right to give him a discount of 25% for his guilty pleas.

26.  A similar issue recently arose in HKSAR v Lam kai Man [2020] 4 HKLRD 107, in which this Court took the opportunity to explain how such an issue should be approached by a sentencing court.  The Court  explained that if a defendant wished to plead guilty to a lesser or alternative charge, he should make a clear and unequivocal statement of his position in court and on the record.  This should be done by formally entering a plea to the proposed charge on the court record, but it may also in certain circumstances be achieved by his legal representative stating, again formally on the court record, the defendant’s intention and the basis of his proposed plea.  The Court added that it could also be done by the defendant’s legal representatives writing to the prosecution, but there would have to be good reason for the plea not being formally entered on the court record in the first place.  The Court noted that in such circumstances the extent of the discount depended on the stage at which the proposed plea was clearly and unequivocally entered on the court record and this was subject to the overriding discretion of the judge and the principles set out in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.

27.  It was available to the applicant to offer to plead guilty to incest as an alternative to the rape counts and to the perverting count as and when they were laid against him.  When he was committed for trial, the applicant indicated that he would contest the rape counts and the perverting count.  It was only shortly before the trial that the applicant through his counsel made overtures of pleading guilty to alternative counts of incest and to the perverting count.  In my view, the judge was right to only afford the applicant a 25% discount for his late pleas.  It was within her discretion to do so, and defence counsel accepted this was an appropriate discount in the circumstances of the case.  Furthermore, in the course of the proceedings, in early November 2018, it was far from the applicant’s mind to plead guilty to any of the offences, as he admitted that he attempted to pervert the course of public justice by urging X not to testify against him, as evidenced by the letters he wrote to X at that time.

28.  I turn now to review the judge’s general approach in sentencing the applicant and the resultant total sentence she imposed.

29.  Although it was not mentioned by the judge, the applicant’s criminal record included a conviction for public mischief in June 1976, for which he was put on probation for 18 months; common assault in March 1982, for which he was fined $250; unlawful sexual intercourse with a girl under the age of 16 years in November 1985, for which he was sentenced to 6 months’ imprisonment suspended for 12 months and costs of $1000; and criminal damage in August 1997, for which he was fined $5000.  The prior sexual offence (in 1985) and the current offences against the applicant’s daughter, which commenced when she was aged 11 years (in 2006), arguably displays a proclivity by him to sexually abuse young girls.  It would have warranted a psychiatric assessment of the applicant as a sex offender.

30.  The offences to which the applicant had pleaded guilty must be considered in the context of the facts and circumstances of the case as set out in the summary of facts and the psychological report of the victim.  The applicant had subjected his daughter to a shocking and prolonged campaign of sexual abuse from when she was 11 years until she was 22 years.  It was only then that she was able to finally break loose from the physical and psychological hold he had over her all those years. 

31.  The prosecution may have taken the course it adopted of accepting a selection of guilty pleas to the incest counts on the indictment because of the undesirability of requiring the victim to testify, and the likelihood of a substantial penalty on the basis of the summary of facts.  Such an approach is understandable when the circumstances warrant it.

32.  X has been traumatically affected by the years of sexual abuse as revealed in the victim impact statement.  She suffers with chronic feelings of loneliness and isolation and has episodes of psychological distress and recurring intrusive memories of the sexual abuse.  The psychologist remarked that:

“X also experienced persistent depressed mood and anxiety. She felt that her father had robbed her of her childhood and innocence. She perceived herself to be dirty from her father’s sexual assaults. She suffered from a sense of worthlessness, which was contributed by her father telling that she was inferior and thus unworthy to date men with good standing or achievement.”

33.  Another tragic and disturbing feature in this case, which is probably not uncommon in crimes of this nature, is that X had feelings of guilt that if she revealed the sexual abuse that she was being subjected to by her father, it would break up the family.  What makes matters worse is that the applicant played on these feelings in order to manipulate X to succumb to his constant sexual demands. 

34.  It is hard to believe that a father could do this to his daughter, to humiliate and abuse her, and make her feel inferior and unworthy, in order to control and use her for his grotesque sexual gratification. 

35.  In a similar case of a father sexually abusing his daughters, Stock VP in HKSAR v KKK [2013] 2 HKLRD 676, described the horrors of incest and the public abhorrence with which it is viewed as follows:

“28. … the fact of the matter is that girls in the position of the victims in this case are innocents, who commence their young lives instinctively trusting, and entitled to trust, the families into which they are born. They have no option but to live in the places to which they are brought after birth and to which from time to time they are taken. They are wholly at the mercy of their parents. The fundamental right of the child is to expect from its parents protection and love. In most instances, in this society, that is what the child and young person receives, for that is the normal instinct of the parent. It is painful to recognise that that instinctive protection and love is not always provided. But actual abuse of a child through physical violence or deliberate neglect is not merely at odds with that to which a child is entitled; it is a damnable breach of the trust which the child and society at large places on a parent. And since the child is not in a position to protect itself or to seek relief, society at large - ultimately through the courts - takes upon itself the duty proactively to protect the child and to visit condign punishment upon those who so abuse that trust as deliberately to harm the child. In the circumstances of a case such as the present, the child is a captive, physically and emotionally, and it is in that light that the seriousness of a sexual offence of a child by its parent, or by a person in the position of the parent, is to be viewed.”

36.  In sentencing appellant, the judge treated the incest counts as the same except for Count 4 which she correctly enhanced for the serious aggravating factor of the applicant filming his sexual acts with his daughter.  X was then 11 years but the trauma of the sexual abuse and the recording of it was there forever.

37.  Counts 2 and 4 occurred in 2006 and 2007 respectively, when X was 11 years, while Counts 16, 18, 20, 22, 24 and 26 all occurred in the month of July 2018, when X was 22 years.  As already noted, the maximum penalty for incest with a woman under the age of 13 years is life imprisonment, whereas with a woman above the age of 16 years it is 14 years’ imprisonment.  The judge adopted the same starting point in relation to all incest counts of 9 years’ imprisonment, which she enhanced by 1 year to 10 years’ imprisonment for Counts 2, 16, 18, 20, 22, 24, and 26, and 2 years to 11 years’ imprisonment for Count 4, without noting the distinction between the penalty provisions.

38.  The judge then took a global approach for the incest counts and concluded that an overall sentence should be “in the range of about 16 years after plea”.

39.  It would have been preferable had the judge determined the sentences and the totality of them by first assessing the sentence for each offence, for the principal reason that there were different levels of gravity and penalty amongst the offences.  It will be instructive to carry out such an exercise in order to ascertain whether the judge’s total sentence was manifestly excessive.

40.  In considering the sentence to be imposed, it is important to bear in mind that the sexual abuse by the applicant involved him having continuous sexual intercourse with his daughter from 11 years to 22 years (a period of 11 years); that on the second occasion when X was 11 years the applicant filmed his sexual activities with her, which he used as a means of control over her; that on the occasions in July 2018 when the applicant had sexual intercourse with X, he did not use a condom; that the applicant forced and intimidated X into having sexual intercourse with him; that the applicant psychologically and physically controlled and manipulated X as her father and head of the household for his sexual gratification; and that the applicant’s abuse of X has had and will continue to have serious deleterious consequences to her life and well-being.  To all of this is the serious breach of trust that has taken place between a father and a daughter and the irreparable harm and trauma a father has inflicted on his child.  I should stress that the impact on the victim of sex crimes is an important consideration when sentencing the offender. 

41.  In respect of the first two offences, Counts 2 and 4, the maximum penalty is life imprisonment.  Count 2 was extremely grave as it involved the applicant violating his daughter for the first time by having sexual intercourse with her when she was 11 years.  In the circumstances of this case, adopting a starting point of 11 years’ imprisonment would be within an appropriate range of penalty.  After a reduction of 25% for the plea of guilty, the notional starting point comes to 8 years and 3 months’ imprisonment. A slight further reduction of 3 months for the saving of X from having to give evidence would result in a sentence of 8 years’ imprisonment.[10]

42.  Count 4 was also extremely grave because it occurred when X was 11 years and was aggravated by being a second offence, which was also filmed by the applicant.  The filming by the applicant of his sexual abuse of his daughter was a grotesque and humiliating act, which he continued to use as a means of control over X.  In the circumstances, adopting a starting point of 12 years’ imprisonment would be within an appropriate range.  After a reduction of 25% for the plea of guilty, the notional starting point comes to 9 years’ imprisonment.  A slight further reduction of 3 months for the saving of X from having to give evidence would result in a sentence of 8 years and 9 months’ imprisonment. 

43.  The next six incest counts all occurred in July 2018 on almost a daily basis.  On each occasion the appellant did not use a condom.  X was 22 years and clearly suffering intensely from the repeated and sustained sexual abuse that she had been subjected to by the applicant.  As already noted, the maximum penalty for incest with a woman over the age of 16 years is 14 years’ imprisonment.  In the circumstances, adopting a starting point of 9 years’ imprisonment would be appropriate, although a further upward adjustment should be made for the repetition and intensity of the offending.  The latter factor could be taken into account when addressing the totality of the sentences.  After a reduction of 25% for the plea of guilty, the notional starting point comes to 6 years and 9 months’ imprisonment.  A slight further reduction of 3 months for the saving of X from having to give evidence would result in a sentence of 6 years and 6 months’ imprisonment.

44.  In addressing the totality principle, a sensible approach to sentencing would be to first consider Counts 2 and 4 together.  A total sentence of 11 years and 6 months’ imprisonment would be appropriate in the circumstances.  This is achieved by making 2 years and 9 months of the sentence on Count 2 consecutive to the sentence of 8 years and 9 months’ imprisonment on Count 4. 

45.  It would next be appropriate to consider Counts 16, 18, 20, 22, 24 and 26 together.  A total sentence of 9 years’ imprisonment would be appropriate in the circumstances.  This is achieved by making 6 months from each sentence of Counts 18, 20, 22, 24 and 26 consecutive to the sentence on Count 16. 

46.  Considering the overall totality of the sentences for the incest counts, a total sentence of 16 years and 6 months’ imprisonment would be appropriate.  This is achieved by making 5 years of the total sentence of Counts, 16, 18, 20, 22, 24 and 26 (a total of 9 years’ imprisonment) consecutive to the total sentence of Counts 2 and 4 (a total of 11 years and 6 months’ imprisonment).

47.  The final consideration is the perverting count, Count 27, for which the judge was correct to adopt a starting point of 3 years’ imprisonment.  However, for reasons already explained, the applicant was only entitled to a 25% reduction and not the one third reduction he received from the judge.  This would result in a sentence of 2 years and 3 months’ imprisonment.  Considering that this was a separate and distinct offence of a very serious kind, a range of between 1 to 2 years of this sentence should be made consecutive to the total sentence on the incest counts.  This would result in a total sentence of 17 years and 6 months’ imprisonment or more. 

48.  It is clear from the above that the judge’s sentence was neither manifestly excessive nor wrong in principle.

49.  It is for the foregoing reasons that I do not consider that the applicant’s grounds of appeal are reasonably arguable, and I therefore refuse him leave to appeal against his sentence.

50.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending its appeal, if the court were to come to the view that there was no justification for the renewal of his application.

[1] Contrary to section 47(1) of the Crimes Ordinance (Cap 200).

[2] Contrary to Common Law.

[3] Contrary to section 118(1) of the Crimes Ordinance (Cap 200).

[4] Appeal Bundle, 25-29.

[5] Appeal Bundle, 30, at [31]. 

[6] Appeal Bundle, 30 and 31, at [35]. 

[7] Appeal Bundle, 40H-M. 

[8] Appeal Bundle, 44. 

[9] Appeal Bundle, 35I-N. 

[10] See HKSAR v KKK, at [35].