HKSAR v. TANG KWOK HEI, JOE

[ENGLISH TRANSLATION - 英譯本]
CACC 438/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 438 OF 2012

(ON APPEAL FROM HCCC 93/2012)

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REASONS FOR JUDGMENT

Hon Cheung JA (giving the Reasons for Judgment of the Court):

Background

1. The applicant was charged with seven counts of sexual assault offences.  The victims were two 12-year-old boys X and Y, who were both 12-year-old secondary school students.  The charges were:

1)   three counts of “indecent conduct towards a child under the age of 16” (Charges 1 to 3);

2) one count of “non-consensual buggery” (Charge 4);

3) one count of “procuring another person, by threats or intimidation, to do an unlawful sexual act” (Charge 5); and

4) two counts of “indecent assault on another person” (Charges 6 and 7).

2.  Charges 1 to 3 involved Boy X (Group 1 charges), and Charges 4 to 7 involved Boy Y (Group 2 charges).

3.  The case was heard before High Court Judge Maggie Poon sitting with a jury.  The applicant initially pleaded not guilty but changed his plea after the voir dire.  Judge Poon imposed a total sentence of 7 years’ imprisonment for the Group 1 charges (Charges 1 to 3) and a total sentence of 9 years’ imprisonment for the Group 2 charges (Charges 4 to 7), and the two sentences were ordered to run concurrently, making a total term of 9 years.  The starting points adopted by Judge Poon for individual charges and the sentences after giving one-fourth discount for the guilty plea are set out below:

Charge	Starting point	Sentence after discount
Group 1
1.	6 years	4½ years (1 year of which consecutive)
2.	6 years	4½ years (9 months of which consecutive)
3.	7 years	5 years and 3 months
Group 2
4.	12 years	9 years
5.	8 years	6 years
6.	12 months	9 months
7.	12 months	9 months

4.  The applicant applied for leave to appeal his sentence.  At the conclusion of the hearing, we dismissed the application for reasons which we now give.

Facts

5. The present case happened between May and July 2011 when the applicant was aged 20.  In early 2011, the applicant became acquainted with X in a park, and through X, he also became acquainted with X’s friends, including Y.  The applicant came to know the age of X and Y and which level(s) they were studying at school.

Charge 1 (Indecent conduct towards a child under the age of 16)

6. One night in May 2011, the applicant without prior notice visited X who was at home playing computer games with a boy who was of the same age (E).  At X’s home, the applicant suddenly pulled down his pants, exposing his private parts, and took X’s hand to touch his penis, and then masturbated by himself.  He requested X and E to try to perform oral sex on him.  E refused.  X eventually licked the applicant’s penis once and then immediately left the room for the toilet to rinse his mouth.

Charge 2 (Indecent conduct towards a child under the age of 16)

7. One evening in May 2011, the applicant and X met at a park.  The applicant pulled X’s hand to touch his lower parts over the pants.  X tried to withdraw his hand but it got caught again.  The applicant then pulled down his pants, exposing his private parts, and requested X to perform oral sex on him.  X licked the applicant’s penis once.

Charge 3 (Indecent conduct towards a child under the age of 16)

8. One day in early June 2011, the applicant visited X’s home and requested X to masturbate with him together.  X agreed and the two of them masturbated, and then the applicant requested X to let him ejaculate in his mouth and promised X that no such acts would be done anymore.  X agreed to let the applicant ejaculate into his mouth and afterwards went to the toilet immediately to spit out the semen.

9. On the above three occasions, X involuntarily did the acts of masturbation or oral sex. However, as the applicant had on a certain day in April 2011 threatened X and X’s friend(s) with a fruit knife at X’s home, and as X had also noticed that the applicant often carried a cutter with him, X was afraid of being beaten up if he did not do as instructed by the applicant.

Charge 4 (Non-consensual buggery)

10. In mid-2011, Y became acquainted with the applicant through X.  The applicant suggested having homosexual anal sex with Y, but Y refused.  The applicant threatened to get someone to beat Y up.  Y felt very disturbed after hearing that.

11. On the afternoon of 24 June 2011, the applicant invited Y to the applicant’s residence to play video games.  The applicant pinned Y down on the bed and forcibly kissed him and removed all his clothing.  Y tried to push away the applicant and resist but in vain because he did not have enough strength.  The applicant performed oral sex on Y, and Y told him to stop, but he threatened to bite Y’s private parts.  The applicant then turned Y over and pinned him down on the bed, and then inserted his penis into Y’s anus.  This lasted about two minutes, during which Y kept on shouting and saying he felt pain and asking the applicant to stop.  Finally Y burst into tears.  The applicant did not use a condom during the anal intercourse.  Y managed to push away the applicant once or twice but was immediately pinned down again.  Afterwards the applicant told Y not to disclose what happened, otherwise he would get someone to beat Y up.

Charge 5 (Procuring another person, by threats or intimidation, to do an unlawful sexual act)

12. After doing the act of anal sex on Y, the applicant requested Y to do the same to him and indicated that if Y did not do as he wished, he would get someone to beat Y up.  Y was frightened and, having no choice, acceded to the applicant’s request and tried to perform anal sex on the applicant.  Y’s penis touched the applicant’s anus for 5 to 6 seconds, but as his penis was not erect, Y pretended to have anal sex by inserting his forefinger into the applicant’s anus instead.  The applicant ejaculated and wiped the semen with a piece of tissue paper.  He demanded Y to swallow the semen but Y refused.  Y threw the tissue paper into the dustbin when the applicant went to the toilet, and then lied to the applicant that he had already swallowed the semen.

Charge 6 (Indecent assault on another person)

13. On 17 July 2011, the applicant invited Y and another boy (D) to go to a movie. When waiting for transport, the applicant took Y to a staircase nearby for smoking and suddenly touched Y’s private parts over the pants.

Charge 7 (Indecent assault on another person)

14. The three of them went into the cinema.  Halfway into the movie, the applicant suddenly touched Y’s private parts over the pants and attempted to kiss Y, but Y lowered his head to dodge, and the applicant immediately grabbed Y’s shoulder with his hand.

15. Y was not voluntary when the four abusive acts involved in the above incidents were performed.

Grounds of appeal

16. Mr Poon, Counsel for the applicant, complained that the starting points adopted by Judge Poon for Charges 1 to 5 as well as the overall sentence were manifestly excessive.  He referred to the case of HKSAR v CHAU SHU HO (CACC 228/2007).  The appellant in that case was found guilty by the jury on four counts of “indecent assault” and one count of “common assault” on a boy aged 10.  The four counts of “indecent assault” all involved the appellant putting his penis into the boy’s mouth.  Specifically, Charge 3 alleged that the boy had all his clothes removed after he went asleep and was molested by the appellant.  The facts of Charge 4 alleged that the boy cried out for pain when the appellant was sucking his penis, but the appellant ignored him and even told him that he would take away the presents that had been given to him if he did not cooperate.  Charges 4 and 5 both involved the appellant rubbing his penis against the boy’s exposed buttock and the area outside his anus until ejaculation.  The trial judge adopted starting points of 3 years for the first two charges and 4 years for the last two charges (involving rubbing the penis against the victim).  The Court of Appeal did not consider those starting points excessive and even took the view that they were on the low side (see paragraph 43 of the judgment).

17. Mr Poon contended that even if the starting points in the above case were enhanced by 25%, they would still only come to 4½ years and 5 years respectively, which were still considerably lower than the starting points of 6 years and 7 years adopted in the present case, and therefore the individual sentences for Charges 1, 2 and 3 in Group 1 were manifestly excessive.

18. In respect of Charge 4 (involving buggery) in Group 2, Judge Poon had considered the case of HKSAR v CHOW YUEN FAI [2010] 1 HKLRD 354, in which the 11^th and 13^th charges involved non-consensual buggery with boys aged 13 and 12.  The trial judge adopted a starting point of 7 years for each of those two charges, but the Court of Appeal increased the starting points to 10 years and 8 years respectively.

19. In addition, in R. v CHAN CHI WA (CACC 559/1996), the victim, a woman was aged 17, was luring into a guesthouse where the appellant, using violence, raped her twice and had non-consensual buggery on her once.  The appellant was convicted after trial and sentenced to 10 years’ imprisonment for each of the offences, with the sentences ordered to run concurrently.  The Court of Appeal considered the sentences appropriate.  The appellant had a previous conviction record for “rape”.

20. In respect of Charge 5, the applicant referred to the case of HKSAR vLAM YAT TUNG (CACC 131/2007).  In the case, the appellantlured a Form Two female student under the age of 16 to a staircase where he indecently assaulted her and twice forced her by intimidation to have sex with him.  The appellant was convicted after trial on (inter alia) two counts of “procuring another person by threats to do an unlawful sexual act” and sentenced to imprisonment for 4 years and 2½ years respectively for those two offences.  Taking into account the sentences imposed on him for other offences in the same case, the appellant was sentenced to imprisonment for a total term of 5 years.  The appellant’s appeal against sentence was dismissed by the Court of Appeal, which held that the sentences for individual convictions and the overall sentence were all on the low side and that there was no room whatsoever for reduction of sentence.

21. Mr Poon submitted that, compared with the above two decided cases, the starting points of 12 years and 8 years adopted for Charge 4 and 5 respectively in the present case were manifestly excessive.  The circumstances of the offences in CHOW YUEN FAI were even more serious: the appellant in that case became acquainted, by means of playing online games, with six boys aged between 8 and 13, and he sexually assaulted them in various appalling ways and also took and kept disgusting pictures and videos.  That case involved more victims than the present case did (6 vs 2), and some of the victims in that case, aged below 12, were even younger than X and Y in the present case (both aged 12).  The facts of that case (eg pornographic photos of children were taken and kept, and the appellant was a sexual predator with a fairly high risk of re-offending) were obviously more serious than those in the present case (no photo was taken and kept, no evidence that the applicant was a sexual predator, and the risk of re-offending being moderate to high). However, the sentence imposed in CHOW YUEN FAI was even more lenient than that in the present case.

22. In LAM YAT TUNG, the appellant’s misdeeds included forcing the victim to take nude photos and even posting them on the internet.  The applicant had also performed some extremely humiliating sexual acts on the victim.

23. In respect of the overall sentence, Mr Poon submitted that the total term of 7 years for the Group 1 charges was manifestly excessive.  As for the Group 2 charges, the decision of Judge Poon indicated that the overall sentence was dictated by Charge 4 for which a starting point of 12 years was adopted, and this was also the major factor leading to the final overall sentence of 9 years’ imprisonment.  This was (it was submitted) also manifestly excessive.

Our views

24. In HKSAR v TSANG CHIU TAK (CACC 386/2011) the Court of Appeal laid down the following guidelines on sentencing principles for cases involving sexual assaults by adults on children.  In essence, the court must impose deterrent sentences:

“The Sentencing Principle

8. The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.

9. The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:

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

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

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

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

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

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

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

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

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

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

See HKSAR v Chow Yuen Fai [2010] 1 HKC 181, HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, HKSAR v Ng Ka Kin (CACC 328/2010) and HKSAR v Lee Kwok Wai (CACC 199/2011).”

25. The Court of Appeal applied the above principles in HKSAR v LEE KWOK WAH FRANCIS (CACC 30/2011).  See also HKSAR v HCT (CACC 372/2012).

26. We would like to reiterate what Ma CJHC (as he then was) said in his judgment in HKSAR v CHOW YUEN FAI: in relation to the offences of buggery and indecent assault, as the circumstances of the offences vary from case to case, it is neither possible nor practicable to lay down tariffs or guidelines for these offences; for this reason, references to sentences imposed in previous decided cases are often of limited assistance (see paragraph 27 of the judgment).

27. In the present case Judge Poon considered the following features which in her view constituted aggravating factors:

1) There was a significant age difference between the applicant and the victims, in that the victims were only 12 and the applicant was 20 at the material time;

2) The applicant was definitely an attacker or invader, and there existed the evil situation of an adult oppressing children by means of violence and threats;

3) No safety measures were taken during sexual intercourse;

4) The present case was not an one-off single incident; and

5) Oral sex, ejaculating into the victim’s mouth, procuring the victim to swallow semen, causing physical and psychological trauma to the two victims and so on, were aggravating factors.

28. In addition, the following two aggravating factors exist in the present case:

1)   The applicant has shown no remorse and there is a substantial risk of re-offending: at the interview with the psychologist and psychiatrist, the applicant denied the circumstances of the case and tried to shove responsibilities, hence the experts’ assessment that the applicant had a “moderate to high” risk of re-offending; and

2)   The grave impact of the incident on the two victims: as the boys were involuntarily molested by the applicant, during which violence and threats were used, the psychological trauma caused to the boys is easily imaginable.  This is particularly so for X, who is living in a constant state of fear because the applicant knows where he resides and he is worried about the applicant looking for him and causing him trouble after release from prison.

29. We do not agree with Mr Poon’s submission that the starting points for Charges 1 to 5 are manifestly excessive.  For the first three charges, the most important aggravating feature is that the applicant had intimidated X verbally and shown him a fruit knife, forcing him to allow the applicant to perform those sexual acts on him.

30. As to the sentence for Charge 4, in CHOW YUEN FAI 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^stcharge 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^ndcharge in the absence of other aggravating factors.  The maximum sentence for the above offence is one of life imprisonment, which is the same as that for “non-consensual buggery” with which the applicant in the present case was charged.  However, what distinguishes the present case from CHOW YUEN FAI is that Y did not consent to the buggery and put up resistance, but was subdued by the applicant.  The applicant imposed violence when committing buggery on Y forcibly, and in the course of the offence Y kept on crying out for pain but the applicant just ignored the child’s imploration.  The applicant even threatened to get someone to beat Y up.  In these serious circumstances, we see nothing wrong for Judge Poon to adopt, as she did, a higher starting point (ie 12 years) for Charge 4.  Similarly, Charge 5 also involved intimidation by the applicant on Y.

31. For the sake of discussion, even assuming that the individual terms of sentence in the two groups of offences are too long, the overall sentence for each group is not manifestly excessive whether viewed against the relevant facts themselves or compared with other cases.  More importantly, as the Court of Appeal reiterated in HKSAR v NG MAN YEE (CACC 278/2013), it is in light of the facts of the particular case that the court has to consider whether the sentence imposed in that case is proper.  That defendants in cases of a similar type may have received more lenient sentences is not a reason which warrants or requires the adoption of the same sentencing approach in the present case, because each case presents its own circumstances and sentencing is not a mechanical exercise.

Conclusion

32. For the above reasons, we have dismissed the application.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr Edmund Cham, Solicitor