HKSAR v. CW

[English Translation – 英譯本]
CACC 274/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 274 OF 2013

(ON APPEAL FROM HCCC 38 OF 2013)

________________________

RESAONS FOR JUDGMENT

Hon Yeung VP (giving the reasons for judgment of the court):

Introduction

1. This is an appalling case of child sexual abuse.  The applicant is a young mother who gave birth to a boy P, the victim, on 27 January 2007.

2. Between 11 April 2011 and 5 July 2012, the applicant was a clerk in the employ of a textile company.  After the applicant had left the employment, the person in charge of the company found some MSN dialogues relating to sex and child sexual abuse on the computer used by the applicant, and the matter was reported to the police. 

3. Police investigation revealed that the applicant had offered her son, who had then just reached the age of five, to a perverted male “Mr Tong” for the purpose of sexual gratification in return for pecuniary advantage.  As a result of the incident, the applicant was charged with the first count of conspiring with “Mr Tong” to commit homosexual buggery with P, and the second count of conspiracy to commit indecent assault on P which was an alternative charge to the first count.

4. The applicant denied the charges, and she was tried before Tong J (the trial judge) sitting with a jury in the High Court.

5. After trial, the applicant was found guilty by the jury of the first count on 23 May 2013, and she was sentenced to 11 years’ imprisonment by the trial judge on 18 July 2013.

6. The applicant was aggrieved by the conviction and the sentence and applied for leave to appeal against both.  On 6 January 2014, the applicant notified the court of her abandonment of the application for leave to appeal against conviction out of time, and it was dismissed accordingly.  Mr Bernard Yuen, Counsel for the applicant, asked for leave to appeal against the sentence. After hearing, we granted leave to appeal against sentence to the applicant and treated the application as the appeal proper.  We allowed the appeal and reduced the term of sentence to 10 years and 6 months.  Here are our reasons for the judgment.

The Facts

7. The applicant was born in January 1981, and she was about 30 years old at the time of the offence.  After Form 5 graduation, the applicant at one time cohabited with her boyfriend and gave birth to P.  The applicant broke up with her boyfriend later on, and then P was taken care of by his paternal grandmother, maternal grandmother and the applicant in turn.  The applicant was a clerk with limited income.  In 2005, the applicant came to know a “Mr Tong” and became his sex partner.  The applicant agreed to have sex with “Mr Tong” in return for his financial assistance.  In order to obtain further financial assistance from “Mr Tong”, the applicant had taken P to the residence of “Mr Tong” on three occasions between April 2011 and July 2012, for him to perform perverted sexual acts including buggery on P. 

8. According to the MSN dialogues between the applicant and “Mr Tong”, the applicant knew that “Mr Tong” was a paedophile, and “Mr Tong” requested the applicant to take P to his residence so that he could sexually abuse P, which included what “Mr Tong” referred to as “playing with mother and son”.

9. It was revealed that prior to sexually assaulting P, “Mr Tong” would have fed P with certain drugs to make him sleep before performing sexual acts on him, and the applicant would agree with “Mr Tong” beforehand on the arrangements of money and the administration of drugs.

10. The applicant admitted that when she was together with P and “Mr Tong”, she had on occasion(s) had oral sex with “Mr Tong” and then kissed P, which caused physical injuries to P and made him feel painful.

Reasons for sentence of the trial judge

11. The trial judge emphasized that the applicant had no psychological problem, and she took her young son to the residence of “Mr Tong” for him to gratify his sexual desire simply for pecuniary advantage.  The applicant should have known that “Mr Tong”, apart from assaulting P indecently, would also perform buggery on P.  The trial judge took the view that the applicant might also have been drugged by “Mr Tong” and became sound asleep.  Therefore, she might not have witnessed the evil deeds “Mr Tong” had done to P.  However, the applicant must have knowledge of the matter as she had discussed about the arrangements with “Mr Tong” beforehand, and she also had some discussions with him afterwards.

12. The trial judge said that there was no evidence to show that P suffered mentally or physically from the aftermath of the incident, and therefore the criminality of the applicant is lower than that of the defendant in HKSAR v Kwan Hoi (CACC 415/2002).

13. The trial judge pointed out that the applicant has given up the chance to meet P until he becomes a grown-up, it is therefore not possible for the applicant to re-offend, but the sentence must, in his view, carry a deterrent effect.  At last, the applicant was sentenced to 11 years’ imprisonment by the trial judge.

Grounds of appeal

14. Mr Bernard Yuen, Counsel for the applicant, pointed out that the criminality in the present case was much lower than that in the case of Kwan Hoi.  In his written submissions, Mr Yuen emphasized that the following aggravating factors could be found in the case of Kwan Hoi, which included:

(1)   The case involved sexual offences against a girl, namely two counts of buggery and one count of having sexual intercourse with a girl under the age of thirteen;

(2)   the victim girl was required to relive the ordeal by recounting the same in the witness-box;

(3)   the victim girl indicated the feeling of pain and fear, but the defendant still scolded her fiercely and told her not to make a noise;

(4)   medical evidence showed that the hymen of the victim girl was ruptured; and

(5)   the defendant showed no remorse, and he even alleged that his sexual acts were only responding to the girl’s sexual advances made to him.  

15. Mr Yuen emphasized that in the case of HKSAR v Loke Yat (CACC 79/1997) where the defendant was charged with five counts of homosexual buggery and three counts of aiding and abetting another person to commit homosexual buggery, the Court of Appeal held that the starting point adopted for the three counts of aiding and abetting another person to commit homosexual buggery should be 6 years. 

16. Mr Yuen also contended that there was no clear evidence to show that “Mr Tong” had committed buggery on P.  Even if there was such evidence, it was not sufficient to prove the applicant’s presence and knowledge.  Mr Yuen suggested there was no evidence to show that “Mr Tong” had intimidated or forced P with violence, and no evidence that P suffered pain or injuries, and hence the trial judge should not have adopted the sentence in the case of Kwan Hoi as the starting point. 

17. Mr Yuen submitted that there were mitigating factors in the present case, including the confession made by the applicant and her provision of information to the police to assist in tracking down “Mr Tong”, for which, however, the trial judge did not give any discount to the applicant when passing the sentence. 

Discussion

18. As this court has pointed out in the case of HKSAR v Lee Hon Wah and another person (CACC 54/2010), different cases of homosexual buggery and indecent conduct with or towards a child under the age of 16 years involve offenders and victims of different age, background and relationship.  The severities of respective circumstances of offences could also vary widely.  It is therefore very difficult to give suitable sentencing guideline.  Besides, sentences in similar cases are of limited assistance as a guide to sentencing in individual cases.  As the nature of this case is extremely special, sentences in other similar cases are of no assistance as a sentencing guideline.  Although the victims in the case of Loke Yat were not adults yet, they were capable of thinking independently, and they even consented to have anal sex with the defendant of that case.  For this reason, the sentence in that case is of no relevance to that in the present case.

19. We agree that the harm, whether physical or psychological, done to the victim in the case of Kwan Hoi, is far more serious than that suffered by P.  P was still under six when the incident took place, and “Mr Tong” had administered drugs to make him sleep before assaulting him indecently.

20. The severity of the present case does not lie in the physical or mental harm done to P, but the applicant’s inhuman behaviour.  Being the biological mother of P, the applicant has the responsibility to look after and protect him.  Nevertheless, not only did the applicant fail to discharge her duty, but she even “put the cat near the goldfish bowl” for pecuniary advantage.  Although she knew full well that “Mr Tong” was a paedophile, she took P to the residence of “Mr Tong” for him to gratify his sexual desires.  At the time of the offence, the applicant even agreed with “Mr Tong” to administer drugs to P first to make him sleep before he could assault him sexually.

21. The conduct of the applicant is evil, in breach of trust and against humanity, which is not acceptable in any civilized societies.  This court has to give a clear message that anyone who commits such immoral and abhorrent crime will receive a heavy sentence from the courts.

22. We agree that when considering sentence, apart from the severity of the offence that the applicant has committed, we should also take into account factors such as the harm done to P in this incident, the impact on the victim and the victim’s family, and the risk of re-offending by the applicant.  We note that according to the medical report, one year after the incident, P’s physical condition is normal, and there is neither old nor new injury with his genital or anal area.

23. We also agree that the trial judge has a basis to find that the incident has not caused any serious physical injury to P and that it will not cause any continuous serious adverse effect to him mentally or psychologically.

24. The severity of the present case lies in the serious breach of trust on the part of the applicant by offering her biological son to a paedophile to gratify his sexual desires for pecuniary advantage.  As the conduct of the applicant is inhuman and unscrupulous, the sentence imposed by the court must mark the public abhorrence of the offence.  (See paragraph 25(3) of the judgment of HKSAR v Chow Yuen Fai [2010] 1 HKC 181)

25. There is information showing that after being arrested, the applicant indicated to the prosecution she was willing to testify against “Mr Tong”, and she has given witness statements to the police on two separate occasions.  The applicant also took the police to the residence of “Mr Tong” so that the police could arrest him and search his place.

26. Although the police could not charge “Mr Tong” for assaulting P sexually, further evidence of sexual abuse on other teenagers by “Mr Tong” was retrieved from the computer found at his residence.  Eventually, “Mr Tong” was sentenced to a total of 9 years’ imprisonment for committing a number of offences involving possession and manufacturing of child pornography and three counts of unlawful sexual intercourse with a girl under the age of 16.

27. We agree that even without the assistance of the applicant, the police could still find out the address of “Mr Tong” though it might take a longer time.  Had the police not arrested “Mr Tong” and searched his residence as soon as possible, he would have had the opportunity to destroy the evidence against him and been able to go off scot-free.  For the above reason, as far as the conviction of “Mr Tong” is concerned, the assistance given to the police by the applicant should be recognized.

28. We have considered the sentences of other similar offences, and find that having regard to the relevant factors of the case as a whole, a starting point of 11 years is not manifestly excessive.

29. However, in our view, it is also a mitigating factor that the applicant has assisted by providing information of “Mr Tong” to the police and taking the police officers to his residence for a search, which finally led to the conviction of “Mr Tong”.  We are of the view that a reduction of 6 months in the term of sentence should be given to the applicant.

30. For the above reason, we allow the applicant’s application for leave to appeal against sentence and treat it as the appeal proper.  The appeal is allowed and the sentence is reduced from a term of 11 years’ imprisonment to one of 10 years and 6 months.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr Patrick W.S. Cheung, Barrister-at-law