SECRETARY FOR JUSTICE v. YU CHUN HING

CAAR 4/2021

[2021] HKCA 1033

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 4 OF 2021

(ON REVIEW FROM DCCC NO 535 OF 2019)

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R E A S O N S   F O R   J U D G M E N T

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

Introduction

1.  This is an application for review of sentence by the Secretary for Justice against a former police officer in respect of a series of sexual offences against six underage girls.  We granted the application and these are our reasons for doing so.

2.  The respondent faced twelve charges of sexual offences.  On 18 December 2010, he pleaded guilty before District Court Judge Casewell (“the judge”) to eight of the charges, while pleading not guilty to the remaining four.  He was accordingly convicted of the eight charges, with the other four being left on the court’s file and marked not to be proceeded with without leave of the court.  On 27 January 2021, the respondent was sentenced to a total term of 3 years and 10 months’ imprisonment. 

3.  With leave granted on 25 February 2021 by Poon CJHC, the applicant applied to review the sentence pursuant to section 81A of the Criminal Procedure Ordinance, Cap 221. 

4.  By the time of the hearing of this application, the respondent had served his sentence and was released from prison custody on 6 March 2021.  At the conclusion of the hearing, we set aside the sentence on the basis that it was wrong in principle and manifestly inadequate.  We substituted a sentence of a total term of 5 years and 8 months’ imprisonment, which we reduced to 5 years’ imprisonment because this was a review of sentence and the respondent was being returned to prison custody, having served the previous sentence. 

The charges

5.  The eight charges to which the respondent pleaded guilty were as follows.[1]

Charge	Offence
Charge 1	Indecent conduct towards a child under the age of 16 years, namely X (12 years), contrary to section 146(1) of the Crimes Ordinance, Cap 200,[2] on 5 May 2018.
Charge 2	Indecent conduct towards a child under the age of 16 years, namely Y (11 years), on 5 May 2018.
Charge 3	Possession of child pornography, namely images of Z (12 years), contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579,[3] on 6 June 2018.
Charge 6	Indecent assault on another person, namely A (14 years), contrary to section 122(1) of the Crimes Ordinance, Cap 200,[4] on a day unknown in early 2018.
Charge 7	Indecent assault on another person, namely B (13 years), on 24 December 2017.
Charge 9	Indecent assault on another person, namely B (14 years), on a day unknown between 20 January and mid-February 2018.
Charge 11	Unlawful sexual intercourse with a girl under the age of 16 years, namely B (14 years), contrary to section 124(1) of the Crimes Ordinance, Cap 200,[5] on a day unknown between 5 and 15 April 2018.
Charge 12	Unlawful sexual intercourse with a girl under the age of 16 years, namely C (14  years), on 21 July 2018.

6.  The four charges left on the court’s file were as follows:

Charge	Offence
Charge 4	Indecent assault on another person, namely A (14 years), contrary to section 122(1) of the Crimes Ordinance, Cap 200, on a day unknown in early 2018.
Charge 5	Indecent assault on another person, namely A (14 years), on a day unknown in early 2018.
Charge 8	Indecent assault on another person, namely B (13 years), on a day unknown between 31 December 2017 and January 2018.
Charge 10	Indecent assault on another person, namely B (14 years), on a day unknown between 16 February and March 2018.

The agreed summary of facts

7.  The series of sexual offences to which the respondent pleaded guilty were committed over the period from December 2017 to July 2018 against six underage girls.  The facts outlined to the judge and admitted by the respondent in respect of the offences can be summarized in the following chronological order.[6]

Indecent assault on B (Charges 7 and 9) and unlawful sexual intercourse with B (Charge 11)

8.  In late 2017, the respondent made initial contact with B on Instagram using the pseudonym of “Ryan”. B’s date of birth is 12 January 2004.  After he exchanged telephone numbers with her in November 2017, they started communicating with each other via WhatsApp on an almost daily basis.  When he inquired about her age, she told him she would soon turn 14 years.  He requested to be B’s boyfriend and she agreed. Thereafter they exchanged romantic messages in which the respondent told B he loved and missed her.  They would address each other as “husband” and “wife”.

9.  The first time they met was at about midnight on 24 December 2017, at a park near B’s home.  The respondent held her hand while they chatted.  He then kissed her for 2 to 3 minutes, despite her resisting him.  He also fondled her breasts over her shirt for about 5 minutes. She resisted by saying no and pushing his hand away.  He kept on making advances to her, telling her that he loved her.  They stayed in the park together for about an hour before he walked her home.  (Charge 7)

10.  They met again at the same park at about midnight on a day between 20 January and mid-February 2018.  The respondent kissed B and touched her breasts under her shirt.  He also inserted his finger into her mouth.  After he did that, he unbuckled her belt but she buckled it back again.  He then removed her belt and inserted his hand inside her trousers trying to touch her private parts, but she held his hand and stopped him.  She told him not to do it, but he still managed to touch her private parts for a brief moment.  She refused to be touched and pulled his hand out from her trousers and squatted down.  The respondent then unzipped his trousers and put a condom on his erect penis.  He asked her to masturbate him, but she said she did not know how.  He then grabbed her hand, making her stroke his penis.  Although she withdrew her hand several times, he would grab her hand forcing her to stroke his penis.  Eventually, the respondent ejaculated into the condom.  (Charge 9)

11.  The last time they met was at the same park on a day between 5 and 15 April 2018, at around 2 to 3 pm.  On meeting, the respondent kissed B passionately and reached underneath her clothes to touch her breasts.  He then pulled out his erect penis and put on a condom.  Despite her resistance, he overpowered her and removed her belt, lowered her jeans, and inserted his penis into her vagina from behind while they were both in a standing position.  She was in pain and uncomfortable.  She struggled, but he pressed against her body and begged her to let him do it just once.  She dared not scream because she did not want others to know what they were doing.  The respondent kept thrusting in and out of her for about 2 to 3 minutes before he pulled out his penis and removed the condom, saying the zippers were causing him pain.  He told B not to be angry and walked her home. (Charge 11)

12.  After the last incident, B stopped contacting the respondent.  Between late June and early July 2018, someone who claimed to be Ryan approached her on Instagram but she ignored him. 

Possession of child pornography of Z (Charge 3)

13.  In December 2017, the respondent approached Z on Instagram, also using the pseudonym of Ryan.  Z’s date of birth is 9 April 2005.  After he obtained her telephone number, he started communicating with her via WhatsApp between 9 December 2017 and 22 February 2018.[7] He requested to be her boyfriend, and whilst she did not know what love was, she agreed.  She told him that she was going into Form 1.  He kept sending her messages saying that he loved her and they began to address each other as “husband” and “wife”.  

14.  In late December 2017, the respondent requested that Z send him some photographs of her breasts and private parts. She was unwilling to do so but did not know how to refuse him, so she sent him 1 to 2 photographs as he requested.  He told her that he wanted to masturbate while looking at the photographs, and asked her for more, which she sent to him.

15.  Between December 2017 and January 2018, Z sent the respondent on 6 different occasions a total of 30 photographs of her naked body, including her breasts, private parts and buttocks.[8]  The photographs were classified as Level 1 pornographic images in that they depicted erotic poses with no sexual activity and without capturing the face of Z.[9]

16.  In February 2018, Z started to find the respondent annoying because he kept on asking her to meet up for sex.  She refused and blocked him on WhatsApp.  She had not met him in person.

17.  Sometime in June 2018, she received a WhatsApp message from someone who claimed to be Ryan and asked her not to tell anyone about him.  She did not reply to him and deleted the message.

Indecent assault on A (Charge 6)

18.  In early 2018, the respondent approached A on Facebook, again using the pseudonym of Ryan.  Thereafter, they communicated with each other via WhatsApp.[10]  A’s date of birth is 17 June 2003.  She told him she was turning 15 years that year.  He kept sending her messages telling her that he liked her and hoped she would be his girlfriend.  She began to like him. 

19.  On a day in early 2018, at 10 pm, A met the respondent as he requested at the rear staircase of the building where she lived.  While sitting at the staircase together, he kissed her against her will, put his tongue inside her mouth and grabbed her waist.  She pushed him away, but he forcibly grabbed her waist again, touching her breasts over her shirt, and her private parts over her trousers.  Upon this happening, she stepped back and immediately left. 

20.  Several days after the incident, the respondent told A that he might not be suitable for her and that she should look for someone “more simple”.  The respondent’s mobile telephone contained WhatsApp messages with A from 6 February to 10 March 2018. 

Indecent conduct towards X (Charge 1) and Y (Charge 2)

21.  In February 2018, the respondent approached a 12 year-old girl, referred to as J, on Instagram.  The two of them had previous discussions about sex on WhatsApp, during which he asked if she was a “part-time girlfriend” (an euphemistic expression for someone who provided sexual services for payment).  She said she was and he suggested they “trade”, offering her $200 per hour. 

22.  On 4 May 2018, the respondent asked J to meet him, but instead J arranged her friends, X and Y, to be part-time girlfriends for him at the price of $150 each.  J also told the respondent that one of the girls was a “young girl”.  However, he was told their ages in a WhatsApp message sent from the mobile telephone of Y.  X’s date of birth is 19 December 2005 and Y’s is 6 November 2006.  At the time, X and Y were aged 12 and 11 years respectively.

23.  At about 1 am, on 5 May 2018, the respondent met X and Y and took them to a rear staircase of a carpark.  He started kissing Y, touching her breasts and buttocks, as well as inserting his hand into her underpants for some 1 to 2 minutes.  At the same time, he also tried to touch X’s breasts but she resisted him.  The respondent pulled out his penis and requested oral sex from both X and Y.  Whilst X did not agree to his request, Y performed oral sex on him for about 1 minute, during which he was touching the bodies of X and Y.  He squeezed Y’s breasts under her shirt and touched her buttocks near her anus under her underwear.  This was not expected by Y, who thought the meeting would involve kissing and oral sex only.  She pushed his hand away, but he continued touching her as before, saying that he would pay more money if she let him touch her private parts.

24.  The respondent then forced his penis into X’s mouth, but X did not want to do it and backed away.  He then requested X masturbate him instead, which she did for some 10 minutes until he ejaculated. X felt disgusted throughout the whole incident which lasted about 20 minutes. He paid each girl $200. 

25.  Some five days later, on 10 May 2018, J’s mother discovered that J had been frequently texting a contact stored under the name of “Client” on WhatsApp.  After seeking help from J’s school, she discovered that J, X and Y had all been participating in “compensated dating.”  The case was reported to the police. 

26.  On 6 June 2018, at 7 pm, the police arranged a controlled meeting between J and the respondent.  Upon being identified by X, the respondent was duly arrested by the police and later released on police bail.  The police also seized his mobile telephone in which they later found, amongst other things, his WhatsApp messages with other underage girls, including Z, A and B. 

Unlawful sexual intercourse with C (Charge 12)

27.  About one and a half months after his arrest, the respondent committed the offence alleged in Charge 12.  On 21 July 2018, at 2 am, C went to Lan Kwai Fong with a female friend, and was subsequently joined by the respondent and another female friend.  The four of them drank together in a club.  C’s date of birth is 12 April 2004.  She was then 14 years.  The respondent was a casual friend of C, whom she had come to know on Facebook some 2 to 3 years previously.  During that time, they had met about 5 or 6 times, usually for drinks. 

28.  Towards the end of the night, C went elsewhere for a drink with the club owner.  The respondent and the two female friends waited for C for about half an hour before they decided to leave without her.  At about 5 am, C asked the respondent via WhatsApp to accompany her home.  C was very drunk at the time.  At 5:21 am, CCTV footage captured C leaving a building in Lan Kwai Fong alone.  She was able to walk by herself, while using or looking at her mobile telephone.  Subsequently, the respondent met up with C and they took a taxi together to her home.  At 5:55 am, CCTV footage captured the two of them alighting from the taxi and entering the building where C lived.  C was able to walk by placing her hand over the respondent’s shoulder, but not very steadily.  While in the lift together, CCTV footage captured C hugging the respondent.

29.  Upon reaching the floor where C lived, the respondent dragged her to the staircase through two fire doors. He pressed her against a wall, pulled down her underpants and had sexual intercourse with her without using a condom.  C felt a lot of pain and tried to resist him but to no avail.  At one stage, she tried to escape, and pushed open the first fire door, but the respondent dragged her back to the staircase and continued having sexual intercourse with her.  She kept resisting but was unable to stop him.  Eventually the ordeal came to an end and she went home and fell asleep on her bed. 

30.  At 6:13 am, C’s mother found her in bed with her underpants attached to only one of her legs.  She noticed her vagina looked red and swollen.  There was also white fluid outside her vagina and on the inner part of her thighs.  The white fluid was subsequently found to be semen with the respondent’s DNA, stains of which were also found on C’s clothes.  The respondent’s DNA was further found in fingernail scrapings from C’s left hand.

31.  An examination of the respondent’s mobile telephone contained a photograph of C’s Hong Kong identity card which showed her date of birth.

The case history

32.  As already noted, the respondent was first arrested on 6 June 2018 and granted bail.  He was rearrested on 16 August 2018, having committed the offence in Charge 12 on 21 July 2018, and refused bail. 

33.  The respondent’s case was transferred to the District Court on 15 July 2019, and after a series of adjournments mainly to allow the respondent to arrange legal aid and the parties to negotiate a plea bargain, it was fixed for plea and sentence on 18 December 2020 before the judge.  On that day, the respondent pleaded guilty and agreed a summary of facts.  The judge adjourned the case to 18 January 2021 to obtain background and psychological reports on the respondent. 

34.  At the resumed hearing, after a review of the reports, including a victim impact statement of one of the victims, C, and the presentation of mitigation, the judge adjourned sentenced to 27 January 2021.

The respondent’s mitigation

35.  In mitigation, it was noted that the respondent was 35 years at the time of sentence.  He was educated to Form 7 level and had served as a police constable since November 2006.  He was originally from Guangdong Province and was unmarried and lived with his parents and sisters.

36.  It was submitted on the respondent’s behalf that he had admitted his guilt at the first available opportunity and showed genuine remorse for what he had done.  He had sought psychological treatment and help from religious bodies.  A number of testimonial letters were submitted on his behalf.[11]

37.  The psychological report on the respondent revealed that he had undergone psychological treatment since his incarceration.  The main conclusion from the report was that the respondent’s risk of sexual reoffending was estimated to be at the high end of the moderate risk range.  Concerns were expressed about his involvement with multiple minor stranger victims in both contact and non-contact sexual offences, his use of the Internet under an assumed identity, and the offences occurring in a public place.  It was noted that there were also signs of development in deviant sexual interests in the offences.  It was recommended that he receive further psychological treatment, as intensive psychological intervention was required for management of the reoffending risk on issues such as general and sexual self-control, management of stress and negative emotions, maintaining intimate adult relationships and relapse prevention.  It was suggested that he be monitored for any deviant sexual interests towards underage girls.[12]

The sentence

38.  In passing sentence on the respondent, the judge reviewed his background and psychological profile.[13]  He noted he had been a serving police officer with a clear record, but whose risk of reoffending was estimated to be at the higher end of the moderate risk range.  He took into account the following aggravating factors: (1) the significant age difference between the parties; (2) two of the victims said they felt they were under pressure during the offences; (3) the number of victims involved and the frequency of the sexual assaults; and (4) the respondent’s risk of reoffending.  He did not consider the fact that the applicant was a serving police officer at the time of the offences to be an aggravating factor.

39.  The judge adopted a starting point of 2 years’ imprisonment for Charges 1 and 2, involving indecent conduct on a child under the age of 16, as well as for Charges 11 and 12, involving unlawful sexual intercourse with a child under the age of 16.  He did this despite the fact that these latter two offences were clearly more serious.  In respect of the charges involving indecent assault on another person, Charges 6, 7 and 9, he adopted a starting point of 9 months’ imprisonment for each of Charges 6 and 7, and 15 months’ imprisonment for Charge 9.  In respect of Charge 3, involving possession of child pornography, he adopted a starting point of 3 months’ imprisonment.  He reduced all the individual starting points by one third for the respondent’s pleas of guilty.

40.  Having taken into account the number of offences and the ages of the girls involved, the judge considered that an overall starting point for these offences should be 6 years’ imprisonment, which after a one third reduction for the respondent’s pleas of guilty would result in an overall sentence of 4 years’ imprisonment.  He further reduced the sentence by 2 months to 3 years and 10 months’ imprisonment for the respondent having spared the girls from giving evidence in court.

41.  The judge achieved the resultant sentence by making the sentences for Charges 1 and 2 concurrent with each other; the sentence for Charge 3 consecutive to Charges 1 and 2; the sentence for Charge 6 consecutive to Charges 1, 2 and 3; the sentences for Charges 7, 9 and 11 concurrent with each other, with 12 months of those sentences consecutive to Charges 1, 2, 3 and 6; and 10 months of the sentence for Charge 12 consecutive to Charges 1, 2, 3, 6, 7, 9 and 11 and concurrent as to the balance.

The applicant’s submissions

42.  Mr Derek Lau, for the applicant, advanced five grounds of review in support of the application. 

43.  In Ground 1, it was submitted that the starting point of 2 years’ imprisonment for Charges 11 and 12 was wrong in principle and manifestly inadequate.  Had the judge properly taken into account the relevant aggravating factors, as listed in HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427,[14] the respective starting points should have been 3 years’ imprisonment for Charge 11 and 4 years’ imprisonment for Charge 12.[15]  To support the level of sentence for Charge 12, Mr Lau cited HKSAR v Lee Lo [2012] 1 HKLRD 1115, where this Court upheld a starting point of 4 years in respect of the offence of unlawful sexual intercourse with a girl under the age of 16 years.

44.  In Ground 2, it was submitted that the starting point for Charges 1 and 2 were also wrong in principle and manifestly inadequate.  It was again complained that the judge did not properly take into account the relevant aggravating factors.  As a consequence, a starting point of not less than 2 years and 6 months should have been adopted.[16]

45.  In Ground 3, it was complained that the judge erred in applying the totality principle and in adopting an overall starting point of 6 years’ imprisonment.  It was submitted this figure was inadequate bearing in mind the gravity of the offending, involving multiple offences with multiple victims between the ages of 11 and 14 years.

46.  Mr Lau submitted the offences were aggravated by the significant age differences between the respondent and the victims and the fact that he knowingly breached the law while a serving police officer.  There was also the presence of other aggravating factors.  In Charge 2, the respondent’s conduct involved grossly indecent acts and the payment of money to X and Y in exchange for sexual services, effectively engaging them in prostitution.  In Charges 3, 6, 7, 9 and 11, the respondent’s conduct was premeditated and involved a degree of grooming of his victims.  In Charge 11, the sexual intercourse took place in a public place.  In both Charges 11 and 12, the unlawful sexual intercourse was tantamount to rape.  In Charge 12, the respondent did not use a condom and was on bail when he committed the offence.

47.  Mr Lau submitted in the circumstances an overall starting point of 8 years and 6 months’ imprisonment should have been adopted for the offending involved.[17]

48.  In Ground 4, it was submitted that no exceptional circumstance could be discerned from the facts and circumstances of the case to justify the giving of an extra discount of two months in addition to the one third discount for the respondent’s guilty pleas. 

49.  In Ground 5, it was submitted that the ultimate sentence of 3 years and 10 months’ imprisonment was wrong in principle and manifestly inadequate.

The respondent’s submissions

50.  Ms Annie Lai, for the respondent, argued that the judge had duly considered the aggravating factors and arrived at an appropriate sentence.  She submitted that the individual sentences and final sentence were within the acceptable range of penalty, and therefore neither wrong in principle, nor manifestly inadequate. 

51.  In respect of Charges 1 and 2, Ms Lai submitted that the starting point of 2 years’ imprisonment adopted by the judge was on the high side and should have been between 12 and 18 months’ imprisonment,[18] while the same starting point for Charges 11 and 12 was within the acceptable range of penalty.[19]   

52.  Ms Lai submitted that the judge properly applied the totality principle in determining an overall sentence, bearing in mind Charges 1 and 2 arose out of the same transaction, although concerned with two victims;[20] the offending in Charge 6 was committed relatively quickly;[21] the offences under Charges 7, 9 and 11 involved the same victim, with whom the respondent was in a relationship, and took place in close proximity to each other;[22] and the victim in Charge 12 was a casual friend of the respondent, with whom he had formed a relationship, having known each other for some 3 years.[23]

53.  Ms Lai contended that the respondent, having spared the victims from giving evidence and recounting their ordeals, was in these exceptional circumstance entitled to an additional discount.  Whilst accepting that the ultimate sentence was lenient, she submitted it could not be regarded as unduly lenient to warrant the intervention of an appellate court.

Discussion

54.  The applicant pointedly complained that the judge’s approach in sentencing the respondent was seriously flawed, and resulted in a sentence that was wrong in principle and manifestly inadequate. It was argued the judge failed to take into account various aggravating factors. Whilst they were mentioned by him, they were not reflected adequately or at all in his determination of the individual sentence for each offence or of the total sentence for all the offences. 

55.  In terms of the gravity of offending involved, the applicant highlighted the significant age difference between the respondent and his victims, and noted that the eight sexual offences were committed over a period of seven months from December 2017 to July 2018, when he was a serving police officer.  Through the social medium of Instagram, the respondent, using the pseudonym of “Ryan”, would seek out and make contact with young girls. After obtaining their telephone numbers, he would then communicate with them via WhatsApp.  He would engage in romantic and sexual discussions with them and would treat them either as a pretend romantic interest or a “part-time girlfriend”.  He involved two of the girls in prostitution by offering monetary reward to perform grossly indecent acts.[24] He forcibly had sexual intercourse with two others, which the applicant described was perilously close to rape,[25] and with other victims he made them perform oral sex on him or masturbate him until he ejaculated.  Given these circumstances, the applicant argued that the judge did not give sufficient weight to the respondent’s conduct in targeting and grooming young victims and sexually abusing them. 

56.  We agree with the applicant’s submissions.  The respondent used social websites to search for young girls and through these mediums was able to disguise his true identity and predatory sexual desires. He groomed his victims by pretending that he had a romantic interest in them and took advantage of their vulnerability and immaturity to develop a relationship with them.  After he had cultivated his victims, he would lure them out to meet him in order to take advantage of them sexually.  Some of his victims were “part-time girlfriends”, but they were clearly extremely young and naïve, and totally unprepared for the sexual advances of a much older man.  This was evidenced by their reluctance to engage in the sexual activities he requested, but which he nevertheless pressured them into doing.[26]

57.  There was clearly a great disparity in age between the respondent and his victims that seriously aggravated the offending involved.  As already noted, the respondent committed the offences when he was 32 years and the victims were variously aged between 11 and 14 years.  Not only was there a significant age difference, but there was also a significant difference in their level of maturity and experience.  All the victims were of a very young age and as a consequence were particularly vulnerable and susceptible to manipulation and influence by a much older and more experienced person, such as the respondent.

58.  The only psychologist’s report before the court in respect of the victims concerned C.  It was stated that C perceived herself as a failure and a worthless person, as she considered her life ruined and felt cheated by the sexual abuse she had suffered.  She was angry at the respondent’s attempt to manipulate her and take advantage of her trust in him. She was considered severely disturbed by the incident, refusing to talk about the respondent or the incident in any detail.[27]

59.  It is not surprising that there were no other reports on the other victims because there would be a natural tendency, particularly for a young person, to block out any recollection or reminder of a traumatic experience of this type.  That was evident in C’s case who did not want to talk about the incident at all.  As stated by Stock JA in HKSAR v Kong Yun Chiu [2007] 4 HKC 391:[28]

“The trauma caused to a child by an indecent assault, and the long-term adverse impact, is difficult to calculate but trauma may safely be assumed in the vast majority of cases, perhaps all. Similarly, the trauma and distress, immediate and long-term, is not confined to the child. Parents of child victims will almost certainly be haunted by images of what has been done to the child and, in addition, will nurture a deep sense of guilt either for having entrusted the child to the company of someone who breaches the trust or, in other cases, for having left the child unguarded for the odd moment.”

60.  In our judgment, this was a very bad case of a paedophile preying upon young girls through social mediums, involving six victims aged between 11 and 14 years.  We granted the application to review the sentence passed on the respondent because in our view it was clearly wrong in principle and manifestly inadequate.  Sentences for sexual offences against children will necessarily be substantial in order to deter and punish offenders and 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.[29]  

61.  With respect to the judge, we found he did not adequately reflect in the sentence the individual gravity of the offending in each charge as well as the overall gravity of the offending in all the charges.  As a general rule, when a sentencing court is confronted with an offender who has committed multiple offences over a prolonged period it is best to conduct a sequential evaluation of the offending by reference to the chronological order of the offences or to any connection between the offences due to the nature of the offence, the involvement of the same victim or the offences arising from the same event.

62.  In the present case, the gravity of the respondent’s offending increased in severity as he repeated his sexual abuse against multiple victims, and together with any other aggravating factor or factors that may have been present, this should have been reflected in the sentence of each offence as they were progressively addressed.  Each time an offence is repeated that is a matter that should be taken into account together with other factors that may be present.  It is therefore important that a sentencing court look at the specific offending and determine a specific sentence before embarking on an overview of the overall criminality involved in arriving at a total sentence.

63.  The judge gave the respondent an additional two months discount on top of the one third discount for his guilty pleas since the victims were not required to testify.  In our view, it was inappropriate to do so.  It is only in exceptional cases in accordance with a sentencing principle or guideline that a discount is given in addition to the one third discount for a timely plea.[30] It makes no sense that because the offender engages in a horrific crime and spares the victim from testifying about it that he should get a benefit for the horrific nature of his wrongdoing by way of an additional discount.

64.  We also consider the judge was not correct in failing to find as an aggravating factor that the respondent was a serving police officer during the period he committed these multiple offences.  Police officers have an important role and function in upholding and enforcing the law, as well as maintaining public confidence and trust in the due execution of their duties.  Every police officer is deemed to be always on duty[31] and if a police officer breaks the very laws he or she is empowered and entrusted to uphold, then a deterrent sentence may be required to ensure that others do not follow suit and public confidence is maintained.[32]

65.  We have no hesitation in finding in the circumstances of this case that the respondent’s offending was aggravated by his position as a serving police officer.  Whilst he may not have used his office as a police officer in carrying out his crimes, the shocking nature and brazen persistence of his criminality resulted in a serious breach of duty and of the public trust.

The substituted sentence

66.  We should mention that the determination of a sentence for a specific offence is obviously guided by the maximum level of punishment stipulated for the offence, taking into account relevant sentencing principles or guidelines.  This has to be borne in mind in light of the offences to which the respondent pleaded guilty, as the applicable maximum penalty will have a bearing on the sentence.  Furthermore, the case had been fixed in the District Court where the sentencing jurisdiction is limited to a term of 7 years’ imprisonment.  As a consequence, the aggregate of consecutive sentences imposed may not exceed the jurisdictional limit.[33] We make these observations because the case should have been fixed in the High Court and some of the offences could have been visited by a more serious offence provision.  There may have been reasons for this, such as the nature of the evidence and the personal circumstances of the complainants, but we have not been informed about these matters. 

67.  We would have sentenced the respondent as follows, bearing in mind he was entitled to a one third reduction for his timely pleas of guilty.

68.  The offences in Charges 7, 9 and 11 involving B were first in time.  Charge 7 occurred in late December 2017 and involved the respondent indecently assaulting B by kissing and fondling her.  She was 13 years at the time of the offence.  We adopted a starting point of 9 months’ imprisonment which we reduced to 6 months’ imprisonment.  Charge 9 occurred sometime in January or February 2018 and involved the respondent indecently assaulting B by fondling her private parts and getting her to masturbate him until he ejaculated.  She was 14 years of age at the time of the offence.  This was the second offence of indecent assault on B which involved gross acts of sexual indecency.  We adopted a starting point of 18 months’ imprisonment which we reduced to 12 months’ imprisonment.  Charge 11 occurred in April 2018 when B was 14 years of age.  The respondent forcibly had sexual intercourse with her in a public place in the afternoon.  This was the third offence against B, in which the respondent sexually abused her in a humiliating and grotesque manner.  We note the respondent had been charged under section 124(1) of the Crimes Ordinance, for which the maximum penalty is 5 years’ imprisonment.  We adopted a starting point of 4 years’ imprisonment which we reduced to 2 years and 8 months’ imprisonment. 

69.  The offence in Charge 3 concerned the respondent’s possession of child pornographic images on his mobile telephone which were found on 6 June 2018.  The images were of Z, who was 12 years of age, whom he cajoled and manipulated to take pornographic photographs of herself and send them to him between December 2017 and February 2018.  It needs to be borne in mind that the respondent orchestrated the making of these images of a 12-year-old girl and kept them as a permanent record on his mobile telephone. We adopted a starting point of 9 months’ imprisonment which we reduced to 6 months’ imprisonment. 

70.  The next offence was Charge 6, involving the respondent indecently assaulting A, who was 14 years of age, sometime between February and March 2018.  He forcibly fondled her private parts over her clothing.  This offence took place after the indecent assaults on B in Charges 7 and 9.  We adopted a starting point of 9 months’ imprisonment which we reduced to 6 months’ imprisonment. 

71.  Charges 1 and 2 involved the respondent on 5 May 2018 engaging in indecent conduct towards X, who was 12 years of age, and Y who was 11 years of age.  By the time of these offences, the respondent had sexually abused and violated two other underage girls, B and A.  Whilst the circumstances of these offences were different from the previous ones because the two girls were “part-time girlfriends”, the offending was still extremely serious because of the age of the girls and the indecent acts he made them perform.  The respondent’s offending was gravely aggravated by the very young age of the girls and engaging them in prostitution.  It was a serious repetition of his sexual abuse of underage girls.  We adopted a starting point on each charge of 2 years’ imprisonment, which we reduced to 1 year and 4 months’ imprisonment. 

72.  The final offence in Charge 12 occurred on 21 July 2018, when the respondent was on police bail for the alleged offences against X and Y.  It involved the respondent having unprotected sexual intercourse with C, who was 14 years of age, in circumstances that were clearly tantamount to rape.  He also had ejaculated at or near her vagina.  The sexual abuse of C by the respondent had caused C both physical and psychological harm, who was “severely disturbed” by the incident.[34] As we have previously noted, the maximum sentence for an offence under section 124(1) of the Crimes Ordinance is 5 years’ imprisonment.  This offence displayed a disturbing repetition and escalation of the respondent’s sexual abuse of underage girls.  It was further aggravated by the respondent committing the offence whilst on bail, revealing his blatant disregard for the law and persistence in offending.[35]  We adopted a starting point of 4 years and 6 months’ imprisonment which we reduced to 3 years’ imprisonment.

73.  We turn to address the totality principle, bearing in mind the jurisdictional limit of 7 years’ imprisonment.  We first addressed the totality principle to the offences that had a connection with each other.

74.  In respect of the offences against B, we made the sentences on Charges 7 and 9 concurrent with each other, with 6 months consecutive to the sentence on Charge 11, making a total sentence of 38 months’ imprisonment.

75.  In respect of the offences against X and Y, we made 4 months of the sentence on Charge 1 consecutive to the sentence on Charge 2, making a total sentence of 20 months’ imprisonment.

76.  The remaining individual offences of Charges 3, 6 and 12 were 6 months’ imprisonment, 6 months’ imprisonment and 36 months’ imprisonment respectively.

77.  We agree with the applicant’s submission that an overall starting point of 8 years and 6 months’ imprisonment was closer to the range of penalty as a totality for these offences.  Although, we would have adopted an overall starting point of 9 years’ imprisonment.  After a one third reduction together with a meaningful adjustment because of the maximum sentence of 7 years, we arrived at a sentence of 5 years and 8 months’ imprisonment. See HKSAR v Ahmed Sani Salman, unrep., CACC 334/2017, at [31] - [47]; HKSAR v Li Yan [1998] 4 HKC 12, 15A-D.

78.  Accordingly, we set aside the sentences and substituted them with the sentences as stated.  However, we reduced the total term of 5 years and 8 months’ imprisonment to 5 years’ imprisonment because this was a review of sentence and the respondent was to return to prison custody, having served the previous sentence imposed on him.[36] 

79.  To achieve the resultant sentence of 5 years’ imprisonment we would make the sentences on Charges 1, 2, 3, 6, 7, 9 and 11 concurrent with each other, resulting in a total sentence of 3 years and 2 months’ imprisonment, and make 1 year and 10 months of the sentence of 3 years’ imprisonment on Charge 12 consecutive to that sentence.

[1] Hearing Bundle, 14-18.

[2] The maximum penalty for this offence on indictment is 10 years’ imprisonment.

[3] The maximum penalty for this offence on indictment is a fine of $1,000,000 and 5 years’ imprisonment.

[4] The maximum penalty for this offence on indictment is 10 years’ imprisonment.

[5] The maximum penalty for this offence is 5 years’ imprisonment.

[6] Hearing Bundle, 24-33.

[7] Summary of Facts, at [16].

[8] Summary of Facts, at [16].

[9] Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519; Level 1 refers to images depicting erotic posing with no sexual activity.

[10] Summary of Facts, at [21].

[11] Hearing Bundle, 49-59 and 142-163.

[12] Hearing Bundle, 171-176.

[13] Hearing Bundle, 37-48.

[14] HKSAR v Tsang Chiu Tak, at [9].

[15] Applicant’s submissions, at [17].

[16] Applicant’s submissions, at [20].

[17] Applicant’s submissions, at [4] and [22].

[18] Respondent’s submissions, at [19].

[19] Respondent’s submissions, at [29].

[20] Respondent’s submissions, at [32].

[21] Respondent’s submissions, at [20].

[22] Respondent’s submissions, at [21].

[23] Respondent’s submissions, at [24].

[24] HKSAR v Tsang Cho Kin, unrep., CACC 42/2014, 27 October 2014, at [31]. 

[25] Applicant’s submissions, at [22].

[26] HKSAR v Yeung Ho Nam (No 1) [2020] 1 HKLRD 91, at [84].

[27] Hearing Bundle, 178-179.

[28] HKSAR v Kong Yun Chiu, at [11].

[29] SJ v Chau Chi Yan [2009] 5 HKLRD 230, at [18]-[19].

[30] HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, at [31].

[31] See section 21 of the Police Force Ordinance, Cap 232.

[32] HKSAR v Hui Man Tai, unrep., CACC 334/2007, 22 July 2008, at [20].

[33] See section 82(2)(a) of the District Court Ordinance, Cap 336.

[34] HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, at [26(c)].

[35] See HKSAR v Leung Ting Fung and Anor [2015] 1 HKC 290, at [29] and [30]. 

[36] See Attorney General v Wong Kwok-wai [1991] 2 HKLR 384, 389H-I.