HKSAR v. LAW CHUN YIN

CACC 216/2019

[2020] HKCA 810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 216 OF 2019

(ON APPEAL FROM HCCC NO 383 OF 2017)

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J U D G M E N T

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Hon Anthea Pang J (giving the Judgment of the Court):

Background

1.  The appellant was charged with the following offences to which he pleaded guilty in the Eastern Magistrates’ Courts: 

(1)  indecent assault[1] (charge 1);

(2)  indecent conduct towards a child under the age of 16 years[2] (charges 2 & 6);

(3)  homosexual buggery with a man under the age of 16 years[3] (charges 3 & 7); and

(4)  making child pornography[4] (charges 4&5). 

He was committed to the Court of First Instance for sentence before Li J (“the judge”) who, on 5 March 2018, after hearing mitigation, imposed a total term of 8½ years.

2.  With leave granted by a Single Judge[5] on 5 June 2020, the appellant now appeals against such sentence. 

The Summary of Facts

Background to the offences

3.  All 7 charges involved the same boy, X.  

4.  In 2016, X was 14 years old (born on 23 June 2002).  He got acquainted with the appellant on an Internet forum.  During their discussion on homosexuality, the appellant indicated to X that he would like to be X’s lover.  The two then maintained contact via WhatsApp.  The appellant later suggested meeting X on 3 September 2016 at a guesthouse.  X agreed but subsequently was unwilling to go and declined the appellant’s request.  Thereafter, X received WhatsApp messages from a person who claimed to be the appellant’s younger brother.  That person said he would meet X for a chat if X tried to deceive the appellant.  Feeling scared, X went to meet the appellant as requested. 

Charge 1 – Indecent assault

5.  On 3 September 2016, after the appellant and X had met up, the appellant gave X a box of sweets.  They went to a guesthouse but no room was available.  At the back staircase, the appellant suddenly reached out his hand and squeezed X’s buttocks over X’s trousers for a few seconds. 

6.  After the first meeting, X told the appellant that he wanted to end their relationship but the appellant said he would commit suicide if X broke up with him.  The appellant suggested X to talk to his younger brother about the matter.  Afterwards, X received messages purportedly sent by the appellant’s younger brother who claimed that the appellant was very upset and if anything happened to the appellant, X would not be let off. 

Charge 2 – Indecent conduct

7.  As X had previously disclosed his residential address to the appellant, on 4 September 2016, the appellant went to X’s home premises.  Upon arrival, the appellant gave X a box of chocolate.  Then, he removed X’s clothes and asked X to perform oral sex on him.  X did so for about 10 to 15 minutes.  When X stopped, the appellant masturbated himself until ejaculation in X’s mouth.  X, upon the appellant’s instruction, then swallowed the semen. 

8.  Thereafter, X received messages from a person, purportedly the appellant’s sworn brother, who told X to continue the sexual acts with the appellant, otherwise, X’s family would be harassed. 

Charge 3 – Homosexual buggery

9.  On an unknown date in the first half of September 2016, the appellant went to X’s home again.  They entered X’s bedroom and lay in bed.  Following digital penetration of X’s anus, the appellant inserted his penis into it and moved until ejaculation.  X felt painful.  No condom or lubricant was used.

Charge 4 – Making child pornography

10.  On 26 September 2016, X went to the appellant’s home because the appellant wanted to take a video of their sexual acts.  Initially, X did not want to have the video taken but because he received WhatsApp messages urging him to take the video, X eventually agreed. A video lasting 8 minutes and 20 seconds was then taken and it was kept in the appellant’s mobile phone.  The video depicted, inter alia, the appellant hitting X’s penis with X saying “thank you master”; X performing oral sex on the appellant; the appellant slapping X’s face and penis with X saying “thank you master”; X bending down as instructed by the appellant who then hit X’s buttocks with X saying “thank you master”; and the appellant inserting his fingers into X’s anus and hitting X’s buttocks. 

Charge 5 – Making child pornography

11.  On 9 October 2016, the appellant again went to X’s home to take video of his sexual acts with X which lasted 17 minutes and 13 seconds.  The video depicted, inter alia, the appellant hitting X’s penis with X blindfolded and saying “thank you master”; X performing oral sex on the appellant and vice versa; the appellant hitting X’s buttocks and penis; and the appellant using his fingers and penis to touch X’s anus. 

Charge 6 – Indecent conduct & Charge 7 – Homosexual buggery

12.  On an unknown date in October 2016, X went to the appellant’s home.  The appellant asked X to perform oral sex on him.  X did so.  Then, the appellant hit X’s buttocks and penis during which course, X, as instructed by the appellant, responded by saying “thank you master”. 

13.  Afterwards, the appellant inserted his penis into X’s anus until ejaculation.  No condom or lubricant was used. 

Disclosure of the offences

14.  In November 2016, X told the appellant that he wanted to end their relationship.  The appellant, however, similar to what he did on the previous occasion, claimed that he would commit suicide if X broke up with him.  Nevertheless, X ignored the appellant’s messages and telephone calls. 

15.  In December 2016, X’s classmates received his nude photographs via Facebook and they circulated the photographs amongst themselves.  The photographs were taken by X himself and given to the appellant upon the appellant’s demand.  The matter eventually came to the attention of one of X’s teachers and his parents.  A report was then made to the police on 14 December 2016. 

Arrest of the appellant

16.  On 21 December 2016, the appellant was arrested in his home and two mobile phones were seized therefrom.  One of the phones was subsequently found to contain two pornographic videos depicting his sexual activities with X whilst the other was found to contain the WhatsApp messages between X and the person purported to be the appellant’s younger or sworn brother. 

17.  In a video-recorded interview, the appellant made general admissions in relation to the charges.  The appellant said he knew that X was 14 years old; that they were friends; and that they played the sex game of “master and slave”.  The appellant further admitted that the two phones seized belonged to him and stated that X consented to the sexual acts. 

Reports

X’s Victim Impact Report

18.  On 20 December 2016, X was medically examined and no injury or abnormality was found. 

19.  On 3 November 2017, X was seen by a clinical psychologist who opined that the appellant’s conduct had brought a serious impact on X’s psychological well-being and social life.  In particular, after his nude photographs were circulated amongst his classmates, X was depressed, in great fear, and felt helpless.  X had thought of committing suicide.  Fortunately, X felt relieved after the case had been reported to the police and his mood gradually improved.  It was also revealed in the report that X was a HIV carrier although there was nothing to suggest that his infection was related to the appellant.

Appellant’s psychological and psychiatric reports

20.  Before hearing mitigation, the judge called for a psychological report and a psychiatric report on the appellant. 

21.  According to the clinical psychologist, the appellant was a known case of Paedophilic Disorder and he showed features of Antisocial Personality Disorder.  The psychologist further formed the view that the appellant’s risk of sexual re-offending was very high.^[6]

22.  In a similar vein, the psychiatrist described the appellant as “strongly paedophilic” and of “dissocial personality”^[7].

Appellant’s background and mitigation

Appellant’s previous convictions

23.  The appellant was aged 30 and was educated up to Form 3.  He was a cross-border driver at the time of the offences, earning about $11,000 per month.  Prior to the commission of the present offences, the appellant had three court appearances involving a total of 10 charges, 7 of which were similar convictions.  Amongst them, four were charges of indecent assault for which he was sentenced on 21 September 2005 to the Rehabilitation Centre.  The other three were charges of homosexual buggery with a man under the age of 16 (HCCC 186/2015) for which he was sentenced on 7 January 2016 to concurrent terms of 28 months which, together with a consecutive term of 4 months in respect of a criminal intimidation charge, made the overall sentence one of 32 months.  The appellant was released on 4 June 2016.

Mitigation

24.  Mr Victor Lee, who acts for the appellant in the present appeal, also acted for him in the sentencing proceedings below.  

25.  In mitigation, Mr Lee emphasized the appellant’s guilty pleas which saved X from giving evidence in court.  Further, it was said that although X was young, he was not particularly young.  Mr Lee also urged the judge to note that there was no significant impairment on X’s overall daily functioning as a result of the offences. 

The sentences imposed

26.  In sentencing, the judge referred to HKSAR v Chow Yuen Fai^[8] and set out the considerations relevant to sentencing sexual offences committed on young children.  In respect of the two charges of making child pornography, the judge said he had considered the cases of SJ v Man Kwong Choi^[9] and HKSAR v Ipp Tin Fan^[10]. 

27.  Since the appellant was also brought before the judge in respect of his previous offences of homosexual buggery (HCCC 186/2015), the judge observed that in HCCC 186/2015, the Court accepted that the appellant and the complainant were lovers but this finding was not applicable in the present case.

28.  The judge identified a number of aggravating factors in the instant case, saying:^[11]

“The defendant has a similar conviction in 2016; clinical psychologist conclude[d] that there is a very high reoffending risk; he had coerced or threatened the victim by posing as young brother or sworn brother; the age gap was above 15 years, it was substantial; there was video recording of the sadistic sexual acts; no condom was ever used during the buggery offences; When the relationship broke up he retaliated by revealing the nude photos of the victim in social media, causing serious distress to the victim; the victim suffered post-traumatic symptoms, albeit not serious.”

29.  In the result, the judge adopted the following starting points for the 7 charges and accorded the appellant the full one-third discount for his pleas: 

	Starting Point	After 1/3 Reduction
Charge 1	3 months’ imprisonment	2 months’ imprisonment
Charge 2	3 years’ imprisonment	2 years’ imprisonment
Charge 3	5 years’ imprisonment	3 years and 4 months’ imprisonment
Charge 4	3 years’ imprisonment	2 years’ imprisonment
Charge 5	3 years’ imprisonment	2 years’ imprisonment
Charge 6	3 years’ imprisonment	2 years’ imprisonment
Charge 7	5 years’ imprisonment	3 years and 4 months’ imprisonment

The judge then ordered that the entire 2 months of Charge 1 and one year each of Charges 2, 4, 5, 6 and 7 were to run consecutively to the sentence of Charge 3, making a total term of 8 years and 6 months.

Grounds of appeal

30.  Ground 1 alleges that the starting point of 5 years for Charges 3 and 7 was clearly excessive because such a starting point transpired to be the maximum sentence for the offence of homosexual buggery with a man under the age of 16 as revised by the Court of Appeal in HKSAR v Yeung Ho Nam^[12]. Mr Lee argued that the judge could not have intended to pass the maximum sentence on the appellant in this case. 

31.  Ground 2 alleges that, in any event, the total sentence of 8½ years was manifestly excessive and/or wrong in principle. 

Respondent’s submissions

32.  Both in the leave application and in the present appeal, Mr Derek Wong, Senior Public Prosecutor for the respondent, accepted that the judge had effectively adopted the maximum sentence of 5 years as the starting point for Charges 3 and 7 as the law has now been interpreted. 

33.  However, in his written submissions filed on 10 September 2020, Mr Wong sought to argue that the two offences of homosexual buggery committed by the appellant fell within the most serious end of the bracket for this offence which should warrant a starting point very close to the maximum sentence.  Mr Wong referred us to HKSAR v Ho Wing Hong^[13] and HKSAR v Chamberlain Benjamin Ulrich^[14]where the sentencing courts adopted 4½ years as the starting point.  Both these cases were decided after Yeung Ho Nam and Mr Wong submitted that the facts of the present case were more serious. 

34.  Further, in response to a query raised by the Single Judge at the leave hearing, Mr Wong related to this Court, without any disagreement from Mr Lee for the appellant, that the two video footages depicted forceful and repeated slapping of X’s face and penis as well as the use of a wooden stick by the appellant to hit X’s buttocks.  According to Mr Wong, the videos were not only sadistic in nature but were also proof of the humiliation suffered by X. 

35.  In short, Mr Wong submitted that 8½ years was an appropriate sentence in this case and could not be criticized as manifestly excessive. 

Discussion

36.  In Yeung Ho Nam, the Court of Appeal, with a concession made by the respondent, accepted that there is no lawful justification for the difference in the statutory maximum sentences between section 118C(a)[15] and section 124[16] of the Crimes Ordinance, Cap. 200.  The heavier maximum sentence for section 118C(a) is discriminatory as the only difference between the two offences is the defendant’s sexual orientation.  In the end, the Court said:

“We agree that the proper sentencing approach for an offence against section 118C should be the same as for unlawful heterosexual intercourse. Constitutional principle requires the courts to view the offences in a gender neutral way. Cases which do not view the offence in this way and which assume a maximum sentence of life imprisonment no longer have relevance on the question of an appropriate starting point.”[17]

37.  As accepted by Mr Wong, given that the maximum sentence for section 118C(a) in respect of Charges 3 and 7 should be one of 5 years instead of life imprisonment as stated in the statute book, it now falls to this Court to adopt an appropriate starting point for each of those charges and to sentence the appellant afresh. 

38.  Although both the appellant and the respondent invited this Court to examine the facts in Ho Wing Hong and Chamberlain for the purposes of drawing out the distinguishing features and the similarities between those and the facts in the present case, with respect, we do not consider it a meaningful exercise.  The determination of an appropriate sentence in any given case must be the result of an assessment of all the relevant matters rather than the result of a mere comparison between the facts in another case and those in the one pending sentence. 

39.  Assistance, however, could be obtained from the identification of the relevant sentencing factors.  In HKSAR v Tsang Chiu Tak^[18] where rape was committed on a 15-year-old girl, the Court of Appeal, after reiterating that the Court had to protect innocent trusting children and prevent them from sexual abuse, pointed out at paragraph 9 of the judgment 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.”

Sentencing in this case 

40.  In the present case, the age difference between the appellant and X is 15 years.  This was not a small gap and it enabled the appellant to be manipulative in his relationship with X.  Perhaps, the name “master and slave” of the purported sex game as related to the police by the appellant best illustrates how the appellant regarded X. 

41.  For the buggeries in Charges 3 and 7, the appellant did not use any lubricant or condom and he ejaculated in X’s anus. The absence of any preventive measure is certainly an aggravating factor. 

42.  Further, the appellant committed these seven offences between September and October 2016, only about 3 months after he had been released from prison in respect of identical offences.  Even without the psychological and psychiatric reports, it is not difficult to tell that there is a high risk of the appellant re-offending.  More alarming is that both the psychologist and the psychiatrist considered the appellant to be strongly paedophilic.

43.  Turning to X, we note that although his condition has improved and his current mood was reported to be generally positive, it was found that, as at the date of assessment, X “was still suffering from emotional distress, post-traumatic symptoms of arousal and avoidance, as well as constant and explicit verbal assaults at school.”^[19]

44.  We consider that all the matters identified above constitute aggravating factors in this case.  However, in respect of the judge’s finding that there was coercion on the part of the appellant and that there was video-recording of the sexual acts, we wish to make the following observations.  Firstly, the buggery offences were charged as consensual buggeries and so, any “coercion” featured did not go to the issue of consent but just that it was indicative of the manipulation involved as observed by this Court in paragraph 39.  Secondly, although there were two “making child pornography” offences, they took place on other occasions and that for the indecent assault, indecent conduct, and buggery charges, no video-recording was taken by the appellant.  That said, it does not mean that the child pornography offences are to be ignored because they are relevant when this Court considers the overall sentence to be imposed in this case. 

45.  After taking into account all the relevant matters, we are of the view that a starting point of 4½ years is appropriate for each of Charges 3 and 7.  Mr Lee did not take issue with the starting points of the other charges adopted by the judge and we, too, consider those to be appropriate. 

46.  In order to deter the appellant and to protect the community, we have come to the conclusion that an overall term of 8 years upon plea is appropriate.  This term should also sufficiently reflect the appellant’s criminality in these 7 charges. 

47.  With the revision we made, the sentences for the 7 charges, after deducting the one-third reduction for the appellant’s pleas, are 2 months for Charge 1; 2 years each for Charges 2, 4, 5 & 6; and 3 years for Charges 3 & 7. 

48.  To achieve the overall term which we have indicated above, we order that the 2 months for Charge 1 are to run wholly concurrently with the 3-year term for Charge 3 while one year of the terms for Charges 2, 4 to 7 are to run consecutively to the term for Charge 3, making a total term of 8 years.

Disposition

49.  For these reasons, we allow the appeal and impose an overall term of 8 years in place of the original total sentence of 8½ years.