HKSAR v. LOKE YAT

IN THE COURT OF APPEAL

1997 No.79
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced five counts of homosexual buggery and three of aiding and abetting another person to commit homosexual buggery. He pleaded guilty to all counts before Leong J. and was sentenced to six years on each count and the sentences were ordered to be concurrent. He now appeals against those sentences.

2. In October 1995, Chui Ka-fung, a school boy aged 14 years and 5 months, was watching football in Victoria Park. The applicant approached him and in common parlance "picked him up". He gave him a ferry ticket to Discovery Bay and asked that he contact him. The boy later did so and they again met in Victoria Park and then went to Discovery Bay where buggery and other sexual activities took place. In November, the applicant again invited Chui to Discovery Bay when mutual acts of buggery took place.

3. In December 1995, the applicant met Chui and another boy Lam Kwok-hung, who was then aged 13 years and 8 months, in Victoria Park and invited them to Discovery Bay. The applicant gave the two boys ferry tickets to Discovery Bay. On their visit during Christmas holidays, he buggered Lam and the boys stayed overnight.

4. In late February or early March, the applicant again asked Chui to Discovery Bay and again mutual buggery took place. Despite requests from the applicant, Chui did not visit his premises again.

5. In July 1996, Chui visited a doctor who saw signs of swelling and anal warts which led him to question the applicant and the offences were revealed.

6. On each occasion the applicant initiated the sexual activities by playing pornographic video tapes.

7. When sentencing the trial judge said:

"The law has made such offences a very serious offence by prescribing life imprisonment as the maximum penalty, and this reflects the intentions of the legislature to protect the young. The younger the party, the more protection is required and the more severe the offence.

What you did were of the graver kind of criminal homosexual act. The gravamen of your offences is your planned corruption of young boys. The starting point I would stop - I would adopt should be one which reflects public abhorrence of such acts and it should be one which carries with it an element of deterrence. The sentence should be one which will keep you out of circulation for a fairly long period of time and to give you sufficient time to reflect and undergo counseling to change.

There are, however, mitigating factors, of which the significant one comes from your plea of guilty to all counts and your co-operation with the police. Except the warts suffered by Chui, there was no evidence of physical injury and there is no evidence of violence in the course of committing those acts. There is no evidence at this stage of any emotional and psychological damage to the boys, but one must remember the trauma of such abuse are long lasting even after the events.

The starting point I adopt would be one of nine years' imprisonment overall, but I give you three years' discount. So for counts one to eight each, you will go to prison for six years. All sentences to run concurrently."

8. The thrust of the appeal is that the trial judge wrongly dealt with the applicant upon the basis that the boys were inexperienced and that he was the first person to corrupt them. What the judge said was:

"Both victims were very young boys at the time - Lam was 13 years and 8 months, and Chui was 14 years and 5 months. Both of them had no homosexual experience before these offences occurred. There is no evidence that they had any sexual experience, heterosexual or otherwise, either. They were young, innocent and immature young persons."

He later said:

"Circumstances in Summers were not similar to the present case because the victims there were 16 year old boys who had had previous homosexual experience and they took an active part in the acts, whereas in the present case, the victims were much - were not too much younger and they had no previous sexual experience whatsoever and they were purely victims of your corruption."

9. It is submitted that there was nothing in the admitted facts to establish either that the boys were inexperienced in sexual matters or that they were corrupted for the first time by the applicant.

10. Mr. Chan, who appears for the applicant, relies on the case of R. v. Summers [1990] H.K.L.R. 756. In that case the defendant had committed two offences of buggery on a boy of 16. He was a schoolboy but it was acknowledged that he had previous experience of homosexual activity and that he was picked up by Summers in a public lavatory. Two acts of buggery occurred on one occasion. The sentence was 3 1/2 years. That sentence related to a single occasion on which 2 offences occurred and to a victim, if he can be so called, who had previous homosexual experience and was, indeed, picked up by the defendant in a public lavatory. In the present case, there were none of those aspects. The two victims were school boys of tender years. The applicant was intent upon seducing such persons. He did not pick them up in a place that could be described as a haunt of homosexuals but in a park to which school boys and others resort for sport and recreation. The circumstances are very far removed from those which applied in the case of Summers. The acts continued from October 1995 to February/March of 1996 and involved two victims. The extent of any previous sexual experience is in our view not of very great moment in the present circumstances.

11. The only question which we must ask is whether the starting point of 9 years was too high and whether and to what extent the sentences should have been wholly concurrent. We are satisfied that the starting point was a manifestly excessive one. The offences were serious but the appropriate starting point would, in our view, have been one of six years. That sentence could, on each offence, properly be reduced to one of four years given the applicant's pleas of guilty. There were no other mitigating circumstances of any weight. We are satisfied that the sentences on offences 2 to 8 should be ordered to be concurrent but that two years of those concurrent sentences should be ordered to be consecutive to the four years imposed on the first offence. That leaves us with a totality of six years which is the same totality as was imposed by the judge.

12. The appeal succeeds to the extent that the sentences are adjusted as indicated above but the sentence overall remains the same.