HKSAR v. CHOW YUEN FAI

CACC 392/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 392 OF 2008

(ON APPEAL FROM HCCC NO. 81 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.  The present application for leave to appeal against sentence involves the court examining the appropriate sentence for the following offences (for which the Applicant was convicted on his own plea before Deputy High Court Judge Geiser in the Court of First Instance on 20 August 2008) : ‑

(1)  2 counts of homosexual buggery with boys aged 13 and 12 (Counts 11 and 13), contrary to section 118C(a) of the Crimes Ordinance, Cap. 200.

(2)  4 counts of indecent assault on boys aged 9, 8, 10 and 13 (Counts 1, 6, 9 and 15), contrary to section 122(1) of the Crimes Ordinance.

(3)  3 counts of making child pornography involving boys aged 8, 11 and 13, contrary to section 3(1) of the Prevention of Child Pornography Ordinance, Cap. 579 (POCPO) (Counts 7, 12 and 16).  These offences took place at the same time as those under Counts 6, 11 and 15 (one of the buggery and the two of the indecent assault offences).

(4)  1 count of possession of child pornography, contrary to section 3(3) of POCPO (Count 17).

2.  After his conviction before Deputy High Court Judge Geiser, probation and psychological reports were obtained. The Applicant was sentenced on 12 November 2008 as follows : ‑

(1)  5 years 4 months’ imprisonment for each of the buggery offences (the Judge adopted a starting point of 7 years for the offences and then discounted these by one‑third for the guilty plea).  2 years of the sentence on Count 13 was ordered to run consecutively to the sentence for Count 11, making in total a sentence of 7 years 4 months for the buggery charges.

(2)  2 years’ imprisonment for each of the indecent assault offences (starting point of 3 years, then discounted) to run concurrently with each other, but to run consecutively to the sentences for the buggery charges.

(3)  1 year 4 months’ imprisonment for each of the offences of making child pornography (using a starting point of 2 years), each to run concurrently with the charges with which they were associated (namely, Counts 6, 11 and 15).

(4)  1 year 8 months’ imprisonment for the possession of child pornography offence (starting point of 2 years 6 months, then discounted), this sentence to run consecutively to the other sentences.

3.  In total, the Applicant was sentenced to 11 years’ imprisonment and it is this sentence on which he seeks leave to appeal.

4.  Before us (as they were in the court below), the Applicant was represented by Mr James McGowan and the Respondent by Mr Isaac Tam (with him on appeal, Mr Raymond Cheng). We are grateful for their submissions.

5.  Before going into the relevant principles and arriving at our conclusion on the appropriate sentences, we should first outline the facts in relation to the offences.

Facts

6.  The following facts are taken from the Summary of Facts which was agreed by the Applicant. We deal with the various charges in chronological order.

Count 1 (Indecent assault)

7.  Sometime in 2004, the victim (A), aged 9, and his elder brother first became acquainted with the Applicant through online games. After several months, A’s elder brother then invited the Applicant to their home. At first, they just watched television. Later, the Applicant and A went into a bedroom where the Applicant took off his own and then A’s clothes. The Applicant used the tip of his penis to touch A’s penis.

Counts 6, 7 and 9 (Indecent assault and making childpornography)

8.  In February 2007, the victims (B and C), two brothers aged 8 and 10, became acquainted with the Applicant again through online games. Later that month, after the Lunar New Year, the Applicant invited B and C to his home. After playing some computer games in the living room, the Applicant asked B to go with him alone to his bedroom. There, the Applicant was naked from the waist down. He told B to lie down on a bed. The Applicant then put his penis into B’s mouth, and caressed and masturbated B.

9.  In the course of this, the Applicant used his mobile phone to take pictures and make videos. He later downloaded the images and videos onto the hard disk of his computer. These comprised : ‑

(1)  4 images depicting B’s penis;

(2)  1 image depicting the Applicant putting his penis into B’s mouth;

(3)  2 video clips showing the Applicant putting his penis into B’s mouth;

(4)  2 video clips showing the Applicant masturbating B; and

(5)  1 video clip of B urinating.

10.  Afterwards, the Applicant returned to the living room. He then put his hand into C’s trousers and fondled his penis for about 5 minutes.

Counts 11 and 12 (Buggery and making child pornography)

11.  Sometime in May 2007, the Applicant made contact with the victim (D), aged 13, in an internet discussion forum. He later contacted him again and went to D’s home, ostensibly to repair D’s computer. At first, they were in the living room. Later, the Applicant left the room to make a call. When he returned, he was naked. He then took off D’s clothes and inserted his penis into D’s anus for over 10 seconds. He also inserted his finger and an object into the anus. The Applicant and D performed oral sex on each other; the Applicant also masturbated D. At no stage did the Applicant use a condom.

12.  In the course of this, the Applicant used his mobile phone to take pictures and make videos. These were later downloaded onto the hard disk of his computer. The images and videos comprised : ‑

(1)  30 images depicting D’s naked body featuring his anus and penis;

(2)  2 images depicting the Applicant’s penis penetrated into D’s anus;

(3)  6 images depicting a naked D performing oral sex on the Applicant;

(4)  5 images depicting the Applicant ejaculating on D’s naked body;

(5)  2 images depicting the Applicant’s finger inserted into D’s anus;

(6)  1 image depicting the Applicant inserting an object into D’s anus;

(7)  7 images depicting the Applicant masturbating D;

(8)  4 video clips showing the Applicant masturbating D;

(9)  3 video clips showing D performing oral sex on the Applicant;

(10)  2 video clips of the Applicant ejaculating on D’s naked body;

(11)  2 video clips showing D’s naked body;

(12)  1 video clip of D taking a shower; and

(13)  1 video clip showing the Applicant’s penis penetrated into D’s anus.

Count 13 (Buggery)

13.  On 14 June 2007, the Applicant became acquainted with the victim (E), aged 12, again through the internet. They met the next day when the Applicant took E to his home. There, the Applicant showed E some photographs on his computer. He then took off his and E’s clothes. The Applicant then masturbated. He inserted his penis into E’s anus, who felt pain and swore at the Applicant. After telling E that he loved him, the Applicant re‑inserted his penis for 2 to 3 minutes. Again, no condom was used by the Applicant.

Counts 15 and 16 (Indecent assault and making child pornography)

14.  Sometime in the Summer of 2007, the Applicant got to know the victim (F), aged 13, once again through the internet. They agreed to meet during a school day. The Applicant invited F home.

15.  There, they began by playing computer games in the bedroom. They then went into the living room, where the Applicant took off his trousers. He asked F to perform oral sex on him and F did so.

16.  In the course of this, the Applicant used his mobile phone to take pictures and make videos, again later downloading them onto the hard disk of his computer. They comprised : ‑

(1)  4 images depicting F performing oral sex on the Applicant; and

(2)  3 video clips showing F performing oral sex on the Applicant.

Count 17 (Possession of child pornography)

17.  The Applicant was arrested on 21 September 2007 at his home. The police seized a computer and 57 CD roms. The categorization contained in the following lists of the materials found in the Applicant’s computer and in the CD roms reflect the 4 levels identified by this court in Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519, namely : ‑

(1)  Level 1 : images depicting erotic posing with no sexual activity.

(2)  Level 2 : sexual activity between children or solo masturbation by a child.

(3)  Level 3 : non‑penetrative sexual activity between adults and children.

(4)  Level 4 : penetrative sexual activity between children and adults, or sadism or bestiality.

18.  The hard disks of the computer contained the following still images : ‑

(1)  Level 1

8,060 depicted erotic posing of children with no sexual activity;

(2)  Level 2

1,441 depicted sexual activities between children, or solo masturbation by children;

(3)  Level 3

127 depicted non-penetrative sexual activities including oral sex between adults and children; and

(4)  Level 4

61 depicted penetrative sexual activities between children and adults.

19.  The hard disks also contained the following video clips : ‑

(1)  Level 1

81 showed, among other things, erotic posing of children with no sexual activity;

(2)  Level 2

134 showed, among other things, sexual activities between children, or solo masturbation by a child;

(3)  Level 3

84 showed, among other things, non-penetrative sexual activities including oral sex between adults and children; and

(4)  Level 4

20 showed, among other things, penetrative sexual activities between children and adults.

20.  42 of the CD roms contained the following video clips : ‑

(1)  Level 1

22 contained video clips showing, among other things, erotic posing of children with no sexual activity;

(2)  Level 2

31 contained video clips showing, among other things, sexual activities between children, or solo masturbation by children;

(3)  Level 3

26 contained video clips showing, among other things, non‑penetrative sexual activities including oral sex between adults and children; and

(4)  Level 4

17 contained video clips showing, among other things, penetrative sexual activities between children and adults.

21.  Altogether, the Applicant was therefore found to be in possession of the following : ‑

(1)  Level 1

8,060 still images and 103 video clips.

(2)  Level 2

1,441 still images and 165 video clips.

(3)  Level 3

127 still images and 110 video clips.

(4)  Level 4

61 still images and 37 video clips.

22.  The above figures include the images and videos which related to the Counts 7, 12 and 16 (which in turn are connected to Counts 6, 11 and 15). Taking away these images and videos would result in the following : ‑

(1)  Level 1

8,026 still images and 99 video clips.

(2)  Level 2

1,441 still images and 165 video clips.

(3)  Level 3

104 still images and 94 video clips.

(4)  Level 4

56 still images and 36 video clips.

23.  During video recorded cautioned interviews, the Applicant admitted the following (these facts are quoted from the Summary of Facts) : ‑

“(a)  the child pornography stored in his computer was either downloaded by him from the internet or sent to him by his friends via the internet;

(b)  he had been downloading child pornography from the internet onto his computer for 2 to 3 years;

(c)  the majority of the child pornography downloaded from the internet was kept in the ‘K Drive’ of his computer for his future viewing;

(d)  the child pornography included naked bodies of young boys, oral sex, masturbation and buggery with boys;

(e)  the boys depicted in the child pornography were about 13 to 14 years old;

(f)  he would be sexually aroused when seeing the child pornography;

(g)  the 57 pieces of CD-Rom contained the child pornography he downloaded from the internet; and

(h)  he had never shared the child pornography with or sold it to anyone.”

Principles

24.  The offences (and the maximum sentences) with which this application for leave to appeal is concerned, are as follows : ‑

Crimes Ordinance, Cap.200

“118C. Homosexual buggery with or by man under 21

A man who -

(a)  commits buggery with a man under the age of 21; or

(b)  being under the age of 21 commits buggery with another man,

shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.

…….

122. Indecent assault

(1)  Subject to subsection (3), a person who indecently assaults another person shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years.”

Prevention of Child Pornography Ordinance, Cap. 579

“3.  Offences relating to child pornography

(1)  Any person who prints, makes, produces, reproduces, copies, imports or exports any child pornography commits an offence and is liable ‑

(a)  on conviction on indictment to a fine of $2,000,000 and to imprisonment for 8 years; or

(b)  on summary conviction to a fine of $1,000,000 and to imprisonment for 3 years.

…….

(3)  Any person who has in his possession any child pornography (unless he is the only person pornographically depicted in the child pornography) commits an offence and is liable ‑

(a)  on conviction on indictment to a fine of $1,000,000 and to imprisonment for 5 years; or

(b)  on summary conviction to a fine of $500,000 and to imprisonment for 2 years.”

25.  The Applicant is a paedophile who preys on young children. It is not possible to have a comprehensive definition of the term “young children”. That said, in the present context, it will certainly include those children who have yet to reach sexual maturity. In sentencing for the type of offences with which we are concerned in the present case, the court must bear in mind the following considerations (some or all of these considerations will be relevant in any given case) : ‑

(1)  The individual circumstances of the offender, including in particular in the present context, the risk of re‑offending.

(2)  The impact on the victim and the victim’s family.

(3)  The abhorrence that right thinking members of society would regard the relevant offences, and thus the need for deterrence.

26.  Little needs to be said about the first consideration. It encompasses a standard and important principle of sentencing, and is self‑explanatory. We do, however, wish to make some observations on the second and third considerations : ‑

(1)  The protection of young and vulnerable children is of course the underlying policy.

(2)  In Man Kwong Choi, the court, in looking at the offence of possession of child pornography under the PCPO, referred to Article 34 of the United Nations Convention on the Rights of the Child, which applies to Hong Kong (see paragraph 11).  That Article states : ‑

“States parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.  For these purposes, States parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent :

(a)  The inducement or coercion of a child to engage in any unlawful sexual activity;

(b)  The exploitative use of children in prostitution or other unlawful sexual practices;

(c)  The exploitative use of children in pornographic performances and materials.”

(3)  The trauma, distress and psychological harm that are caused to young children (and, we would underline, also to their families) from the type of offences in the present case, cannot be underestimated.  While the courts are sometimes provided with psychological reports on the victims of such crimes, we are of the view that in the vast majority of cases, this can be assumed.  A number of decisions of this court have made this very point.  We have found very helpful the observations of Stock JA (now Stock VP) in HKSAR v Kong Yun Chiu [2007] 4 HKC 391.  Children in their formative years or when they first become aware of their sexuality during puberty, are extremely vulnerable to and are easily persuaded by adults.  In Kong Yun Chiu, Stock JA said this at 395D‑E (paragraph 11) : ‑

“It is too easy for those who would prey on their naivete and trust to succeed, for children are by nature trusting and the deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly.  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.”

(4)  The trauma, distress and psychological harm is considerably magnified if, as in the present case, a record (by way of photographs and videos) is taken of the sexual act or acts in question.  Both the victim, and his or her family, may well be haunted for many years with the knowledge that the act or acts in question, regarded both as embarrassing and shameful in the extreme quite apart from being illegal, are somehow recorded, and with the possibility that they may even surface when the victim reaches later life.  This feature we regard as a particularly serious one.

27.  In relation to buggery and indecent assault, as has often been observed, it is neither possible nor practicable to fix a tariff for these offences given the varied circumstances in which these offences can arise. For this reason, references to sentences in previous cases are often of limited assistance.

28.  Aggravating features which can exist in certain cases include a breach of trust (for example, see HKSAR v Wong Ying Ho [1999] 4 HKC 825 (indecent assault involving a doctor)) or the risk of re‑offending (sexual recidivism) or a repeated course of conduct (as distinct from a one‑off incident) or the fact that the accused is a sexual predator or the existence of a poor previous record. Physical harm to the victim must also be identified here as an aggravating feature. We have already mentioned the keeping of a record as a seriously aggravating feature (paragraph 26(4) above).

29.  Another aggravating feature in relation to the offence of buggery deserves special mention. In the present case, as stated earlier, the Applicant did not use a condom. We view this as a particularly serious aggravating feature. Where an accused is sexually experienced or active, the failure to use a condom gives rise to obvious health risks, risks and consequences the extent of which young children may well be ignorant.  

30.  As for mitigating factors, it is difficult to conceive of many for the type of offences involved in the present case, apart from a guilty plea. Here, our attention has been drawn by Mr McGowan to a number of cases in which the courts appear to have given more than a one‑third discount for the plea of guilty. In HKSAR v See Tak Man [1998] 1 HKLRD 794, in relation to a charge of indecent assault (the victim was 12 years old; the offence involved oral sex and various other acts falling short of attempted buggery and also ejaculation into the boy’s mouth), the Court of Appeal reduced the starting point by “little more than one‑third” in view of the accused being a first time offender and also the victim being spared the ordeal of having to give evidence. We were also referred to Wong Ying Ho (see paragraph 28 above) where the Court of Appeal left undisturbed a discount of 37.5%.

31.  In our judgment, however, these and other cases which suggest that an additional discount may be given where a victim is spared the ordeal of giving evidence (and therefore having to recount the traumatic incident or incidents in question) must now be viewed against the general principle that the one‑third discount is usually to be regarded as the high watermark of the discount for pleading guilty in good time : see HKSAR v Wen Zelang [2006] 4 HKLRD 460; HKSAR v Ng Ngok Wai (吳岳威) [2008] 1 HKLRD 546 (this case involved an indecent assault on teenage children). Only in exceptional cases should a discount of more than one‑third be given for a timely plea.

32.  We now return to the offence of buggery and to an argument that was advanced by Mr McGowan and at one stage accepted by Mr Tam. In short, the point was that in sentencing for the offence of buggery with a boy between the ages of 13 and 16, a court had to have regard to (if not be bound by) the maximum term of imprisonment that could be imposed for the offence of unlawful sexual intercourse with a girl aged between 13 and 16 under section 124(1) of the Crimes Ordinance (that is, a maximum 5 years). The argument runs along the following lines : ‑

(1)  Sections 123 and 124 of the Crimes Ordinance state : ‑

“123.  Intercourse with girl under 13

A man who has unlawful sexual intercourse with a girl under the age of 13 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.

124.  Intercourse with girl under 16

(1)  Subject to subsection (2), a man who has unlawful sexual intercourse with a girl under the age of 16 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years.

(2)  Where a marriage is invalid under section 27(2) of the Marriage Ordinance (Cap.181) by reason of the wife being under the age of 16, the invalidity shall not make the husband guilty of an offence under this section because he has sexual intercourse with her, if he believes her to be his wife and has reasonable cause for the belief.”

(2)  In Leung v Secretary for Justice [2006] 4 HKLRD 211, this court held that section 118C of the Crimes Ordinance, insofar as this applied to a man aged 16 or over when an act of buggery was committed, was unconstitutional (in breaching the equality provisions in the Bill of Rights) and therefore had to be read down to applying only to victims aged 16 or under (notwithstanding this decision, section 118C remains unamended as we have set out in paragraph 24 above).

(3)  Essentially, the court’s reasoning in Leung was that anal intercourse (for homosexuals) was, for the purpose of the provision in question, to be equated with vaginal intercourse (for heterosexuals), this being the only form of sexual intercourse open to homosexuals.  Accordingly, while the age of consent for a girl engaging in vaginal intercourse was 16 (see section 124 of the Crimes Ordinance), there was inequality insofar as the age of consent for boys was 21 (under the old section 118C).  There was, moreover, no discernible reason for the difference in the age of consent under this provision.

(4)  On the basis of the court’s reasoning in Leung that buggery was to be equated to sexual intercourse, so it had to follow by analogy that inasmuch as sections 123 and 124 of the Crimes Ordinance dealt with unlawful sexual intercourse with underage girls (of less than 13 and 16 respectively), these provisions (and the sentences set out therein) applied equally to buggery with boys.  The end result would then be that while buggery with a boy under the age of 13 would attract a maximum sentence of life imprisonment (cf section 123), buggery with a boy under the age of 16, but 13 or over, would attract a maximum sentence of only 5 years’ imprisonment (cf section 124).  At the very least, the maximum terms of imprisonment under these provisions had to influence the sentence that could be passed in relation to acts of buggery committed on underage boys.

(5)  Accordingly, in the present case, as regards Count 11, the court had to use at least as a yardstick in sentencing, if not be bound by, the maximum sentence of 5 years under section 124 of the Crimes Ordinance.

(6)  Some support for this argument can be found in a decision of this court and one of the Court of First Instance.  In HKSAR v Lee Kin San(李建新), unreported, CACC 111/2006, in relation to (among others) 2 charges of buggery with a girl aged 15 (contrary to section 118D of the Crimes Ordinance), Cheung JA said this regarding Leung and the appropriate level of sentence by reference to section 124 (as translated) : ‑

“11.  Although the aforesaid case dealt with the issue of anal intercourse between homosexual men, the Court of Appeal did point out that anal intercourse at law defined as a form of sexual intercourse, and this definition can also apply to anal intercourse between a man and a woman.  The cases cited in Leung v Secretary for Justice show that the law supports rather than rejects such an interpretation: see paragraph 47 of the judgment therein.

12.  The common law system is a dynamic legal system, characterized by its ability to adapt to changing circumstances and its flexibility in interpreting established legal principles so that they can apply to the actual situation in question.  Even if the maximum penalty prescribed by the Ordinance for a certain form of sexual intercourse is higher than that for another form of sexual intercourse, as the current legal definition of sexual intercourse encompasses various forms of intercourse, the court should not increase the sentence merely because the offence in question is buggery.  The court should determine an appropriate sentence in light of the facts of the particular case and, in the process, take into account factors such as: whether there is a wide age gap between the defendant and the victim; whether the defendant is in a position to control the victim’s mind or direct the victim in her acts, e.g. being her employer, teacher or relative; whether the defendant has exerted an intangible influence on the victim, thereby obtaining her consent to have anal intercourse with him; and whether the defendant inflicted violence on the victim or made her feel unwell or hurt during the anal intercourse.”

(7)  This approach was followed by Barnes J in  HKSAR v Ricki Ki (紀國威), unreported, HCCC 286/2008, 6 March 2009.

33.  In our view, the approach just articulated, although in a sense logical, is with respect not correct as a matter of principle and ought not to be followed : ‑

(1)  Leung was a decision that dealt only with the aspect of inequality in the age of consent under section 118C of the Crimes Ordinance.  The constitutionality of other provisions of the Ordinance (such as sections 118D, 123, 124) was not in issue.

(2)  In the present case, following the court’s inquiry to the parties prior to the hearing of the present appeal as to whether any constitutional issues would be argued, it was indicated by both parties that none would be.

(3)  Accordingly, the court is faced with and therefore has to apply (in the case of the buggery charges), section 118C and in particular, in the present context, the sentencing regime thereunder, namely, a maximum term of life imprisonment.  It would be wrong as a matter of principle to superimpose on that regime the applicable regime under a different provision (and, we would add, one that was not the provision with which the Applicant was charged, nor indeed a provision under which it was even possible for him to be charged).

(4)  Whether or not the various provisions in the Crimes Ordinance just identified or other provisions can be reconciled from a constitutional or other point of view, are not matters that are before us.  In short, we must apply the law as it exists at present.

34.  Lastly, in relation to the offence of possession of child pornography contrary to section 3(3) of POCPO, the appropriate sentencing principles are to be found in Man Kwong Choi.

35.  With the above principles in mind, we now examine the sentences passed by the Judge below for each of the offences. We should add here the fact that we have looked at an album (of photographs and still images from videos) which we understand reflects the subject matter of Counts 7, 12, 16 and 17.

The buggery offences (Counts 11 and 13)

36.  The maximum sentence under section 118C of the Crimes Ordinance is life imprisonment. As Mr Tam pointed out, there are very few previous cases for this offence. The most recent appears to be HKSAR v Loke Yat, unreported, CACC 79/97, 30 July 1997, where the accused pleaded guilty to 5 counts of buggery involving 2 boys aged 13 and 14. Referring to a 1990 case (R v Summers [1990] HKLR 756 where the victim was a 16‑year old boy with some sexual experience; the accused was sentenced to 2½ years’ imprisonment after pleading guilty), the Court of Appeal held that the appropriate sentence was 4 years (after a plea of guilty).

37.  Mr McGowan emphasized to us the fact that the victims in the two buggery counts were not of “extreme youth” and also that it had to be assumed that they must have consented to the acts in question. He drew our attention to the case of HKSAR v Chung Yui Hung, unreported, CACC 11/2006, 21 December 2006, in which the accused was sentenced to 20 months’ imprisonment for unlawful sexual intercourse with a girl of 12. No condom was used and the accused also ejaculated during intercourse. The Court of Appeal took a correct starting point of 5 years (which, given the guilty plea, was reduced to 3 years 4 months). We were also referred to HKSAR v Cheung Ho Fai, unreported, HCCC 74/2009, 17 April 2009 in which Deputy High Court Judge Line (now Line J) passed a sentence of 3 years (after plea) in relation to a charge of buggery with a girl aged 13.

38.  In our view, these cases do not provide much guidance, although we have to observe that the sentences appear to be very much on the low side. The facts in those cases were, however in any event, quite different. Even when previous cases appear to involve similar facts, it is sometimes difficult to get a ‘feel’ for those cases and therefore an idea of what went through the court’s mind in sentencing.

39.  In the present case, the following features are relevant : ‑

(1)  Both victims were young.  Aged 12 and 13, they were going through puberty.

(2)  Trauma, distress and psychological harm can be assumed for these boys (and their families).

(3)  In the case of D (the victim in Count 11), this was exacerbated by the pictures that were taken and the videos made (see paragraph 12 above).  This, for the reasons already gone into (see paragraphs 26(4) and 28 above), was a seriously aggravating factor.

(4)  In the case of both victims, another serious aggravating feature was the non‑use of condoms (see paragraph 29 above).  It would appear that the Applicant was sexual experienced before these offences were committed.

40.  As for the personal circumstances of the Applicant himself, we have read the probation and psychological reports. He comes from a dysfunctional family. His only previous conviction was in 1994 for common assault, for which he was given a sentence of probation for 12 months. To his credit, he appears to be remorseful (and this is also shown by his guilt plea). However, two aspects cannot be ignored : ‑

(1)  First, he is a sexual predator, one who has actively sought out young boys.  The buggery, indecent assault and making child pornography offences in the present case all involved the Applicant meeting the victims through the internet.

(2)  Secondly, the psychological report concludes that the risk of sexual recidivism is “fairly high”.

41.  Deputy High Court Judge Geiser took all these factors into consideration, arriving at a starting point for each offence of 7 years, increased to 8 by reason of the aggravating features.   Given the circumstances we have identified, we are of the view that the appropriate sentences are as follows : ‑

(1)  For Count 11, the correct sentence before discounting for the guilty plea, is 10 years’ imprisonment.  With the one‑third discount, this would come to 6 years 8 months.  This sentence takes into account the aggravating features of the photographs that were taken and the videos made (the subject matter of Count 12) as well as the non‑use of a condom.

(2)  For Count 13, the correct sentence is the one arrived at by the Judge, namely 8 years.  With the one‑third discount, the comes to 5 years 4 months.  The sentences is less than Count 11 owing to the absence of the aggravating feature of the photographs taken and the videos made.

(3)  The two offences were committed on separate occasions.  It would be appropriate to have 2 years of the sentence for Count 13 to be served consecutively to the sentence for Count 11, making in total 8 years 8 months.

The indecent assault offences (Counts 1, 6, 9 and 15)

42.  The maximum sentence that can be passed for indecent assault is 10 years’ imprisonment.

43.  The aggravating features in relation to the buggery offences also apply equally to the indecent assault offences (except perhaps for the non‑use of condoms) and must therefore be taken into account. As can be seen from the facts, the ages of the victims ranged between 8 years and 12 years.

44.  Again, the references made by counsel to previous cases are of limited assistance, given the difference in facts, but they do provide some sort of indication of the degree of seriousness with which these offences are treated by the courts : ‑

(1)  In Kong Yun Chiu, to which reference has already been made (see paragraph 26(3) above), the accused faced 2 counts of indecent assault on a girl aged 8.  On both occasions, he pulled down the victim’s underwear, masturbated and then ejaculated.  There was the element of a breach of trust in that the accused was the victim’s maternal uncle.  The Court of Appeal was of the view that the correct sentence was 5 years’ imprisonment (reduced to 3 years 4 months for the guilty plea).

(2)  In Wong Ying Ho(see paragraph 28 above), the accused pleaded guilty to one count of indecent assault.  Having examined a girl aged 8, the accused (a doctor) indulged in a series of indecent acts, including putting his penis into the girl’s mouth and asking her to lick it.  The judge below took a starting point of 4 years, but discounted it to 2 years 6 months for the plea.  This sentence was upheld by the Court of Appeal, although it was remarked that a higher starting point could have been imposed.  This was again a breach of trust case.

(3)  In HKSAR v Chau Shu Ho [2008] 5 HKLRD 796, the accused was convicted after trial of 4 counts of indecent assault and one of common assault (a relatively minor one).  The assaults took place over a 4‑month period, and involved oral sex and the accused ejaculating.  The victim was a 10‑year old boy.  The accused was also in a position of trust, he having represented to the victim that he was a teacher.  There was also evidence that the victim was severely traumatized.  The accused indicated no remorse and there was said to be a moderate risk of re‑offending.  The overall sentence of 8 years was not disturbed.  It was, however, remarked by the Court of Appeal that in relation to two of the counts of indecent assault (one involving the accused sucking the victim’s penis and ejaculating on the buttocks of the victim; the other involving oral sex performed on the victim even though the boy said it hurt, together with a threat to take away gifts), the individual sentences of 4 years were too low.

45.  In our view, the appropriate sentences for the indecent assault counts are as follows : ‑

(1)  For Count 1, involving the victim A, the appropriate sentence is 3 years’ imprisonment.  Discounted by one‑third for the guilty plea, the sentence comes to 2 years’ imprisonment.

(2)  In relation to Count 6, involving the victim B (and also involving the taking of pictures and the making of videos), the appropriate starting point is 6 years’ imprisonment.  With the discount of one‑third, this would arrive at a sentence of 4 years’ imprisonment.  The sentence imposed by the Judge was too low.

(3)  In relation to Count 9, involving the victim C, the appropriate sentence was 3 years’ imprisonment.  Discounted by one‑third, the sentence should be 2 years’ imprisonment.

(4)  For Count 15, involving the victim F (and again involving the taking of pictures and the making of videos), the appropriate starting point is 6 years’ imprisonment.  Discounted by one‑third, this comes to 4 years’ imprisonment.

46.  Although these incidents were separate, we would, in the present case, make the sentences concurrent with each other, but consecutive to the buggery counts. In another case, the sentences may not necessarily be made concurrent to each other.  

The making of child pornography offences (Counts 8, 11 and 13)

47.  As reflected in the maximum sentence for these offences, the making of child pornography is treated more seriously than mere possession (see paragraph 24 above). There are, however, few previous cases for this offence, perhaps even none (we were not referred to any), but some guidance can be taken from Man Kwong Choi. The classification of the levels of child pornography in that case apply equally to an offence committed under section 3(1) of POCPO.

48.  The Judge adopted a starting point of 2 years for each of the three offences of making child pornography (before discounting them to 1 year 4 months’ imprisonment). He also made them concurrent with the buggery and indecent assault offences with which they were associated.

49.  Given that these offences can, in the present case, only be viewed with the corresponding offences of buggery and indecent assault (and, for those offences, the fact that a record was made has already been taken into account), we would not disturb the Judge’s sentences and approach. In another case, we would not have disturbed a sentence that adopted as a starting point a term of 3 years’ imprisonment. This would be even taking into account the fact that the Man Kwong Choi guidelines may not, strictly speaking, be applicable : see paragraph 52 below.

The possession of child pornography offence (Count 17)

50.  One of Mr McGowan’s complaints in relation to the Judge’s approach was that the sentence of 1 year 8 months (discounted from a starting point of 2 years 6 months) ought not to have been ordered to run wholly consecutively to the sentences for the other offences. There is some merit to this argument, as we are of the view that the Judge ought to have recognized that there was some overlap between the pictures and videos which were the subject matter of this count, and those for the other counts : see paragraphs 21 to 22 above. Nevertheless, for the reasons that will presently appear, this does not make any difference in the present case.

51.  Mr McGowan’s main point, however, was that the starting point adopted (and therefore the sentence imposed) by the Judge was too high. Yet, based on the guidelines laid down in Man Kwong Choi, the quantities of child pornography in the present case would merit, in our view, a sentence of 3 years. Account must be taken not only of the Level 4 child pornography, but also of the quantity of pornography classified under the other levels.

52.  However, Mr McGowan submitted, in our view, correctly, that the Man Kwong Choi guidelines ought not apply. In paragraph 29 of the judgment, it is stated that the guidelines should only apply to offences committed after the date of that judgment (namely, 16 July 2008). The offence in the present case was committed, at the latest, well before that date (the Applicant’s date of arrest was 21 September 2007 : see paragraph 17 above).

53.  We agree that, generally speaking, sentences for possession of child pornography will have increased after Man Kwong Choi : it was pointed out in paragraph 29 of the judgment that the sentencing guidelines laid down would lead to “considerably increased sentences” for the offence of possession. That said, as was also indicated (in paragraph 2), there had been no consistent sentencing practice before that case : sentences ranged from terms of imprisonment to community service orders.

54.  Taking the above into account, we are of the view that the sentence of 2 years’ imprisonment imposed by the Judge was, in the present case, correct.

The appropriate overall sentence

55.  For the buggery and indecent assault offences alone, the combined terms of imprisonment amount to 12 years 8 years (see paragraphs 41 and 46 above). The sentences for these offences, as pointed out above, ought to be served consecutively to each other. For the offence of making child pornography, the sentences ought to be served concurrently with the offences to which they are related. For the possession of child pornography offence, although in other circumstances, a part of the sentence for this offence ought to be served consecutively with the sentences for the other offences, in view of the totality of sentence to which we must obviously have regard, this would not be appropriate in the present case. We are of the view that a term of 12 years 8 months’ imprisonment was the appropriate sentence in the present case. This would have reflected the extremely serious nature of these offences before us.

56.  Although Mr McGowan argued that more than one‑third discount ought to be given on account of the guilty plea (emphasizing the fact that the victims were spared the ordeal of giving evidence), we are of the view that no further discount is warranted. It is true that the victims did not have to give evidence, but the earliest indication that the Applicant gave that he would plead guilty was in June 2008 at the first pre‑trial review for his trial. By that time, the trial was already imminent (the initial date for the trial was 20 August 2008 – the trial was later adjourned). Mr Tam submitted on the other hand that it was only in August that it was formally confirmed that the Applicant would plead guilty. Whichever is the appropriate date (June or August 2008), the indication came at a fairly late stage. By that time, the victims no doubt had already had to recount (and relive) their ordeal, at least to some extent. It will be recalled that the Applicant was arrested in September 2007. Detailed inquiries would have been made of them.

57.  As was pointed out to the parties in the course of the hearing, it is possible for this court to increase sentence in any application for leave to appeal against sentence : see section 83I of the Criminal Procedure Ordinance, Cap. 221. We have already indicated that the appropriate sentence would have been 12 years 8 months’ imprisonment. However, given the fact that the Applicant has to a limited extent succeeded on some arguments, and that clarification was needed in relation to the Lee Kin San case, we are of the view (although not without some hesitation) that it would be right to leave the sentence at 11 years’ imprisonment.

58.  For the above reasons, we dismiss the application for leave to appeal against sentence.