HKSAR v. LEE HON WAH AND ANOTHER

[English Translation – 英譯本]
CACC 54/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 54 OF 2010

(ON APPEAL FROM HCCC NO. 269 of 2009)

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.  The Applicants Lee Hon Wah (“Lee”) and Yan Tsz Ho (“Yan”) were charged with various counts of sexual abuse on a boy aged 14. The charges against Lee included indecent conduct with or towards a child under the age of 16 years (count 2), buggery with a man under 21 (count 3) and, alternative to count 3, another count of indecent conduct with or towards a child under the age of 16 years (count 4). The charges laid against Yan were two counts of buggery with a man under 21 (counts 1 and 5).

2.  Lee pleaded guilty to indecent conduct with or towards a child under the age of 16 years (count 2) but denied buggery with a man under 21 (count 3) and the other count of indecent conduct with or towards a child under the age of 16 years (count 4), which was alternative to count 3. After trial, he was found not guilty of count 3 but guilty of the alternative charge of indecent conduct with or towards a child under the age of 16 years (count 4). On counts 2 and 4, the trial judge, Maggie Poon J, sentenced Lee to respective prison terms of 20 months and 2 years and 6 months. The sentences were to run concurrently and Lee was to serve a total term of 2 years and 6 months.

3.  Yan pleaded guilty to counts 1 and 5 and was eventually sentenced to 40 months’ imprisonment. Maggie Poon J took 4 years as the starting point for each of these two offences and reduced the terms by one-third to 32 months. 8 months out of these terms were to run consecutively, making a total term of 40 months’ imprisonment against Yan.

4.  Yan was aggrieved by the sentences whereas Lee was aggrieved by his conviction on count 4 and the sentences on the two counts concerned. They have lodged applications for leave to appeal respectively against the sentences as well as conviction and sentences.

5.  After hearing the case, we grant leave to appeal to the Applicants. Treating their applications as the appeals, we allow all the appeals herein. We quash the conviction and sentence against Lee on count 4 and reduce his sentence on count 2 from 20 months to 12 months. We also reduce the total term of imprisonment against Yan on counts 1 and 5 by half from 40 months to 20 months. Our reasons appear below.

Prosecution’s Evidence against Lee

6.  X, the boy involved in the present case, was born on 3 June 1994 and was aged 14-15 at the time of the offences. He resided with his parents and an elder brother in a private housing estate in Kwun Tong and was studying in Form 3 in Kowloon.

7.  According to X, having got acquainted with Lee through the Internet sometime in January or February 2009, he indicated to Lee that he was in need of money and hinted that he would agree to have certain sexual acts with him. They had contact and agreed on a price of $500 for the sexual transaction. Lee asked X to meet him in a bus terminus in Kwai Chung and they exchanged telephone numbers. Sometime between 9pm and 10pm on the same day, they met in the bus terminus and walked to a toilet for the disabled near a football pitch on On Chit Street. Inside the toilet, X performed oral sex on Lee. He then gave X $100 as remuneration.    

8.  Subsequently, Lee took X to his residence in Kwai Chung (“the residence”). X performed oral sex on Lee who then offered to give X $250 as the price for anal sex. X said he was in need of money and therefore indicated that he agreed. After that, Lee had anal sex with X and required X to perform other sexual acts on him, but he only paid X $200.

Lee’s Defences

9.  Lee admitted that X did perform oral sex on him in the toilet for the disabled. However, as X was not his type, he agreed to it only because X begged him for it. Lee also admitted to have put his finger(s) into X’s anus during the oral sex. He denied having any sexual act with X in “the residence”. According to him, the sole purpose of taking X to his home was to get some money to pay X and X also left immediately after receiving the money. Lee’s case was that X was not happy with receiving only $200 and therefore was seeking revenge. Before leaving his home, X had said to him, “I’ll remember you”.

10.  Lee said to the Police after his arrest, “I only poked him with my finger(s) and he performed oral sex on me, there was nothing else”. The police officer claimed that at that time he was arresting Lee for having anal sex with a boy aged about 14 in a public housing unit in Kwai Chung sometime between 9 pm and 10 pm on a certain day between January and February 2009.

Grounds of Appeal

11.  Mr. Selwyn So, counsel for Lee, contended in his written submission that the fact that the jury found his client not guilty on count 3, the buggery charge, indicated that they did not believe in X’s account of what had taken place in “the residence”. According to Mr. So, X’s evidence about “the residence” concerned wholly and only the allegation of anal sex. Therefore, as the jury declined to accept X’s evidence on that aspect, there was no other evidence to support the alternative charge of indecent conduct with or towards a child under the age of 16 years (count 4). In making his oral submission before us, Mr. So agreed that the standpoint in his written submission was not correct.

12.  Nonetheless, Mr. So stressed it was possible that Lee’s admission to the Police after his arrest was only about the things that had taken place in the toilet for the disabled, that is, the incidents referred to in count 2. He further stressed that although Lee agreed during cross examination that the police officer, in cautioning him, was referring to the things that had happened in “the residence”, in light of the background of this case, it was extremely likely that Lee gave that answer because of misunderstanding the question. He submitted that the trial judge, however, in addition to forbidding the Defence from seeking clarifications in re-examination, even made an assertion that Lee’s answer under cross examination was clear and there was nothing confusing or unclear, and therefore withdrew Lee’s answer that he was not clear about the location that the police officer was referring to.

13.  Mr. So submitted that the way in which the trial judge handled that matter did cause unfairness to the Applicant.        

Discussion (Conviction)

14.  Mr. So once contended that X’s account of what had taken place in “the residence” concerned wholly and only the allegation of anal sex and therefore the fact that the jury found the 1^st Applicant not guilty on count 3, the buggery charge, indicated that they completely declined to accept X’s account of what had taken place in the “residence”. Mr. So has already admitted that such a standpoint was incorrect.

15.  X’s evidence indicated that, in addition to anal sex, oral sex and other sexual acts had also taken place in “the residence”. Such sexual acts other than anal sex were sufficient to constitute an allegation against the 1^st Applicant on an alternative charge of indecent conduct with or towards a child under the age of 16 years.

16.  In addition to X’s evidence, the offence for which the Police arrested Lee was that he had anal sex with a boy aged 14 in a public housing unit in Kwai Chung sometime between 9 pm and 10 pm on a certain day between January and February 2009. The matters referred to by the police took place in “the residence”, not in the toilet for the disabled. The admission Lee made under caution also constituted sufficient evidence for the jury to find him guilty of the alternative charge of indecent conduct with or towards a child under the age of 16 years.

17.  Mr. So, however, averred that the trial judge had inappropriately disallowed the Defence’s clarification as to whether Lee was, in admitting to certain acts under caution, referring to the matters that had taken place in the toilet for the disabled or in “the residence”. Mr. So contended that the very reply given by Lee under cross examination obviously stemmed from misunderstanding and yet he did not have the opportunity to clarify on that during re-examination, the trial was therefore conducted unfairly.       

18.  On the other hand, Mr. Martin Hui, Senior Public Prosecutor acting for the Respondent stressed that Lee, during cross examination, indicated in a straightforward, clear and unmistakable manner that when the police officer cautioned him, he understood that the officer was referring to things that had happened in “the residence”. The approach adopted by the trial judge in disallowing Mr. So’s re-examination on Lee as to whether he was clear about the place of offence the police officer was referring to in the caution was therefore, in his view, not inappropriate, much less had caused unfairness.

19.  The cross examination referred to by Mr. Hui is recorded on page 158 line G to page 160 line A of the transcript of the trial. The questions and answers are cited as follows:

“Q: My question is, at that time, the caut – I mean, the relevant caution – he has also testified, I mean, DPC52634, did say to you the reason for arresting (you), right?

A: (He) did.

Q: The reason was unlawful buggery with a man under the age of 21, because I have reason(s) to believe you had anal sex with a boy (name of the victim) aged about 14 in a public housing unit in Kwai Chung sometime between 9pm and 10pm on a certain day between January and February 2009. That was the reason for arresting you, he did say that to you, is that right?

A: Right.

Q: Well, later, under caution, you gave this reply: “Ah Sir, I only poked him with my finger(s) and he performed oral sex on me, there was nothing else”. Is that correct?

A: Disagree.

Q: What you mean is – by saying that you disagree, are you saying that you did not say those words?

A: I said not only those words.

Q: So, did (you) say these words?

A: (I) did say that.

Q: (You) did say that. Well, in addition to these words, what else did you say?

A: The whole of what I said was: “I didn’t, Ah Sir, I only poked him with my finger(s), he performed oral sex on me, there was nothing else”.

Q: That’s all?

A: Hm.

Q: Put it to you that at that time you were very clear that (he) was talking about the acts that had taken place in your home, the oral sex and the anal sex that had taken place in your home. Do you agree?

A: Whom do you mean was talking about that?

Q: I now put it to you that, at that time when you were being cautioned, that is, when being cautioned by DPC52634, you were well aware that the incident the detective was talking about with you, the incident for which you were cautioned, the incident for which you were arrested -- he was talking about the acts that had taken place in your home (that is, Room 1006). Is that right?

A: Right.

Q: After that, you also had the opportunity to read it once by yourself, is that right? The record.

A: Right.

Q: DPC52634 also read it to you once, is that right?

A: Right.

Q: Well, you were also asked, you were asked whether there was the need to make any amendment, correction or addition, is that right?

A: Right.

Q: Well, you yourself also said there was no need, right? No need to make amendment, correction or addition, is that right?

A: Right.

Q: And then you wrote down this declaration by yourself, that is, on the – on pages 42 and 43 of the notebook, is that right?

A: Yes.

Q: This record is accurate, I suppose, agree?

A: He wrote down roughly what I meant.

Q: Put it to you that it is an accurate record. Agree?

A: Disagree.

Mr. Lo: Thank you, Mr. Lee. Your Ladyship, that’s all for my cross examination.

Court: Mr. So?

Mr. So: Yes, got one question.

Re-examination by Mr. So

Q: Just now you were…

Mr. So: Yes, still need the notebook.

Q: Just now the Prosecutor’s question to you, that is, this – the question to you was that you were clear the police officer – whether (you) were clear that the police officer was talking about your acts in room 1006 – in your home in room 1006, and your answer was (“)right(”). What did you mean you were clear about?

A: That he was talking about anal sex.

Court: Hang on, there is already – there is nothing ambiguous that requires clarification, this question is withdrawn, disallowed.

Mr. So: Your Ladyship, why? You see, the question put was he said that you (sic) were clear about …

Court: At that time he was clear that, as for the case being investigated, the police officer was talking about the oral sex and anal sex that took place in his home, and his answer was “right”. I don’t think there is anything that requires clarification. I have made my ruling, right.

Mr. So: That question itself consists of two…

Court: Ruling already made, hm.

Q: The offence for which the police officer cautioned you was buggery, you were clear about that, right?

A: Right.

Q: Were you clear about the place?

A: Not clear.

Mr. So: No further questions.

Court: Please withdraw the last question. Just now I – that concerns what I have already ruled on just now.

Mr. So: But the police officer said …

Court:       That was a leading question, I have made a ruling, the last answer should be ignored, the last answer is deleted. Thank you, please return to your seat.”

20.  It can be seen from the above exchange that, when Lee was cautioned by the police officer, it was possible that his focus was only on the acts mentioned in the allegations, not the place.   

21.  Under cross examination, the Prosecutor put to Lee that when he was cautioned, he was “well aware that the incident the detective was talking about with you, the incident for which you were cautioned, the incident for which you were arrested -- he was talking about the acts that had taken place in your home (that is, Room 1006)” and Lee’s answer was “right”. However, the Prosecutor’s question could be interpreted as consisting of two parts: (1) the acts involved in the incident and (2) the place where the incident took place.

22.  As the unfavourable answer given by Lee during cross examination might have come about because of misunderstanding, he should have been given the opportunity to explain and clarify in re-examination. Even if the reply given by Lee during cross examination was clear and unmistakable, there could be other reasons that had made him give an inconsistent reply. He should have been given the opportunity to state to the court those reasons.

23.  We have to stress that, the decision of whether or not to allow the Defence to make clarifications in re-examination could not turn solely on just a couple of simple replies of “right” given by Lee during his cross examination. The trial judge should have taken into account the circumstances of the case as a whole in order to make a reasonable and fair ruling.

24.  We cannot ignore the fact that Lee’s position was all along clear and specific. Besides, it has never changed. He agreed that he had had, in the toilet for the disabled, certain indecent conduct with X, including oral sex and poking finger(s) into X’s anus. However, he denied having anal sex or any indecent conduct in “the residence”. Such clear and specific position was fully expressed in the cross examination of X.

25.  As a matter of fact, in giving evidence, the police officer did not specify that he had clearly indicated in his caution on Lee that the place of offence was “the residence”. The exchange between the Prosecutor and police officer is as follows:

“Q: Please slowly state the reason for the arrest.

A: Arrested him for the offence of unlawful buggery with a man under the age of 21, and then cautioned him.

Q: Right, and then did Lee Hon Wah anything (sic), the …

Court: What is meant by “caution”? Perhaps the jury would like to know what is meant by “caution”.

Mr. Lo: Yes, right.

A: Caution is in fact – let me read out the content of the whole elegiac speech(sic) (?). In fact, caution means telling the other party that – in fact, caution is to say “You are not obliged to say anything unless you wish to do so but what you say may be written down and given in evidence.” The purpose is to let the other party know that he has such rights, has the right to remain silent, right.

Q: Well, then, did the defendant have anything to say?

A: Yes.

Q: Please tell us, that is, what did he say to you at that time, what was said?

A: “Ah Sir, I only poked him with my hand(s) – poked him with my finger(s), and he – performed oral sex on me – for me, there was nothing else.” These were (said) after the caution …

Q: Did he say anything else?

A: No

Q: After that, was it the case that you used your notebook to record the course of his arrest?

A: Exactly.

Q: You mean you agree?

A: Right.

Q: And then at 7:25, did you read to him the relevant record you had made?

A: Yes.

Q: And he also read it once, by himself, right?

26.  During cross examination, the police officer also agreed that Lee, without indicating that he understood after being cautioned, gave a reply right away.

27.  The matters stated above indicate that when Lee was cautioned, it was possible that his attention was focused on the acts alleged, not the locations thereof. Lee’s reply under re-examination also proves the above mentioned circumstances. The questions and answers between Mr. So and Lee were as follows:

“Q: Just now the Prosecutor’s question to you, that is, this – the question to you was that you were clear the police officer – whether (you) were clear that the police officer was talking about you acts in room 1006 – in your home in room 1006, and your answer was (“)right(”). What did you mean you were clear about?

A: That he was talking about anal sex.

… …

Q: The offence for which the police officer cautioned you was buggery, you were clear about that, right?

A: Right.

Q: Were you clear about the place?

A: Not clear.

28.  When Lee gave the above reply, the trial judge immediately, in the presence of the jury, told the Defence to withdraw the question and answer and indicated that she had already given a ruling on the issue concerned. The approach of the trial judge dealt a fatal blow to the defences. When there is dilemmatic or inconsistent evidence, the suitable approach is to give both parties the opportunity to explore on it further and not to block such channels. The trial judge’s order(s) to have certain questions and answers withdrawn would only make the jury think that she had already decided on those questions and the issues related to those questions and therefore there was no need to waste any more time to think further on the issues concerned.

29.  We are of the view that the trial judge, in disallowing Lee to explain further in re-examination the reply he gave when cautioned by the police officer and in ordering to have his reply withdrawn, did indeed cause unfairness on Lee. 

30.  In the above circumstances, we agree with Mr. So’s case. The conviction on count 4, indecent conduct with or towards a child under the age of 16 years, is unsafe. For this reason, we grant leave to appeal to Lee on count 4. Treating his application as the appeal itself, we allow the appeal and quash the conviction and sentence against him on count 4.

Lee’s Sentence and Grounds of Appeal

31.  On count 2, Lee was sentenced to 20 months’ imprisonment on a guilty plea. That indicates that the trial judge had taken 30 months as the starting point. Mr. So contended that it was excessive.

32.  Mr. So stressed that the case of HKSAR v See Tak Man (CACC707/1997) mentioned by the trial judge in passing the sentence was of a different nature and greater severity and should not have been used as the basis for sentencing in the present case.

33.  Mr. So pointed out that in HKSAR v Wong Ka Wai (transliteration) and others (HCCC3/2009), the defendant, having pleaded guilty to indecent conduct with or towards a child under the age of 16 years and buggery with a man under 21, was only sentenced to 12 months’ imprisonment on each count and the terms were to be served concurrently.

34.  Mr. So submitted that the guilt of the 1^st Applicant was even less than that of the defendant concerned in Wong Ka Wai’s case and therefore a sentence of 9 months’ imprisonment should be imposed.

Yan’s Sentence and Grounds of Appeal

35.  Mr. Wong Hay Yiu, counsel for Yan, put forward several grounds of appeal in his written submission. However, in the end, Mr. Wong abandoned most of the grounds of appeals stated in the written submission and only stressed that, in light of the comparison between the facts of this case and those of similar cases, the sentence on Yan was manifestly excessive.

36.  Mr. Wong stressed that in the society of modern times, the perceptions on certain acts have changed and the court should not be biased against homosexual acts. Mr. Wong submitted that Yan was about 26 years’ old at the time of the offences and therefore still young. He came from a good background and was of clear record.

37.  Mr. Wong also cited certain similar cases to lend support to his contention that the sentences in the present case were excessive.

Discussion (Sentence)

38.  Different cases of homosexual buggery and indecent conduct with or towards a child under the age of 16 years involve offenders and victims of different age, background and relationship. The severities of respective circumstances of offences could also vary widely. It is therefore very difficult to give suitable sentencing guideline. Besides, sentences in similar cases are of limited assistance as a guide to sentencing in individual cases.

39.  We shall cite the comment of Ma CJHC (as he then was) in paragraph 27 of the judgment of HKSAR v Chow Yuen Fai (CACC392/2008):

“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.”

40.  It is possible that the offences are committed by two young people, of little age difference, in agreement and in private. It is also possible that it does not involve any threat and inducement, not to mention any exploitation, corruption and deprivation on one party by the other. In the course of the offence, both parties might have taken adequate preventive and safety measures and that no health and safety risks to the other party or the public will be caused. In these circumstances, it should be open to the court to exercise leniency.

41.  The circumstances at the other extreme would be that an adult male intimidating a child with force in order to make him/her succumb and, in the course of such acts, using violence on this victim, causing unnecessary pain and injury, infecting the victim with disease(s) or causing other psychological traumas. Offences as such might be even more serious that those of certain categories such as rape and the sentences therefor should also be manifestly heavier. This also explains why the legislative authority has set the maximum penalty for buggery with a man or girl under 21 at life imprisonment. Even if the defendant has not intimidated the victim with force, if inducement was used as the means to make the young victim forego one’s dignity and fall prey to his licentious exploitation, the offence is definitely not minor.

42.  The offences involved in such cases not only might affect the victims themselves. They also cause profound distress to the victims’ families, in particular the parents of young victims. We will not view these factors lightly.

43.  We are of the view that, in the sentencing of cases involving buggery with a man under 21 and indecent conduct with or towards a child under the age of 16 years, factors that the court has to consider include:

(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 at the time of the offence;

(3) whether the defendant had used threats or inducements to make the victim succumb, falling prey to his licentious exploitation;

(4) the number of occasions of committing the offences and the duration of the offences;

(5) whether inappropriate and unnecessary violence was involved in committing the offences and whether any harm or discomfort was caused to the victim;

(6) whether any suitable safety measures were taken in committing the offences and whether any hazard to the health and safety of the victim and the public was caused;

(7) whether the offences have caused physical or psychological traumas to the victim;

(8) whether the offences have impacted on the family members of the victim;

(9) was the defendant involved in other inappropriate behaviours such as inviting/permitting other people to watch or take photos/videos; and

(10) whether the defendant is psychologically imbalanced or paedophilic and the likelihood of re-offending.

44.  It is, of course, also essential for the court to consider the mitigating factors that are favourable to the defendant before an appropriate sentence could be imposed.

Lee’s Sentence

45.  Lee pleaded guilty to indecent conduct with or towards a child under the age of 16 years (count 2), contrary to Section 146(1) of the Crimes Ordinance. The maximum penalty is 10 years’ imprisonment.

46.  At the time of the offences, X was above the age of 14 and not yet 15 whereas Lee was 34 years’ old. The age difference between them was not small. However, in the present case, no threat or duress was involved. Obviously, X was not an innocent child being taken advantage of by another person. He took the initiative to tout for “business” on homosexual website and provided sex service voluntarily in order to make money.

47.  Although Lee did corrupt X’s mind to a certain extent in agreeing to pay him in exchange for sex service, given X’s background and experience, this factor is not of much severity. As a matter of fact, certain information shows that X was even more corrupt than Lee. X admitted in his testimony that another client wanted to be present to watch the sexual transaction between him and Lee. He hoped that Lee would agree so that he could make more money but Lee objected.

48.  Lee has only one criminal record. He came from a good background, has a stable job and has no previous conviction. In addition, there are no other aggravating factors. We take the view that the starting point of count 2, to which he pleaded guilty, should be 18 months’ imprisonment.

49.  Lee is entitled to a one-third discount as he pleaded guilty to the charge. We therefore reduce the sentence to 12 months.

Yan’s Sentence

50.  Yan pleaded guilty to two counts of buggery with a man under 21. He was 26 at the time of the offences and the age difference between him and X is smaller. Our observation on X above also applies to the sentencing of Yan. Obviously, X had the transactions with Yan on his own initiative and voluntarily with a view to making money. The case did not involve any threat, exploitation or corruption of another person.

51.  Nonetheless, we cannot overlook the fact that Yan used money to get sex service from a 14-year-old boy and did not take safety measures when he had anal sex with X. These are aggravating factors.

52.  On the other hand, Yan came from a good background and was educated. He had a stable job and had the support from his family. Yan has no previous record, we also hope that this is a lesson to him not to have inappropriate sexual acts with underage boys again.

53.  On the background of the case as a whole, we take the view that 2 years’ imprisonment is the appropriate starting point for each of the two counts of buggery with a man under 21 faced by Yan. He had pleaded guilty and the sentences should be reduced by one third to 16 months. As the two offences were about 5 months apart, part of the sentence should run consecutively.

54.  We order that 4 months of the 16 months’ imprisonment on count 5 shall run consecutively to the sentence on count 1. The total term of imprisonment on Yan is reduced from 40 months to 20 months.