HKSAR v. LEE KWOK WAI

CACC 199/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 199 OF 2011

(ON APPEAL FROM HCCC 33/2011)

____________

BETWEEN

____________

____________________________________

REASONS FOR JUDGMENT

____________________________________

Hon Cheung JA (giving reasons for judgment of the court):

Appeal on sentence

1.  The applicant pleaded guilty to 12 counts of sexual offences, namely, four counts of indecent assault (Charges 1, 8, 9 and 10) contrary to section 122(1) of the Crimes Ordinance (Cap 200), six counts of homosexual buggery with man under 21 (Charges 2, 3, 4, 5, 6 and 7) contrary to section 118C(a) of the Crimes Ordinance, one count of making child pornography (Charge 11) contrary to section 3(1) of the Prevention of Child Pornography Ordinance (Cap 579) and one count of indecent conduct towards a child under 16, contrary to section 146(1) of the Crimes Ordinance.

2.  Deputy High Court Judge Esther Toh sentenced him to a total sentence of 12 years’ imprisonment.  He applied for leave to appeal against sentence.  We dismissed the application at the conclusion of the hearing.  We now give our reasons.

3.  The particulars of the offence and sentences are as follows:

Count	Offence	Date	Victim	Sentence
1st	Indecent assault	Unknown day in 2005	F (11- year- old boy)	2 years (starting point: 3 years)
2nd	Homosexual buggery with man under 21	Unknown day between 10 – 20 May 2005	E (13- year-old boy)	5 years 4 months (starting point: 8 years)
3rd	Homosexual Buggery with man under 21	Unknown day between 1 June and 10 September 2005	E	6 years (starting point: 9 years)
4th	Homosexual Buggery with man under 21	On or about 5 July 2006	C (12- year-old boy)	6 years (starting point: 9 years)
5th	Homosexual Buggery with man under 21	On or about 9 July 2006	C	6 years (starting point: 9 years)
6th	Homosexual Buggery with man under 21	Unknown day between 1 September and 30 October 2006	B (12-year-old boy)	5 years 4 months (starting point: 8 years)
7th	Homosexual Buggery with man under 21	A day in early 2007 after Chinese New Year	B	6 years (starting point: 9 years)
8th	Indecent assault	Near the end of June 2010	A (12- year-old boy)	2 years (starting point: 3 years)
9th	Indecent assault	Unknown day between 1 July and 31 August 2010	A	2 years (starting point: 3 years)
10th	Indecent assault	On or about 24 July 2010	D (11- year-old boy)	4 years (starting point: 6 years)
11th	Making child pornography	On the occasion particularised under the 10th Charge	D	2 years (starting point: 3 years)
12th	Indecent conduct towards a child under 16	On or about 24 July 2010	D	2 years (starting point: 3 years)

4.  In respect of the six buggery offences,

1)   the sentences on Counts 2 and 3 are to be served concurrently (6 years’ imprisonment);

2)   the sentences on Counts 4 and 5 are to be served concurrently with each other with 2 years of which to be served consecutively to Counts 2 and 3 (2 years’ imprisonment);

3)   the sentences on Counts 6 and 7 are to be served concurrently with each other with 2 years of which to be served consecutively to Counts 2, 3, 4 and 5 (2 years’ imprisonment);

5.  In respect of the indecent assault offence, the sentences on Counts 1, 8, 9 and 10 are to be served concurrently with each other but 2 years of which to be served consecutively to Counts 2 to 7 (2 years’ imprisonment).

6.  In respect of the child pornography and indecent conduct offences, the sentences on Counts 11 and 12 are to be served concurrently with the other sentences.

Facts of the case

7.  The applicant is 37 years old.

8.  The victims are six boys aged between 11 and 13.  The offences took place in two periods of time, one was from 2005 to 2007 and the other 2010.

9.  Based on the agreed facts the judge summarised the offences as follows:

‘ Now, the Admitted Facts are: in relation to Charge 1, a boy F, aged 11, was introduced, by a procurer, called Tommy, to the defendant in 2005. Inside Tommy’s bedroom, the defendant had rubbed his penis against F’s anus until ejaculation. No condom was used and the defendant paid this boy, F, $200. The defendant had obtained the telephone number of F and, in 2009, the defendant had telephoned F in order to try and get F interested again in meeting up with him but was rebuffed by F.

Charges 2 and 3 are in relation to a boy, E, who was aged 13 at the time.  E was told by Tommy that the defendant had a lot of money, so E then telephoned the defendant and the defendant offered E $200 for buggery.

In May 2005, the defendant then brought E to a guesthouse in Sham Shui Po and kissed E and inserted his penis into E’s anus, again, without wearing a condom.  E felt pain but did not resist and for that he was paid $200.

Then between June and September 2005, the defendant telephoned E and offered to pay for buggery.  Defendant took E to the same guesthouse and kissed E and inserted his penis into E’s anus and, again, no condom was used.  The defendant took three photographs of E without his pants on and paid E $200.  Subsequently, the defendant tried to call E, but E felt ashamed and refused to speak to the defendant again.

Charges 4 and 5:  in 2006 Tommy introduced B, aged 13, to the defendant and the defendant asked B to introduce young boys to him.  So in 2006, B introduced C, who was aged 12 and a classmate of B, to the defendant.  At that time, C had just run away from home and B told C he could get $300 to $400 for buggery.  C was in need of money so on July 5, 2006, B introduced C to the defendant.  The defendant took B and C to dinner and then took them to a guesthouse in Sham Shui Po.  Inside a room, the defendant inserted his penis into C’s anus.  C felt pain and his anus bled.  The defendant did not remove his penis until ejaculation and no condom was used.  B was watching all this while it was happening.  The defendant gave $400 to C and C shared half of it with B.

On 9 July 2006, C contacted the defendant as he needed money.  The defendant again took C to the guesthouse and, again, he inserted his penis into C’s anus, without a condom, and he did not remove his penis until after ejaculation.  The defendant had used his mobile telephone to take photos and video of C during the buggery.  The defendant paid C $350 and C shared half of that with B.  C subsequently identified the defendant at an identification parade in August 2010.

In relation to Charges 6 and 7, B, aged 12, was introduced by Tommy to the defendant.  The defendant was always trying to seduce B with money.  Between September and October 2006, the defendant took B to a guesthouse in Sham Shui Po and inserted his penis into B’s anus and did not remove his penis until ejaculation.  No condom was used.  The defendant admitted, under caution, that he had taken a photo of B during the buggery.  B was paid $500.  Subsequently, the defendant telephoned B several times but B’s mother did not allow B to go out with the defendant.  B subsequently identified the defendant at an identification parade on 17 August 2010.

Charges 8 and 9:  A, aged 12, was introduced to the defendant by his schoolmate, Fung, in 2009.  After the introduction, the defendant kept sending messages to A that he liked him and offered him money for intimate acts.  In June 2010, A needed money and allowed the defendant to molest him for 10 minutes for $500.  The defendant took A and Fung to a flat in Sham Shui Po and, whilst Fung kept time, A’s anus was rubbed by the defendant’s penis until ejaculation.  No condom was used and the defendant paid A $500 and A shared the money with Fung.

In July and August of the same year, all three of them met again and the defendant caressed A’s buttocks and penis and kissed A on the mouth after A had refused to allow the defendant to rub his penis against A’s anus.  No money was paid at this time.

Now Charges 10 and 11:  D, aged 11, had run away from home and was loitering around the Sham Shui Po area.  The defendant saw him and asked to be his friend and invited D to spend the night at his place.  The defendant took D to a flat and made him watch pornographic videos.  Then he asked D if he wanted to earn quick money.  D said, yes, but when the defendant started molesting him, D resisted and so the defendant did not persist and then they both slept together in the same bed. 

During the night the defendant had tried to embrace D several times but was rebuffed. However, while D was asleep the defendant kissed D on the mouth and took off his own clothes and, when he was naked, climbed on top of D and the defendant had videoed this in his mobile.  The defendant also took photographs of D’s penis.  These were recovered by the police from the defendant’s mobile telephone, and can be seen in Exhibits 181 and 182.

Charge 12 concerns D.  D woke up the next morning and asked the defendant about earning quick money.  The defendant told him to fondle his penis for 15 minutes after the defendant had lowered his pants.  Then he paid $100 to D and D left. Subsequently, the defendant tried to invite D to his flat again but D refused.

In September 2010, D identified the defendant at an identification parade.’ 

10.  The offences came to light when a student complained to his social worker about the defendant and also revealed that it was Fung (i.e. one of the procurers) who had introduced them.  Fung was arrested in July but the charge against him was dropped in December 2010.

11.  As for Tommy, the other procurer, the defendant had supplied Tommy’s old address in a housing estate from which Tommy had already moved.  The defendant had supplied this information in his video-recorded interview.  The police, with the assistance of the housing authority and a victim, managed to locate Tommy but he was released due to lack of evidence. 

12.  According to the agreed facts, after the applicant’s arrest, the Police found pornographic images of young males in his mobile telephone.  A number of victims were identified with the applicant’s co-operation.

Principles in sentencing

13.  The applicant is a paedophile.  There is no tariff in sentencing sexual offenders involving young children (HKSAR v. Chow Yuen Fai [2010] 1 HKC 181 and HKSAR v. Lee Hon Wah [2011] 4 HKLRD 319.  However, the following factors have been regarded as relevant:

(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 trauma to the victim?

(8)   Whether the offences have impact 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?

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

Overview in sentencing paedophiles

14.  In addition to these factors, the following overview should be considered:

1)   The courts have taken a serious view on paedophiles preying on young children.  This is reflected in the heavy sentence imposed in recent judgments.  While there is no sentencing tariff in this field, the court is clearly entitled to take into account the level of sentence imposed in similar cases.  For example, in Chow Yuen Fai the defendant pleaded guilty to ten counts of sexual offences. There were six victims aged between 8 and 13.  There were two counts of homosexual buggery, four counts of indecent assault, three counts of making child pornography and one count of possession of child pornography.  The defendant was sentenced to 11 years’ imprisonment.  This court (differently constituted) held that the appropriate sentence should be 12 years and 8 months’ imprisonment but declined to disturb the sentence only because the applicant had succeeded in some arguments.  While some older cases may indicate the imposition of a lighter sentence, guidance should be based on the more recent judgments of this court.

2)   The mischief that the deterrent sentences are targeted at is the sexual exploitation and abuse of children.  This may take the form of sexual conducts with young children, child prostitution and depicting children in pornographic materials.  The exploitation and abuse are usually the result of inducement or coercion.  Inducement often takes the form of rewarding the children with money or gifts before or after the abuse.

3)   The trauma, distress and psychological harm that are caused to young sexual victims have been recognized and court has indicated that in the vast majority of cases it can make such an assumption even without victim psychological reports.  Views to the contrary view have been disapproved by this court (HKSAR v. Ngai Yiu Ching (倪耀偵) [2011] 5 HKLRD 690 at paragraphs 43–46).

Three grounds of appeal

15.  Three grounds of appeal were advanced on behalf of the applicant (the fourth, being the original Ground 1 was abandoned at the hearing).

The discount

16.  The first ground of appeal is that the judge had not discounted the starting point sufficiently in the special circumstances of the cases, namely, the early pleas of guilty, which avoided the need of the victims from giving evidence.  Mr Whitehouse, counsel for the applicant, submitted that the judge should give more than the usual one-third discount for guilty plea.

17.  In an older case, namely, R. v. Barry Summers [1990] 1 HKLR 756 this court (differently constituted) had stated at page 758 that ‘the discount which is granted for plea may well be somewhat greater than would be given in normal cases because of this factor’.  It should be noted that the judgment was given at a time before the courts generally adopted the now standard one-third discount for guilty plea.  The comment made by this court in Summers must be read in this light.  Although this court in Chow Yuen Fai recognized at paragraph 31 that in exceptional cases a discount of more than one third may be given for a timely plea, the court in fact has affirmed the sufficiency of the one-third discount in a guilty plea which is regarded as the ‘high-water mark’.  In 香港特別行政區訴吳岳威 (HKSAR v Ng Ngok Wai) [2008] 1 HKLRD 546, a case of indecent assault on under-aged girls, this court (differently constituted), having considered that although the plea obviated the need for the victims to go through the trauma of testifying in court, was not persuaded to further reduce the sentence beyond the usual one-third discount for the guilty plea.  We do not see any exceptional circumstances in the present case to justify a further discount. 

Trauma

18.  The applicant contended that the first set of offences took place many years ago and the victims were reluctant to provide psychological impact reports despite being requested to do so.  The judge therefore erred in assuming that they had suffered trauma from the abuse.

19.  We have already set out the relevant principle in this area.  In our view the judge was correct to take into account that trauma is likely to be experienced by the young victims in this case.

Nature of the offence

20.  It was submitted that the applicant did not directly approach the victims.  They were supplied to him through two procurers (one was an adult of about four feet three inches in height and the other was a secondary school student) and the victims were prepared to offer their bodies for monies.  They were described by counsel as ‘rent boys’.

21.  We see no merits in the argument.  The applicant himself approached one of the victims directly in Charges 10 and 11.  In any event, it makes no difference if the applicant came to know the boys through procurers.  He was guilty of sexual exploitation of these young children by inducement of monetary reward.  It is precisely this type of abuse that the court intends to address by imposing a deterrent sentence.  The term used by counsel to describe the victims is not appropriate.

22.  Mr Whitehouse further referred to 香港特別行政區對杜重達 (HKSAR v To Chung Tat) CACC 396/2010 and 香港特別行政區訴陳少偉 (HKSAR v Chan Siu Wai) HCCC 301/2010.  In the first case this court (differently constituted) adopted a starting point of 18 months’ imprisonment in respect of a charge of homosexual buggery involving a boy of 15 and in the second case the Court of First Instance used a starting point of two years for a similar offence involving a boy aged 13.

23.  It should be noted in both cases the victims had consented to the sexual acts. The victim in the first case came to know the defendant and asked the defendant to meet him.  The victim in the second case became acquainted with the defendant through a homosexual website.  No money exchanged hands in both cases.  These cases are not appropriate comparisons.

Totality

24.  The applicant submitted that the judge although purportedly referred to the totality, had actually not taken it into account.

25.  We disagree.  The judge had clearly taken the relevant guidelines and the circumstances of this case into account in arriving at a total sentence of 12 years’ imprisonment.  The applicant was an older man taking advantage of six young victims.  He had sex with the victims without protection.  The offences took place over a long period of time.  The evidence showed that the applicant’s risk of reoffending is high.  The judge was correct in her sentence.