HKSAR v. HO WING HONG

CACC 208/2019

[2020] HKCA 193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 208 OF 2019

(ON APPEAL FROM HCCC NO 298 OF 2018)

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J U D G M E N T

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1.  The applicant applies for leave to appeal against his cumulative sentence of 7 years’ imprisonment imposed by Deputy High Court Judge Woodcock (the judge), following his plea of guilty to a total of thirteen charges, consisting of five charges of indecent conduct with or towards a child under the age of 16 years, contrary to section 146(1) of the Crimes Ordinance, Cap 200 (Charges 1, 2, 4, 6, and 8), four charges of making child pornography, contrary to section 3(1) of the Prevention of Child Pornography Ordinance, Cap 579 (Charges 3, 5, 7 and 9), one charge of attempted homosexual buggery with a man under the age of 16, contrary to sections 118C(a) and 159G of the Crimes Ordinance (Charge 10), two charges of homosexual buggery with a man under the age of 16, contrary to section 118C(a) of the Crimes Ordinance (Charges 11 and 12), and one charge of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance (Charge 13).

2.  The first twelve offences involved one victim, a boy whose date of birth is 5 January 2002.  He was referred to as “X” in this case.  The applicant’s date of birth is 22 January 1987 and hence there was a 15 years age difference between them.  The offences took place on various dates from a date between 1 September 2012 to 31 July 2013 (when the victim was 10 or 11 years old) for Charge 1, to a date between 1 and 31 March 2017 for Charge 12 (when the victim was 15 years old).  To put the age difference in context, when the victim was between 10 to 15 years old, the applicant was 25 to 30 years old.  The last offence relates to possession of child pornography found on the applicant’s personal computer on 15 May 2017.  None of the child pornography on his computer depicted the victim.

The summary for facts

3.  A police operation targeting child pornography lead to the discovery of child pornography on the applicant’s computer.  The pornographic material consisted of a total of 87 videos, 34 videos depicting Level 2 activities, 3 videos depicting Level 3 activities, and 50 videos depicting Level 4 activities. 

4.  The depictions in the videos were classified according to the four levels of child pornography as set out by this Court in Secretary for Justice v Man Kwong Choi.[1] The classifications are as follows:

Level 1: images depicting erotic posing with no sexual activity;

Level 2: sexual activity between children or solo masturbation by a child;

Level 3: non-penetrative sexual activity between adults and children; and

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

5.  The approximate age of the children depicted in the pornographic material in the applicant’s possession ranged from 5 to 15 years old.  The applicant admitted he downloaded the child pornography via a software called Foxy (Charge 13).

6.  The police found on the applicant’s mobile telephone videos and photographs taken by the applicant depicting the victim performing sexual acts.  The charges are paired so that the video or photograph of the sexual act is the subject of a charge of making child pornography and the sexual act that is depicted is the subject of a charge of indecent conduct with or towards a child under the age of 16 years.  The particulars of the paired charges are as follows:

(i)      three videos of the victim performing oral sex on the applicant (Level 4), when the victim was 12 years old (Charges 2 and 3);

(ii)     two photographs of the victim, wearing his school uniform, showing erotically his penis to the applicant in a public place (Level 1), when the victim was 13 years old (Charges 4 and 5);

(iii)    one video of the victim performing oral sex on the applicant (Level 4), when the victim was 14 years old (Charges 6 and 7); and

(iv)    one video of the victim performing oral sex on the applicant (Level 4), when the victim was 14 years old (Charges 8 and 9).

7.  In an interview under caution, the applicant admitted he met the victim playing basketball when the victim was about 10 years old.  They lived in the same estate and he knew the victim was in primary school.  The victim would go to his home to play video games.  The first time there was indecent conduct between them was when the victim asked the applicant to lend him money.  The applicant gave him the money on condition the victim performed masturbation and oral sex on him.  This occurred on a date between 1 September 2012 and 31 July 2013, when the victim was 10 or 11 years old (Charge 1).

8.  Thereafter the applicant would lend money to the victim if the victim performed masturbation and oral sex on him.  This normally took place in the applicant’s home when no one else was present, but if someone was present, they would go to the staircase of the building where the victim would perform sexual acts on the applicant.  If the victim could not repay the money lent him, the applicant would waive the loan as long as the victim performed sexual acts on or with him.  The applicant acknowledged that he took videos and photographs of the victim performing the sexual acts, but he claimed he did not share them with anyone else, as they were for his own personal viewing.

9.  The applicant repeatedly asked the victim to let the applicant have anal sex with him.  The victim initially refused, but in 2016 when the victim was 14 years old, they attempted to have anal sex.  It only lasted a few seconds because of the pain the victim experienced.  The applicant did not wear a condom, although he did use a lubricant.  The victim instead masturbated the applicant until he had ejaculated (Charge 10).

10.  Sometime in 2016 or 2017, when the victim was 14 or 15 years old, the applicant had anal sex with the victim without a condom but with the use of a lubricant.  He did not ejaculate inside the victim but instead masturbated himself in front of the victim until he had ejaculated (Charge 12).

11.  The last occasion the applicant had anal sex with the victim was on a day in March 2017, when the victim was 15 years old. The applicant invited the victim to his home to give him some computer components he had purchased for him.  The applicant suggested to the victim that if he agreed to have anal sex, he did not have to pay for them.  The victim agreed and the applicant had anal sex with the victim without wearing a condom.  The applicant ejaculated inside the victim after about 5 to 10 minutes (Charge 11).

12.  The victim confirmed that he first met the applicant when he was 10 or 11 years old, and the first occasion there was indecent conduct between them was when the applicant offered him money if he touched the applicant’s penis.  After that, the applicant engaged in sexual activities with the victim on numerous occasions.  The applicant devised a payment schedule for the performance of sexual acts by the victim.  The applicant would pay the victim $100 for masturbation, $200 for oral sex and $400 for anal sex.

The applicant’s mitigation

13.  In mitigation, it was submitted that the applicant was 32 years old with a clear criminal record.  He was single and lived with his family.  He was educated up to Form 5 level and worked as a warehouse assistant when he was arrested.

14.  The judge was urged to take a lenient approach in sentencing the applicant for the following reasons:

(i) the applicant by pleading guilty to the charges had shown remorse and spared the victim the ordeal of giving evidence in court;

(ii) the offences only concerned one victim and did not involve a breach of trust or any act of violence; and

(iii) the applicant indicated a willingness to attend future psychological counselling.

The reports on the victim and the applicant

15.  Before hearing mitigation, the judge called for a psychological assessment of the victim and the applicant. 

16.  The psychologist in his report on the victim found that the sexual abuse and trauma experienced by him had adversely affected his psychological well-being and daily functioning.  He noted that the victim lived in fear and was shameful about what he had done.  As a consequence, he had developed a depressive mood which caused him to be socially withdrawn.  He also noted that the victim still had moderate traumatic stress responses and emotional disturbance, particularly with respect to “anxiety, depression, overt disassociation, fantasy, sexual concern, sexual preoccupation and sexual distress”.  He observed that the victim strived to keep the abuse a secret, and avoided recalling distressful memories.

17.  The psychologist in his report on the applicant found that he displayed features of paedophilia.  The applicant appeared to be attracted to underage males.  He preferred interacting with children rather than adults and did not appear to have adequate interpersonal skills to maintain stable relationships with adults.  The psychologist assessed the risk of sexual recidivism against children by the applicant as high.  The applicant showed inadequate remorse and insight regarding his offending behaviour.  He mistook minimal resistance from the victim as consent and did not recognise that the victim might be susceptible to his suggestions.  The psychologist highly recommended that the applicant undergo psychological counselling that focused on managing the applicant’s sexual interest in children.

The reasons for sentence

18.  Having discussed in detail the charges and the summary of facts, the judge conducted an extensive review of the relevant sentencing principles, in the course of which she made specific reference to the facts and circumstances of the present case.  She next set out a comprehensive summary of the psychological reports of the victim and the applicant before addressing the sentences to be imposed on the individual charges and the total sentence for the overall criminality involved.

19.  As for the offence of possession of child pornography, Charge 13, the judge explained that this was an extremely serious offence and consequently the protection of children, particularly from sexual exploitation, required the courts to impose severe sentences for such offences.  She added that a deterrent sentence was called for because possession of child pornography encouraged an industry that exploited and harmed children.  She noted that the protection of children should be given more weight than the rehabilitation of the offender, and for this reason, she was of the view that the applicant’s clear record carried little weight.  There can be no criticism of the judge’s analysis of the relevant sentencing principles and her observations of the seriousness of this egregious offending.

20.  The judge applied the sentencing guidelines in Secretary for Justice v Man Kwong Choi,[2] where the Court of Appeal considered that a sentence for a first-time offender after trial for possession of child pornography based on the level of depiction:[3]

(i) Level 1 – a community service order, probation or fine was appropriate with a number of depictions was small (20 or fewer) but where the numbers were large or the depictions were extremely suggestive, custodial sentences of 1 to 6 months’ imprisonment would be appropriate;

(ii) Level 2 – this was more serious than mere posing and depending on the number of depictions, an immediate custodial sentence of up to 9 months was appropriate;

(iii) Level 3 – depending on the number of depictions, custodial sentences of 6 to 12 months would be appropriate; and

(iv) Level 4 – these merited the most serious treatment and custodial sentences generally of 12 months (even for a few images) to 36 months would be appropriate. 

21.  The Court of Appeal also noted that aggravating features would include the following:[4]

(i)  a previous record involving similar offences against children;

(ii)  the age of the children depicted;

(iii) the purpose for which the defendant possesses the depictions, whether he intends to disseminate the images for commercial or non-commercial gain or intends to publish them; and

(iv)   the number of images.

22.  The judge took into account the number of videos and the images that they depicted as well as the aggravating factor of the range of the ages of the children depicted in the images of 5 to 15 years old. As for Charge 13, the judge adopted a starting point of 2 years and 6 months’ imprisonment which she reduced by one third for the applicant’s guilty plea to 1 year and 8 months’ imprisonment. 

23.  As for the offences under Charges 1 to 12, involving sexual acts between the applicant and the victim, as well as video recording or photographing those sexual acts, the judge took into account the very young age of the victim when he was first sexually assaulted by the applicant and how it continued for a protracted period with increasing depravity.  She also took into account the trauma suffered by the victim and the profound and damaging effect it had on him.

24.  The judge considered that an overall term of 10 years and 6 months’ imprisonment would be an appropriate starting point for all thirteen charges.  She divided up the charges into three groups.  The first group concerned the sexual assault charges and the making of child pornography (Charges 1 to 9).  The second group concerned the buggery charges (Charges 10 to 12).  The third group concerned the possession of child pornography (Charge 13).  She determined that an overall term of 7 years’ imprisonment was appropriate for all thirteen charges after taking into account the one third discount for the applicant’s guilty plea as well as the totality principle.

25.  In respect of the buggery offences, the judge did not have the benefit of the decision of HKSAR v Yeung Ho-nam,[5] as it was handed down after the judge had passed sentence in this case.  She did, however, take into account the constitutional challenge to the statutory sentence under section 118C of the Crimes Ordinance in Yeung Chu-wing v Secretary of Justice[6] and the remedial interpretation of the maximum sentence to 5 years’ imprisonment, which was approved by the Court of Appeal in Yeung Ho-nam.

26.  The judge explained that even though the victim was a willing participant, he was not an equal partner to the arrangement.  She noted that the applicant offered inducements to the victim, from the age when he was about 10 years old, which made the victim succumb and compliant to his sexual demands.  She also noted that whilst the victim consented to engage in the sexual acts, it was because the victim was preyed upon and exploited successfully by the applicant.  She took into account the remedial interpretation in relation to the statutory penalty of the offence but considered the facts of the case warranted a sentence close to the maximum of 5 years’ imprisonment for Charges 10 to 12.

27.  The judge reasoned and calculated the sentences as follows:

“I find a term of 10 years and 6 months starting point would have been appropriate for all 13 charges if the defendant had been convicted after trial. For the purposes of sentencing, I intend to group the offences as follows.

The indecent assault charges and the making of child pornography as one group, that is, Charges 1 to 9, the buggery charges as the second group, Charges 10 to 12, and the last charge, Charge 13, possession of child pornography, which do not include the images of X, as separate and on its own.

For the offences of making child pornography, the sentences ought to run concurrently with the sexual offences to which they are related, the indecent assault charges. The starting point of the sexual offences reflect the aggravating factor of the defendant recording the acts, therefore, it is not appropriate to pass anything but concurrent sentences.

An overall term of 7 years’ imprisonment is appropriate for all 13 charges after taking into account his pleas and the benefit of a one-third discount, as well as the totality principle. I shall now pass individual sentences for each offence, and effectively pass concurrent terms within each group, but consecutive to the other groups, except for Charge 13. I will make the indecent assault and making child pornography sentences concurrent with each other, but consecutive to the buggery charges, and part-consecutive to the possession of downloaded child pornography.

I sentence the defendant as follows.

Charge 1 was committed when X was 10 or 11, and induced into touching the defendant’s penis. I take a starting point of 2 years’ imprisonment.

Charge 2 was committed when X was about 12, performed oral sex on the defendant who filmed it. A starting point of 4 years and 6 months.

Charge 3, making level 4 child pornography by filming that sexual act, a starting point of 3 years.

Charge 4, committed when X was 13 when X posed erotically in his school uniform exposing his penis in a public place, a starting point of 3 years.

Charge 5, making child pornography by filming Charge 4, a starting point of 2 years and 6 months.

Charge 6, committed when X was 14, who performed oral sex on the defendant who filmed it, a starting point of 4 years and 6 months.

Charge 7, making level 4 child pornography by filming the sexual act, a starting point of 3 years.

Charge 8, committed when X was 14, who performed oral sex on the defendant who filmed it, a starting point of 4 years and 6 months.

Charge 9, making level 4 child pornography by filming that sexual act, a starting point of 3 years.

Charge 10, attempted buggery when X was about 14 years old, a starting point of 4 years.

Charge 11, buggery when X was about 15, a starting point of 4 years and 6 months.

Charge 12, buggery when X was about 15, a starting point of 4 years and 6 months.

Charge 13, possession of 80 videos of child pornography where the majority were level 4, a starting point of 2 years and 6 months.

For the defendant’s plea, he is entitled to a discount of one-third. After that discount is applied, the defendant is sentenced to the following.

Charge 1, 1 year and 4 months’ imprisonment.

Charge 2, 3 years’ imprisonment.

Charge 3, 2 years’ imprisonment.

Charge 4, 2 years’ imprisonment.

Charge 5, 1 year and 8 months’ imprisonment.

Charge 6, 3 years’ imprisonment.

Charge 7, 2 years’ imprisonment.

Charge 8, 3 years’ imprisonment.

Charge 9, 2 years’ imprisonment.

Charge 10, 2 years and 8 months’ imprisonment.

Charge 11, 3 years’ imprisonment.

Charge 12, 3 years’ imprisonment.

Charge 13, 1 year and 8 months’ imprisonment.

  To reflect the term of 7 years’ imprisonment after a plea, I order the 3 years of Charge 11 to run consecutively to the 3 years of Charge 2, making a total of 6 years.  I then order 1 year of Charge 13 to run consecutively to Charges 2 and 11. This partly consecutive sentence of Charge 13 is to reflect the totality principle.  The remainder of the terms in each charge will run concurrently to all terms of imprisonment.”

Discussion

28.  Mr Victor Lee, with Mr Charles Lee, for the applicant, advances five grounds of appeal against sentence.  The essence of these grounds is the starting points adopted and the resultant sentences on the charges, either individually or cumulatively were wrong in principle and manifestly excessive.

29.  I do not find the grounds of appeal to be reasonably arguable.  They focus on the individual sentences without consideration of the overall criminality, which involved multiple and prolonged sexual abuse of the victim and the harm suffered by the victim, as well as the applicant’s predilection for sexual gratification with under aged males.  

30.  I do not consider in the circumstances of the offences and the offender in this case that the total sentence of 7 years’ imprisonment is likely to be disturbed by the Court of Appeal.

Ground 1

31.  In Ground 1, it is complained the starting points adopted by the judge for the buggery offences of 4 years’ imprisonment on Charge 10, and 4 years and 6 months’ imprisonment on Charges 11 and 12 were excessive in the circumstances, bearing in mind that the maximum penalty is now 5 years’ imprisonment. 

32.  Mr Lee contends the judge inappropriately adopted starting points that were close to the maximum of 5 years’ imprisonment, and also failed to take into account the applicant’s clear record and the victim’s age at the time of the commission of the offences.  I fail to see how a clear record or the age of the victim helps the applicant in the circumstances of these offences.

33.  The offences took place in 2016 and 2017, when the victim was 14 or 15 years old, against a background of prolonged grooming and sexual abuse.  The applicant persistently sought to have anal intercourse with the victim, who eventually succumbed to the applicant’s advances, through financial inducements.  There is also the important consideration that the victim had been severely traumatised by the sexual exploitation of him by the applicant. 

34.  Mr Lee argues that the offences did not have the presence of serious aggravating factors, such as, the infliction of a sexually transmitted disease or physical injury, intimidation, breach of trust, recording the sexual acts for commercial purposes, multiple victims, or sadistic and gang activities.  I note that most of these factors would result in either additional charges or other charges of a more serious kind being laid.  The facts and circumstances of the case warranted that the sentences for the buggery offences be at the high end of the scale of the penalty.

35.  It is also important to note the judge treated the three buggery offences as a group and imposed concurrent terms of imprisonment.  I accept that the starting points are high but the judge has made the sentences concurrent when they should have been partially consecutive for the multiple offences involved.  As a consequence, the end result is the same.

36.  Mr Lee also seeks to compare these sentences with the sentence imposed by this Court in the subsequent judgment of Yeung Ho-nam.  There is little if any comparison between these two cases, save they involved the same offence provision of buggery with an underage male.  In Yeung Ho-nam, this Court concluded that in the “unusual and unique circumstances” of the case, the offending conduct was at the low end of the scale of the offence.[7]

Ground 2

37.  In Ground 2, it is complained that the starting points adopted by the judge for the offences of indecent conduct with a child under Charges 2, 6 and 8 were manifestly excessive.  The offences involved the victim performing oral sex on the applicant, who video recorded the sexual acts, and stored the recordings on his mobile telephone.  The offences occurred on 24 December 2014, 3 March 2016 and 24 September 2016, when the victim was 12 and 14 years old. 

38.  Mr Lee complains that the starting points were as high as the ones imposed for the buggery offences (Charges 11 and 12), and higher than ones imposed in other cases, which he argues involved more serious offending: HKSAR v Lee Hon Wah and Yan Tsz Ho;[8] HKSAR v Wong Ying-ho;[9] and Secretary for Justice v Wong Tsz Kin.[10]

39.  This submission fails to take into account that the indecent conduct was video recorded and stored by the applicant on his mobile telephone, which constituted making Level 4 child pornography.  The victim was aware the incidents had been recorded and kept by the applicant which caused him considerable anguish and shame as disclosed in the psychologist’s report.  This was a serious aggravating factor, which warranted enhancement of the sentences of the offences of indecent conduct with a child. This explains why the judge made the sentences on the corresponding offences of making child pornography concurrent with the sentences on the offences of indecent conduct with a child.

40.  Again, it should be noted that the judge treated the sexual assault offences and the making of child pornography offences as a group and imposed concurrent terms of imprisonment.  Since multiple offences were involved, the sentences should have been partially consecutive, and as a consequence the ultimate sentence would have been the same if the offences were considered individually and after the application of the totality principle.

Ground 3

41.  In Ground 3, it is complained that the starting points imposed by the judge for the offence of indecent conduct with a child under Charge 4 and the corresponding offence of making child pornography under Charge 5 were manifestly excessive.  The charges reflect an incident on 25 April 2015 when the victim was 13 years old.  The applicant took two photographs of the victim in school uniform, displaying erotically his penis. This was done in the staircase of the building.

42.  The judge adopted starting points on Charges 4 and 5 of 3 years’ imprisonment and 2 years and 6 months’ imprisonment respectively.  She reduced each sentence by one third for the applicant’s guilty plea and made the sentences concurrent.  This she did because the offence of making child pornography was an aggravating factor of the offence of indecent conduct with a child.  The total sentence for these two related offences was 2 years’ imprisonment.

Ground 4

43.  In Ground 4, it is complained that the starting point adopted by the judge for the offence of possession of child pornography on Charge 13 was manifestly excessive.  The judge adopted a starting point of 2 years and 6 months’ imprisonment which she reduced by one third for the applicant’s guilty plea to 1 year and 8 months’ imprisonment.

44.  Mr Lee argues the judge should have adopted a starting point of less than 2 years’ imprisonment when compared with sentences of similar cases.  He contends a starting point of no more than 24 months’ imprisonment was appropriate and the resultant sentence should not have been higher than 16 months’ imprisonment.

45.  According to the sentencing guidelines in Man Kwong Choi, an appropriate sentencing range for the amount and type of pornographic material in the present case is one between 12 months and 36 months’ imprisonment.[11] The judge adopted a starting point of 2 years and 6 months’ imprisonment which fell within this range, and given the nature and quantity of the pornographic material possessed by the applicant, it is not reasonably arguable that this sentence was excessive. 

Ground 5

46.  In Ground 5, it is complained that the overall sentence of 7 years’ imprisonment was wrong in principle and manifestly excessive.

47.  The focal point of the applicant’s challenge to his sentence is the total sentence imposed on him by the judge for the overall criminality involved.  I do not believe that the total sentence of 7 years’ imprisonment will be disturbed on appeal. 

48.  The key aggravating features in this case were the age difference between the applicant and the victim; the exploitation of the victim by inducement of monetary rewards; the repeated sexual abuse, with increasing indecency, of the victim over a prolonged period, from when the victim was 10 to 15 years old; the taking and keeping of sexually explicit videos and photographs of the victim; and the trauma and psychological harm suffered by the victim. 

49.  The judge’s analysis and reasoning of the relevant sentencing principles and their application to this case cannot be faulted.  She took into account the sentencing principles laid out by this Court in HKSAR v Lee Kwok Wai,[12] which she noted applied to Charges 1 to 12.  She also noted the observations of this Court in HKSAR v Chow Yuen Fai,[13] where it was stressed that in sentencing sexual offences against young children, the sentencing court must consider the background of the defendant, whether there is a risk of reoffending and the impact of the offences on the victim and his or her family.  The Court also stressed that the sentence must reflect the abhorrence of the public to these offences and the need for deterrent sentences.

50.  The judge noted that a similar view was expressed in relation to the making of child pornography, which was to be treated more seriously than mere possession.  She referred to the principles and guidance provided in Man Kwong Choi.[14]  In her overall assessment of the case, she concluded, with justification in my view, that the applicant’s conduct demonstrated paedophilic tendencies, and she took into account the following relevant factors:

“(a) The significant age difference between the defendant and X. There was a 15-year age gap, and X was only 10 or 11 when first assaulted by the defendant;

(b) The defendant has used at least, inducements to make X succumb falling prey to his licentious exploitation;

(c) The number of occasions he committed the offences and the repeated course of conduct during a span of over four years;

(d) The fact that the defendant did not take any safety precautions, a lack of condoms worn on all occasions;

(e) The fact that the offences have caused serious psychological trauma to the victim and has had an impact on his family life;

(f) Whether the defendant is psychologically imbalanced or paedophilic and what is the likelihood of him reoffending with children. The psychologist’s report says there is a high risk;

(g) The additional aggravating factors of the defendant keeping a record of some of the offences, and for the buggery offences, the non-use of a condom was particularly serious.”[15]

51.  As pointed out by Mr Lenny Cheng, for the respondent, it is not appropriate to look at the offences and the sentences imposed in isolation without regard to the overall criminality involved and the impact on the victim. 

52.  The individual grounds of appeal failed to consider that the judge approached the sentencing exercise in this case by grouping the offences into their appropriate categories.  She made the sentences concurrent when clearly some degree of partial consecutiveness was required because multiple offences were involved.  I am of the view, however, that the ultimate sentence would have been the same even if the offences had been sentenced individually and after taking into account the multiplicity of the offences and the totality principle.  It was also important to take into account the relevant factors that have been identified by this Court when dealing with child sex cases. 

53.  It is therefore important to bear in mind that the offending behaviour occurred against the background of a young boy being groomed by the applicant over a period of nearly 5 years.  The applicant, a person with paedophilic tendencies and a high risk of reoffending, first abused the victim when he was just 10 or 11 years old and continued thereafter with increased regularity and indecency.  It was an admitted fact that the victim had performed sexual acts on the applicant on multiple occasions, according to a payment system devised by the applicant, which represented a particularly serious aggravating factor because of its corrupting influence.[16]    

54.  The grooming of a child by an adult to ultimately sexually exploit the child can take many forms.  It usually commences with the adult cultivating a friendship and trust with the child by engaging in seemingly innocent and innocuous conversations and activities while the child is cajoled and steered into a sexual liaison, which is made all the worse through calculated inducements or enticements.  This is such a case and that is why I do not think the total sentence will be disturbed on appeal.

Conclusion

55.  It follows from what I have said that I do not consider there is merit in this application for leave to appeal against the sentence of 7 years’ imprisonment imposed on the applicant by the judge, and accordingly leave is refused.

Warning

56.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

[1] [2008] 5 HKLRD 519.

[2] [2008] 5 HKLRD 519.

[3] At [17].

[4] At [18].

[5] [2020] 1 HKLRD 91.

[6] [2019] 3 HKLRD 238.

[7] At [80] and [86].

[8] [2011] 4 HKLRD 319.

[9] Unrep., CACC 165/1999, 13 October 1999.

[10] Unrep., CAAR 8/1998, 25 August 1998. 

[11] See also HKSAR v Ipp Tin Fan [2016] 4 HKLRD 486, at [28].

[12] [2012] 2 HKLRD 239, at [13].

[13] [2010] 1 HKLRD 354, at [25].

[14] At [17] and [20].

[15] Appeal Bundle, 7T – 8H.

[16] See HKSAR v Lau Chi-Cheung [2008] 4 HKLRD 432, at [17].