HKSAR v. IPP TIN FAN

CACC 9/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 9 OF 2016

(ON APPEAL FROM DCCC NO. 685 OF 2015)

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REASONS FOR JUDGMENT

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1.  The applicant sought leave to appeal against the sentences of 12 months’ imprisonment and 28 months’ imprisonment imposed by District Court Judge Sham on 16 December 2015, following the applicant’s pleas of guilty on 23 November 2015 to a charge of making child pornography on 6 May 2015, contrary to section 3(1) of the Prevention of Child Pornography Ordinance, Cap. 579 and an offence of indecent assault on a girl of 13 years of age on the same date, contrary to section 122(1) of the Crimes Ordinance, Cap. 200. The judge ordered that the sentence of 28 months’ imprisonment imposed in respect of Charge 2 was to be served consecutively to 6 months of the sentence of 12 months’ imprisonment imposed in respect of Charge 1, so that the total sentence imposed on the applicant was 34 months’ imprisonment. At the hearing I granted the applicant leave to appeal on three grounds of appeal against sentence. I said that I would give my reasons for doing so in due course. That, I do now.

The facts

2.  The applicant accepted the Summary of Facts as the basis of the judge accepting his pleas of guilty to the two charges.  The victim of the two offences, Ms X, was born on 15 May 2001 and was 13 years and 11 months of age at the time of the offences.  She responded to an advertisement posted by the applicant on an online private modelling forum, which sought to recruit part-time models.  The applicant was aware that she was under 16 years of age.  Having exchanged messages via WhatsApp, Ms X agreed to be photographed naked in return for the payment of $1,400.

3.  On the afternoon of 6 May 2005, they met at an exit of Prince Edward MTR station and went together to a guesthouse in Mongkok where the applicant rented a room.  Having undressed and having taken a shower, Ms X allowed the applicant to take photographs of her with his i-Phone while she was naked.  As he did so he hugged, kissed and touched her all over her body, inserting his thumb into her vagina.  He filmed that act.  He placed his erect penis next to her vagina and took photographs of their private parts and her breasts.  She refused his request for oral sex, after which he masturbated to ejaculation by the side of the bed while she lay on the bed.  After spending one hour together in the room, they left.

4.  The matter came to light on 12 May 2015, when Ms X’s mother read Ms X’s description of those events in her diary, after which she reported the incident to a social worker.  The incident was reported to the police on 13 May 2015.  On that date, having arranged a meeting with the applicant at an exit to Prince Edward MTR station, Ms X pointed out the applicant to police officers.

5.  Having been arrested and cautioned the applicant admitted the events described earlier.  Further, he accepted that he had transferred some of the photographs and videos from his i-Phone to his desktop computer, which computer was seized by police officers from the applicant’s home.  It contained 67 photographs and four video recordings, most of which were close-ups of Ms X’s private parts.  The video recordings ranged in length from 20 to 39 seconds.  One of the video recordings depicted the applicant’s penis in a condom next to Ms X’s private parts.  Another video recording depicted the applicant’s thumb partially inserted into Ms X’s vagina.  Three photographs were of Ms X’s identity card.

6.  Three of the video recordings and 18 of the still images were of Level 1 [1] and one video recording and 46 still images were of Level 3 [2] of the classification set out in the judgment of this Court in the Secretary for Justice v Man Kwong Choi [3], which provided guidelines for sentence for possession of child pornography involving real children.  A child being a person under 16 years of age.

Reasons for sentence

7.  The Judge adjourned sentencing the applicant for the preparation of a report of a psychologist on the applicant.  Of that report, he said Mr Charles Pau, a clinical psychologist of the Correctional Services Department said of the circumstances of the commission of the offence that:

“ (he) began to have an idea of photo shooting of teen model early this year (2015), and such idea eventually led to the commission of the present offences. The defendant admittedly felt sexually excited and lost control when he saw the girl naked; he subtly blamed the girl for luring him to commit the present offences.”

8.  The judge went on to note that it was the psychologist’s opinion that, “no deviant sexual interest was detected in him and his risk of re-offending was assessed to be low-moderate.”

9.  In his reasons for sentence, the judge acknowledged that the applicant was a man of good character of 41 years of age who enjoyed a 12 year relationship with his girlfriend.  Also, he noted that he ran a company designing software for business use.  The judge said that the applicant had “experienced stress from his work and in his intimate relationship.”

10.  Of the “victim impact statement” in respect of Ms X, the judge noted that:

“ the girl said that after receiving psychological treatment, she is confirmed to have no psychological problem. Everything is normal in her life and she does not suffer any adverse effects such as anxiety or insomnia as a result of the case.”

11.  Of the indecent assault, the judge noted that it, “went on for quite some time during which the defendant at times even inserted his finger into the girl’s vagina”.  Then, the judge said:

“ the incident as a whole was very serious indeed given the substantial age difference between the two, and what the defendant actually did to her (the indecent assault). Whichever way one looked at it, the defendant was guilty of sexual exploitation of a young girl by inducement of monetary reward. Vulnerable victims like the young girl in the case are in need of protection from abuses from adult offenders.

The defendant did not simply molest the young girl and then walked off without leaving any trail; he kept a record of what transpired between them in the form of photographs and videos obviously for his future viewing and enjoyment. ”

12.  Of the fact that the applicant had taken photographs of Ms X’s identity card, the judge said that it was not known what he would do with the information, but it was beyond the control of Ms X.  Of those circumstances, the judge determined that it added “to the overall criminality of the defendant”.

13.  Of the issues of totality of sentence and whether or not it was appropriate to order some or all of the sentence on one charge to be served consecutively to the sentence imposed on the other charge, and the judge cited a passage in the judgment of this Court, delivered by Stock VP, in HKSAR v Ngai Yiu Ching that resolution of the issue:

“ will depend upon an assessment of the totality appropriate for the conduct as a whole. As with most sentencing exercises, the approach is an art, sensitive to the individual circumstances of the case and the offender.”

Grounds of appeal against sentence

14.  By grounds 1 and 2 of the grounds of appeal against sentence advanced by Mr Oliver Davis on behalf of the applicant, it was submitted that the judge had erred in stipulating starting points for sentence of 18 months’ imprisonment in respect of Charge 1 and 42 months’ imprisonment in respect of Charge 2.  In the course of the hearing, Mr Davies applied for and was granted leave to amend the grounds of appeal to add ground 3, namely that the judge “erred in not making the sentences for charges 1 and 2 wholly concurrent.”  He did so after the Court had drawn his attention to the fact that this Court, in the judgment delivered by Ma CJHC, in HKSAR v Chow Yuen Fai [4] had approved of the judge’s order, in a case involving multiple offences including indecent assault and making child pornography, that the sentences of imprisonment imposed for the offences of making child pornography be served concurrently to the sentences of imprisonment imposed for the “corresponding offences” of indecent assault.[5]

Charge 1

15.  Of the starting point for sentence on Charge 1, namely 18 months’ imprisonment, Mr Davies invited the Court to note that in the judgment of this Court in HKSAR v Chow Yuen Fai [6] this Court did not disturb a sentence resulting from a starting point stipulated by the judge of 2 years’ imprisonment for offences of making child pornography, in which boys of 8, 11 and 13 years of age were involved, which depicted acts by the applicant of penetration by his penis, his finger and an object in the anus of a boy, together with images of the applicant ejaculating over a boy and the applicant masturbating a boy.  Mr Davies contended that the circumstances of the commission of the offence by this applicant were “far less serious”.

Charge 2

16.  Of the starting point for sentence of 42 months’ imprisonment stipulated by the judge for Charge 2, Mr Davies acknowledged that there was a substantial age difference between the applicant and Ms X.  However, he submitted that the only aggravating factor was the age of Ms X.  He submitted that no “force, threat of violence” was used and that the indecent assault did not continue for long.  Furthermore, Ms X did not suffer any long-term injury or trauma.  Having drawn the Court’s attention to the principles of sentence relevant to offences of indecent assault, and the factors to which the court was to have regard, identified in the judgment of this Court in the Secretary for Justice v Huang Long Wei,[7] Mr Davies submitted that the fact that Ms X suffered no “ill effects” was relevant to sentence.  Further, he submitted that no breach of trust was involved, the incident did not last long and the applicant performed no act without the consent of Ms X.

17.  In addition, Mr Davies invited the court to have regard to the circumstances of the commission of offences and the sentences imposed in other cases the subject of consideration by this Court.[8]  In HKSAR v Lee Hon Wah [9] this Court considered a starting point of 18 months’ imprisonment was appropriate for an offence of indecent conduct with a child under the age of 16, a boy of 14 and a half years of age who had performed oral sex on the applicant for money.

18.  In Attorney General v Ho Yu Ping [10] [1996] 1 HKC 555 this Court considered an application for the review of sentences of 6 months’ imprisonment, ordered to be served concurrently, imposed on the applicant for five charges of indecent assault of his female pupils, aged 10 to 13 years of age.  He was a schoolteacher in their Primary School.  Yang CJ in the judgment of this Court noted of the indecent assaults that they,[11] “were of a minor nature: these consisted of stroking of the armpits and breasts and, on one occasion, the hip.  There were two occasions when he embraced or pressed his body against a girl.”  Yang CJ said that the appropriate starting point for sentence was 18 months’ imprisonment.[12]

19.  In HKSAR v Tsang Cho Kiu [13] this Court said that a starting point for sentence of 3 years’ imprisonment was appropriate for an offence of indecent conduct towards a child under the age of 16 years, in circumstances in which the victim, a girl of less than 14 years of age, allowed the applicant, a man of 22 years of age, to touch her breasts and private parts and rub his penis against her private parts over her underpants.  The victim was one of four girls who had arranged to go with the applicant to a hotel room in which he took photographs of them.  Two of the other girls, one aged less than 14 years of age and the other 14 years and one month, masturbated the applicant.  That conduct was the subject of two other charges of indecent conduct, for which this Court also approved the starting point taken for sentence of 2½ years’ imprisonment.  The applicant paid the girls $800 for their services.

The respondent’s submissions

20.  For the respondent, Mr Daryanani opposed the grant of leave to appeal against sentence.  He submitted that reference to judgment of this Court in which sentences were approved of it in cases of indecent assault and making child pornography was of limited assistance since the “particular sentence in anyone case must depend on the individual facts of that case.” [14]

Charge 1

21.  Mr Daryanani invited the Court to note that the offence of making child pornography, contrary to section 3(1) of the Prevention of Child Pornography Ordinance was more serious than the offence of possession of such material, contrary to section 3(3) of that ordinance.  The former provided for a maximum sentence of imprisonment on 8 years’ and 3 years’ imprisonment on conviction on indictment and on a summary conviction respectively.  By contrast, the maximum sentence of imprisonment for the offence of possession of such material was 5 years’ and 2 years’ imprisonment on conviction on indictment and on summary conviction respectively.  He suggested that the judge appeared to have treated Charge 1 as one of possession of child pornography, rather than making child pornography.  Further, he suggested that, “…the judge appeared to have treated the photographing and filming of the victim as an aggravating factor of the 2^nd charge.” [15]

Charge 2

22.  Mr Daryanani suggested that factors relevant to the circumstances of the commission of the offence, included: the age difference of 28 years between the applicant and Ms X; that the applicant was “guilty of sexual exploitation of a young girl by inducement of monetary reward”;[16] that the applicant had inserted his finger into Ms X’s vagina and asked her to perform oral sex.

23.  Mr Daryanani submitted that the starting points taken for sentence in respect of each of the charges was in the appropriate range, as was the total sentence of imprisonment that the judge had imposed on the applicant, given that the notional overall starting point for sentence was 51 months’ imprisonment, which after discount resulted in the total sentence of 34 months’ imprisonment imposed on the applicant.

Ground 3

24.  Mr Daryanani submitted that, although the Court in HKSAR v Chow Yuen Fai had approved of the judge’s order in making the sentences of imprisonment imposed for offences of making child pornography concurrent to the sentences of imprisonment imposed for the corresponding offences of indecent assault, it had done so in the context of having regard to the overall totality of sentence.  He invited the Court to note that Ma CJHC had said:[17]

“ 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.”

A consideration of the submissions

25.  In the course of the hearing the court had sight of an album of photographs made from the images and watched the disk containing the four video found on the applicant’s computer.  One of the video films depicts the applicant’s erect penis in a condom being rubbed against the entrance to the open vagina of Ms X.  Another depicts the applicant’s thumb being moved in a reciprocal motion as it was inserted within her vagina.

26.  As Mr Daryanani pointed out in his helpful written submissions, in the judgment of this Court in HKSAR v Chow Yuen Fai Ma CJHC said:[18]

“ 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 sentence in previous cases are often of limited assistance.”

27.  Although Mr Davies was correct to point out that in that case the Court did not disturb the starting point for sentence of 2 years’ imprisonment stipulated by the judge for the counts of making child pornography, it is relevant to note that Ma CJHC went on to say:[19]

“ In another case, we would not have disturbed a sentence that adopted as a starting point a term of three years imprisonment.”

28.  The range of offences committed by the applicant in that case was described by Ma CJHC:

“ (a) 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.

(b) 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.

(c) 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).

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

29.  Ma CJHC went on to note the various sentences imposed by the judge on the appellant:

“ (a) 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.

(b) 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.

(c) 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).

(d) 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.”   [Italics added.]

30.  In determining the appropriate sentences to be imposed in respect of the indecent assault counts, this Court made express reference to the two counts in which photographs and video recordings had been made, which conduct was the subject of separate counts of making child pornography:[20]

“ (b) 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.

(c) ..

(d) 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.”  [Italics added.]

31.  This Court went on to approve of the judge’s approach of ordering that the sentences of imprisonment imposed in respect of the counts of making child pornography to be served concurrently with the sentences of imprisonment imposed in respect of the related count of buggery and the counts of indecent assault:[21]

“ 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.

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.”

32.  Finally, in addressing the appropriate overall sentence to be imposed on the applicant, Ma CJHC said:[22]

“ For the offence of making child pornography, the sentences ought to be served concurrently with the offences to which they are related.”

33.  With respect to Mr Daryanani, his submission that the court’s approval of the fact that the judge had ordered those sentences to be served concurrently with the sentences imposed for the corresponding offences of indecent assault is to be viewed in the context of the court having regard to the appropriate totality of sentence is not made out.  As is apparent it was in the context of the sentences imposed for the separate offence of possession, not making, of child pornography that the Court said:

“ 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.”

34.  As Mr Daryanani has submitted it appears, at least it is arguable, that the judge “considered the photographing or filming as an aggravating factor of the 2^nd charge”.  The judge said:[23]

“ The indecent assault went on for quite some time during which the defendant at times even inserted his finger into the girl’s vagina. The only saving grace was that he was able to control his lusts not to have unlawful sex with the girl; when he was refused oral sex, he simply masturbated in her presence.

Notwithstanding the absence of unlawful sex, the incident as a whole was very serious indeed given the substantial age difference between the two, and what the defendant actually did to her (the indecent assault). Whichever way one looked at it, the defendant was guilty of sexual exploitation of a young girl by inducement of monetary reward. Vulnerable victims like the young girl in the case are in need of protection from abuses from adult offenders.

The defendant did not simply molest the young girl and then walked off without leaving any trail; he kept a record of what transpired between them in the form of photographs and videos obviously for his future viewing and enjoyment.”

35.  In those circumstances, it is arguable that, if the judge had regard to the making of the child pornography as a factor of aggravation in the commission of the indecent assault, it was not appropriate to order the two sentences of imprisonment to be partially consecutive.  In any event, having regard to the determination of this Court in HKSAR v Chow Yuen Fai[24] that the judge’s order that the sentences of imprisonment imposed in that case for the offences of making child pornography be served concurrently to the sentences of imprisonment imposed for the “corresponding offences” of indecent assault, in my judgment is reasonably arguable that the judge erred in ordering in effect that six months of the sentence of imprisonment imposed on the one charge be served consecutively to that imposed for the other charge.

36.  In all the circumstances, in particular given the absence of any tariffs for sentence and the limited number of comparators for the offences of making child pornography and indecent assault and having regard to the difficulty in determining the appropriate sentence in the particular circumstances of the commission of those offences, without giving the applicant any expectation of success, in my judgment grounds 1 and 2 are also reasonably arguable.

Conclusion

37.  Accordingly, I granted leave to appeal against sentence.