Case Detail

CACC 363, 364 & 370/2019
(Heard together)

[2021] HKCA 1579

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 363, 364 & 370 OF 2019

(ON APPEAL FROM HCCC NO 227, 352 & 228 OF 2019)

_______________

	HKSAR	Respondent
	v
	Lai Wing Tat (黎永達)	Appellant

_______________

Before: Hon Zervos and Anthea Pang JJA in Court

Date of Hearing: 22 October 2021

Date of Judgment: 22 October 2021

Date of Reasons for Judgment: 19 November 2021

__________________________________

R E A S O N S F O R J U D G M E N T

__________________________________

Hon Zervos JA (giving the Reasons for Judgment of the Court):

Introduction

1. With leave from a Single Judge,[1] the present consolidated appeal concerns the total sentence of 9 years’ imprisonment imposed upon the appellant on 12 December 2019 by Maggie Poon J (“the judge”) after he pleaded guilty to the following counts[2]:

(i) in HCCC 352/2019, two counts of unlawful sexual intercourse with a girl under the age of 16 years, contrary to section 124(1) of the Crimes Ordinance, Cap 200 that occurred in September and November 2017;
(ii) in HCCC 228/2019, two counts of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Cap 200 both of which occurred in February 2018; and
(iii) in HCCC 227/2019, one count of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Cap 200 that occurred in May 2018.

2. We found there was no basis to interfere with the sentence and the appeal was dismissed. We indicated we would hand down our reasons in due course and this we now do.

The brief facts of the cases

3. This is a very serious case involving the sexual exploitation and abuse of underage girls. The appellant pleaded guilty in respect of three separate and distinct cases, involving five offences of having unlawful sexual intercourse with three young girls, variously under the age of 13 years[3] and 16 years.[4] The appellant was in his mid-twenties when he committed these offences. It was quite apparent he would target young girls whom he abused and violated by having unprotected sexual intercourse with callous disregard to the consequences or harm to his young victims.

4. The first case involved two counts of unlawful sexual intercourse with a girl under the age of 16 years. The two offences occurred in September and November 2017 respectively. At the time of the first offence, the appellant was 24 years and the victim, Z, was 13 years. He was in a relationship with Z and had protected sexual intercourse with her. By the time of the second offence, the appellant was 25 years and Z was 14 years, but on this occasion, he had unprotected sexual intercourse with her.

5. The appellant became acquainted with Z through friends in around January 2017 and developed a relationship with her. In July 2017, Z was in protective care, which she left and commenced living with the appellant. In December 2017, Z realised she was pregnant and in August 2018 gave birth to a baby who was given up to foster care. The appellant was the biological father of the baby.

6. The appellant stated under caution that Z was his girlfriend and they were in a sexual relationship during which they sometimes had protected sex and sometimes did not. He was aware that Z was 13 to 14 years of age.

7. The second case also involved two counts of unlawful sexual intercourse with a young girl, but this time the victim was under the age of 13 years. The two offences occurred in February 2018, not long after the offences in the first case. At the time, the appellant was 25 years and the victim, Y, was 12 years and attending school. She became acquainted with the appellant, and on an evening in February 2018, she was socialising with him and another male until the early hours of the morning. As she could not get public transportation home, she accepted the appellant’s invitation to stay at his home. Once there the appellant made sexual advances to her. He removed her clothing and had unprotected sexual intercourse with her. He ejaculated in Y. Soon after there was another occasion when Y was socialising with the appellant and other friends. Again, because public transport was not available, she accepted the appellant’s invitation to stay at his home. He again made sexual advances to her and had unprotected sexual intercourse with her. He ejaculated in Y. As she was scared she was pregnant, she related the two incidents to a school social worker who reported the matter to the police.

8. The third case involved one count of unlawful sexual intercourse with a girl under the age of 13 years. The offence occurred on 19 May 2018. The appellant was 25 years and the victim, X, was 12 years. In the early morning on 19 May 2018, X arranged with her girlfriend to meet up with her and others. The appellant then contacted her to arrange to pick her up. She had met the appellant previously through her friends. When the appellant met her, at his instigation, he bought some beers and then walked to a nearby public park where they sat down. She did not drink any of the beer. All of a sudden he made her stand up while he grabbed her. He told her to sit on his lap and pulled her down onto his thighs. He told her that he had a row with his girlfriend and he liked her. She told him that she did not like him. Then with one hand he held her by the waist, while he put his other hand inside her shorts and fondled her private parts with his fingers. He then carried her to a stone table nearby and laid her on top of it. He pulled down his pants and inserted his penis through one of the legs of her shorts into her vagina. X felt pain when this happened, as she was a virgin. He was not wearing a condom and continued having sexual intercourse with her. He suddenly stopped and pulled up his trousers because he thought someone was nearby. X then left and immediately took a taxi to find her friends to tell them what had happened. She bumped into the appellant and her girlfriend some days later, but refused to speak to him as she was embarrassed by what had occurred and was scared he would do it again.

9. X did not make a report to the police because she was worried about her mother finding out what had happened to her. It was a week or two later when she was being medically examined, as she was due to go to boarding school, that she revealed the incident to the doctor. Her mother was present at the time.

The sentencing of the appellant

10. At the time of sentence, the appellant was 27 years of age. He had five prior convictions,[5] one of which was for unlawful sexual intercourse with a girl under the age of 13 years for which he was sentenced to 14 months’ imprisonment on 15 January 2014, some four years before he committed the present offences.[6]

11. For the purpose of sentencing, reports were obtained and submitted to the judge from a probation officer, a psychiatrist and a psychologist in respect of the appellant.

12. It was submitted on the appellant’s behalf that the reports showed he was not mentally abnormal, there was insufficient evidence to suggest he was paedophilic, and the age gaps between the appellant and his victims was not too great. However, it was accepted the clinical psychologist was of the opinion the appellant’s risk of reoffending was very high. It was also accepted it was an aggravating factor that Z became pregnant and had given birth, but it was emphasised they were in a relationship at the time. It was further submitted on the appellant’s behalf that the relevant victim impact reports showed the victims did not suffer from very serious psychological trauma from the offences.

13. Having considered the facts surrounding each of the appellant’s offences, the judge addressed the impact of his conduct on each of the victims.[7] X’s report showed her functioning was significantly disrupted during the period she was expected to testify in court against the appellant. She was still suffering from the psychological aftermath of the offences and required psychological intervention. Y exhibited a degree of self-blame for sleeping at the appellant’s home but did not suffer subjective symptoms or distress warranting psychological intervention. Whilst Z declined to be seen by the clinical psychologist and no assessment could be made of her, the judge remarked that it was not difficult to gauge “the long-term impact upon her who gave birth at such an early stage of her life when she herself has not yet even reached full maturity.”[8]

14. After a review of the appellant’s background and mitigation, the judge considered the reports on him. She noted the appellant had a previous conviction which was of similar nature to the present offences. In that earlier offence, the appellant had taken a 12-year-old girl, with whom he had only just became acquainted, to a flat where he had unprotected sex with her twice. At that time, there was nothing more to show he was paedophilic, or he was likely to reoffend, so a starting point of only 21 months’ imprisonment was adopted.

15. The judge took the view the appellant clearly had not learned his lesson from his previous incarceration. Even though the appellant was not diagnosed as being paedophilic following the present offences, the judge commented his sexual problem was not limited to the need for casual relationships but rather “a preference for underage girls”.[9] She added that while the appellant was not diagnosed with any mental illness, the reports showed he was “preoccupied with sex and harboured bias perception that it would be lawful for him to have sex with anyone, regardless of their ages, as long as they gave consent”.[10]

16. The judge found the appellant displayed a lack of remorse and empathy for his victims.[11] She referred to the fact he had served a term of imprisonment in 2014 for having sexual intercourse with an underage girl, and yet he still claimed in relation to the three girls in the present cases, he had no knowledge of their ages and had sex with X and Y on their initiation. She observed the appellant was downplaying or diminishing his role in the interview with the clinical psychologist, and concluded: “He exploited the young victims to gratify his sexual needs and to minimise the offences. He blamed X and Y for their mature looks and initiations for his misdeeds.”[12]

17. The judge cited Secretary for Justice v Chung Yui Hung, unrep., CAAR 11/2006, 21 December 2006, which concerned a teacher who had groomed a 12-year-old for sex through the Internet and had unprotected sexual intercourse with her. Upon a review of sentence, the Court of Appeal held the facts of the case revealed a particularly grave offence, the sentence for which needed to contain a deterrent element. The Court adopted a starting point of 5 years, saying a long sentence would be called for, even for a first offender, where the circumstances warrant it. Whilst the judge noted the present case did not share the same aggravating feature of grooming an underage girl for sex, she found that the present cases “contain the aggravating features of more than one victim, unprotected sex and pregnancy resulting therefrom. Furthermore, given his past conviction of a similar offence, commission of the present offences show that the reoffending has become a reality rather than just a risk.”[13]

18. The judge then addressed the sentence to be passed in respect of each case.

19. In the case of Z (HCCC 352/2019), the judge adopted a starting point of 2 years and 6 months for the first count and 4 years for the second count from which pregnancy resulted. When discounted by one third for the appellant’s guilty plea, the starting points then became 20 months and 32 months respectively. Having regard to totality, the judge ordered 4 months of the first count to run consecutively to the sentence in respect of the second count, making a total sentence of 3 years’ imprisonment.

20. In the case of Y (HCCC 228/2019), the judge adopted 4 years as the starting point for each of the two counts, which after the one third discount for the appellant’s guilty plea became 32 months. Having regard to totality, the judge ordered 4 months of the first count to run consecutively to the sentence in respect of the second count, making a total sentence of 3 years’ imprisonment.

21. In the case of X (HCCC 227/2019), the judge took the view that the appellant’s conduct was borderline rape and adopted 6 years as the starting point. After a one third discount for the appellant’s guilty plea she sentenced him to 4 years’ imprisonment.

22. As for the overall culpability of the appellant, the judge considered a starting point of 13 years and 6 months for the offences was appropriate. After a one third discount for the appellant’s guilty plea, this resulted in a sentence of 9 years’ imprisonment. She achieved this total sentence of 9 years’ imprisonment by ordering that 30 months out of the sentences in the cases of Z and Y each to run consecutively to the 4 years’ imprisonment in the case of X.[14]

The appellant’s submissions

23. Ms Karen Cheung, for the appellant, submitted the judge was wrong to have considered the facts in HCCC 227 of 2019 as bordering on rape. She argued the starting point of 6 years’ imprisonment was not consistent with the sentences imposed in other cases involving offences contrary to section 123. She referred to HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432 and R v Cheung Hon Ki, unrep., CACC 28 of 1996, 19 June 1996. She further argued the normal starting point, even in cases involving the offence of rape, before taking into account aggravating features, was 5 years’ imprisonment.

24. In respect of HCCC 228 of 2019, Ms Cheung submitted the sentence of 4 years’ imprisonment was excessive when compared with other cases involving offences contrary to section 123. She argued there was no issue of manipulation by the appellant and his relationship with Y was due to friendship. She also argued other than the appellant having unprotected sex with Y there were no other aggravating factors present.

25. Ms Cheung mounted a similar argument in respect of HCCC 352 of 2019. She stressed the relationship between the appellant and Z was due to friendship and there was no issue of manipulation. Whilst she accepted that the second offence involved the appellant having unprotected sex with Z, which resulted in her becoming pregnant and giving birth, she argued there were no other aggravating factors present. She also argued the sentence was not consistent with other cases for the same offence.

26. As for the overall starting point of 13 years and 6 months, Ms Cheung submitted it dealt the appellant a crushing blow and the judge misapplied the totality principle.

The respondent’s submissions

27. Mr Andrew Cheng, for the respondent, contended the offending against X (HCCC 227 of 2019) was borderline rape and the judge was correct to have described in such a way. He argued the overall sentence of 3 years in respect of the counts concerning Y (HCCC 228 of 2019) and Z (HCCC 352 of 2019) could not be described as manifestly excessive, bearing in mind Y was under 13 years, and Z had become pregnant and given birth. He noted there were numerous aggravating features present in the cases, such as, the wide age gap; Z becoming pregnant and giving birth; the psychological aftermath to the victims; the appellant’s lack of remorse; the appellant’s previous criminal conviction; and his high risk of reoffending. He also noted that all things considered the appellant’s culpability was greater than that of the defendant in HKSAR v Yeung Ho Nam [2020] 1 HKLRD 91, on which the appellant sought to rely.

28. Whilst acknowledging the sentence of 9 years’ imprisonment was high, Mr Cheng submitted this did not mean that the totality principle had been misapplied. In the circumstances of this case, he contended the sentence was just and proportionate.

Discussion

29. This Court in HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 highlighted various factors that should be considered when assessing the gravity of the offending in respect of cases of sexual assault on children. These provide a useful reference when considering the circumstances of this case.

“8. The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.
9. The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:
(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 in the case;
(3) Whether the defendant had used threats or inducements to make the victim succumb;
(4) The number of occasions of committing the offences and the duration of the offences;
(5) Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;
(6) Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;
(7) Whether the sexual abuses have caused physical or psychological trauma to the victim;
(8) Whether the offences have impact on the family members of the victim;
(9) Whether the defendant was involved in other inappropriate behaviour such as inviting other people to watch or take photos or videos of the offence he committed; and
(10) Whether the defendant is psychologically imbalanced and paedophilic; and the likelihood of re-offending.”
See HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, 香港特別行政區訴吳家健 (unrep., CACC 328/2010, [2011] CHKEC 982) and HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239.”

30. In the present case, the victims were extremely vulnerable and very impressionable, and as a consequence were susceptible to exploitation because of their ages and circumstances. The applicant was significantly older than his victims. He used his age to cajole and lull them into a false sense of companionship in order to exploit them for his own sexual gratification.

31. We found no basis to interfere with the total sentence of 9 years’ imprisonment imposed on the appellant. He is a recidivist for this type of offence as revealed by his past and present convictions. His prior conviction of having unlawful sexual intercourse with an underage girl in 2014 and these three recent cases disclose a worrying and disturbing trend by him in repeatedly committing this offence. The first two counts took place in September and November 2017, the next two counts, on another victim, took place in February 2018, and the last count, on yet another victim, took place in May 2018. The applicant had already got Z pregnant, who was due to give birth, when he embarked on his grossly improper conduct with Y and X, who were both 12 years. He had unprotected sexual intercourse with Y and ejaculated inside her, causing her to fear she might be pregnant. He next had sexual intercourse with X, who was a virgin, which was aptly described as borderline rape. It is a matter of concern that the appellant’s repeated sexual offending became progressively more serious.

32. We should mention that the psychiatric report in respect of the appellant was fairly brief. Whilst the psychiatrist was of the opinion the appellant was not suffering from mental illness, as to the appellant’s sexual proclivities he qualified his opinion by stating there was “no strong suggestion” he was paedophilic. The clinical psychologist on the other hand, in a lengthy report, was of the opinion the appellant’s risk of reoffending was very high. He was also of the opinion the appellant’s unlawful sexual intercourse with the underage girls was to gratify his sexual and intimacy needs regardless of the legal consequences, and he displayed an “anti-social personality disorder characterised with his recklessness, irresponsibility and repeated violations to the law”. He strongly recommended psychological treatment focusing on his intimacy skills, personality problem, and distorted thinking on sexuality.

33. In our view, the judge carefully addressed the facts and circumstances of the case in assessing the appropriate sentence to be imposed upon the appellant. She clearly bore in mind the relevant sentencing principles, namely denunciation of the appellant’s conduct and protection of the community, given the risk of the appellant’s reoffending, and that the sentence should act as both a specific and general deterrent for the criminality involved.

34. The offences the applicant committed were very serious and called for opprobrium punishment. The judge was correct in finding the appellant has a proclivity for young girls. That was clearly evident from his past and present conduct. The age and vulnerability of his victims allowed him to manipulate and control them and take total advantage of them. He abused his victims in a callous manner, wholly indifferent to the harm and consequences his offending behaviour may cause them at the time and in the future.

35. We consider the starting points and the consecutiveness of the sentences in respect of each case of Z and Y could have been higher, given Z became pregnant and gave birth, and Y was 12 years in respect of the two offences in which the appellant had unprotected sex with her, having ejaculated in her. The case of X was very disturbing. He had sexual intercourse with a 12-year-old virgin in a forcible manner. We also consider the starting point in that case could have been higher in the circumstances.

36. The appellant’s offending was seriously aggravated by the involvement of multiple offences with multiple victims, the ages of his victims, the significant age difference between himself and his victims, the present and future trauma to his victims, and that he was a repeat offender with a high risk of reoffending. When taking into account the totality of the sentences, it had to be borne in mind that the appellant’s criminality involved a series of three separate and distinct offences and that the community needed to be protected from the high risk of him reoffending.

37. The offences of unlawful sexual intercourse of an underage girl are there to protect the young. The young are at an age and stage of their development where they are more readily influenced or controlled by others, particularly older persons or persons in authority. They are less likely to appreciate the consequences of their circumstances or decisions, and less able to stand up for themselves, and appropriately respond when being manipulated or wronged. It is a young person’s vulnerability that the law seeks to protect, and the harmful consequences that may flow when a young person is sexually exploited and abused by another that the law seeks to prevent. When a serious offence of this type takes place, it warrants a sentence that sends out a strong message of denunciation and deterrence.

Conclusion

38. In light of the foregoing reasons, we were satisfied there was no basis to interfere with the sentence imposed on the appellant. He is a repeat offender who prayed on young and vulnerable girls with total disregard to their well-being, and whose sexual exploitation and abuse of them was callous and insensitive. In our view, he was appropriately sentenced and deserving of the severe punishment he received.

(Kevin Zervos)	(Anthea Pang)
Justice of Appeal	Justice of Appeal

Mr Andrew Cheng, SPP, of the Department of Justice, for the respondent

Ms Karen Cheung, instructed by Ernest Tang, Solicitors, for the appellant

[1] HKSAR v Lai Wing Tat[2020] HKCA 892, per McWalters JA.

[2] They are set out in chronological order based on the date of commission of the offences.

[3] Contrary to section 123 of the Crimes Ordinance, Cap 200, liable on conviction on indictment to imprisonment for life.

[4] Contrary to section 124(1) of the Crimes Ordinance, Cap 200, liable on conviction on indictment to imprisonment for 5 years. See HKSAR v Yeung Ho Nam (No 1) [2020] 1 HKLRD 91.

[5] In addition to his prior similar conviction, since 2009 the appellant had one conviction for “Criminal Damage”, contrary to section 60 of the Crimes Ordinance, Cap 200; one conviction for “Breach of Probation Order”, contrary to section 5 of the Probation of Offenders Ordinance, Cap 298; one conviction for “Robbery”, contrary to section 10(1) of the Theft Ordinance, Cap 210, and one conviction of “Common Assault”, contrary to section 40 of the Offences Against the Person Ordinance, Cap 212.

[6] In DCCC 1107/2013, the appellant (just under 21 years) got acquainted with the victim girl (then aged 12 years and 10 months) on the day in question and took her to a flat. He had unprotected sex with her. The judge said there was no evidence that he was psychologically imbalanced or paedophilic or that he was likely to reoffend, and therefore adopted a starting point of 21 months. Upon a guilty plea, the appellant was sentenced to 14 months’ imprisonment: AB, 26F-I.

[7] AB, 25L-S.

[8] AB, 25M-N.

[9] AB, 26K.

[10] AB, 26L-N.

[11] AB, 26K-R.

[12] AB, 26P-R.

[13] AB, 27N-Q.

[14] AB, 28Q-T.

CACC 363, 364 & 370/2019
(Heard together)

[2020] HKCA 892

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 363, 364 & 370 OF 2019

(ON APPEAL FROM HCCC 227, 352 & 228 OF 2019)

------------------------

BETWEEN
	HKSAR	Respondent
and
	LAI WING TAT (黎永達)	Applicant

------------------------

Before: Hon McWalters JA in Court

Date of Hearing: 23 October 2020

Date of Judgment: 23 October 2020

Date of Reasons for Judgment: 6 November 2020

__________________________

REASONS FOR JUDGMENT

__________________________

A. Introduction

1. The present consolidated application concerns the sentences passed upon the applicant, who had pleaded guilty in the High Court before M Poon J (“the judge”) to the following counts[1]:

(i) in HCCC 352/2019 , two counts of unlawful sexual intercourse with a girl under the age of 16 years, contrary to section 124(1) of the Crimes Ordinance, Cap 200 that occurred in September and November 2017;
(ii) in HCCC 228/2019, two counts of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Cap 200 both of which occurred in February 2018; and
(iii) in HCCC 227/2019, unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Cap 200 that occurred in May 2018.

2. On 12 December 2019, the judge sentenced the applicant to a total term of 9 years’ imprisonment.

3. The applicant subsequently filed Notices of Application for Leave to Appeal (“Form XI”) against his sentences.

4. At the hearing of the applications I granted the applicant leave to appeal his sentences on all grounds of appeal and said I would hand down my reasons for doing so at a later date. These are my reasons.

B. The background to the offences

B.1 HCCC 352/2019

5. Around January 2017, Z, who was only 13 years old at that time, became acquainted with the then 24-year-old applicant through her friends. Z informed the applicant that she was aged 13.

6. Z originally resided in a dormitory. In July 2017 she escaped from it and started living with the applicant at his home in Sheung Shui, where they had protected consensual sexual intercourse in mid-September 2017 when Z was still 13 years old, and unprotected consensual sexual intercourse after she had just turned 14. Later Z became pregnant and eventually delivered a baby.

7. A DNA test confirmed that the applicant was the biological father of the baby, who was then put under the care of a foster family. Under caution, the applicant stated that Z was his girlfriend and they were in a sexual relationship during which they sometimes had protected sex and sometimes not. He was aware that Z was 13 to 14 years old.

B.2 HCCC 228/2019

8. Y, who was only 12 years old, became acquainted with the applicant. One evening in early February 2018, Y was with the applicant and a male friend till the very late hours, by which time all public transport services had ceased operation. As Y could not go home, she accompanied the applicant to his home. When they arrived there his family was sleeping.

9. Y and the applicant slept on a sofa bed in the living room. They then had unprotected sexual intercourse and the applicant ejaculated in Y.

10. In mid-February 2018, Y was with the applicant and some friends in Sheung Shui and again stayed out so late that all public transportation had ceased operating. The applicant asked Y to go to his home again where they had unprotected sexual intercourse in which the applicant ejaculated in her.

11. As Y was worried about getting pregnant, she related the two incidents to a social worker who then reported the case to the police. In a video-recorded interview the applicant denied having sexual intercourse with her.

12. The applicant was positively identified by Y in an identification parade.

B.3 HCCC 227/2019

13. X, who was only 12 years old, met the applicant, who was then 26 years old, through her friends. On the night of 19 May 2018, the applicant met X and took her with him to buy some beer before walking to a park near Tin Ping Estate, Sheung Shui. There the applicant consumed some beer but X did not. It was about 4 am.

14. He told X that he had had a row with his girlfriend and that he liked X but she said she did not like him.

15. The applicant then carried X and laid her down on a stone table nearby, where he held her with one hand and used his other hand to undo his pants. Without removing the shorts that X was wearing he inserted his penis into one of the legs of her shorts and then had unprotected sex with her. At that time X was still a virgin and she felt pain during the sexual intercourse, which lasted for several minutes. The applicant only stopped because he thought someone was nearby. He was later positively identified by X in an identification parade.

16. It should be noted that the count to which the applicant pleaded guilty was in fact laid in the alternative to a count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap 200. The rape count was ordered to be left on the court file and not be proceeded with without the leave of the court.

C. The sentencing of the applicant

C.1 The mitigation

17. The applicant was 27 years old at the time of his sentence. He had five prior convictions[2] one of which was for unlawful sexual intercourse with a girl under the age of 13 for which he had been sentenced to 14 months’ imprisonment on 15 January 2014, some four years before he committed the present offences.

18. For the purpose of sentencing the applicant, three reports on him were sought. They were a Probation Officer’s Report, a psychiatrist’s report and a psychologist’s report. It was submitted that the reports showed that the applicant was not mentally abnormal, there was insufficient evidence to suggest that he was paedophilic and the age gaps between the applicant and his victims were not huge. However, the applicant’s counsel accepted that it was the clinical psychologist’s opinion that the applicant’s risk of re-offending was very high.

19. In relation to HCCC 352/2019, the applicant’s counsel accepted that it was an aggravating factor that he had impregnated Z, although admittedly they were in a relationship at that time. It was put forward on the applicant’s behalf that he in fact wished to win back the custody of the baby.

20. The applicant’s counsel asked the judge to note that the relevant “Victim Impact Reports” showed that the victims did not suffer from very serious psychological trauma from the offences.

C.2 The judge’s Reasons for Sentence

21. Having considered the facts surrounding each of the applicant’s offences, the judge addressed the impact of the offences on each of the victims. X’s report showed that her functioning was significantly disrupted during the period she was expected to testify in court against the applicant, and she was still suffering from psychological aftermaths from the offences that required psychological intervention. Y exhibited a degree of self-blame for sleeping at the applicant’s home which rendered her his victim but did not suffer subjective symptoms or distress warranting psychological intervention. Lastly, the judge noted that whilst Z refused to be seen by the clinical psychologist and no assessment could be made of her, it was not difficult to gauge “the long-term impact upon her who gave birth at such an early stage of her life when she herself has not yet even reached full maturity.”[3]

22. The judge then turned to the applicant’s background, the reports on him and the matters submitted to her in mitigation. She noted that the applicant had a conviction which was of similar nature in the District Court. She therefore called for the case file in order to understand the circumstances of his prior conviction. In that earlier offence the applicant had taken a 12-year-old girl, whom he had just come to know before he committed the offence, to a flat and there they had unprotected sex twice. At that time there was no evidence to show that he was paedophilic nor was there any evidence to demonstrate his propensity to re-offend, and so a starting point of only 21 months was adopted.

23. Unsurprisingly, the judge took the view that the applicant clearly had not learnt his lesson from his previous incarceration. Even though the applicant was not diagnosed as being paedophilic, the judge commented as follows:

“It is clear that the defendant’s sexual problem is not limited to a need for casual relationships but rather a preference of underage girls.”[4]

24. Though he was not diagnosed with any mental illness, the reports showed:

“He was preoccupied with sex and harboured biased perception that it would be lawful for him to have sex with anyone, regardless of their ages, as long as they gave consent.”[5]

25. He continued to claim that he had no knowledge of the girls’ ages and to blame X and Y for initiating the sexual intercourse. The risk of his re-offending was assessed to be very high, and psychological treatment was highly recommended.

26. The judge concluded her view of the applicant by stating:

“It is clear that what the defendant was doing when interviewed by the clinical psychologist was simply trying to downplay or diminish his role. He exploited the young victims to gratify his sexual needs and he minimized the offences. He blamed X and Y for their mature looks and initiations for his misdeeds. He lacked remorse and victim empathy.”[6]

27. The judge referred to Secretary for Justice v Chung Yui Hung[7], which concerned a teacher who had groomed a 12 year old for sex through the internet and had unprotected sexual intercourse with her. Upon a review of sentence, the Court of Appeal held that the facts of that case revealed a particularly grave offence, the sentence for which needed to contain a deterrent element. It adopted a starting point of 5 years, saying a long sentence would be called for, even for a first offender, where the circumstances warranted.

28. Whilst the judge noted that the present case did not share the same aggravating feature of grooming an underaged girl for sex, she found the following aggravating features present. First of all, more than one victim was involved. Secondly, unprotected sexual intercourse took place which eventually led to the pregnancy of one of the young victims and thirdly the possibility of the applicant’s re-offending “has become a reality rather than just a risk.”[8]

29. In relation to HCCC 352/2019, the judge adopted a starting point of 2½ years for the first count, and 4 years for the second count from which pregnancy resulted. When discounted by one-third these starting points then became 20 months and 32 months respectively. Having regard to totality, the judge ordered four months of the first count to run consecutively to the sentence in respect of the second count, making a total of 3 years’ imprisonment.

30. Regarding the two counts in HCCC 228/2019, the judge adopted 4 years as the individual starting point for each of the counts which, when discounted by one-third, became 32 months’ imprisonment for each count. Having regard to totality, the judge ordered the four months of the first count to run consecutively to the sentence in respect of the second count, making a total of 3 years’ imprisonment.

31. In respect of the single count in HCCC 227/2019, the judge took the view that the applicant’s act of pushing X onto the bench and having unprotected sex with her caused this offence to be “one close to borderline with rape”[9] and therefore adopted 6 years as the starting point. She allowed him the full one-third discount[10] and sentenced him to 4 years’ imprisonment.

32. On the overall culpability of the applicant, the judge said that she adjudged that “a starting point of 13½ years for all the offences is appropriate. And given his one-third discount, he is sentenced to 9 years’ imprisonment.”[11] In order to achieve this total sentence of 9 years’ imprisonment, the judge ordered “30 months out of the cases of 325 and 228 each to run consecutively to the 4 years’ in 227 which means that 4 years plus 30 months plus 30 months, making a total of 9 years’ imprisonment.”[12]

D. The applicant’s grounds of appeal

33. Mr Andy Hung, counsel for the applicant, raises six grounds of appeal in his Perfected Grounds of Appeal. In Grounds 1-3 he complains that the starting points for the individual counts in all three cases are manifestly excessive and out of line with sentences imposed in other similar cases. In Grounds 4-6 he complains that the judge erred in her assessment of the applicant’s overall culpability by adopting an overall starting point of 13½ years, and her failure in applying the totality principle resulted in an unduly crushing sentence of 9 years’ imprisonment upon the applicant, which is manifestly excessive in the circumstances.

E. The respondent’s submission

34. Mr Andrew Cheng, for the respondent, opposed the application. He submitted that there is no tariff for the offences under sections 123 and 124 of the Crimes Ordinance, Cap 200 and that given the age of the victims, the impact on them and the aggravating factors the starting points for each of the offences were not excessive.

35. On totality Mr Cheng argued that the offences against X, Y and Z were undoubtedly distinct and separate, and the applicant’s repeated offending would have inevitably added to his culpability in subsequent offences as observed by the Court of Appeal in the case of HKSAR vNgai Yiu Ching[13]. The judge could not, therefore, be criticised for ordering partly consecutive sentences.

36. Mr Cheng fairly accepted that the final total sentence appears to be a high one but argues that in respect of this applicant and these offences a severe deterrent sentence was appropriate and necessary.

F. Discussion

37. I have carefully considered the Reasons for Sentence of the judge and can find no obvious error by her in assessing the appropriate sentence for this applicant. The judge clearly bore in mind the relevant sentencing principles, namely denunciation of applicant’s conduct, deterrence, both general and personal, protection of the community given the risk of recidivism and punishment of the offender for his offending.

38. These are clearly very serious offences which call for a severe penalty. The judge was correct in saying that the applicant has a preference for young girls. It may be a preference due to ego and ability to manipulate and control, rather than paedophilic tendencies, but the preference is clearly there. It is a preference which he implements in an abusive, totally selfish way, wholly indifferent to the harm his actions may cause his victims.

39. For all the reasons identified by the judge, the total sentence of imprisonment on this applicant must be a lengthy one. The only question is how long it should be. There is no doubt, as is accepted by Mr Cheng, that the judge’s final total sentence is at the high end of the range. The question it seems to me is whether the sentence, by its severity, has ended up becoming a crushing one. This is primarily an issue of totality. Not without some hesitation, I have reached the view that it is reasonably arguable, and I put it no higher than that, an overall sentence of 13½ years is manifestly excessive.

40. In respect of the individual sentences I find the grounds of appeal less impressive and I have anxiously considered whether I should grant leave on Grounds 1-3. I have decided I should as it seems to me unnecessarily artificial to consider the totality issue on its own and unhelpful to the applicant and the Court of Appeal to limit the way the appeal is conducted.

41. Before concluding these Reasons for Judgment I should point out one matter which may need correction. In respect of those victims for whom two charges were laid the judge reached a view of the appropriate totality for each set of two charges. There is nothing wrong in her so doing. But when it came to her final sentence she made orders of consecutiveness in respect of her totality for each set of offences without specifying the particular sentence or sentences in respect of which the order of consecutiveness would operate. I question whether this can be done under section 68 of the Criminal Procedure Ordinance, Cap 221.

G. Disposition

42. For these reasons I granted the applicant leave to appeal against his sentences.

	(Ian McWalters)
	Justice of Appeal

Mr Andrew Cheng SPP, of the Department of Justice, for the respondent

Mr Andy Hung, instructed by Ernest Tang, assigned by DLA, for the applicant

[1] They are set out in chronological order based on the date of commission of the offences.

[2] In addition to his prior similar conviction, since 2009 the applicant had one conviction for “Criminal Damage”, contrary to section 60 of the Crimes Ordinance, Cap 200; one conviction for “Breach of Probation Order”, contrary to section 5 of the Probation of Offenders Ordinance, Cap 298; one conviction for “Robbery”, contrary to section 10(1) of the Theft Ordinance, Cap 210, and one conviction of “Common Assault, contrary to section 40 of the Offences Against the Person Ordinance, Cap 212.

[3] Appeal Bundle, page 25M-N.

[4] Appeal Bundle, page 26K.

[5] Appeal Bundle, page 26L-M.

[6] Appeal Bundle, page 26P-R.

[7] CAAR 11/2006, unreported, 21 December 2006.

[8] Appeal Bundle, page 27Q.

[9] Appeal Bundle, page 28L.

[10] There was an issue of whether the applicant was entitled to a full one-third discount for this offence given the circumstances surrounding his plea but the judge decided that as the applicant had always offered to plead guilty to the alternative offence she would award him the full discount for his guilty plea.

[11] Appeal Bundle, page 28Q-R.

[12] Appeal Bundle, page 28R-T.

[13] [2011] 5 HKLRD 690.

HKSAR v. LAI WING TAT

Related cases with same parties

Files (2)