HKSAR v. LEE KWOK WAI

CACC 289/2021, [2024] HKCA 538

On Appeal From [2022] HKCFI 92

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 289 OF 2021

(ON APPEAL FROM HCCC NO 49 OF 2021)

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REASONS FOR JUDGMENT

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Hon Macrae Acting CJHC (giving the Reasons for Judgment of the Court):

1.  The appellant pleaded guilty to 5 charges before a magistrate and was duly committed for sentence to the High Court, where he appeared before Toh J (“the judge”) on 16 November 2021. After confirming his pleas, the judge called for various reports on both the victim and the appellant. On 9 December 2021, the judge sentenced the appellant to 9 years and 4 months’ imprisonment in respect of the following five counts on an indictment:

(1)  Homosexual buggery with a man under the age of 16 years[1] (Count 1), for which he was sentenced to 3 years and 4 months’ imprisonment;

(2)  Indecent conduct towards a child under the age of 16 years[2] (Count 2), for which he was sentenced to 4 years’ imprisonment;

(3)  Indecent assault[3] (Count 3), for which he was sentenced to 2 years and 4 months’ imprisonment;

(4)  Making child pornography[4] (Count 4), for which he was sentenced to 1 year and 4 months’ imprisonment;

(5)  Publishing child pornography[5] (Count 5), for which he was sentenced to 2 years’ imprisonment.

2.  The judge ordered 2 years of the sentence on Count 2 to run consecutively to the sentence on Count 1; 2 years of the sentence on Count 3 to run consecutively to the sentences on Counts 1 and 2; the whole of the 2-year sentence on Count 5 to run consecutively to the total sentences on Counts 1, 2 and 3; while the sentence on Count 4 was ordered to run concurrently with the sentences on Counts 1, 2 and 3; thus arriving at an overall sentence of 9 years and 4 months’ imprisonment.

3.  On 14 October 2022, the appellant was granted leave to appeal against his overall sentence by the Single Judge[6]. However, on 21 March 2024, having heard arguments from the parties, we dismissed the appeal and said we would hand down the reasons for our decision in due course. These are our reasons.

The facts admitted

4.  In the early hours of 9 September 2019, the appellant, who was then 46 years of age, accosted a 15-year-old boy (referred to throughout these proceedings as “X”) on his way to a self-service laundry in Shek Kip Mei, Kowloon. He proceeded to entice X to come home with him, by claiming to be very rich and offering to support his living expenses by becoming his “father”. X agreed to go to the appellant’s home, and they both boarded a taxi.

5.  When they arrived at the appellant’s home in Chai Wan, Hong Kong, the appellant took away X’s mobile telephone. The appellant undressed himself and said he wanted to have sex with X, whom he wished to be his “wife”. He pressed X down on his bed and undressed him, whilst kissing him on the mouth and face, and licking his ear and body. Subsequently, the appellant committed the five offences referred to above, which we shall deal with in more detail in chronological sequence.

Count 2 - Indecent conduct towards a child under the age of 16 years

6.  Having removed X’s clothes, which X tried to resist but in vain, the appellant and X had a shower together, during which the appellant touched X’s genitals and made X touch his genitals. After the shower, he pulled X into the bedroom where, after they had chatted naked for a while, he kissed and licked him again before requesting X to perform oral sex on him. X complied unwillingly for about 10 minutes.

Count 1 - Homosexual buggery with a man under the age of 16 years

7.  The appellant later applied some lubricant to his finger and repeatedly inserted his finger into X’s anus. He then penetrated X’s anus with his penis, without wearing a condom. The sexual activity continued for about 20 minutes in different sexual positions, culminating in the appellant ejaculating inside X’s anus, which activity the appellant photographed on his mobile telephone. The appellant then took X into the shower again to wash him.

Count 4 - Making child pornography

8.  During the course of the incidents of oral sex and buggery, the appellant took both photographs and videos. Subsequently, 12 pornographic photographs depicting X’s naked body including his genitals and anus, and 9 videos capturing the acts of oral sex and buggery, were found on the appellant’s mobile telephone.

Count 3 - Indecent assault

9.  The appellant insisted that X sleep naked with him that night, telling X that he had to do so since he was now his “wife”. During the night, the appellant rubbed X with his penis, kissed him and fondled his body and genitals. As a result, X did not dare to fall asleep. On the three occasions when X tried to get up, he was pulled back down onto the bed by the appellant.

Count 5 - Publishing child pornography

10.  Further examination of the appellant’s mobile telephone revealed that on the same day, the appellant had sent two of the photographic files and three of the video files to another person, who also happened to be a minor, via WhatsApp.

Report to the police

11.  In the morning of 9 September 2019, having missed several calls from his mother, X told the appellant that he had to go because he was worried he would miss school. However, he was only permitted to leave, after promising to return to the appellant’s home later. X was further persuaded to give his contact details to the appellant. Having left the appellant’s home, X immediately called his mother and the matter was duly reported to the police the same day.

Arrest and cautioned statements

12.  The police arrested the appellant on the following day. Under caution, the appellant admitted that he had had sex with a boy the day before, and that it was wrong for him to have done so. He made further statements in the course of three video recorded interviews (“VRI”) to the following effect:

(i)  he had met X at about 3:00 am and asked him if he was willing to be his boyfriend; X had replied that since his family was “in a mess” and his father had left home, he wanted the appellant to be his “father”;

(ii)  he invited X to his home for sex; X agreed after first confirming that he had no sexual diseases, but X requested money from the appellant, saying that he was willing to do everything if the appellant would buy him a computer;

(iii)  he learned that X was a 15-year-old Form 2 student;

(iv)  he detailed the sexual activities he had had with X, and how he had given HK$80 to X and obtained his contact details; and

(v)  he said he took the photographs and videos for his own records, but admitted that he had sent some of them to another person, whom he said was a Form 1 schoolboy, to prove that he had had buggery with a boy.

Medical Examination of X

13.  A medical examination performed in the afternoon of the day of the incident revealed two superficial mucosal splits in X’s lower rectum, which were consistent with recent penile penetration of the anus.

Background of the appellant and mitigation

14.  The appellant was, at the time of sentence, a 48-year-old divorced man with a 12-year-old son. He had one previous court appearance, during which he was convicted after trial in the High Court of more than 10 similar offences, including homosexual buggery, indecent assault and making child pornography[7], for which he received a sentence of 12 years’ imprisonment. He was released from prison for those offences on 29 July 2018.

15.  Acknowledging that the appellant was a paedophile, it was contended by defence counsel in mitigation that his condition as noted in his psychiatric report was stable and he showed no signs of mental disturbance.

16.  In respect of the commission of the present offences, it was submitted that after the appellant was discharged from prison in 2018, he had continued to take prescribed drugs in order to supress his sexual urges, had regular follow-up treatment and scheduled his work so as to avoid any potential contact with young boys during the day; however, it was also said that on the day of the incident, he had forgotten to take those drugs.

17.  So far as the question of reoffending was concerned, the appellant had apparently promised to check the age of his sexual partners more carefully in future. However, the judge was not convinced by this suggestion, commenting that such a promise was hardly encouraging in light of his previous convictions[8].

18.  With regard to the sentencing factors set out in HKSAR v Lee Kwok Wai[9], an appeal case which derived from this appellant’s previous court appearance when sentenced to 12 years’ imprisonment, it was submitted that only the age difference, the failure to use protection, the trauma to X and the impact on X’s family members were relevant to the present case.

19.  Defence counsel urged the court to consider the fact that Counts 1-5 were committed within a short time frame, and should, therefore, be treated on a concurrent basis. However, if there were to be a consecutive element between the two sets of sentences for Counts 1-3 and 4-5, the resulting sentence should be subject to the totality principle.

Reasons for sentence

20.  The judge observed that the appellant had caused significant trauma to a 15-year-old boy: X had ultimately refused to receive psychiatric treatment and counselling because he did not want to recall these events, and had declined help from professional psychologists to deal with his suicidal ideation. Moreover, the appellant had been released from prison just over one year before the present offence. If he was taking medication, it obviously had not helped him.

21.  In respect of Count 1, having referred to the sentences in Yeung Chu Wing v Secretary of Justice[10]and HKSAR v Yeung Ho Nam[11]as well as the factors considered in Lee Kwok Wai, the judge identified certain matters as relevant to sentence in the present case: (i) there was a large age gap between the appellant and X; (ii) the appellant had spent a full night with X, during which he had committed various offences; (iii) there was some physical pressure exerted on X, albeit not unnecessary violence; (iv) there was a potential health hazard since no condom was used; (v) physical injury had been caused to X’s anus; (vi) severe psychological trauma had been caused to X and his family; (vii) the appellant had made and published pornographic photographs and videos of X; (viii) the appellant was a paedophile; as a result of which, (ix) the risk of reoffending was evidently high, given his relatively recent release from prison for similar offences.

22.  The judge took a starting point of 4 years’ imprisonment on Count 1 and increased it to 5 years’ imprisonment for various aggravating factors, including the age differential; the absence of protection; the trauma to X and his family; the risk of reoffending; the deliberate preying on an innocent victim on the street; and the need for deterrence. This she reduced to 3 years and 4 months’ imprisonment for the appellant’s guilty plea.

23.  On Count 2, the judge considered that the offence was committed on an unwilling victim pulled off the street; that the appellant had not merely touched X’s penis but also made X touch his; and that X had been made to perform oral sex on the appellant against his will. She adopted a starting point of 6 years’ imprisonment, which she reduced to 4 years’ imprisonment for the appellant’s guilty plea.

24.  In respect of Count 3, the judge noted that the appellant had molested and indecently assaulted X throughout the night, pulling him back onto the bed on the three occasions when he tried to get up. She adopted a starting point of 3½ years’ imprisonment, which she reduced to 2 years and 4 months’ imprisonment for his guilty plea.

25.  In respect of the child pornography offences, the judge adopted a starting point of 2 years’ imprisonment on Count 4, reducing it to 1 year and 4 months’ imprisonment for the appellant’s guilty plea; while on Count 5, the judge adopted a starting point of 3 years’ imprisonment, which she reduced to 2 years’ imprisonment for the guilty plea.

26.  In addressing the issue of totality, the judge considered Counts 1, 2 and 3 to be separate and distinct offences, ordering that 2 years of the sentence on Counts 2 and 3 should run consecutively to the sentence on Count 1. For the same reason, 2 years of the sentence on Count 5 was ordered to run consecutively to the sentences on Counts 1, 2 and 3; while the sentence on Count 4 was ordered to run concurrently.

Appellant’s submissions

27.  Mr Beel, on behalf of the appellant, submitted that the factual circumstances of Count 2 could not be said to be more egregious than the conduct in Count 1; accordingly, a similar starting point of no more than 4 years’ imprisonment should have been adopted.

28.  In respect of the totality argument, he argued that the offences formed a continuing incident involving a single victim. There was no direct violence or threat of force; at most, there was coercion. In the circumstances, the nominal starting point of almost 14 years’ imprisonment for all the offences, which was calculated using the final sentence of 9 years and 4 months after plea, was manifestly excessive.

29.  Counsel did not accept that Counts 1-3 were separate and distinct offences, contending that they formed part of one ongoing sexual activity on a single occasion. Accordingly, the sentences should all have been concurrent.

30.  Alternatively, Mr Beel submitted that the criminality involved in Count 3, in the context of the incident as a whole, was relatively minor in nature, and there should have been no consecutive element ordered in respect of this offence; while, in respect of Counts 1 and 2, only 1 year of the sentence on Count 2 should have been ordered to run consecutively to Count 1. Allowing for a consecutive element in respect of Count 5, it was contended that the total sentence should have been in the region of 6 years and 4 months’ imprisonment.

Respondent’s submissions

31.  Mr David Chan, on behalf of the respondent, submitted that the judge had correctly applied the proper sentencing principles, and considered all relevant factors; accordingly, the starting point of 6 years’ imprisonment on Count 2 was neither manifestly excessive nor wrong in principle, for the following reasons:

(i)  the facts of Count 2 concerned the appellant undressing X, touching each other’s genitals during the shower, kissing and making X perform oral sex against his will;

(ii)  X was interviewed by a clinical psychologist, and according to the three reports, he had been severely traumatised by the incident. He was still suffering symptoms of post-traumatic stress disorder after 18 months, since the incident was “too horrible and traumatising for him, resulting in development of paranoid and suicidal ideation”[12]; X had nightmares and was socially withdrawn, he planned to kill himself and displayed avoidance, suppression and dissociation. X was in need of urgent assistance but had resisted both psychiatric and psychological intervention;

(iii)  the age difference between the appellant and X of 32 years was greater than when he committed his previous set of offences against other minors;

(iv)  X had resisted when the appellant removed his clothes, but in vain; he had complied with the appellant’s demands for oral sex unwillingly;

(v)  the appellant accepted in his VRIs that X had told him he was 15 years of age and a Form 2 student. It was not a case, therefore, of the appellant making a mistake about a victim’s age; in the context of the appellant’s own knowledge that he was a paedophile, at least since 2012;

(vi)  the appellant had been placed on medication to control his sexual desires following his earlier discharge from prison. Even if one accepted his claim of a single lapse in taking medication for one day, he was clearly unable to control himself. He would remain, therefore, a real and continuing danger to children;

(vii)  the appellant’s previous incarceration had not deterred him at all. Accordingly, there should be a strong element of personal deterrence; and

(viii)  the appellant had taken videos in the course of the oral sex, which he demanded X perform.

32.  In respect of the argument on totality, Mr Chan submitted that the egregious acts involved in Counts 1-3 took place over the course of several hours until the morning when X was permitted to leave the appellant’s home; accordingly, they should be viewed as separate and distinct sexual attacks on X over a sustained period. The insistence that X should perform oral sex against his will on the appellant, and the subsequent detention of X in order to further gratify his sexual desires, caused particular anguish and trauma to X and added to the culpability of the appellant’s conduct in Count 1. Mr Chan argued that the case demonstrated a disturbing repetition, indeed, an escalation of the appellant’s abuse of underage boys, which, given the severe harm that had been caused to X and his family, properly merited an overall sentence of 9 years and 4 months’ imprisonment.

Discussion

33.  There are a number of particularly serious aggravating factors in this case. The first and rather disturbing feature is that the appellant committed these offences after emerging from prison only 13½ months earlier, having served a lengthy sentence of 12 years’ imprisonment for the same offences, involving no less than six young boys. Mr Chan pointed out that in relation to one of the victims in that case, referred to as boy “D”, the appellant had employed a similar modus operandi of picking up a random young boy from the street, befriending him and asking him to spend the night with him. When the appellant tried to molest D, he resisted and the appellant did not persist. When during the night, the appellant tried to embrace D, his attentions were again rebuffed, although it did not stop the appellant mounting D when he was asleep and the appellant was naked, and recording his acts on his mobile telephone. Mr Chan’s point was that the appellant has escalated his conduct in the present case, whether X liked it or not.

34.  That leads to the second aggravating feature, and a very serious concern for the courts, that the appellant, who is an acknowledged paedophile, is a continuing danger to young boys. Accordingly, any sentence passed upon him must carry with it a significant element of personal and public deterrence. We note that in the judgment of the Court, which dealt with the appellant’s earlier offences, the Court concluded[13]: “The evidence showed that the applicant’s risk of reoffending is high”. Regrettably, the Court has been proved right, notwithstanding the lengthy sentence of 12 years’ imprisonment previously passed upon the appellant.

35.  The third prominent aggravating feature is that the victim has been so severely traumatised that he has entertained thoughts of suicide. One should never underestimate the effect of such offences on an adolescent boy, who may then be plagued and tormented by the memory of the assaults on him for the rest of his life; particularly where the events have been recorded by the perpetrator. As Ma CJHC (as he then was) remarked in HKSAR v Chow Yuen Fai[14]:

“The trauma, distress and psychological harm is considerably magnified if, as in the present case, a record (by way of photographs and videos) is taken of the sexual act or acts in question. Both the victim, and his or her family, may well be haunted for many years with the knowledge that the act or acts in question, regarded both as embarrassing and shameful in the extreme quite apart from being illegal, are somehow recorded, and with the possibility that they may even surface when the victim reaches later life. This feature we regard as a particularly serious one.”

36.  In addition to these significant matters, there were other more conventional aggravating features: namely, the age difference of 32 years between the appellant and X; the fact that the appellant did not use a condom; and the number and duration of the offences. There was also the trauma and distress suffered by X’s mother because of his failure to return home that night.

37.  We do not accept that the starting point on Count 2 was manifestly excessive. As Mr Chan correctly pointed out, its features added to the appellant’s culpability on Count 1. In any event, an appellate court will be more interested in the correctness of the 2-year consecutive element of imprisonment than with the starting point for this offence. Mr Beel was certainly entitled to use the consecutive nature of the sentence on Count 2 (and Count 3) to fortify his general argument that the cumulative sentence, which was reached by a number of consecutive elements being added to the sentence on Count 1, was manifestly excessive and/or wrong in principle. Indeed, it seemed to us that Mr Beel’s main argument really concerned the totality of sentence for the criminality involved, when all the offences are viewed together in the context of a plea of guilty.

38.  Mr Chan did acknowledge in his written argument that the sentence may be “on the high side”, but explained that he was not conceding that the overall sentence was manifestly excessive and/or wrong in principle: he was merely acknowledging that it was a lengthy sentence for offences of this nature, involving a single boy. Nevertheless, his position before us at the hearing of the appeal was that the overall sentence was not a day too long.

39.  We agree. One must be very cautious in cases such as these, where minors are involved, not to confuse naivety, curiosity and trust with experience, willingness and consent. Having viewed the videos and photographs in this case, and examined the transcript of the exchanges between the appellant and X, for which purpose we adjourned the appeal, we see no evidence whatsoever of any experience, willingness or consent on the part of X. On the contrary, it is clear that X quickly realised the situation he had allowed himself to be inveigled into and was reluctant, frightened and disgusted by what he was required to do. He exhibited no hint of experience or acceptance of what was happening: rather, the picture emerges from the outset of a resigned and frightened young boy succumbing to the depredations of an older man, in a situation from which he realised he was powerless to escape.

40.  In our judgment, the appellant’s true culpability in respect of Counts 1, 2 and 3, which included over the course of several hours of the night not only oral sex, but also digital and anal penetration culminating in ejaculation inside X, as well as indecent assault, could not be properly assessed without making the sentences partly consecutive. The overall sentence on Counts 1, 2 and 3 was 7 years and 4 months’ imprisonment, which we regard as entirely appropriate.

41.  As for the sentences on Counts 4 and 5, the judge did not fall into the trap of double-counting the making of child pornography as both an aggravating feature to the sexual assaults and a consecutive sentence in itself[15], for she made the sentence on Count 4 wholly concurrent with the other sentences. What she was entitled to do was reflect the fact that the appellant had actually published two photograph files and three video files to another by way of a further consecutive element of 2 years’ imprisonment on Count 5, thus taking the overall sentence to 9 years and 4 months’ imprisonment. The judge was correct and obviously alive to the issue of totality.

42.  We must stress that the taking of photographs, or the making of video recordings, depicting a victim performing sexual acts is a serious aggravating feature because it provides a permanent record of the victim’s involvement and participation. Such a record will undoubtedly instil considerable anguish and fear in the victim, who is thereby kept, sometimes intentionally, a silent captive to his/her ordeal.

43.  It was for the above reasons that we considered the overall sentence of 9 years and 4 months’ imprisonment to be unimpeachable. Accordingly, the appeal against sentence was refused.

Mr David Chan SADPP, of the Department of Justice, for the Respondent

Mr Trevor Beel, instructed by Alvin Cheng & Rosaline Choy, assigned by the Director of Legal Aid, for the Appellant