Features

Sentencing – Buggery – Offence of homosexual buggery with underaged boy not to be equated for sentencing purposes with offence of unlawful sexual intercourse with girl aged between 13 and 16 – Defendant a paedophile with high risk of sexual recidivism – Aggravating factors – Victims located through internet – Fixing of tariff neither possible nor practicable – Crimes Ordinance (Cap 200) s 118C

Sentencing – Indecent assault on underaged boys – Aggravating factors – Fixing of tariff neither possible nor practicable – Seriousness of offence – Crimes Ordinance (Cap 200) s 122

Sentencing – Production and possession of child pornography – Sentencing guidelines not retrospective – Prevention of Child Pornography Ordinance (Cap 579) s 3

Sentencing – Discount for guilty plea – General principle that discount of one-third is usually the high watermark for pleading guilty in good time – Discount in excess of one-third for timely plea only appropriate in exceptional cases

HKSAR (香港特別行政區) v CHOW YUEN FAI (周遠輝)
[2010] 1 HKC 181
Court of Appeal
Criminal Appeal No 392 of 2008
Ma CJHC and Hartmann JA
12 November, 8 December 2009

James HM McGowan (Christopher KY Wong & Co) for the applicant.
Tam Sze Lok and Raymond Cheng (Director of Public Prosecutions) for the respondent.

The applicant was convicted upon pleading guilty before Deputy High Court Judge Geiser of 10 charges including homosexual buggery, indecent assault and making and possession of child pornography. He was sentenced to 11 years’ imprisonment and sought leave to appeal against this sentence. The applicant became acquainted with various victims through the internet. They were all boys under the age of 16. On each occasion, the applicant would meet the victims in their premises or in his own premises. He indecently assaulted and committed buggery on the victims in the course of these visits. On some occasions, the applicant used his mobile phone to take pictures and make videos of the indecent assault and the buggery. When the applicant was arrested, it was found that he was in possession of numerous videos and photos of child pornography.

Held, dismissing the application:

In sentencing paedophiles who preyed on young children, the court should bear in mind the individual circumstances of the offender, including the risk of re-offending. Other factors included the impact on the victim and the victim’s family and the abhorrence that right thinking members of society would regard the relevant offences, and thus the need for deterrence.

The protection of young and vulnerable children was the underlying policy. The trauma, distress and psychological harm that were caused to young children and their families could not be underestimated. In the vast majority of cases, it could be assumed that such harm as children in their formative years or when they first become aware of their sexuality during puberty, were extremely vulnerable to and were easily persuaded by adults.

The trauma, distress and psychological harm was considerably magnified if a record was taken of the sexual act or acts in question. Both the victim and his or her family might be haunted for many years with the knowledge that the act or acts in question, being embarrassing and shameful, were recorded, and with the possibility that they might surface when the victim reached later life.

Aggravating features which could exist in certain cases included a breach of trust or risk of re-offending or a repeated course of conduct or the fact that the accused was a sexual predator or the existence of a poor previous record. Physical harm to the victim must also be identified as an aggravating feature. It was also a serious aggravating feature that records were kept. The failure of using a condom gave rise to obvious health risks, risks and consequences the extent of which young children might well be ignorant was also a serious aggravating feature.

In terms of mitigating features, older cases which suggested that an additional discount might be given where a victim was spared the ordeal of giving evidence must be viewed against the general principle that the one-third discount was usually to be regarded as the high watermark of the discount for pleading guilty in good time. Only in exceptional cases should a discount of more than one-third be given for a timely plea.

In sentencing the offence of buggery with a boy between the age of 13 and 16, the court was bound by and had to apply the sentencing regime under s 118C of the Crimes Ordinance (Cap 200), namely, a maximum term of life imprisonment. It would be wrong as a matter of principle to superimpose on that regime the applicable regime under a different provision, namely, a maximum of five years under s 124 of the Crimes Ordinance applicable to girl between the age of 13 and 16. In the present case, the sentences of indecent assault and buggery should be served consecutively. The sentence for possession of child pornography, in this particular case, was to be served concurrently having regard to the totality of sentence.