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Hksar v Ho Wing Hong

Judgment Cited authorities 7 Cited in 1 Precedent Map Related
Vincent
Judgment Date29 April 2020
Neutral Citation[2020] HKCA 193
Year2020
Judgement NumberCACC208/2019
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC208/2019 HKSAR v. HO WING HONG

CACC 208/2019

[2020] HKCA 193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 208 OF 2019

(ON APPEAL FROM HCCC NO 298 OF 2018)

_______________

HKSAR Respondent
v
HO Wing-hong (何永康) Applicant

_______________

Before: Hon Zervos JA in Court
Date of Hearing: 7 April 2020
Date of Judgment: 29 April 2020

________________

J U D G M E N T

________________

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

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

The summary for facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The applicant’s mitigation

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

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

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

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

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

The reports on the victim and the applicant

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

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

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

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