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Hksar v Lee Kwok Wai

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date19 October 2022
Neutral Citation[2022] HKCA 1575
Judgement NumberCACC289/2021
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC289/2021 HKSAR v. LEE KWOK WAI

CACC 289/2021

[2022] HKCA 1575

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)

________________________

BETWEEN
HKSAR Respondent
and
Lee Kwok Wai (李國偉) Applicant

________________________

Before: Hon Macrae VP in Court
Date of Hearing: 14 October 2022
Date of Judgment: 14 October 2022
Date of Reasons for Judgment: 19 October 2022

____________________________________

REASONS FOR JUDGMENT

____________________________________

1. The applicant, who had pleaded guilty before a magistrate and was thereby committed to the High Court for sentence, duly appeared before Toh J on 16 November and 9 December 2021, when he was sentenced to an overall term of 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], 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], for which he was sentenced to 4 years’ imprisonment;

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

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

(5) Publishing child pornography[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 total sentence on Counts 1, 2 and 3; thus making an overall sentence of 9 years and 4 months’ imprisonment.

3. On 20 December 2021, the applicant filed Notice of his intention to appeal against his sentence. His counsel at the leave hearing, Mr Trevor Beel, argued two grounds of appeal: firstly, that the starting point in respect of Count 2 was manifestly excessive and/or wrong in principle (Ground 1); secondly, that the judge’s ordering of consecutive elements in respect of some of the counts resulted in a total sentence that was manifestly excessive and/or wrong in principle (Ground 2).

4. On 14 October 2022, I granted leave to appeal against sentence and said I would give reasons for my determination in due course, which I now do.

The facts admitted

5. In the early hours of 9 September 2019, the applicant who was then 46 years of age, accosted a 15-year-old boy (referred to as “X”), who was on his way to a self-service laundry in Shek Kip Mei, Kowloon, and enticed him 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 applicant’s home, which they did by taxi.

6. When they arrived at the applicant’s home in Chai Wan, Hong Kong, the applicant took away X’s mobile telephone. The applicant 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, while kissing him on the mouth and face, and licking his ear and body. Subsequently, the applicant committed the five offences referred to above.

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

7. Having removed X’s clothes, which X tried to resist but in vain, the applicant and X had a shower together, during which the applicant touched X’s penis and made X touch his penis. Following the shower, he pulled X into the bedroom where, after they had chatted for a while naked, 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

8. The applicant later applied some lubricant to his finger and repeatedly inserted it 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 applicant ejaculating into X’s anus, which the applicant photographed on his mobile telephone. The applicant then took X into the shower again to wash his anus.

Count 3 - Indecent assault

9. The applicant then made X sleep that night with him naked, telling X that he had to do so since he was his wife. However, X did not dare to fall sleep. During the night, the applicant touched X with his penis, kissed him and fondled his body and penis. On three occasions on which X tried to get up, he was pulled by the applicant to lie down again.

Count 4 - Making child pornography

10. During the course of the incidents of oral sex and buggery, the applicant 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 applicant’s mobile telephone.

Count 5 - Publishing child pornography

11. Further examination of the applicant’s telephone revealed that the applicant had sent two of the photographs and three of the videos to another person, who was also a minor, via WhatsApp on the same day.

Report to police

12. On the following morning, having missed several calls from his mother, X told the applicant that he wanted to leave because he was worried he would miss school. However, he was only permitted to leave after he promised to return to the applicant’s home. X further agreed to give his contact details to the applicant. Having left the applicant’s home, X immediately called his mother and the matter was reported to the police on the same day.

Arrest and cautioned statements

13. The police arrested the applicant the next day. Under caution, he admitted that he had had sex with a boy the previous day, 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 effect that:

(i) He had met X 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 wished the applicant to be his father;

(ii) He invited X to his home for sex; X agreed after first confirming that he had no sexual disease, but X requested money from the applicant, saying that he was willing to do everything if the applicant 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;

(v) He said he took the photographs and videos for his own records, but admitted that he had sent some of them to an acquaintance, who claimed to be a Form 1 schoolboy, to show that he had had buggery with a boy.

Medical Examination of X

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

Background of the applicant and mitigation

15. The applicant was, at the time of sentence, a 48-year-old divorced man with a 12-year-old son. He had one previous court appearance in 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[6], for which he had received a sentence of 12 years’ imprisonment. He was released from prison for those offences on 29 July 2018.

16. Acknowledging that the applicant is a paedophile, it was submitted by his counsel at trial that his condition as noted in his psychiatric report was stable and he showed no signs of mental disturbance.

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

18. So far as the question of re-offending was...

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