HKSAR v. Leung Ngai Hang

DCCC 804/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 804 OF 2015

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Reasons for Sentence

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1.The defendant pleaded guilty to 3 charges of Possession of Child Pornography[1].

Summary of facts

2.Police officers of the Commercial Crime Bureau received information concerning child pornography being downloaded. Upon investigation, the defendant’s address at Queen’s Road West was identified as where the download session had taken place.

3.Police officers of the District Crime Squad of Central Police Station executed a search warrant at the defendant’s residence at around 6:40am on 23^rd October 2014.

4.Upon search, a number of external hard disks were seized. In one of the disks was found a cartoon depicting naked girls under 16 years old. The defendant was arrested for the offence of Possession of Child Pornography. The defendant said under caution that the computer on the premises was for his own use and the child pornography photos belonged to him.

5.From the seized hard disks, the computer forensic examiner recovered 262 photos and 2 videos of child pornography previously deleted. According to the forensic pathologist who viewed the images, they depict individuals under 16 years old, with one estimated to be 3 to 4 years old.

6.Of the recovered photos, 92 are images depicting erotic posing with no sexual activity; 37 show sexual activity between children or solo masturbation by a child; 85 show non-penetrative sexual activity between adults and children.

7.The remaining 48 photos show penetrative sexual activity between children and adults. Some of them show the adult having sexual intercourse or anal sex with boys or girls. 1 photo show a girl who looks like a 3 year old having a dildo in her mouth while having anal sex. Some photos show a girl with hands tied up; some showing adult males having sexual intercourse with boys or girls; boys and girls having sexual intercourse, with the use of sex toys and sexual acts involving 3 people; as well as ejaculation onto the girls’ faces.

8.Of the two recovered videos, one show a girl engaging in sexual activity, the other show different girls engaging in different sexual activities.

9.The defendant claimed in a subsequent video recorded interview that the computer and hard disks belonged to him and were used by him alone. He had installed a computer programme and downloaded the child pornography photos and videos and saved into his hard disk for viewing.

10.The defendant would delete the child pornography after viewing. He did not publish any of the materials to anyone in any way.

Previous convictions

11.The defendant is of previously clear record.

Mitigation

12.The defendant is 26 years old. He was born in mainland China and immigrated to Hong Kong in 1997. He holds a degree in Business Information and Technology from City University. The defendant has been working in customer service for 2 years, earning about $15,000 per month. The defendant used to work as a part-time waiter while studying at City University.

13.The defendant’s retired father lives in mainland China. The defendant’s mother will also retire soon and will join the father to look after him. The defendant will be left with looking after his grandparents in Hong Kong, with whom the defendant live.

14.The defendant seldom went out after work and would stay home during holidays. It was during his browsing sessions on the internet that he found the offending images and committed the present offences.

15.Mr. Leung for the defendant pointed out that the defendant only viewed the images himself behind locked doors and deleted them afterwards. The defendant never shared, distributed or stored away the images. At the time of arrest, apart from one single cartoon picture, all the offending files had been deleted. The Police had to use special software to recover those images. 

16.The defendant had done some voluntary work and had made monthly donations to Greenpeace since 2014.

Sentencing guidelines

17.Sentencing guidelines for the present offences are found in the case of Secretary for Justice v Man Kwong Choi [2008] HKCA 271; [2008] 5 HKLRD 519; [2008] 4 HKC 565; CAAR 8/2007 (16 July 2008).

18.There the Court of Appeal classified the pornographic depiction of children into 4 levels:

“7. While finding the Oliver[2] classification useful, we would prefer to adopt the following four classification levels instead (the reason being that we see little difference between Levels 4 and 5 in the Oliver classification) : -

(1) Level 1 : images depicting erotic posing with no sexual activity.

(2) Level 2 : sexual activity between children or solo masturbation by a child.

(3) Level 3 : non-penetrative sexual activity between adults and children.

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

19.The Court emphasized the importance of the sentencer examining the images or a representative sample so that their true nature and gravity is made apparent.

20.The Court took the following into consideration and decided that the deterrence factor becomes particularly significant when sentencing for the present offence. The possession of child pornography contribute significantly to the exploitation of vulnerable children; the serious and possibly long term harm to the children involved; child pornography and the exploitation of vulnerable children is a worldwide problem and requires a concerted worldwide approach if children are to be protected; and child pornography has the potential of being widespread given the ready availability of the material through the internet[3].

21.The Court then laid down the following guidelines:

“17. We have in mind the following guidelines appropriate, after trial, to a first time offender who is in possession of child pornography (involving real children) : -

(1) Level 1

The least serious level is Level 1 (“Images depicting erotic posing with no sexual activity”). There, the effect on the children in the depictions might be said to be much less harmful than in the case of Levels 2 to 4, which, it may be assumed, will be substantially more harmful. In the case of possession of Level 1 depictions, it may be that a community service order, probation or fine is appropriate where the number is small (say 20 or less). Where the numbers are large or the depictions are extremely suggestive, terms of imprisonment from 1 month to 6 months will be appropriate.

(2) Level 2

In the case of Level 2 (“sexual activity between children, or solo masturbation by a child”), this is already much more serious than mere posing. Here, depending on the number of depictions, an immediate custodial sentence of up to 9 months will be appropriate. Even the possession of a few depictions at this level will generally attract a custodial sentence.

(3) Level 3

For Level 3 cases (“non-penetrative sexual activity between adults and children”), the degree of seriousness is increased even further. Again, depending on the numbers involved, sentences of between 6 and 12 months will be appropriate.

(4) Level 4

We consider Level 4 cases (“penetrative sexual activity between children and adults” and “sadism or bestiality”) as meriting the most serious treatment. Here, at Level 4, the range of custodial sentences should generally be from 12 months (even for a few images) to 36 months.

18. The four levels of sentence set out in the previous paragraph provide starting points for sentence after trial. As in any other case, there may be mitigating or aggravating factors that will have to be taken into account.

19. The principal mitigating factor will be a timely plea of guilty but the usual principles of sentencing will otherwise apply.

20. Aggravating features would include the following : -

(1) A previous record involving a similar offence (or offences) against children.

(2) The age of the children depicted. Where the depictions involve particularly young children, this would be an important consideration.

(3) The purpose for which the accused possesses the depictions will also be relevant. Where it is proved that the accused intends to disseminate the images for commercial (or even non-commercial) gain, or intends to publish, these will be significant aggravating factors.

(4) As mentioned earlier, the number of images is relevant.”

Sentence

22.Pursuant to section 3(3), on conviction on indictment, the maximum sentence is that of a fine of $1,000,000 and imprisonment for 5 years.

23.I have viewed the offending images in order to be clear of their true nature and gravity.

24.There are 3 charges in this case. The material can be classified as follows:

	Category	Quantity (stills)	Quantity (videos)	Quantity (cartoon)
Level 1	images depicting erotic posing with no sexual activity	92 (35%)
Level 2	sexual activity between children or solo masturbation by a child	37 (14%)
Level 3	non-penetrative sexual activity between adults and children	85 (32%)
Level 4	penetrative sexual activity between children and adults, or sadism or bestiality	48 (18%)	3
Total		262 (all charge 1)	3 (charge 1 & 2)	1 (charge 3)

25.All but the one cartoon still image in charge 3 were recovered from the external hard disks by the Police with the use of specialized software. The defendant did delete those files after viewing them. There was virtually no risk of the defendant distributing or sharing them. The defendant had cooperated with the Police even before the files were recovered, and made frank disclosures during his video recorded interview.

26.Applying the Court of Appeal guidelines to our present case, and bearing in mind that the materials were for the defendant’s personal use with no intention to disseminate; that the defendant had deleted the images after viewing them; that the defendant had no previous convictions; that all but one of the materials were of real children with apparent ages as young as 3 to 4, I find that the following sentences are appropriate.

Charge 1

27.Charge 1 involves 262 images and 2 video clips. The quantity cannot be said to be large but at the same time definitely not small. 48 of the images, together  with the 2 video clips are of level 4, and there are 85 images of level 3. Taking into account that each level of images would have carried its own punishment, I find that an overall proper starting point for the charge is that of 2 years and 6 months’ imprisonment.

28.For the mitigating factors of the deletion of the images after viewing, and the defendant’s cooperative attitude during Police investigation, I grant him a reduction of 3 months.

29.Applying the one-third discount for the defendant’s guilty plea, he is sentenced to 18 months’ imprisonment on charge 1.

Charge 2

30.Charge 2 involve only 1 level 4 video clip. I adopt a starting point of 12 months’ imprisonment, reduce it by 3 months (for the mitigating factors) to 9 months’ imprisonment and discounted to that of 6 months’ imprisonment upon the defendant’s guilty plea.

Charge 3

31.The one cartoon still image in charge 3 does not involve real children and as such the guidelines set out in Man Kwong Choi does not apply. The cartoon is a full frontal image of 4 naked female children. I adopt a starting point of 9 weeks’ imprisonment, reduced to 6 weeks’ imprisonment upon the defendant’s guilty plea.

Totality

32.The materials in all 3 charges were seized on the same occasion at the same premises. The period of possession of the materials in charge 1 and 2 are the same.

33.I order that the sentences in all 3 charges be served wholly concurrently. The final total sentence is therefore that of 18 months’ imprisonment.