HKSAR v. Cheng Pak Yeung

DCCC 1009/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1009 OF 2015

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Possession of child pornography". The child pornography involved consists of 6 still photos and 103 video clips stored in a desktop computer.

Summary of Facts

2.About 6:50 am on 12 March 2015, the Police executed a search warrant at the defendant's home situated at Upper Ngau Tau Kok Estate.

3.A desktop computer which contained child pornography in the form of still photos and video clips was seized.  Under caution, the defendant admitted that he downloaded the photos and video clips from the internet.  In his video recorded interview, the defendant claimed that he was the sole user of the computer seized.  He also claimed that he did not share with anyone the child pornographic files contained in his computer.

4.Forensic Pathologist Dr. LAI confirmed that the children depicted in the 103 video clips and 6 still photographs were all under 16.  The images are categorized as follows :-

(a) Level 1 (images depicting erotic posing with no sexual activity) – 23 video clips and 5 photos;

(b) Level 2 (images depicting sexual activity between children or solo masturbation by a child) – 9 video clips;

(c) Level 3 (images depicting non-penetrative sexual activity between adults and children) – 11 video clips; and

(d) Level 4 (images depicting penetrative sexual activity between children and adults; sadism or bestiality) – 60 video clips and 1 photo.

5.In the present case, the Level 3 images depicted oral sex between children and adults.  The Level 4 images depicted oral sex and sexual intercourse between children and adults.

Mitigation & Sentence

6.The defendant is 24 and single. He has 1 conviction record involving 2 sexual offences, for which he was given a Rehabilitation Centre Order in January 2012.  Defence lawyer Ms. LAM informed me that before his arrest, the defendant was as an assistant chef earning $8,000 per month.  His parents were divorced in 2013.  The defendant currently resides with his mother and a younger brother (aged 15; mentally retarded and suffers from autism).  The defendant's brother is physically strong and cannot control his emotions.  His mother needs the defendant's help to handle his brother.

7.Ms. LAM has also informed me that the defendant has an intimate girlfriend.  She is supportive and is willing to wait for him.  They plan to get married and have saved up a significant sum for their wedding.  In mitigation, Ms. LAM submitted that the defendant downloaded the data for his self-use only.  He had deleted the video clips after viewing them[1]. He did not share the data with anyone.  A letter written by the defendant's mother was placed before me; its contents are duly noted.

8.I called for a Background Report and a Psychologist's Report.  The Clinical Psychologist made the following remarks :-

"Personality-wise, Mr. Cheng was immature, stubborn, self-centred, dishonest, manipulative, and irresponsible. …Mr. Cheng tended to seek immediate gratification and overlook the consequences of his behaviours. …Mr. Cheng failed to learn a lesson from his previous offences. …He lacked remorse and insights into his problems. …his risk of recidivism of sex offences was assessed to be moderate."

In her conclusion, the Clinical Psychologist recommended psychological treatment targeting at the defendant's consequential thinking.

10.I note that 61 out of the total of 109 items found in the defendant's computer belong to Level 4.  I have viewed the photo albums submitted by the prosecution.  The images are no doubt repulsive and disturbing.  Apart from the depiction of their nudity and sexual activities, I see no additional maltreatment of or cruelty to the children (such as being tied up, caged or handcuffed; other perverted sexual acts, imaginable or otherwise).  I accept that other than falling within their respective category levels, those images carry no aggravating features.

11.I have borne in mind the sentencing principles laid down by the Court of Appeal in HKSAR v CHOY Ka Leung CACC 365/2012.  I am also aware that for Level 4 depiction of child pornography, an immediate custodial sentence in the range of 12 to 36 months[2] is warranted.  Having considered all relevant factors, I adopt a starting point of 21 months' imprisonment.  With the guilty plea, the sentence is reduced to 14 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  I sentence the defendant to 14 months' imprisonment.  I invite the Commissioner of Correction Services to arrange for the defendant to receive the necessary psychological treatment.