HKSAR v. Man Yu Hin

DCCC 948/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 948 OF 2015

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to a charge of possession of child pornography. 

2.On 12 March 2015 the police executed a search warrant on his home in a public housing unit in Wong Tai Sin.  In a computer inside his bedroom were found 42 different video clips depicting child pornography.  He admitted to the police that he had found them on the internet.  After viewing and with the knowledge that they depicted child pornography, he downloaded them into his computer. 

3.The Court of Appeal in Secretary for Justice v Man Kwong Choi (萬廣財) [2008] 5 HKLRD 519 has identified the following classification of child pornography of increasing severity:

(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.

4.The 42 video clips are classified as follows:

Classification	Video clips	Length
Level 2	1	18 minutes 50 seconds
Level 3	18	1 hour 45 minutes 22 seconds
Level 4	23	3 hours 48 minutes 23 seconds
	Total 42

5.The video clip at Level 2 depicts girls aged around 10 - 15.  The 18 video clips at Level 3 depict girls between aged around 1 - 4 years and up to around 10 - 15 years.  The 23 video clips at Level 4 depict girls between aged around 1 - 4 years and up to around 10 - 15 years. 

Personal background and mitigation

6.The Defendant is 25 years of age.  He has a clear record.  He has mitigating letters from his parents, his younger brother, pastor, and a church officer. He suffered from dyslexia which was only diagnosed too late so that he failed to complete his traditional medicine course in Nanjing University despite having struggled for a few years to make it.  After returning to Hong Kong, he does not have a job and becomes socially withdrawn.  He indulged in surfing on the internet.  Be that as it may, he enjoys harmonious relationship with his family members.  He is regarded as a filial son, caring brother, and kind-hearted person.  

7.I understand from his counsel Mr. Lung that he had downloaded bits and pieces of the 42 video clips contained in batches of other pornography contents from the internet.  He did not enjoy watching child pornography but only failed to delete them from his computer.  Including those 42 video clips, his pornography folder had more than 700 video clips.  The other video clips were not of a type that the possession of which was illegal. 

Sentencing considerations

8.According to Man Kwong Choi (above), the sentence for this offence will focus on the deterrence to protect children who are subject to sexual exploitation and moral depravity.  Where the number of video clips, especially Level 4 materials, is large, the sentence will generally be substantial.  As a general guidance, the Court of Appeal suggested a range of between 12 months for a few images and 36 months for a large number of images.  The defendant there possessed 69 video clips at Level 4 and 119 video clips at Level 3 (CAAR 8/2007).  The actual sentence, based on the plea of guilty, was increased from a suspended sentence of 6 months to 2 years’ immediate imprisonment on appeal.   

9.Mr. Lung also refers me to 3 sentencing cases in the District Court.  HKSAR v Ford, Norman Jackson DCCC 968/2010 and HKSAR v Mak Ho-king DCCC 196/2015 (a judgment in Chinese) each involved a medium quantity of child pornography at Level 4.  The starting point was each 18 months’ imprisonment.  In HKSAR v Ho Ching-long DCCC 163/2014 (a judgment in Chinese), there were substantial numbers (113 photos and 78 video clips) of Level 4 materials amongst others at the lower levels.  The starting point was 2 years and 6 months’ imprisonment.  

Sentencing this Defendant

10.Girls of tender or young age were exploited to feature in explicit sexual acts utterly depraving and perverse to their personal development.  There was only 1 video clip at Level 2 whereas the materials at Level 3 are not substantial. Given that the Level 4 materials are of a medium quantity, there is a call for deterrent sentence.  I take a starting point of 18 months.  I reduce it to 12 months due to the plea of guilty.  There are no other mitigating factors.  This is the sentence.