HKSAR v. Chan Bo Keung, Joe

DCCC 167/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 167 OF 2016

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Reasons for Sentence

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1.The defendant, Mr Chan, has pleaded guilty to one charge of possession of child pornography, which is contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579.

2.The particulars of that charge show that the offence took place on 12 March 2015 at a flat in To Kwa Wan in Kowloon.

3.The defendant had in his possession child pornography which is described as 17 photographs and 604 video clips containing child pornography which was in a desktop computer and an external hard drive.

4.There is an amended Summary of Facts that the defendant has pleaded guilty to and accepted, and those facts show that on 12 March 2015, police officers entered the flat in To Kwa Wan, where the defendant was present.  There was a desktop computer and an external hard drive inside the living room of the apartment.  Initial examination found some suspected child pornography in the computer.

5.The defendant was arrested and cautioned for the offence.  Under caution, he admitted using the computer to download child-related pornographic videos from “Foxy” for his own viewing, but said he had not shared those videos with any other persons.

6.Subsequently there were further video-recorded interviews conducted with the defendant, and he made admissions on the following basis:

that on 12 March the defendant had moved into the room for six to seven days and had lived there with his girlfriend;

he had downloaded the child pornography via a software called “Foxy”;

he had saved that onto the computer and the hard disk;

he had downloaded this for his own viewing and never shared the pornography with any other person.

7.As a result, the computer and hard disk were sent to the police computer forensic examiner.  It is agreed there were 604 videos and 17 photographs of child pornography retrieved from the computer and the hard disk, and the following is agreed about the level of the child pornography:

at level 1, there were 84 videos and two photographs;

at level 2, there were 113 videos and no photographs;

at level 3, there were 176 videos and six photographs;

at level 4, which was the largest category, there were 237 videos and nine photographs.

8.It is also agreed about the said child pornography that the videos included depictions of scenes of buggery, assaults on children, ejaculation of semen on a child’s face, and insertion of hard objections into children’s private parts.  The videos involved extremely young children of less than 5 years old.

9.Those, of course, are factors relevant to the application of the guidelines set.

10.I now turn to the defendant’s antecedents.  I have obtained three separate reports on the defendant.  They are a psychological report, a psychiatric report, and a background report.

11.The defendant is a 45-year-old male.  He is of clear record in Hong Kong.  The background report is extensive.  It describes the defendant as being brought up in a working‑class family with an uneventful childhood.  After repeating Form 4, he joined the workforce.  He has been in a cohabitation since 1993 and had a harmonious relationship.  He has said he had been accessing pornographic material since he was 18 years old.  The defendant expressed remorse.

12.As far as the defendant’s working history is concerned, from school he worked as a kitchen apprentice.  He has worked at the level of a senior cook in a hotel in the past, and since 2011 he has been working as a café cook in a noted hotel in Hong Kong.  He resigned that job in March 2016 as a result of his arrest and his preparation for his punishment for this matter.

13.The defendant has a good work record.  He is well spoken of by his most recent employer.  He is described as having done an excellent job and as being a valuable asset to the hotel.  There are also letters of recommendation from other people who have employed the defendant in the past.  I do not propose to rehearse everything they say, but they speak highly of him.

14.The defendant did go into the commission of the present offence in the background report.  He was regretful for having violated the law.  He said he had become depressed after the death of his mother, who had passed away in 2014.  He said it was following that that he had started viewing child pornographic videos since 2014.  He now regretted this.  He was now aware of the seriousness of this matter, and expressed remorse.  The defendant is anxious to complete his sentence and resume work as soon as he can.

15.The other reports deal with the defendant’s psychological and psychiatric condition.  As far as the psychiatric report, that is unremarkable.  The defendant does not suffer from any form of psychiatric diagnosis.  No in‑patient psychiatric treatment is warranted.

16.The psychological report is of importance in that it deals with the risk of the defendant’s recidivism, but the conclusion was as follows, that:

“The defendant, Mr Chan, is a first offender of a sex crime. His possession of child pornography in this offence appears to be related to his tendency to rely on sex to cope with emotional distress experienced by the bereavement of his mother. He has poor mood management, and the propensity to use sex as a coping.”

On the positive side, it said that his pro-social background and stable intimate relationship serves as a major protective factor against reoffending, and the conclusion is as follows:

“Given his low risk of sexual recidivism and absence of paedophilia or clinical significant psychological problems, psychological treatment is deemed unnecessary at present. Counselling services by a social worker or mood management would be beneficial to the defendant”,

the significant factor being that the defendant has a low risk of sexual recidivism.

17.I turn to the matters that have been advanced in mitigation.  One was the defendant’s medical condition.  I did obtain a report to deal with that.  The defendant has been diabetic since he was about 10 years old.  He requires insulin injection and oral medication.  He is presently receiving medical treatment for his condition and has a calorie‑restricted diet as well as other medication.

18.But the defendant has had a somewhat difficult medical background, and abdominal surgery in 2007.  Despite this, he has maintained a good employment record.  I refer to the defendant’s clear record and his continuous history of employment.  Some reference is made to the nature of the materials downloaded onto the defendant’s computer which is, as I say, agreed in the facts.  It was described in mitigation as being not the worst case.

19.The purpose of the defendant’s possession of these items was for his own use.  There was no commercial gain or publication, and the possession or downloading of these items had resulted from him clicking certain icons on the “Foxy” web page.  Although there were a substantial number of videos, they only resulted from a smaller number of clicking, as it were, or attempts to download.  Only 11 of the movies were for over 60 minutes. The defendant does acknowledge, however, there are a substantial number of videos.

20.Sentencing for these matters is governed by a guideline sentence.  There are a number of cases that have dealt with this particular form of offending, but the guideline sentence is contained in a Court of Appeal case referred to as Man Fung Choy.  In Secretary for Justice v Man Fung Choy [2005] HKLRD, the Court of Appeal laid down guidelines for sentence for possession of child pornography.  The Court of Appeal indicated the first consideration is the appropriate level of the relevant pictures and the four classifications that have been adopted.  Those are the classification levels that I have already described in the Summary of Facts that has been agreed.

21.The Court of Appeal considered level 4 cases as meriting the most serious treatment, and said the range of custodial sentence should generally be from 12 months to 3 years.  The Court of Appeal also listed a number of aggravating features, including the age of the children depicted and the number of images.

22.I have been supplied with still photographs, or screen captures, I think they are called, taken from the videos which represent and show the range of child pornography found on the computer.  I do not think I can go beyond the paragraph I have already quoted in the Summary of Facts as to the nature of the materials.

23.I do take into account in determining a starting point for sentence that the material in this case was for the defendant’s own use.  I do take into account the number of pornographic items, their nature, and the ages of the children involved, including the depictions of very young children.  I also take into account the circumstances of the defendant:  his clear record, his co‑operation with the police, and the esteem with which he is held by his family and employers.

24.I consider that when all these matters are taken into account, a starting point within the range set by the guideline case of between 12 to 36 months must be adopted.

25.I take the view the appropriate starting point for sentence is one of 30 months’ imprisonment, which I will reduce by one‑third to 20 months’ imprisonment to reflect the defendant’s plea of guilty.