Read the full judgment text of CACC 9/2016 on BabelCite. This Court of Appeal judgment was delivered on 19 May 2016 before Lunn VP.
Criminal law – sentencing – making child pornography contrary to section 3(1) of the Prevention of Child Pornography Ordinance, Cap. 579 – indecent assault on a girl of 13 contrary to section 122(1) of the Crimes Ordinance, Cap. 200 – starting points for sentence – whether starting point of 18 months for making child pornography was excessive – whether starting point of 42 months for indecent assault was excessive – whether sentences should have been wholly concurrent rather than partially consecutive – online private modelling forum advertisement used to recruit 13-year-old victim – sexual exploitation of young girl by inducement of monetary reward – photographing and filming of naked girl in Mongkok guesthouse – insertion of thumb into vagina – photographs of victim's identity card – 67 photographs and 4 video recordings seized from applicant's computer – absence of fixed tariff for indecent assault and limited comparators for making child pornography – references to sentence in previous cases of limited assistance given varied circumstances of commission – applicant of good character aged 41 with low-moderate assessed risk of re-offending – victim suffered no long-term psychological harm – whether judge erred in treating making of child pornography as aggravating factor of indecent assault and then ordering partial consecutiveness – sentences of imprisonment for making child pornography ought generally to be served concurrently with sentences for corresponding offences of indecent assault to which they are related – HKSAR v Chow Yuen Fai followed – leave to appeal granted on all three grounds as reasonably arguable without giving expectation of success – notional overall starting point of 51 months' imprisonment discounted to total sentence of 34 months' imprisonment.
Legal issues: Whether the starting point of 18 months' imprisonment for making child pornography was appropriate · Whether the starting point of 42 months' imprisonment for indecent assault on a girl of 13 was appropriate · Whether the sentences for making child pornography and indecent assault should have been wholly concurrent
Outcome: Leave to appeal against sentence granted on all three grounds; grounds 1, 2 and 3 found to be reasonably arguable without giving the applicant any expectation of success.
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